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2018 DIGILAW 533 (ALL)

Dulhari v. State of U. P.

2018-02-28

KRISHNA PRATAP SINGH, RAMESH SINHA

body2018
JUDGMENT & ORDER : RAMESH SINHA, J. 1. The present habeas corpus petition has been filed by the petitioners with a prayer to direct the respondent no. 4 to produce the corpus-petitioner no. 2 before this Court and set her at liberty as per her own wishes. 2. The brief facts of the case are that the marriage of corpus-petitioner no. 2, namely, Poonam D/o of respondent no. 5 Udham Singh was solemnized with Amit S/o Bhupat and grand son of petitioner no. 1 on 17. 6. 2014. After the marriage both of them led a happy married life but on 20.3.2016 the corpus-petitioner no. 2 left her in-laws house without any information. On 21.3.2016 an information was given by the informant-respondent no. 5 at the concerned police station about her missing and tried to search her at several places but she could not be traced. Thereafter, the respondent no. 5 through a newspaper came to know that a dead body of young women has been recovered from a canal on which the respondent no. 5 went there and identified the dead body to be of his daughter, i.e. , corpus-petitioner no. 2. On 26.3.2016, he lodged an F.I.R. against the in-laws including the husband of petitioner no. 2 Poonam which was registered as case crime no. 360 of 2016 for the offence under sections 498-A, 304-B, 201 I.P.C. and D. P. at police station Kotwali Nagar, District Bulandshahar. In pursuance of the said F.I.R. which was lodged by respondent no. 5 for the dowry death of corpus-petitioner no. 2, the husband, father-in-law and mother-in-law of corpus-petitioner no. 2, namely, Amit, Urmila and Bhupat surrendered before the court below in the month of April, 2016 and till date they are confined in jail. 3. On 19.6.2017, the corpus-petitioner no. 2 Poonam, who was claimed to be dead by her father and her in-laws being confined in jail in pursuance of the aforesaid F.I.R. lodged by her father-respondent no. 5 for her murder, was recovered by the police in district Gautam Budh Nagar which was endorsed in G.D. No. 30 dated 19.6.2017. The police further informed about the recovery of the corpus-petitioner no. 2 to the Child Help Line on which the members of Child Help Line came at the concerned police station and sent her to Nari Niketan. 4. The police further informed about the recovery of the corpus-petitioner no. 2 to the Child Help Line on which the members of Child Help Line came at the concerned police station and sent her to Nari Niketan. 4. On 19.6.2017, the Board of Child Welfare Committee started inquiring about the parents of the corpus-petitioner no. 2 and her residential address and as she was mentally retarded girl she was sent to Vishwa Nirmal Prem Ashram, Greater Noida for care and protection. 5. After the recovery of corpus-petitioner no. 2 her photographs were published in newspaper in order to trace out her parents through which the family members of petitioner no. 2 came to know that corpus-petitioner no. 2 is alive and is confined in Nari Niketan at district Meerut. On coming to know about the said fact, the family members of the corpus-petitioner no. 2 along with Village Pradhan went to Nari Niketan on 15.8.2017 and identified her to be the daughter of respondent no. 5 Udham Singh and wife of Amit Kumar and a letter was also given by the Village Pradhan of village Sameli stating about the fact. On 17.8.2017 one person, namely, Dheeraj Singh and several other police personnel came in the village of the petitioner for inquiring the matter and on the basis of video recording the Village Pradhan and other persons identified the corpus-petitioner no. 2 to be the daughter of respondent no. 5 Udham Singh and wife of Amit Kumar. 