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2015 DIGILAW 1821 (RAJ)

Vinod Kumar v. State of Rajasthan

2015-10-28

MOHAMMAD RAFIQ, PRAKASH GUPTA

body2015
ORDER : This habeas corpus petition has been filed by Vinod Kumar with the prayer that respondents be directed to produce his wife Mamoni Das @ Mohani and minor child Ayush, aged 3 years, and Ansh, aged one-and-a-half year, who have been in illegal custody of respondent no.7 Haru Das and respondent no.8 Nomita Das. Shri G.S. Fauzdar, learned counsel for petitioner, has argued that respondent no.8 Nomita Das, mother of petitioner's wife, filed a Habeas Corpus Petition No.19110/2012 before the Hon'ble High Court at Calcutta. The Hon'ble High Court at Calcutta entrusted the investigation of the matter to C.I.D., West Bengal. Investigation of the matter was thus thereupon entrusted to respondent no.6 herein Sarbari Bhattacharjee, the Inspector of Police, O.C.A.H.T.U., C.I.D., West Bengal. The respondent no.6 illegally recovered the wife and children of petitioner from petitioner's house on 21.03.2013, and produced them before the Additional Chief Judicial Magistrate, Deeg, District Bharatpur, on the same day, for their onward production before the Hon'ble High Court at Calcutta. The Additional Chief Judicial Magistrate, Deeg, on the same day, passed an order to the effect that since Smt. Mamoni Das was major and that she voluntarily wants to appear before the Hon'ble High Court at Calcutta, therefore, no specific order of production was needed to be passed. Learned counsel argued that wife and minor children of petitioner did not come back to him as they were detained by respondents no.7 and 8, who are respectfully father and mother of petitioner's wife. Petitioner therefore submitted an application under Section 97 of the Code of Criminal Procedure before the Court of Additional Chief Judicial Magistrate, Deeg, District Bharatpur (for short, 'the ACJM'). The ACJM, Deeg, therefore, sent a letter to the Superintendent of Police, Burdwan (Kolkata) on 05.06.2013, directing him to produce them before the court of ACJM, Deeg. In reply thereto, the respondent no.6 sent a letter to the court of ACJM, Deeg, on 07.10.2013, contending that statement of Mamoni Das D/o Haru Das Roybati, was recorded under Section 164 Cr.P.C. before the court of ACJM, Burdwan, who expressed her willingness to stay with her parents. Learned counsel submitted that such statement has wrongly been recorded. In reply thereto, the respondent no.6 sent a letter to the court of ACJM, Deeg, on 07.10.2013, contending that statement of Mamoni Das D/o Haru Das Roybati, was recorded under Section 164 Cr.P.C. before the court of ACJM, Burdwan, who expressed her willingness to stay with her parents. Learned counsel submitted that such statement has wrongly been recorded. Earlier when respondent no.7, father of petitioner's wife, lodged an F.I.R. No.354/2012 on 10.09.2012 for offence under Sections 363 and 366 IPC at Police Station Memari, District Burdwan, West Bengal, investigation of that matter was handed over to one Deb Kumar Biswas, Circle Inspector of Police, Sadar 'B' Circle, Burdwan. At that time, one accused Kaloo S/o Shri Abdul of Jhandepara Sikra Colony, Police Station Chapra, District Nadia, was arrested on the basis of source information as well as on the basis of statement of witnesses, and raid was conducted on petitioner's house. Mamoni Das, wife of petitioner was recovered with her child. When the wife of petitioner was produced before the Chief Judicial Magistrate, Burdwan on 21.12.2012. At that time also her statement under Section 164 Cr.P.C. was recorded by Judicial Magistrate-II at Burdwan, in which she expressed her desire to stay with petitioner. In that statement, copy of which has been produced, she stated that she was not willing to go with her father and wanted to go to her husband's house. It was stated that she was major, being 23 years of age. She was released on personal bond of Rs.1000/-and thereafter she came back to the petitioner. Her earlier statement recorded under Section 164 Cr.P.C., was thus concealed both from the Hon'ble