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2008 DIGILAW 920 (CAL)

Anil Charan Rakshit v. State

2008-09-15

AMIT TALUKDAR, PRABUDDHA SANKAR BANERJEE

body2008
JUDGMENT:- (1.) Emperor Shah Jahan was held seize by his third son Aurangzeb for the last few years of his life till death released him. History had only explanation. (2.) Merchant and a substantial land owner Bhagwati Charan Rakshit is also held a captive in the avarice of his sons and it appears that the respondent No. 4, the youngest son got the better of it and have gained control over Shri Rakshit, whom we will hereinafter referred to as the "Subject". (3.) Since out of the four sons of Shri Rakshit, the petitioners, i.e. the other three sons suffered from the feeling that they are not having just access to their father and that the Subject is being unlawfully detained by the respondent No. 4, it has persuaded them to take out this application praying for a writ in the nature of a habeas corpus claiming the following relief: - "In the premises above it is humbly prayed that your Lordships would be graciously pleased to issue a writ -(a) In the nature of habeas corpus directing the respondent authorities including the private respondents, their men, agents, associates and each of them to produce the father of petitioner before this Honble Court and also direct to show/disclose the authority/legal justification by which the private respondents detained the father of the petitioner in some unknown place whereabouts of the same not known to the petitioners in collusion with the respondent authorities." (4.) Acting on the basis of the same, we issued notice. After appearance of the parties considering the factual matrix of the case that the hidden agenda related to the Subject, who was a geriatric person of 98 years -we thought it fit to engage a Special Officer to visit the Subject and file a report. (5.) After having received the report of the Special Officer and upon hearing the submissions made at the Bar we came to our finding by our order dated 27/03/2008 that the subject had practically lost his sense of comprehension and answers to the questions put to him by the Special Officer were quite incoherent and he was unable to grasp the situation. We accepted the proposition of the learned Additional Advocate General that the subject be shifted to a Healthcare Institution under the guidance of the Special Officer. We accepted the proposition of the learned Additional Advocate General that the subject be shifted to a Healthcare Institution under the guidance of the Special Officer. We accordingly, directed that he be shifted to the Bangur Institute of Neurology and requested the Superintendent of the SSKM Hospital to constitute a Medical Board consisting of the Professor and Head of the Department of Medicine, Professor and Head of the Department of Neurology and such other disciplines he may seem fit and proper. (6.) Accordingly, on 23/07/2008 the Subject was shifted to Bangur Institute of Neurology. (7.) We have found that this Writ Application in the nature of a habeas corpus, which has been filed by the three petitioners, who are the sons of the Subject, who is alleged to have been detained unlawfully by one of his sons (respondent No. 4 herein) and his wife - is not of an usual nature of habeas corpus application. It is somewhat distinguishable. (8.) Before adverting to the prayer made in this application in the light of the submissions made at the Bar and on perusal of the affidavits exchanged, we would feel it incumbent to address ourselves with regard to the law relating to habeas corpus. (9.) This is a high prerogative writ. One can approach the Court for necessary relief by way of filing habeas corpus application seeking the release of a person who is in detention. (10.) Now, the detention can be of two types -one by a person illegally detaining someone, another by the order of a Detaining Authority. Once the Court finds on the basis of the return that such detention is illegal, it will at once direct the release of the detenue- in- question. This is the conventional scope of this type of writ. (11.) Now, the sphere of a Writ Application in the nature of a habeas corpus has broadened and touched new milestones. The Court can mould the relief and do ex debito justitiae. (12.) We have been addressed at the Bar by Shri Sanyal for the petitioners, Shri Souradipta Banerjee for the respondent Nos. 4 and 5, learned Additional Advocate General with the learned Junior Government Advocate for the respondent Nos. 1 and 2 and the learned Public Prosecutor with Ms. Hasi Sana for the respondent No. 3. (12.) We have been addressed at the Bar by Shri Sanyal for the petitioners, Shri Souradipta Banerjee for the respondent Nos. 4 and 5, learned Additional Advocate General with the learned Junior Government Advocate for the respondent Nos. 1 and 2 and the learned Public Prosecutor with Ms. Hasi Sana for the respondent No. 3. (13.) The averments made in this Writ Application at paragraph 5 illustrating the fact of detention of the Subject and lack of access to him by the petitioners have not been dealt with in the Affidavit filed by the respondent Nos. 4 and 5. We would deem it that the same remains un-traversed. (14.) A cursory glance at the various annexure relied upon by Shri Sanyal show amongst other, a proceeding under Section 