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Rajasthan High Court · body

1995 DIGILAW 402 (RAJ)

Ranjita v. Supdt. of Police, Tonk

1995-04-24

MOHINI KAPUR, Y.R.MEENA

body1995
Honble KAPUR, J. — This Habeas Corpus petition has been moved by Ranjita daughter of Shri Jeet, through her mother Smt. Rampyari. Her age is 14 years. It has been alleged that she was kidnapped from Jai Singhpura on 7.2.95 by respondent No.2, Tosheef Khan of Bombay and a report, in the form of an application, about kidnapping, was made to S.P. Tonk on 10.2.95, but no action was taken. Later on the parents of Ranjita came to know that some social organisations got her recovered from the illegal possession of respondent No.2, Tosheef Khan, and she has now been kept at Children Home, respondent No.3. The efforts of getting the petitioner released from the Children Home, Bombay failed. The details of efforts made by the parents of petitioner and the relatives have not been mentioned and we do not know whether any proceedings were taken in any court or not? It has been stated that the detention of Ranjita in Nari Niketan/children Home at Bombay is illegal as it curtails her right of life and liberty. According to the petitioners counsel the consent of the guardian of minor child is necessary for detention in Nari Niketan/Children Home. In ground (b) of the petition it is also stated that the act of respondent No.2, whereby he kidnapped Ranjita, a minor girl, and took her out of the legal custody of the parents from Jai Singhpura and then sold her to a prostitute for forcing her to illicit intercourse is a heinous crime and it is patently and apparently a case of deprivation of life and liberty of Ranjita by respondent No.2. (2). On this petition this Court issued show cause notice on 9.3.95 and the S.P. Tonk was directed to keep the minor girl Ranjita present before the Court. In pursuance of this direction, Ranjita was brought from the Children Home Bombay and she has been kept at Nari Niketan, Jaipur. The girl was produced before the Court on 5.4.95. (3). In the reply filed by the State, it has been stated that Ranjita was living at Bombay from 1991 and she was kidnapped by the respondent No.2 at Bombay itself. The girl was produced before the Court on 5.4.95. (3). In the reply filed by the State, it has been stated that Ranjita was living at Bombay from 1991 and she was kidnapped by the respondent No.2 at Bombay itself. In this regard an FIR was registered and in pursuance of it action was taken and when the matter came up before the Juvenile Welfare Board, Bombay, then the Board ordered that the petitioner be sent to Asha Sadan (Children Home) Bombay. It has been stated that the custody of Ranjita in Asha Sadan, Bombay is not illegal. The fact of making complaint before the S.P. Tonk has been denied by filing the counter affidavit of S.P. Tonk, himself. A copy of the FIR lodged at Bombay has been enclosed with the reply along with the order of Juvenile Welfare Board, Bombay sending the petitioner to Asha Sadan, Bombay. The material which was placed before the Police Inspector and Juvenile Welfare Board, Bombay goes to show that petitioner Ranjita was involved in prostitution and that she became pregnant. The details are in Marathi language in the order dt, 28.2.95 at page 24. (4). Separate reply has been filed by respondent No.2., Tosheef Khan, stating therein that the criminal case is pending at Bombay on the basis of the FIR lodged at Bombay. The petitioner has suppressed material facts for moving this petition and this Court is not competent to entertain this Habeas Corpus petition. He claimed that Ranjita is 20 years of age and she was not a minor girl. In his reply it has been mentioned that petitioners mother compelled the petitioner to do prostitution, which she was doing at Bombay, where the respondent No.2 came in contact with her. This respondent also admits that on account of his relationship with Ranjita she has become pregnant. (5). Having looked into the fact and circumstances of the case, we have to first consider whether this Court can decide about the legality of the detention of minor girl Ranjita in Asha Sadan, Bombay and whether the detention of the petitioner can be said to be illegal in any manner. (6). Learned counsel for the petitioner argued that when a major girl cannot be sent to Nari Niketan against her wishes, then why a minor girl should be sent against the wishes of her lawful guardian. (6). Learned counsel for the petitioner argued that when a major girl cannot be sent to Nari Niketan against her wishes, then why a minor girl should be sent against the wishes of her lawful guardian. In this case when the mother of petitioner and petitioner herself do not want to stay in Asha Sadan, Bombay then the order should be quashed. Number of decisions have been cited by the learned counsel for petitioner. In Ram Charan Khandelwal vs. State of Raj. & Anr. (1), it was held that a girl who was either major or has attained the age of discretion i.e. between 16 to 18 years can be allowed to live with her parents instead of Mahila Sadan. In this case the girl married a Muslim man having a wife and five children. In Smt. Keshar vs. State of Raj. (2) and in another case of Sirajul Haque vs. State of Raj. & Ors. (3), the major girls were not sent to Nari Niketan against their wishes and the order of their detention was quashed. In the case of Kalyani Chaudhari vs. State of U.P. and Ors. (4) it was held that a minor girl cannot be detained against her will or at the will of her father in a protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or under some other law permitting her detention