High Court at Calcutta and also from the Court of Chief Judicial Magistrate, Burdwan, where her statement under Section 164 Cr.P.C. was again got recorded. Petitioner has also produced marriage certificate of marriage between her and petitioner Vinod Kumar, which proves that their marriage was solemnized on 07.05.2010. The direction prayed for be therefore issued. Shri B.N. Sandu, learned Additional Advocate General, submitted that custody of Mamoni Das has been handed over to respondent no.8 Nomita Das, as per her statement recorded under Section 164 Cr.P.C. before the Judicial Magistrate-II at Burdwan, on 02.04.2013. In that statement, she has expressed her will to go to her parents. The direction prayed for be therefore issued. Shri B.N. Sandu, learned Additional Advocate General, submitted that custody of Mamoni Das has been handed over to respondent no.8 Nomita Das, as per her statement recorded under Section 164 Cr.P.C. before the Judicial Magistrate-II at Burdwan, on 02.04.2013. In that statement, she has expressed her will to go to her parents. The investigation was conducted and aforesaid steps were taken in compliance of the order of the Hon'ble High Court at Calcutta. When notice of proceedings under Section 97 Cr.P.C. was sent to respondent no.6, he has duly acknowledged the notice and sent the reply stating that Mamoni Das made the earlier statement expressing her desire to go to the petitioner because at that time her children were in custody of the petitioner and now she wants to stay with her parents. A copy of memo of Writ (Habeas Corpus) Petition No.19110/2012 filed by Smt. Nomita Das at the Hon'ble High Court at Calcutta has been forwarded before us. Perusal of the writ petition filed at the Hon'ble High Court at Calcutta, makes it clear that Smt. Nomita Das (respondent no.8 herein), mother of Mamoni Das, had approached the High Court at Calcutta with the allegation that her daughter Mamoni Das, who was aged about 16 years and 2 months and belonged to Schedule Caste category, has been missing from her residential house since 19.04.2010. Nomita Das and her husband Haru Das tried their best to search their missing daughter. Haru Das then lodged a complaint with the Memari Police Station on 09.05.2010 and 16.05.2010 but no effective steps have been taken by the said Memari Police Station. Smt. Nomita Das made a specific allegation that Police Station Memari arrested one Sulekha Mondal and Manoj Mondal, but subsequently the said Memari Police Station released them, who were responsible for abduction of their daughter. On their return, Sulekha Mondal and Manoj Mondal commenced physical torture of Nomita Das and her husband Haru Das. Smt. Nomita Das and her husband Haru Das then made another complaint to the Officer-in-Charge, Memari Police Station, District Burdwan, vide G.D. Entry No.1799 dated 27.06.2011 and G.D. Entry No.92 dated 02.07.2011. But the police, without proper investigation about the daughter of the petitioner, cropped up some other story for the purpose of shifting mind of the local people. Smt. Nomita Das and her husband Haru Das then made another complaint to the Officer-in-Charge, Memari Police Station, District Burdwan, vide G.D. Entry No.1799 dated 27.06.2011 and G.D. Entry No.92 dated 02.07.2011. But the police, without proper investigation about the daughter of the petitioner, cropped up some other story for the purpose of shifting mind of the local people. Smt. Nomita Das even complained to the Superintendent of Police, Burdwan, but no action was taken thereon. Smt. Nomita Das even lodged a criminal case before the President, Mahila Commission of West Bengal, Kolkata. The Chairperson of West Bengal Commission for Women, wrote a letter on 08.11.2011 which was followed by another letter dated 02.12.2011, requesting therein to the Superintendent of Police, Burdwan, to enquire into the matter and furnish a report to the said Commission. The Superintendent of Police, District Enforcement Branch, Burdwan, intimated to the Chairperson, West Bengal Commission for Women, by letter dated 17.02.2012, that the matter was duly enquired in to by Shri