97, Cr.P.C. was started. Annexure P-1 reveals that aspect. (15.) Annexure P-3 incorporates an order passed by the Division Bench of this Court on 7.5.2007 in W.P. No. 3262(W) of 2007 where the Division Bench directed"...........that the petitioners will be at liberty to meet their father at the residence of their youngest brother Parbati Chorone Roquitte. Before meeting their father, the petitioners will inform the officer in charge of the concerned police station and the officer in charge of the said police station will lake appropriate steps in that regard as it was earlier directed by this Court. (16.) The other annexure is P-5 where a learned Single Judge of this Court in connection with CO. No. 2776 of 2005 on 24.7.2006 directed a Government Hospital to examine the Subject and in annexure-P6 we find that another learned Single Judge on 20.12.2007 in W.P. No.23339(W) of 2007 gave liberty to the petitioner No. 3 herein to meet the Subject every Saturday between 11-00 a.m. to 1-00 p.m. upon intimation to the concerned Police Station but the same facility was not made available to him, which is reflected from annexure-P7, (17.) Against this background we have had the advantage very carefully adverting to the Affidavit of Shri Banerjee where we do not find the various averments made in this application has been clearly dealt with. (18.) The Affidavit- in- Opposition by the respondent No. 4 contains several annexure, which we have had the occasion to look into with utmost circumspection. (18.) The Affidavit- in- Opposition by the respondent No. 4 contains several annexure, which we have had the occasion to look into with utmost circumspection. We find that none of them are either germane to the issue involved or deals with the allegations of Shri Sanyal to the effect that the Subject has been wrongfully kept by the respondent No. 4 depriving the petitioners their any access. (19.) It is indeed true that there were spate of proceedings relating to Section 97, Cr.P.C, Section 144, Cr.P.C, Complaint case filed by petitioner No. 2 against respondent No. 4 under Section 342/365/384, I.P.C. as well as series of civil disputes. (20.) Once upon a time the Subject may have on his own volition expressed his willingness to reside with respondent No. 4 and steps to recover him at the instance of the petitioners proved abortive. These issues, we find are stale. Some of them dates back to 1997 and none of the facts in issue are current. (21.) A question, will, at once arise since a Division Bench of coordinate jurisdiction has found in annexure P3 that the Subject is not at all wrongfully confined by respondent No.4 - if we respond to prayer of Shri Sanyal, in the ordinary course of events it would have amounted to review of the order passed by a Division Bench. (22.) But strange facts, stranger situation surfaced before us. The Report of the Special Officer presents a sordid law of affairs. The learned Special Officer on our request had visited the Subject at the place where he has been kept by the respondent No.4. Interview of the Special Officer with the subject reveals that he is still under the impression that he is residing at his ancestral house at Chandannagar along with his wife, who unfortunately pre- deceased him. He also gave out that he did not have any issue at all, although he has four sons and two daughters. (23.) He had shifted the Subject to a premier Health Care Institution of the City. He has been under the treatment in the Institution under the care of a Medical Board consisting of eminent medical personalities, as reported to us by the Special Officer. (24.) We have found that there is quite a change in the situation. (23.) He had shifted the Subject to a premier Health Care Institution of the City. He has been under the treatment in the Institution under the care of a Medical Board consisting of eminent medical personalities, as reported to us by the Special Officer. (24.) We have found that there is quite a change in the situation. The present application is in the backdrop of new set of facts and fresh cause of action, quite different from the earlier happenings which cropped up, on the basis of which spate of proceedings took place both before the Lower Court as well as before a Division Bench of this Court in a Habeas Corpus Application (in W.P. No. 3262[W] of 2007). (25.) If we shut out the petitioners simply on this score, it would be a travesty of justice and instead, we have thought it prudent to look into the problem from another angle. (26.) From a conspectus of the entire issue- in-question, "we are of the view that the Subject is kept confined by the respondent No.4. It is also found that the cognitive faculty of the Subject has failed and he has lost the power of comprehension. The profile of the case, before we interfered by way of directing the Subject to be removed into the Health Care Institution of the State Government for a better treatment -wasnt at all encouraging. It. cannot be even for a moment said that the Subject, out of disgust with the others, have been residing with the respondent No.4 on his free will. On the contrary, we find that in a sub-conscious mind he suffers from the impression that he is still in his ancestral home at Chandannagar with his family. (27.) Keeping him under the care of the Medical Board for an indefinite period, in our view, would not