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2019 DIGILAW 590 (ALL)

Poonam (Corpus) v. State of U. P.

2019-03-05

AJIT SINGH, VIPIN SINHA

body2019
ORDER : 1. Heard Sri Suneel Kumar Mishra, learned counsel for the petitioner and Sri Patanjali Mishra, learned A.G.A. for the State. 2. We have perused the record. 3. The contention of learned counsel for the petitioner is that as per the medical certificate she is 20 years of age, copy of which has been annexed at page no.31 of the writ petition, issued from the office of Chief Medical Officer, Bhadohi. The learned A.G.A. has not disputed the veracity of the said document. 4. By the order dated 25.02.2019 notices were issued to the respondent no.5 and even the steps have been taken within time by the learned counsel for the petitioner but neither any counter affidavit has been filed nor anybody has put in appearance on behalf of the respondent no.5. Further reliance has been placed upon the earlier order passed by another Bench of this Court dated 19.11.2018, copy of which has been annexed on page no.29 of the writ petition. 5. Certified copy of the statement of the corpus Poonam has been produced before this Court which has been taken on record, wherein the corpus Poonam has categorically stated that:- ^^eSa iwue iRuh tksxsUnj iq=h jktdqekj mez 20 o"kZ fuoklh jkekiqj Fkkuk Kkuiqj tuin Hknksgh e; jktsUæ jke mifujh{kd Fkkuk Kkuiqj e; laxhrk ljkst efgyk vkj{kh Fkkuk Kkuiqj mifLFkr vk;h vkSj l'kiFk c;ku fd;k fd %& eSa vius eu ls ekSlh ds lkFk x;h FkhA fQj eSus tksxsUnj dks Qksu djds ekfudiqj cqyk;kA fQj tksxsUnj ds lkFk cl ls eSa Hknksgh ls y[kuÅ pyh x;hA fQj y[kuÅ ls cEcbZ x;h fQj cEcbZ ls bykgkckn vkdj tksxsUnj ds lkFk eSus 'kknh dj yhA tksxsUnj dks eSus gh vius lkFk pyus dks dgkA dysDVj dks eSa tkurh gwa ijUrq mlus dqN ugha fd;k Fkk] mldk dksbZ jksy ugha FkkA esjk HkkbZ eq>s /kedh nsrk gS] fd xkao esa vkvksxh rks tku ls ekj nsaxsA eq>s vkSj dqN ugha dguk gSA** 6. In compliance of the earlier order of this Court dated 25.02.2019, the corpus Poonam has been produced before this Court from Nari Niketan, Gopiganj, district Bhadohi in custody of Sub Inspector Rajendra Ram (PNO No. 842762018) and lady constable Jyoti Ram (PNO No.182160647). 7. In compliance of the earlier order of this Court dated 25.02.2019, the corpus Poonam has been produced before this Court from Nari Niketan, Gopiganj, district Bhadohi in custody of Sub Inspector Rajendra Ram (PNO No. 842762018) and lady constable Jyoti Ram (PNO No.182160647). 7. In view of the fact and by way of abundant caution, this Court with the intention of knowing the desire of corpus, Poonam, the Court proceed to examine the corpus namely Poonam, On being asked by this Court from the girl “ki app ka naam kya hai, she said Poonam'. On being asked that 'aap ke pita ji ka kya naam hai, she said 'Raj Kumar'. On being asked that 'kya aap ne apni marzi se shadi ki hai', she said 'ha, maine apni marzi se Jogendra se shadi ki hai bina kisi zor zabardasti ke'. On being asked that “aap kaha tak padi hai” she said “mai bilkul nahi padi hoon' On being confronted with the finding of the Chief Judicial Magistrate, Bhadohi with regard to the school document which has been disputed by the corpus and she informs the Court that “mere ghar walo ne banvaya hai”. 8. The boy Jogendra who is also present before this Court has been identified by the girl as her husband who in turn has identified the girl as his wife. Both have been identified by their counsel on the basis of documents produced before this Court. 9. Learned counsel for the petitioner has placed reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No.13037 of 2014 Mohini Gupta vs. State of UP and others, Habeas Corpus Writ Petition No.36519 of 2015 Smt. Neelam vs. State of UP and others, Habeas Corpus Writ Petition No. -19037 of 2011 Smt. Saroj versus State of U.P. And Others and the judgments passed by the Apex Court in Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 and Shafin Jahan vs Ashokan K.M. and others, reported in AIR 2018 SC 1933 . 10. Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296. 11. 10. Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296. 11. It may be further appreciated that a victim of offence under section 363, 366-A, 366 or 376 I.P.C. could not be falling in the category of an accused and as such no court could be authorised under any provisions of law to authorise the detention of such a lady even into protective custody if the lady objects to such detention. In various decisions this Court opined that generally an order was passed sending the girl to Nari Niketan being ignorant of the constitutional provisions on the procedure being reasonable and liberty being the most valuable fundamental right of a person. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties, of course within the caring custody of parents. No law could be upheld even in a case of a child if he is deprived of the right to life and valued the right to liberty. (order dated 8.5.2012 in Habeas Corpus Writ Petition No. -19037 of 2011 Smt. Saroj versus State of U.P. And Others). 12. It may also be appreciated that the issue whether the victim/detenue who is a minor, can be sent to Nari Niketan against her wish, is no longer resintegra and has been conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary Versus State of U. P. reported in 1978 Cr. L. J. 1003 (D.B.), a Division Bench of this Court has taken the view that: "no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home." 13. In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home." 13. In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 a Division Bench of this Court has enunciated the same principle as hereunder: "In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it. We have no mind to enter into the question and decide as to when a particular minor is to be set at liberty in respect of her person or whether she shall be governed by the direction of her parents. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate. Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though, it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen should be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Sections 363 and 366 I. P. C. