Writ petition seeking security challenged in case of alleged kidnapping of petitioner no.1 alleged to be minor. Court noted prior order provided security mechanism. Noted pending criminal revision regarding custody. Held no further direction required as prior order stood.
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Court No. - 19
Case :- WRIT - C No. - 17307 of 2018
Petitioner :- Smt. Nishu And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Brahm Prakash Mishra
Hon'ble Manoj Kumar Gupta,J.
The instant writ petition has been filed seeking a mandamus commanding respondents 1 to 3 to provide security to the petitioners, as it is alleged that respondent no.4, who is brother of petitioner no.1, is searching for petitioner no.1 and there is a threat to her life and liberty.
It appears from the record that a first information report was registered by respondent no.4 under Sections 363, 366 IPC. The petitioners challenged the same by filing Criminal Writ Petition no. 19089 of 2017. The writ petition was disposed of by this Court on 14.9.2017 by the following order :-
“Considering the submissions made by the learned counsel for the petitioners that the kidnapped girl shall be produced before the court concerned, it is directed that in case the alleged kidnapped girl Nishu appears/produced before the court of learned C.J.M. concerned within 20 days from today and moves an application for her medical examination, recording her statement under section 161 Cr.P.C., the learned Magistrate concerned shall fix a date for the same purpose, on that date the first informant & officer in charge of the police station concerned shall be summoned, she shall be produced before C.M.O. concerned by the concerned police officer for her medical examination thereafter she shall be produced before CJM concerned for recording her statement under section 164 Cr.P.C. the same shall be recorded on the application filed by the I.O./Officer in charge of the police station concerned, till then no coercive steps shall be taken against the petitioners, in default of it, it shall be opened to the police authority concerned to arrest the petitioners, if she is found major and does not support the FIR version, the petitioners shall not be arrested till submission of the police report under section 173(2) Cr.P.C. but the petitioners shall co-operate with the investigation. In case the alleged kidnapped girl appears to be minor or if she is major but supports the prosecution version, it shall be opened to the police authority to arrest the petitioners. In case the petitioners approach the S.S.P. concerned to provide the security for the above mentioned purpose, the same shall be provided to them.
It is further directed that issue of custody of the alleged kidnapped girl
shall also be decided by the CJM concerned in accordance with law.
With the above direction this petition is finally disposed of.”
In pursuance of the said order, medical examination of petitioner no.1 was carried out. According to the report of Chief Medical Officer, petitioner no.1 appears to be 19 years of age. Petitioner no.1, in her statement under Section 164 CrPC stated that she is 19 years of age and went to Allahabad with petitioner no.2 out of her own sweet will. However, the Chief Judicial Magistrate by order dated 28.9.2017, relying on school leaving certificate of petitioner no.1, bearing date of birth recorded as 1.1.2003, held that petitioner no.1 seems to be minor and accordingly, directed for her custody being handed over to her natural guardian, i.e., father. The order of Chief Judicial Magistrate dated 28.9.2017 is under challenge in Criminal Revision, which is stated to be pending before this Court.
The case of the petitioners is that petitioner no.1 somehow managed to escape from the custody of respondent no.4 and her father and now the petitioners have once again prayed for protection and security. They claim to have married each other on 17.8.2017 in Arya Samaj Mandir.
Since the order of the Chief Judicial Magistrate dated 28.9.2017 still holds the field, therefore, this Court is unable to accept the contention of the petitioners that petitioner no.1 is a major.
It is noteworthy that the Writ-Court, by order dated 14.9.2017, while disposing of writ petition, has already observed that in case the petitioners approach the concerned S.S.P., they shall be provided security.
Having regard to these facts, this Court is of the opinion that no further direction is required to be issued in the instant matter.
The writ petition is disposed of accordingly.
Order Date :- 18.5.2018
skv
2 issues framed by the court
Whether further direction regarding security is required given the prior order provided for security upon approach to SSP.
Whether the Court should issue fresh directions despite the pending apology regarding chief judicial magistrate order.
Smt. Nishu And Another
State Of U.P.
Manoj Kumar Gupta
As recorded by the court registry
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