Allowed

Bahadur @ Ram Bahadur and Another v. State of U.P. and 2 Others

Allahabad HC2 Apr 2019HABC/223/2019

Case brief

AI extract

What is this about?

This court allowed a habeas corpus petition filed by the husband seeking release of his ward, Pooja @ Priyanka, from protective custody. Considering a medical certificate stating her age as 17 and her voluntary statement under Section 164 Cr.P.C., the court held that no minor could be detained against her wishes and granted her liberty.

What did the court decide?

Corpus Pooja @ Priyanka is set at liberty forthwith.

Bahadur @ Ram Bahadur and Another Vs… — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Court No. - 51

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Case :- HABEAS CORPUS WRIT PETITION No. - 223 of 2019 Petitioner :- Bahadur @ Ram Bahadur And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yashpal Yadav,Lalji Yadav Counsel for Respondent :- G.A.

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Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.

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Heard learned counsel for the petitioners and Sri Yogeshwar Rai, learned A.G.A. appearing for the State.

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This writ petition has been filed with the prayer to issue a writ, order or direction set aside the order dated 09.01.2019 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No.8, Kanpur Nagar, in Case Crime No.19 of 2019, under Sections 363, 366, 376, IPC and ¾ POCSO Act, Police Station Bidhanu and command the respondent no.2 the Superintendent to produce the corpus Pooja @ Priyanka before this Court and set her at liberty in favour of the petitioner Bahadur @ Ram Bahadur.

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Vide order dated 28.02.2019 passed by this Court, the notices were duly issued to the respondent no.3, however, neither any body has put in appearance of behalf of respondent no.3 nor any counter affidavit has been filed on his behalf.

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When the case has been taken up the Court has been informed that the in pursuance of the direction of the order dated 28.02.2019 the girl has been medically examined by a team of doctors. The said medical certificate is produced by the learned AGA, the same is taken on record. As per the said certificate issued by the Chief Medical Officer, Kanpur Nagar, the age of the girl is 17 years.

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We have also perused the earlier order dated 28.02.2019, which reflect

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the factual position herein as under:-

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“Heard learned counsel for the petitioners and learned AGA appearing for the State.

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The present habeas corpus writ petition has been filed on behalf of the corpus Pooja @ Priyanka through her husband petitioner no.1 namely Bahadur @ Ram Bahadur.

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The contention is that as per the school certificate the date of birth of the girl is 21.8.2000, according to which she is an adult; much reliance has been placed on the statement of the girl under Section 164 Cr.P.C., copy of which has been annexed on page no. 21 of the writ petition, wherein she clearly stated that she has left her house and solemnized marriage with Bahadur of her own free will without any fear, threat or coercion.

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In view of the aforesaid, case of grant of indulgence has been made out.

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Admit.

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Learned AGA appears of respondent nos. 1 and 2.

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Issue notice to the respondent no.3. Steps be taken within one week.

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The notice to be served on respondent no.3 will clearly reflect that the case will be heard and disposed of finally on the next date of listing.

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All the respondents are granted four weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

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List this case on 02.04.2019. The State authorities are directed to ensure the presence of corpus as well as the respondent no.3 before this Court on the next date of listing.

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However, no medical certificate has been brought on record. The State-respondents are hereby directed to get the girl medically examined only for the purpose of age verification and in this regard the District Magistrate, Kanpur Nagar will take all necessary action. The Government Advocate of this Court will ensure about the compliance of this order that the girl is medically examined by a team of three doctors headed by the Chief Medical Officer concerned and two other doctors, one of which would be a lady doctor as well as the radiologist only with regard to the age verification and no t for other purpose. The medical report in this regard be sent to this Court through the office of Government Advocate by the next date of listing.

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Let a copy of the order be communicated to the office of the Government Advocate within two days from today.”

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The contention of the counsel for the petitioner is that even a minor cannot be detained against her wishes in Nari Niketan. He further submitted that as per the medical certification the age of the girl is 17 years, and thus if the benefit of two years is given then the girl is being adult. He further contended that as per the school leaving certificate, copy of which has been annexed on page no.14 of the writ petition, the date of birth of the girl is 05.05.1997. The statement of the girl under Section 164 Cr.P.C., copy of which has been annexed on page no.21 of the writ petition, which clearly shows herein as under:-

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^^eS fiNys rhu lkyksa ls I;kj djrh gwaWA eSa fnukad 15-09-18 dks ?kj ls vdsyh x;h Fkh] eq>s irk Fkk fd cgknqj vius ekek ds ?kj ij gS rks eSa mlds ekek ds ?kj x;hA 24-09-18 dks geus dksVZ eSfjt ;k vk;Z lekt ls 'kknh dj yh gSA odhy us djok;h gekjh 'kknhA eSa ckfyx gaWwA viuk vPNk cqjk le>rh gwaW rFkk cgknqj esjs ifr gSaA eSa bUgha ds lkFk jguk pkgrh gwaWA ;gh esjk c;ku gSA**

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The Court has been informed that in compliance of the order of this Court dated 28.02.2019, the corpus has been produced before the Court today from the Nari Niketan, Kanpur Nagar, in the custody of Head Constable Ram

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Varan Singh (P.N. No. 902280379), Lady Constable Sudha Yadav and Neha Sone (P.N. Nos.162260579 and 152412140). Thus the Court proceeding to examined the corpus for the purpose of knowing her desire:-

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On being asked ^^fd vki dk uke D;k gS** she informed the Court ^^fd esjk uke iwtk @ fiz;kadk g S ** On being asked ^^fd vki ds firk th dk uke D;k gS** she informed the Court ^^fd esjs firk th dk uke LoxhZ jke vkljs g S ** On being asked ^^fd vkius 'kknh fdlls dh gS** she informed the Court ^^fd eSus cgknqj @ jke cgknqj ls lkFk 'kknh dh g S ** On being further asked ^^fd vkius 'kknh viuh ethZ ls dh gS fd dksbZ tksj ;k ncko Fkk** she informed the Court ^^fd eSajs cgknqj @ jke cgknqj ds lkFk 'kknh viuh ethZ ls dh gS fcuk fdlh tksj ;k ncko ds** On being asked ^^fd vHkh vki ;gkaW ls dgkWa tkuk pkgrh gSa** she informed the Court ^^fd ;gkaW ls eS vius lklqjky vius ifr ds lkFk tkuk pgrh gw a WA*'

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Learned counsel for the petitioners 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.

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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".

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“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)”

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It may also be appreciated that the issue whether the victim/detenue who is a minor, can be sent to Nari Niketan against her

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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."

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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.

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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.

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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. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors.”

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In the case of Smt. Raj Kumari Versus Superintendent, Women Protection, Meerut and others House reported in 1997 (2) A. W. C. 720

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another Division Bench of this Court has laid down the following dictum:-

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"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

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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."

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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.”

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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:-

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“ 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.

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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.

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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.

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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

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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).

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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. 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.

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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.

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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.”

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In view of the fact that the corpus is an adult as per the medical certificate and the veracity of which has not been disputed by the learned AGA appearing for the State and also in view of the statements of the girl under Section 164 Cr.P.C. as well as the statement made before this Court today, a case for grant of indulgence has been made out.

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Accordingly, the habeas corpus writ petition is allowed. Corpus Krishna Sharma is set at liberty forthwith. Order Date :- 2.4.2019/VKG

Bahadur @ Ram Bahadur and Another v. State of U.P. and 2 Others

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Bahadur @ Ram Bahadur and Another v. State of U.P. and 2 Others

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