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no law at least now has been quoted before us whereunder the Magistrate may direct dentition of a witness simply because he does not like him to go to any particular place. In such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. In such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors." 14. In the case of Smt. Raj Kumari Versus Superintendent, Women Protection, Meerut and others House reported in 1997 (2) A. W. C. 720 another Division Bench of this Court has laid down the following dictum: "In view of the above, it is well settled view of this Court that even a minor cannot be detained in Government Protective Home against her wishes. In the instant matter, petitioner has desired to go with Sunil Kumar besides this according to the two medical reports, i. e. of the Chief Medical Officer and L. L. R. M., College Meerut, the petitioner is certainly not less than 17 years and she understands her well being and also is capable of considering her future welfare. As such, we are of the opinion that her detention in Government Protective Home, Meerut against her wishes is undesirable and impugned order dated 23.11.96 passed by the Magistrate directing her detention till the party concerned gets a declaration by the civil court or the competent court of law regarding her age, is not sustainable and is liable to be quashed." Thus in view of the above, it is clear that it is the consistent view of this Court that a minor cannot be detained in a protective home against her wishes." 15. In Habeas Corpus Writ Petition No. 33676 of 2015 (Smt. Kanchan Singh and another Vs. State of U.P. and others) decided on 14.7.2015 this Court has held as under: "For the aforesaid reasons and in view of the settled law on the issue that even a minor cannot be detained in the Government Protective Home against her wishes, the petitioner No. 1 who is seventeen and half years old as per her High School certificate and as per medical opinion, is aged about nineteen years and she understands her well being, her detention in Nari Niketan against her wishes, is per se undesirable and the order dated 28.2.2015 passed by the Special Judge, POCSO Act, Deoria directing her detention in Nari Niketan without specifying the period of detention is not sustainable." 16. Learned counsel for the petitioner has placed reliance upon the judgment passed by Lucknow Bench of this Court in Shaheen Parveen and another vs The State of UP and others in Misc. Bench No.3519 of 2015 (decided on 23.7.2015) wherein the Court has observed herein as under: "22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. In case the victim/ prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him. 23. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act that she had gone with the boy and got married to him. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation. 24. Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. 24. Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian. 25. So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. ( The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme Court of India reported in (1965)1 SCR 243 S. Varadarajan versus State of Madras). 26. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years. The said petitioner had attained age of discretion, however, not age of majority. Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him. 27. The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed hereinabove. 28. In view of the facts and circumstances of the case noted above, the Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion, particularly when there is no evidence to indicate that the marriage is void." 17. In view of the categorical statement made by the corpus before this Court that she is an adult and is well aware of her rights, a case for grant of indulgence has been made out. 18. The corpus Poonam who is present before this Court, produced in custody from Nari Niketan, Gopiganj, district Bhadohi is hereby released from custody forthwith. Accordingly, the girl being adult is free to go wherever and with whom she wants to go with. 19. Since the corpus Poonam want to go with her husband Jogendra, she is free to go with him and no hindrance will be caused in her movement by any respondents. The respondents are restrained and they are also injuncted from interfering in any manner whatsoever in married life of petitioner no.1 and her husband. 20. The habeas corpus writ petition is accordingly allowed. 21. At this stage it was informed that inspite of two categorical orders passed by this Court, the Superintendent Nari Niketan, Gopiganj, district Bhadohi is not present before the Court. 20. The habeas corpus writ petition is accordingly allowed. 21. At this stage it was informed that inspite of two categorical orders passed by this Court, the Superintendent Nari Niketan, Gopiganj, district Bhadohi is not present before the Court. In view of the aforesaid contumacious conduct of the Superintendent Nari Niketan, Gopiganj, district Bhadohi this Court has been left with no option but to direct the Superintendent of Police, Bhadohi to produce the Superintendent Nari Niketan, Gopiganj, district Bhadohi day after tomorrow, i.e. 07.03.2019. 22. Put up day after tomorrow at 10 O'clock sharp. Copy of this order shall be communicated to the Superintendent of Police, Bhadohi through the Registrar General of this Court today itself. 23. Sri Rajesh Mishra, learned A.G.A. has informed the Court that even though the earlier order passed by the Court has been informed to the Superintendent Nati Niketan, Gopiganj, district Bhadohi but she has sent some subordinate staff along with an application which is not supported by any medical document whatsoever, that she is unwell. 24. In view of the said submission Superintendent of Police, Bhadohi will also ensure that the Superintendent Nari Niketan, Gopiganj, district Bhadohi will be medically examined by the Chief Medical Officer, Bhadohi with regard to her ailment, if any. 25. Put up this case day after tomorrow only for ensuring presence of Superintendent, Nari Niketan, Gopiganj, district Bhadohi keeping in view her contumacious conduct. The District Magistrate, Bhadohi and Superintendent of Police, Bhadohi will ensure the compliance of the order of this Court under all circumstances. Superintendent of Police, Bhadohi will also be present before this Court.