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2015 DIGILAW 384 (ALL)

Momin Muzammil Anwar v. State of U. P.

2015-02-25

RAMESH SINHA

body2015
JUDGMENT Ramesh Sinha, J. 1. Heard Sri Rajesh Kumar Pandey, learned Counsel for the applicants and Sri Vikas Rana, learned AGA for the State. The applicants, through the present application under section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with a prayer to quash the order/report dated 29.1.2015 submitted by the In-charge Protective Home (Women)/Additional District Judge, Court No. III, Arga and approved by the District & Sessions Judge, Agra. A further prayer has also been made to direct the opp. parties to release Smt. Shakina @ Babita (applicant No. 2) in the custody of applicant No. 1 is detained in Protective Home (Women), Agra since 10.11.2014. 2. The brief facts of the case arising out of the present case is that an FIR was lodged on 8.11.2014 by opp. party No. 3, Smt. Manisha Singh (Circle Officer), Police Station-Kotwali, District Agra as Case Crime No. 158 of 2014, under sections 3/4/5/6 The Immoral Traffic (Prevention) Act, 1956 and342, 294 I.P.C. with respect to an incident which has taken place on 8.11.2014 wherein it has been stated that a raid was made in the red light area in which two girls, namely, Soni, Anita and two persons, namely, Akash and Ram Bharat were arrested by the police who are named in the FIR and along with them the applicant No. 2 was also taken away by the police, after which she was produced before the Additional Chief Judicial Magistrate IInd/Remand Magistrate, Agra who sent her to Nari Niketan vide order dated 10.11.2014. The applicant No. 2 is residing in the red light area with applicant No. 1 and having children. When she was going for taking medicine, all of sudden the said raid was made and she was also taken away by the police on account of suspicion that she is carrying on illegal activities in the area. Hence, the present 482 Cr.P.C. application has been filed by applicant No. 1, who claims that he has married applicant No. 2, for release of his wife, i.e. applicant No. 1 from Nari Niketan and for quashing of the impugned order dated 29.1.2015 passed by In-charge Protective Home (Women)/Additional District Judge, Court No. III, Arga. 3. It has been contended by the learned Counsel for the applicants that the applicants are neither named in the FIR nor any charge-sheet has been submitted against them. 3. It has been contended by the learned Counsel for the applicants that the applicants are neither named in the FIR nor any charge-sheet has been submitted against them. The applicant No. 2 is stated to be the wife of applicant No. 1. He submits that an FIR was lodged against four persons, namely, Soni, Anita, Akash and Ram Bharat who were arrested under the Immoral Traffic (Prevention) Act, 1956 and other offences. He further submits that after investigation, the charge-sheet has been submitted against the said four persons and no charge-sheet has been submitted against the applicants but the applicant No. 2 was taken away by the police from the red light area and thereafter applicant No. 2 was produced before the Additional Chief Judicial Magistrate IInd/Remand Magistrate, Agra and the learned Magistrate vide his order dated 10.11.2014 sent the applicant No. 2 in Protective Home (Women). He further submits that aggrieved by illegal detention of his wife in Nari Niketan, the applicant No. 1 moved an application on 19.12.2014 before the In-charge Protective Home (Women)/Additional District Judge, IIIrd, Agra, which was rejected by the Court concerned on the ground that the applicant No. 1 failed to prove that applicant No. 2 is his wife. He submits that applicant No. 1 and applicant No. 2 have married each other and from their wedlock two children have been born out. The said fact has been stated in paragraph No. 10 of the accompanying affidavit. The Nikahnama of applicant No. 1 and applicant No. 2 has also been annexed with the accompanying affidavit showing their relationship. Learned Counsel for the applicant has drawn attention of the Court towards section 17(3) of Immoral Traffic (Prevention) Act which provides that "a person can be kept in custody for a maximum period of three weeks from the date of the order for an inquiry under section 17(2) of the ITP Act", but the applicant No. 2 Smt. Shakina @ Babita is confined in Nari Neketan since 10.11.2014. The said fact has been stated in paragraph No. 11 of the accompanying affidavit. The said fact has been stated in paragraph No. 11 of the accompanying affidavit. In support of his argument, learned Counsel for the applicants has placed reliance of a judgment of this Court in the case of Pushpa v. State of U.P. and others 2004 (49) ACC 908 (HC), and stated that this Court has released a girl who was arrested under the Immoral Traffic (Prevention) Act during the pendency of the enquiry under section 17(3) of the Immoral Traffic (Prevention) Act. 4. Learned AGA tried to justify the detention of applicant No. 2 in Nari Niketan but could not dispute the fact that the applicant No. 2 is not named in the FIR nor charge-sheet has been submitted against her. 5. Considered the submissions advanced by the learned Counsel for the parties and perused the record. 6. The Court does not want to go into the question whether applicant No. 2 Smt. Shakina @ Babita is legally wedded wife of applicant No. 1, Momin Muzammil Anwar or not. It is apparent from the record that applicant No. 2 is not an accused in the FIR which has been lodged by the police as Case Crime No. 58 of 2014, under sections 3/4/5/6 of the Immoral Traffic (Prevention) Act, 1956 and 342, 294 I.P.C., P.S. Kotwali, District Agra on 8.11.2014 nor any charge-sheet has been submitted against her, hence, it is evident that she has not been found indulging in illegal flesh trade. 7. As per the provision of 17(3) of I.T.P. Act, "a person can be kept in custody for a maximum period of three weeks from the date of order for an enquiry under section 17(2) of the Act", but the applicant No. 2 is stated to be confined in Nari Niketan since 10.11.2014. Admittedly, she is aged about 23 years old as is evident from her PAN Card and she is at the age of majority and capable of making her own decisions and is also not suffering from any sexually transmitted diseases. 8. I do not find that any purpose would be served by permitting the learned Magistrate to continue with any inquiry any further for deciding whether the applicant No. 2, namely, Smt. Shakina @ Babita should be kept in Protective Home (Women) any longer. 8. I do not find that any purpose would be served by permitting the learned Magistrate to continue with any inquiry any further for deciding whether the applicant No. 2, namely, Smt. Shakina @ Babita should be kept in Protective Home (Women) any longer. The impugned order dated 29.1.2015 passed by the In-charge Protective Home (Women)/Additional District Judge, Court No. III, Arga is hereby set aside. The applicant No. 2, namely, Smt. Shakina @ Babita shall be set at liberty by opp. party No. 2 to go according to her own wishes. The present 482 Cr.P.C. application stands allowed.