6. On 16.11.2017, respondent no. 4 Superintendent of Nari Niketan Meerut sent a letter to the President of Child Welfare Committee Gautam Budh Nagar informing her that during the course of investigation it has come into the knowledge that the corpus-petitioner no. 2, namely, Priyanka @ Poonam is the daughter of respondent no. 5 Udham Singh and the corpus-petitioner no. 2 has also disclosed the name of her father and husband and the address which was given by her was found to be correct and further the corpus-petitioner no. 2 express her desire to go to her parental home and her in-laws home. 7. On 14.12.2017, the petitioner no. 1 moved an application before the President of Child Welfare Committee Gautam Budh Nagar for release of corpus-petitioner no. 2 express her desire to go to her parental home and her in-laws home. 7. On 14.12.2017, the petitioner no. 1 moved an application before the President of Child Welfare Committee Gautam Budh Nagar for release of corpus-petitioner no. 2 in her favour but her application was not considered by the competent authority and the same is pending, hence she has come up before this Court by filing the present habeas corpus petition for the release of corpus-petitioner no. 2 in her favour as her husband Amit and father-in-law Bhupat and mother-in-law Smt. Urmila are confined in jail in pursuance of the F.I.R. lodged by respondent no. 5 for the death of corpus-petitioner no. 2. 8. On 22.12.2017 a co-ordinate Bench of this Court has passed the following order:- We have heard learned counsel for the petitioner and learned A. G. A. It is stated that the corpus Poonam is alive, and is in Nari Niketan, Meerut, as is also evident from the letter of concerned Superintendent of Nari Niketan dated 16.11.2017, copy of which letter has been filed as Annexure-6. Respondent no. 5 Udham Singh-father of the corpus lodged an F.I.R. against the entire family member of the petitioners under Section 498-A, 304-B I.P.C. List on 12th of January, 2018, before appropriate Court, on which date corpus shall be produced before the Court. This case shall not be treated as tied up or part heard to this Bench. 9. On 6.2.2018, this Court has passed the following order:- "Heard Sri Rama Shankar Mishra, learned counsel for the petitioners and Sri Vikash Sahai, learned AGA for the State. The victim/corpus namely Poonam has been produced before this Court in police custody, today. It has been stated by learned counsel for the petitioner that the petitioner no. 2 namely Poonam, wife of Amit and daughter of Udham Singh. The petitioner no. 1 is grand mother-in-law of petitioner no. 2. It has been stated that an FIR was lodged by respondent no. 5, against the husband of petitioner no. 2 namely Amit and her mother-in-law namely Urmila, who are confined in jail for the offence under Sections 498-A, 304-B, 201 IPC and 3/4 Dowry Prohibition Act on 26.03.2016. The petitioner no. 2 who was claimed to be dead by the respondent no. 5, against the husband of petitioner no. 2 namely Amit and her mother-in-law namely Urmila, who are confined in jail for the offence under Sections 498-A, 304-B, 201 IPC and 3/4 Dowry Prohibition Act on 26.03.2016. The petitioner no. 2 who was claimed to be dead by the respondent no. 5, was a victim of a dowry death case, has found to be alive and is presently confined in Nari Niketan and she is present in the Court, today. The Senior Superintendent of Police, Bulandshahar is directed to file his personal affidavit, informing this Court, whether the deceased who has been mentioned by respondent no. 5 in the FIR, namely Poonam to be the wife of Amit, who is confined in jail in Case Crime No. 360 of 2016, for the offence under Sections 498-A, 304-B, 201 IPC and 3/4 Dowry Prohibition Act along with his mother namely Urmila, is the same lady who has produced before this Court today and confined in Nari Niketan at Meerut. The Superintendent Nari Niketan, Meerut shall also file his personal affidavit regarding the identity of the petitioner no. 2, who has been produced before this Court. The petitioner no. 2 shall be sent to Nari Nikatan, where she has been confined, during the pendency of the present writ petition. Office is directed to issue a certified copy of this order to the learned A. G. A. free of cost for its compliance. List this matter again on 26.02.2018. " 10. On 26.2.2018, this Court passed the order which read as under:- "Heard Sri Rama Shankar Mishra, learned counsel for the petitioners and Sri Vikas Sahai, learned AGA for the State. The S.S.P. Bulandshahar has filed an affidavit of compliance in compliance of the Court's order dated 6.2.2018 which is taken on record. On 6.2.2018, the S.S.P. Bulandshahar was directed by this Court to verify about the fact whether the petitioner no. 2 is daughter of respondent no. 5 or not. It has been verified by him that the petitioner no. 2 who is the corpus in the present case is the wife of Amit and is alive and also confined in Nari Niketan. An FIR was lodged against her in-laws by her father i.e. respondent no. 2 is daughter of