be a taciturn situation. Although, he is unable to have any grasp over his mind ; still in our opinion, it will not be conducive for him to remain in the Health Care Institution for long. (27.) Keeping him under the care of the Medical Board for an indefinite period, in our view, would not be a taciturn situation. Although, he is unable to have any grasp over his mind ; still in our opinion, it will not be conducive for him to remain in the Health Care Institution for long. Instead, if we have him shifted to his ancestral home, for which his heart pines - perhaps, it would be of some solace to him and may be that he will be able to spend the last days of his life in peace and solitude being released from the cross current of avarice and affection between the siblings, who seems to be more intend on the Estate than the heart of this old man. (28.) A Writ Court cannot investigate into facts. If we proceed further, we are afraid, we will be deciding the facts, which would not be proper. But all that we have felt that by way of ex debito justitiae and moulding the relief claimed in this application if we pass the following order then, perhaps, it would be just justice for the petitioners and the respondent Nos. 4 and 5 and may be Just desert to the poor soul, who instead of having all his wealth, money and power, is being used as a pawn by his offspring -for his only sin, his fabulous wealth and vast Eastate. (29.) Accordingly, we would dispose of this application with the following directions: -I) The Subject will now be discharged subject to the opinion of the Medical Board and the Special Officer will have the Subject removed by an Ambulance to his ancestral house at Chandannagar. Thereafter, the Special Officer would stand discharged. II) The Chief Medical Officer of Health of Chinsurah, Hooghly will constitute a Medical Board to supervise the treatment of the Subject, which will oversee such treatment every fortnight. It is made clear that such cost towards medicine and other facilities provided by the Medical Board, would have to be borne in equal shares by both the petitioners and the respondent Nos. 4 and 5. III) Commissioner, Burdwan Division is appointed as the legal guardian of the Subject Sri Bhagwati Chorone Roquitte alias Shri Bhagwati Charan Rakshit. It is made clear that such cost towards medicine and other facilities provided by the Medical Board, would have to be borne in equal shares by both the petitioners and the respondent Nos. 4 and 5. III) Commissioner, Burdwan Division is appointed as the legal guardian of the Subject Sri Bhagwati Chorone Roquitte alias Shri Bhagwati Charan Rakshit. It is made clear that the said Subject will not execute any document, put his signature on any paper or sign any cheque without the explicit permission of the Commissioner, Burdwan Division. Any signature obtained by anyone behind the back of the Commissioner, Burdwan Division would be a nullity in the eye of law. IV) Commissioner, Burdwan Division is also requested to send Post Monitoring Report to this Court once in a month. V) Free access to the Subject would be available for the petitioners as well as for the respondent Nos. 4 and 5 at all times of the day. VI) Commissioner, Bardwan Division will visit the Subject from time to time and see for himself as to whether the order of the Court is complied with. (30.) Before we part, we record our deepest appreciation of the gesture shown by the Medical Board and the Superintendent of SSKM Hospital, who readily agreed to our request and had the Subject treated under their care. (31.) We would also request the learned Special Officer to convey our feeling to the Medical Board through the Superintendent of SSKM Hospital. (32.) We also appreciate the services rendered by the Special Officer, without whose assistance we would not have been able to reach at our decision. (33.) Application accordingly disposed of. (34.) There will be no order as to costs. (35.) After this order was dictated and pronounced in open Court in presence of Shri Sanyal, learned Additional Advocate General, learned Junior Government Advocate, learned Special Officer and Shri Souradipta Banerjee; Shri Banerjee has prayed for stay of operation of the order for only seven days. We feel that in the event the stay is granted then it would further jeopardize the condition of the Subject Shri Bhagwati Charan Rakshit, whom we have found to be in such a condition that each day matters and it would be in the best interest of justice and of his health that he is shifted to his ancestral house. We feel that in the event the stay is granted then it would further jeopardize the condition of the Subject Shri Bhagwati Charan Rakshit, whom we have found to be in such a condition that each day matters and it would be in the best interest of justice and of his health that he is shifted to his ancestral house. (36.) Keeping in mind the aforesaid situation, we regret, the prayer of Shri Banerjee is to be rejected. (37.) Shri Banerjee further prays for supply of xerox certified copy of this order on urgent basis. Same may be provided to him after complying with usual formalities. (38.) Let a Copy of this order be made over to Shri Partha Pratim Das, Special Officer for his information and necessary action. (39.) Learned Registrar (A) Kindly transmit this order to the Commissioner, Burdwan Division.