in such a home. A Division Bench of this court in the case of Prakash vs. State of Raj. & Ors. (5). ordered that a girl may continue to stay at Nari Niketan, when she expressed her desire to go with a person whom she had married, but there was a dispute regarding the legality of the marriage as that person was already having a wife. In view of the dispute about legality of marriage and her desire not to go with her parents, she was kept at Nari Niketan itself. Though the order of Magistrate in sending the girl to Nari Niketan was said to be irregular, but in the circumstances of the case the order was not quashed. (7). We have considered all these decisions. In our view the real matter is different in the present case. Though the order of Magistrate in sending the girl to Nari Niketan was said to be irregular, but in the circumstances of the case the order was not quashed. (7). We have considered all these decisions. In our view the real matter is different in the present case. The order of detaining the petitioner in Asha Sadan, Bombay has been passed by the Juvenile Welfare Board, Bombay and it is to be seen whether this authority was competent to pass such an order. The Juvenile Welfare Board is constituted under the Juvenile Justice Act, 1986 (hereinafter to be referred as the Act). The neglected juvenile is defined in Section 2(1) of the Act, as under : — "2(l)"neglected juvenile" means a juvenile who — (i) is found begging; or (ii) is found without having any home or settled place of abode and without any ostensible means of subsistence and is destitute; (iii) has a parent or guardian who is unfit or incapacitated, to exercise control over the juvenile; or (iv) lives in brothel or with a prostitute or frequently goes to any place for the purpose of prostitution, or is found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life; (v) who is being or is likely to be abused or exploited for immoral or illegal purpose or unconscionable gain." Section 4 is with regard to constitution of Juvenile Welfare Board and Sec. 5 of the Act is with regard to constitution of Juvenile Courts. The powers of the Juvenile Welfare Board and Juvenile Courts are provided under Sec. 7. The Juvenile Welfare Board has been constituted with such a power that the Board shall have power exclusively in respect of all the proceedings under the Act relating to the neglected juvenile or delinquent juvenile. The orders passed by a competent authority under this Act are subject to appeal as per Section 37 of the Act. (8). When a person, alleged to be a neglected juvenile is produced before a Board, it has to examine the report made by police or any other organisation and hold an enquiry. When the Board, after enquiry, is satisfied that the juvenile is a neglected juvenile, it may make an order that the neglected juvenile be sent to a juvenile home. When a person, alleged to be a neglected juvenile is produced before a Board, it has to examine the report made by police or any other organisation and hold an enquiry. When the Board, after enquiry, is satisfied that the juvenile is a neglected juvenile, it may make an order that the neglected juvenile be sent to a juvenile home. The order of sending the girl Ranjita to Asha Sadan in Bombay has been passed by the Juvenile Welfare Board of Bombay. It has been passed by a competent authority,in accordance with the provisions of law. As such the contention of the counsel for petitioner that the girl is in illegal detention is without any force. This court in a petition for Habeas Corpus can only deal with cases wherein the detention is illegal. When the order for sending the girl to Asha Sadan, Bombay has been made by a competent authority after holding an enquiry, the course open to petitioner is only to file the appeal under Sec. 37 of the Act. (9). It may be stated that the petitioner in her petition has no where disclosed that she was sent to Asha Sadan Bombay, by the Juvenile Welfare Board of Bombay. A deliberate attempt has been made to conceal the true facts from the Court, such a practice is to be deprecated. Asha Sadan Bombay has been made party by the petitioner, but the juvenile Welfare Board has not been made a party and no reference has been made to the order of the Juvenile Welfare Board. There is enough material on record to show that the petitioner was living at Bombay for the last 3 years, even the affidavit filed on 21.3.95 by the petitioner shows that she had been visiting Bombay for the last two years. The whole story about kidnapping from Jai Singhpura has been concocted only to approach this Court by suppressing the facts of the case. As attempt has been made by the petitioner and her guardian to mislead the Court. We would have imposed costs but considering the minority of petitioner, we refrain from doing so. (10). The order of sending Ranjita to Asha Sadan Bombay is under the law and her detention in Asha Sadan Bombay cannot be said to be illegal. It has been passed by a competent authority in accordance with the law. We would have imposed costs but considering the minority of petitioner, we refrain from doing so. (10). The order of sending Ranjita to Asha Sadan Bombay is under the law and her detention in Asha Sadan Bombay cannot be said to be illegal. It has been passed by a competent authority in accordance with the law. This Court cannot sit in appeal for examining the correctness of the order of Juvenile Welfare Board of Bombay. (11). The girl has been brought from Asha Sadan, Bombay under the direction of this Court. She should be sent back to the same place from Nari Niketan, Jaipur. (12). In the result, the Habeas Corpus Petition is dismissed.