respondent no. 5 or not. It has been verified by him that the petitioner no. 2 who is the corpus in the present case is the wife of Amit and is alive and also confined in Nari Niketan. An FIR was lodged against her in-laws by her father i.e. respondent no. 5 Udham Singh for offence u/s 498-A, 304-B, 201 IPC and 3/4 D.P. Act as Case Crime No. 360 of 2016 at Police Station Kotwali Shahar, district Bulandshahar. As the husband of the corpus namely Amit is confined in jail along with father-in-law and mother-in-law of petitioner no. 2. The Corpus petitioner no. 2 is stated to be the deceased of the case has been found to be alive and is confined in Nari Niketan Meerut. She was produced before this Court on 6.2.2018. The present petition has been filed by petitioner no. 1 Dulari who is grand-mother-in-law of the corpus-petitioner no. 2 and grand-mother of husband of the corpus namely Amit, for release of the corpus-petitioner no. 2 Smt. Poonam. It is stated that the bail application of the husband of the corpus-petitioner no. 2 namely Amit has already been rejected by the court below but he has not filed any bail application before this Court for his release. The bail application of mother-in-law of petitioner no. 2 i.e. Criminal Misc. Bail Application No. 31881 of 2016 Urmila Vs. State and also bail application of father-in-law of petitioner no. 2 i.e. Criminal Misc. Bail Application No. 25370 of 2016 Bhopat Vs. State are already pending before this Court. As it is evident from the affidavit of compliance of S.S.P. Bulandshahar which is filed today in compliance of the Court's order dated 6.2.2018, the corpus petitioner no. 2 Smt. Poonam wife of Amit and daughter of respondent no. 5 Udham Singh is alive as has been verified by him and the husband of petitioner no. 2 namely Amit, mother-in-law Urmila and father-in-law Bhopat are confined in jail for offence u/s 498-A, 304-B, 201 IPC and 3/4 D. P. Act in Case Crime No. 360 of 2016. The bail application of mother-in-law and father-in-law of petitioner no. 2 is pending before this Court, hence in the peculiar facts and circumstances and in the interest of justice it is necessary that the said two bail applications should be heard and disposed of by this Court forthwith. The bail application of mother-in-law and father-in-law of petitioner no. 2 is pending before this Court, hence in the peculiar facts and circumstances and in the interest of justice it is necessary that the said two bail applications should be heard and disposed of by this Court forthwith. Let the present petition be connected with Criminal Misc. Bail Application No. 31881 of 2016 Urmila Vs. State and Criminal Misc. Bail Application No. 25370 of 2016 Bhopat Vs. State and Registrar Listing is directed to place the present petition along with the aforesaid two bail applications before Hon'ble The Chief Justice for nomination of a Bench and list the same before the appropriate Bench, if possible on 28.2.2018. Sri Rama Shankar Mishra, learned counsel for the petitioners and Registrar Listing shall inform about this order in writing to learned counsel appearing in aforesaid bail applications of mother-in-law and father-in-law of petitioner no. 2 so that they may also be heard in the matter. " 11. Thus, the said bail applications along with present habeas corpus petition have been placed before this Bench after nomination under the orders of Hon'ble The Chief Justice dated 27. 2. 2018. 12. Heard Sri Rama Shankar Mishra, learned counsel for the petitioners, Sri Sameer Garg along with Sri Dileep Kumar Yadav, learned counsel appearing on behalf of the applicants in the connected bail applications, Sri Vikas Sahai, learned A.G.A. for the State and perused the record. 13. Though notice was not issued by this Court to respondent no. 5 Udham Singh, who is the father of corpus-petitioner no. 2 Poonam but from the affidavit of compliance filed by the S.S.P. concerned in the present petition it is clear that during the verification and identification of the corpus-petitioner no. 2 as has been ordered by this Court her parents appeared before the S.S.P. concerned and expressed their desire to take the corpus-petitioner no. 2 with them, we do not think it proper to issue notice to respondent no. 5 as he is having knowledge about filing of the present petition and has also not chosen to appear before this Court in person or through any counsel, hence notice to him deemed sufficient. 