Deb Kumar Biswas, Circle Inspector of Police, Sadar “B”, Burdwan, and the said enquiry report has been duly forwarded to the Deputy Superintendent of Police, Discipline and Training, Burdwan. According to the said report, Mamoni Das went away with Kalyan and married him. Smt. Nomita Das, in that writ petition, also alleged that her daughter Mamoni Das was only 17 years of age and that proper enquiry has not been conducted into the allegation of her abduction. A copy of the statement of Mamoni Das dated 02.04.2013 recorded by the Judicial Magistrate, Burdwan, under Section 164 Cr.P.C., has been produced before us, wherein she has stated that one Sulekha Mondal is her neighbour in West Bengal. She asked her to accompany her Jijaji (brother-in-law), who would get her job in Delhi. She went with him to Delhi. She was then sent to a woman named Rakhi. Rakhi brought her to Rajasthan and sold her to one Kaloo, where she was physically abused. Kaloo then sold her in a sum of Rs.5,00,000/-. The police then saved her from their clutches. She then got married to Vinod Shah. Police then recovered her from his house. She has stated that earlier also she gave statement. She wanted to go to her parents but her husband (swami) was a good person and was not at fault. Kaloo then sold her in a sum of Rs.5,00,000/-. The police then saved her from their clutches. She then got married to Vinod Shah. Police then recovered her from his house. She has stated that earlier also she gave statement. She wanted to go to her parents but her husband (swami) was a good person and was not at fault. It was, in view of aforementioned allegations made in the writ petition by Smt. Nomita Das filed before the Hon'ble High Court at Calcutta, the High Court at Calcutta directed the investigation of the matter by C.I.D., West Bengal. The investigation was then entrusted to respondent no.6 herein. There are indeed two conflicting statements recorded under Section 164 Cr.P.C. One was recorded by the Judicial Magistrate, Burdwan, on 21.12.2012, and another was recorded by the Judicial Magistrate, Burdwan, on 02.04.2013. In the earlier statement, Mamoni Das has stated that her marriage was solemnized with Vinod on 07.05.2010. He also claims that two children were born out of their wedlock, one is aged 3 years and another is aged one-and-a-half year. Prima facie it appears to be correct also. And even Mamoni in her later statement under Section 164 Cr.P.C., was soft on the petitioner. Since the investigation was entrusted pursuant to order of the Hon'ble High Court at Calcutta to respondent no.6 herein, and since custody of Mamoni Das was obtained by him with due permission from the court of Additional Chief Judicial Magistrate, Deeg, for the purpose of producing her before the Hon'ble High Court at Calcutta, we do not deem it appropriate to pass any contrary order in due deference to order passed by that High Court. As would be seen from above, Mamoni Das was permanent native of village Roybati Bunopara, Police Station Memari, District Burdwan, wherefrom, according to her, she was taken by brother-in-law of her neighbour Sulekha Mondal to Delhi on the pretext of securing her a job but instead she was sent to a woman named Rakhi, who brought her to Rajasthan and sold to Kaloo, where she was physically abused. Kaloo then sold her to some other person. Kaloo then sold her to some other person. If what the petitioner contends is correct that petitioner Vinod was her savior and salvaged her from those people by marrying her and that two children were born out of this wedlock, he should approach the High Court at Calcutta with request to ascertain wishes of Mamoni Das. We therefore set petitioner Vinod Kumar at liberty to approach the Hon'ble High Court at Calcutta, by way of filing fresh writ petition apprising of fact about his marriage with Mamoni Das solemnized on 07.05.2010 and two children born out of said wedlock, with requisite proof. It is then for the High Court at Calcutta to ascertain the wishes of Mamoni Das and pass appropriate order in accordance with law. With those observations, the writ petition is disposed of.