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2016 DIGILAW 2561 (ALL)

Rubi v. State of U. P.

2016-07-25

AJAI LAMBA, RAVINDRA NATH MISHRA II

body2016
JUDGMENT 1. This petition seeks issuance of a writ in the nature of Certiorari quashing order dated 25th June, 2016 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 10, Hardoi. The petition further seeks issuance of a writ in the nature of Habeas Corpus directing respondents to release the petitioner. 2. Order dated 13th July, 2016 notices the gist of the issue raised by the petitioner. 1. This petition seeks issuance of a writ in the nature of Habeas Corpus directing release of the petitioner from respondent No.3 facility. 2. It has been pleaded that the petitioner got married to Sumit, son of the deponent, of her free will and had not been kidnapped. Respondent No.4 did not accept the marriage, therefore, initiated criminal proceeding vide Case Crime No. 140 of 2016, under Sections 363 & 366 I.P.C. Police Station Kotwali Dehat, District Hardoi. In the course of investigation statement of the victim of offence has been recorded under Section 164 Cr.P.C., which has been placed on record as Annexure-3. In the statement, it has been made evident that Sumit did not commit any offence, rather the petitioner went with him of her free will. The petitioner got married to Sumit. 3. Learned counsel for the petitioner has referred to Annexure-4 to say that the petitioner is about 18 years of age. 4. It has been impressed on the Court that the case of the petitioner is squarely covered by judgment rendered by this Court in Writ Petition No.156 (H/C) of 2015 titled 'Smt. Poonam Vs. State of U.P. and others', which has been decided vide order dated 17.9.2015. 5. Issue notice to respondent No.4 to be served through Station House Officer, Police Station Kotwali Dehat, District Hardoi, returnable on 25.7.2016. 6. List on 25.7.2016. 7. Respondent No.3 is directed to produce the petitioner in Court on the said date. 8. Investigating officer of Case Crime No. 140 of 2016 (supra) is directed to file his affidavit." 3. In deference to the direction issued by this Court the petitioner has been produced. The petitioner has been questioned. The petitioner has taken a categorical stand that she does not want to live with her father, who is also present in the Court, rather wants to live in her matrimonial home because she is married to Sumit. 4. Shri Dharmendra Kumar Mishra, Advocate has appeared on behalf of respondent no. The petitioner has been questioned. The petitioner has taken a categorical stand that she does not want to live with her father, who is also present in the Court, rather wants to live in her matrimonial home because she is married to Sumit. 4. Shri Dharmendra Kumar Mishra, Advocate has appeared on behalf of respondent no. 4. His power of attorney is taken on record. 5. Shri Dharmendra Kumar Mishra has argued that according to transfer certificate the petitioner is a minor and, therefore, be directed to live with her father. 6. Counter affidavit has been filed on behalf of the investigating agency in Court, which is taken on record. In the affidavit the case projected by the petitioner has been admitted. It has been admitted that radiological age of the petitioner is above 18 years. In the statement of the prosecutrix recorded under Section 164 Cr.P.C. the prosecutrix has not supported the prosecution case. 7. Learned counsel appearing for the parties have not been able to dispute that the case of the petitioner is covered by judgment dated 17th September, 2015 rendered in Writ Petition No.156 (H/C) of 2015 titled 'Smt. Poonam Vs. State of U.P. and others'. 8. We have considered the facts and circumstances of the case. 9. In Smt. Poonam' Case (supra), the following (relevant portion) has been held: - "21- We are coming across a large number of cases in which parent/ parents of a girl do not accept marriage of choice of their daughter, on account of different reasons, be it the caste , financial conditions, social status or religion. Although, the girl elopes with the boy voluntarily, however, criminal proceedings are initiated with allegation of abduction, kidnapping or inducing the girl to get married. In most of such cases the complainant takes a ground that his daughter is a minor. For showing that his or her daughter is a minor, school certificates are relied upon. 22- The facts and circumstances of the present case are required to be considered in context of the law, as noticed above. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty. 23- As noticed above, various documents have come on record indicating different dates of birthge of the petitioner. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty. 23- As noticed above, various documents have come on record indicating different dates of birthge of the petitioner. Be that as it may, there is a conflict between the age of the petitioner determined on the basis of school documents, and the age assessed through ossification test. The Court is required to lean towards the report furnished by the Doctor, on the basis of scientific tests. This is particularly so because liberty of the petitioner is required to be protected, it being most precious Constitutional Right of the petitioner. 24- Considering the law laid down by this Court in Shaheen Parveen's case (Supra), as noticed above, it becomes prima-facie evident that the petitioner had neither been abducted nor kidnapped or induced by Suneel Kumar Singh. Rather statement of the petitioner recorded under Section 164 Cr.P.C. indicates that the petitioner had gone with Bauwa alias Suneel Kumar of her free will and voluntarily. Prima-facie, therefore, this Court concludes that offence has not been committed in context of the petitioner. Surely, the petitioner is not an accused. Under the circumstances, we are faced with a situation wherein liberty of an alleged victim has been curtailed under the direction of the Magistrate. 25- Considering the law laid down by Hon'ble Supreme Court of India in Juhi Devi's case (Supra) as extracted above, it becomes evident that in such cases reliance can safely be placed on the opinion of the Doctors in context of age of the girl, when the age recorded in school certificate(s) is at variance. 26- We have considered that there is consistency in the results of medical/ossification test reports, whereas the basis of making entry in school record in regard to date of birth, is generally not brought on record. In the circumstances, so as to consider whether a person has attained age of majority/ age of discretion in cases such as the present one, it is safer to rely on medical /scientific / ossification test reports. 27- Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. 27- Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. A person living in India has a Right to enjoy his or her liberty, as guaranteed by the Constitution of India. Any order which curtails or encroaches upon the liberty of such a person is required to be struck down, if it is not in accordance with procedure established by law. 28- Article 21 of the Constitution of India promises every citizen that he shall not be deprived of his life or personal liberty except according to procedure established by law. Petitioner not being an accused, it cannot be held that her personal liberty has been curtailed as per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice. 29- While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated, with a view to promote substantial justice." 10. Considering the age of the petitioner; her statement recorded under Section 164 Cr.P.C.; as also her stand taken in Court, as noted above, we are of the considered opinion that the confinement of the petitioner in a protection home would violate the right of the petitioner vested under Article 21 of the Constitution of India. The petitioner has shown her desire to live in her matrimonial home. 11. We are of the view that conditions of living in protection homes are not ideal for young girls. In case there is alternative place for living, such alternative arrangement should be preferred. 12. Considering the facts and circumstances of the case, we hereby allow the petition. Impugned order dated 25th June, 2016 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 10, Hardoi (Annexure-1) is hereby quashed. Consequently, respondent no. 3 is directed to release the petitioner forthwith and allow her to live as per her own wish. 13. 12. Considering the facts and circumstances of the case, we hereby allow the petition. Impugned order dated 25th June, 2016 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 10, Hardoi (Annexure-1) is hereby quashed. Consequently, respondent no. 3 is directed to release the petitioner forthwith and allow her to live as per her own wish. 13. Let a copy of this order be issued under the signatures of the Bench Secretary.