14. In compliance of this Court's order dated 26.2.2018, the S.S.P. Bulandshahar has filed an affidavit of compliance stating that corpus-petitioner no. 5 as he is having knowledge about filing of the present petition and has also not chosen to appear before this Court in person or through any counsel, hence notice to him deemed sufficient. 14. In compliance of this Court's order dated 26.2.2018, the S.S.P. Bulandshahar has filed an affidavit of compliance stating that corpus-petitioner no. 2 Poonam, who appears to have also been given a nick name 'Priyanka' when she was recovered and not able to tell her name, her identity, has been verified by the police of police station Kotwali Nagar, District Bulandshahar after contacting her father-respondent no. 5 Udham Singh at village Maanpur, police station Agauta, District Bulandshahar, who informed that Priyanka @ Poonam, i.e. , corpus-petitioner no. 2, who is confined in Nari Niketan is his daughter. The respondent no. 5 also when came to know that she is alive had visited Nari Niketan, Meerut along with his wife, brother and villagers, namely, Lekhraj, Upendra Malick whom the corpus-petitioner no. 2 has also identified. After identifying her to be his daughter, respondent no. 5 expressed his desire to take the corpus-petitioner no. 2 along with him but the Superintendent, Nari Niketan had informed him that after completion of necessary proceedings she would be sent along with them. The Judicial Magistrate Child Welfare Committee Bulandshahar had also passed an order on 19. 1. 2018 for giving the custody of corpus-petitioner no. 2 to respondent no. 5 but the Superintendent Nari Niketan has refused to sent the corpus-petitioner no. 2 with them stating that her custody would be given only after completing the necessary proceedings. The S.S.P. also enclosed the copy of the hand written note of respondent no. 5 dated 21. 2. 2018 and also a report of the Inspector of police station Kotwali Nagar, Bulandshahar dated 3.7.2017 with the affidavit of compliance which was addressed to S.S.P. Bulandshahar in which it has been stated by him that on his instruction, the S.I. Anil Kumar had visited the residence of respondent no. 5 and during the course of interrogation the respondent no. 5 has stated that the corpus-petitioner no. 2, who is detained in Nari Niketan is his daughter Poonam and also identified her. The respondent no. 5 and during the course of interrogation the respondent no. 5 has stated that the corpus-petitioner no. 2, who is detained in Nari Niketan is his daughter Poonam and also identified her. The respondent no. 5 further informed the said police officer that as per the information given by the Superintendent, Government Women Shelter Home, Meerut the mental status of his daughter is now well and she also identified the family members and other family members. On receiving such information, the respondent no. 5 along with his wife, brother and other villagers visited the said Shelter Home and expressed desire to take the custody of his daughter. 15. The S.S.P. has further stated that on 28.6.2017, the information was given by one Dheeraj to the police station Kotwali Nagar, District Bulandshahar that the deceased of case crime no. 360 of 2016 under sections 498-A, 304-B I.P.C. and 3/4 D.P. Act is alive and she is in Nirmal Prem Yog Ashram at Gautam Budh Nagar. On receiving the said information a lady constable had visited at the said Ashram and brought the photographs of the deceased/victim and visited in the village of the victim and showed the photographs of the victim and they have identified that the girl shown in the photographs is Poonam. Thereafter, the lady constable along with complainant again visited to the said Ashram and called the victim Poonam then the respondent no. 5 refused to identify her earlier. In such eventuality, the investigating officer of the said criminal case has submitted charge-sheet bearing No. 1 of 2016 dated 23.5.2016 for the offence in question against Amit Kumar, Bhupat and Smt. Urmila and also exonerated Km. Sonam, Robin and Dheeraj during the investigation from the present case. 16. After having considered the affidavit of compliance filed by the S.S.P. Bulandshahar, this Court coming to know that the deceased of case crime no. 360 of 2016 under sections 498-A, 304-, 201 I.P.C. and 3/4 D.P. Act, police station Kotwali Nagar, District Bulandshahar, who is petitioner no. Sonam, Robin and Dheeraj during the investigation from the present case. 16. After having considered the affidavit of compliance filed by the S.S.P. Bulandshahar, this Court coming to know that the deceased of case crime no. 360 of 2016 under sections 498-A, 304-, 201 I.P.C. and 3/4 D.P. Act, police station Kotwali Nagar, District Bulandshahar, who is petitioner no. 2 in the present petition, namely, Poonam D/o-Udham Singh w/o Amit Kumar is alive and detained in Nari Niketan Meerut and further coming to know that her husband, father-in-law and mother-in-law are confined in jail in her murder case and their bail applications are pending before this Court, it was directed by the Court that the said two bail applications filed by father-in-law Bhupat and mother-in-law Smt. Urmila be connected along with the present habeas corpus petition. 17. It has been pointed out by learned A. G. A. that when it was disclosed that corpus-petitioner no. 2 is alive she was produced before her parents, i.e., respondent no. 5 and his wife but they refused to identify her as is evident from page-16 of affidavit of compliance from the police report which has been submitted to the S.S.P. Bulandshahar by the Inspector Akhilesh Kumar Dixit of police station Kotwali Nagar, district Bulandshahar. 18. As the prosecution of husband, father-in-law and mother-in-law of corpus-petitioner no. 2 in pursuance of the F.I.R. lodged by her father respondent no. 5 has been initiated without proper identification of the dead body of a young woman which was recovered stating to be of his daughter Poonam, who later on found to be alive as has been established from the above facts and at present confined in Nari Niketan and taking into account the fact that initially when the victim was found alive and was shown to the respondent no. 5 before filing of the charge-sheet in the said criminal case, he refused to identify her shows that he misused the process of law and launched a false prosecution against the in-laws of his daughter-corpus petitioner no. 5 before filing of the charge-sheet in the said criminal case, he refused to identify her shows that he misused the process of law and launched a false prosecution against the in-laws of his daughter-corpus petitioner no. 2, it has also been informed by the Counsel for the petitioners that till date no charges have been framed by the trial court, hence in exercise of extra ordinary power under Article 226 of the Constitution of India in peculiar facts and circumstances of the case and in the interest of justice, we quash the F.I.R. lodged by respondent no. 5 registered as case crime no. 360 of 2016 under section 498-A, 304-B, 201 I.P.C. and 3/4 D.P. Act at police station Kotwali Nagar, District Bulandshahar and its all consequential proceedings including the trial, if any, pending against the accused of the said case and direct the authorities concerned to release the father-in-law and mother-in-law of the corpus-petitioner no. 2, namely, Bhupat and Smt. Urmila in the aforesaid case and further direct the authorities concerned to release the husband of the corpus-petitioner no. 2, namely, Amit, who are confined in district jail Bulandshahar in the aforesaid case forthwith, if not wanted in any other case. 19. After the release of father-in-law, mother-in-law and husband of corpus-petitioner no. 2 from jail, corpus-petitioner no. 2 Poonam shall be released by respondent no. 4 to go according to her wishes. 20. We further direct the C.J.M. Bulandshahar to initiate proceedings against respondent no. 5-father of corpus-petitioner no. 2 Udham Singh, who has misused the process of law by lodging a false F.I.R. against the husband and in-laws of corpus-petitioner no. 2, who remained in jail for nearly two years without there being any fault on their part. 21. In view of the foregoing discussion, the present petition along with two bail applications stand allowed. 22. The Registrar General is directed to send a certified copy of this order to the District & Session Judge, Bulandshahar and S.S.P. Bulandshahar for its compliance. 23. The Registrar General is further directed to circulate a copy of this order to all the subordinate Courts of the districts of the State for necessary information so that the Courts be more vigilant in dealing with such matters and no person may suffer irreparable loss on account of misuse of process of law otherwise it would be the travesty of justice.