Disposed

Kundan Kumari v. The State of Bihar through its Chief Secretary, Govt. of Bihar, Main Secretariat, Patna- 800015

Patna HC7 Dec 2022CR. WJC/1401/2022

Case brief

AI extract

What is this about?

High Court declined to exercise extraordinary jurisdiction in a habeas corpus petition regarding a missing minor girl, relying on the deposition stating she left voluntarily. The court directed the petitioner to file an application under Section 98 of Cr.P.C. before the appropriate authority for restoration of the female child.

What did the court decide?

Petitioner directed to file an application under Section 98 of Cr. P.C. before the concerned authority within four weeks. Present criminal writ application stands disposed of.

Kundan Kumari Vs The State of Bihar through its… — Child Sexual Offences (POCSO) | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ Jurisdiction Case No.1401 of 2022

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Arising Out of PS. Case No.-476 Year-2021 Thana- BARIYARPUR District- Munger

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======================================================

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Kundan Kumari, age 36 years, Female, Wife of Not Mentioned, R/V- Lohchi, P.S- Kharagpur, Outpost- Shampur, Dist- Munger, Bihar 811211

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... ... Petitioner

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Versus

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The State of Bihar through its Chief Secretary, Govt. of Bihar, Main Secretariat, Patna- 800015.

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The State Commission for Protection of Child Rights, through its Chairman, State of Bihar, 22/B, Harding Road, Patna, Bihar, 800015.

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The D.G.P, State of Bihar, Jawaharlal Nehru Marg, Rajbansi Nagar, Patna, Bihar 800023.

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The Dy. I.G of Police, Munger, Commissionary Office Campus, Munger Fort, Munger, Bihar 811201.

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The Superintendent of Police, Munger.

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The Station House Officer, Kharagpur, Munger.

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The Station House Officer, Bariyarpur, Munger.

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The Investigating Officer in F.I.R. bearing no. 476/21, Shampur Outpost, Kharagpur, P.S- Munger.

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... ... Respondents

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====================================================== Appearance : For the Petitioner : Mr. Shashwat, Advocate For the Respondents : Mr. Lailit Kishore, A.G. ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL ORDER

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(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

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2 07-12-2022 Heard learned counsel for the petitioner and

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 2/10

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learned counsel for the respondents.

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The following reliefs have been sought for on behalf of the petitioner in the present criminal writ application.

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I.“For issuance of an appropriate writ in the nature of Habeas Corpus or any other appropriate writ (s) or order(s) or direction(s) commanding the respondents to immediate produce before this Hon’ble Court, the Corpus of Sejal Kumari, aged about 13 years, D.O.B. 07.06.2009, daughter of the petitioner, Mrs. Kundan Kumari, age 36 years, R/O VillageLohchi, P.S.-Kharagpur, Outpost-Shampur, District-Munger, Bihar,-811211, who has been missing from the house of Parvati Devi at Bariyarpur Town, Munger, since 2728.01.2022 and has been illegally detained by 1. Ajay Kumar, 2. Amit Kumar, both S/O Raju Bhagat, 3. Kiran Devi, W/O Raju Bhagat, R/O all three presently residing at H. No. 251, Phase-1, Ekta Nagar, Rama Mandi, Jalandhar, Punjab, 4. Manoj Bhagat, 5. Vikash Kumar, both S/O Lakhi Choudhary (both are maternal uncles of the accused Ajay Kumar), 6. Mangli @ Anita Devi, W/O Manoj Bhagat (maternal aunt of accused Ajay Kumar), 7. Lakhi Choudhary, R/O all four Bengali Tola, P.S. Bariyarpur, District-Munger, present addressall are residing in Jalandhar, Punjab, 8. Parvati Devi, 9. Dilip Kumar Das alias Gautam Kumar, 10. Pinki Kumari, 11. Usha Devi, both D/O Parvati Devi from no. 8 to no. 11, all residence of Bariyarpur Town (No. 1 to 7 are named accused in F.I.R. bearing No. 476/2021, U/Ss 366(A), 376, 115 I.P.C., Section 4 of POCSO Act, Section 9 of Prevention of Child Marriage Act and F.I.R. bearing No. 10/22 U/Ss 366 (A)/34 and 120(B) of IPC) registered in P.S. Kharagpur and P.S. Bariyarpur respectively).

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 3/10

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II. For issuance of an appropriate writ in the nature of Mandamus or any other appropriate writ (s) or order(s) or direction(s) commanding the respondent nos. 1 to 7 to trace and rescue the petitioner’s daughter and to inform this Hon’ble Court of the actions taken on a periodical basis.

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III. For issuance of an appropriate writ in the nature of Mandamus or any other appropriate writ (s) or order(s) or direction(s) directing the respondent no. 2 to produce before this Hon’ble Court an action taken report in compliance of requisite mandatory steps in accordance with the Standard Operating Procedure (SOP) published by Ministry of Women and Child Development, Union of India, dated 23.11.2016 for cases of missing children.

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IV. For issuance of an appropriate writ in the nature of Mandamus or any other appropriate writ (s) or order(s) or direction(s) directing the respondent no. 5 to lodge an F.I.R. against 1. Parvati Devi, 2. Dilip Kumar Das alias Gautam Kumar, 3. Pinki Kumari, 4. Usha Devi, both D/O Parvati Devi, all residents of Bariyarpur Town as the petitioner has strong suspicion that these people have a specific role in kidnapping of her minor daughter on the intervening night of 27-28.01.2022.

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V. For issuance of an appropriate writ in the nature of Mandamus or any other appropriate writ (s) or order(s) or direction(s) directing the respondent to adhere by the guidelines laid down by Hon’ble Supreme Court (Hori Lal Vs. The Commissioner of Police, Delhi and Ors.), 2002 SCC Online SC 37 and in Bachpan Bachao Andolan Vs. Union of India (2014) 16 SCC 616 in true letter and spirit and inform the Hon’ble Court about the action taken in order to trace and rescue the minor girl on a periodical basis.”

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The facts leading to filing of the present criminal

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writ application is that on 20.12.2021, the minor daughter of the

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 4/10

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petitioner, namely, Sejal Kumari, a student of Class of 8^th , went to the school but she did not return. The petitioner also went to the said school, but the Principal of the said school said that her daughter had not come to the school that day. The petitioner and her family members started searching her but her daughter was not traced out. Thereafter, the petitioner lodged an F.I.R. bearing Kharagpur P.S. Case No. 476 of 2021 under Sections 366(A)/34 of the I.P.C. for kidnapping her minor daughter against accused persons, namely, Ajay Kumar, Amit Kumar, Kiran Devi, Manoj Bhagat, Vikash Kumar, Mangli @ Anita Devi @ Sunita Devi and Lakhi Choudhary, as previously they disappeared her minor daughter. On 25.01.2022, accused Ajay Kumar and petitioner’s daughter were apprehended by the Investigating Officer near the Munger Court Premises. Thereafter, accused Ajay Kumar was sent to the jail. The victim was also produced before the court and an application for custody of the victim was filed by the petitioner but the victim was sent in the custody of the Investigating Officer and a women constable was deputed to Shampur Police Station. On 27.01.2022, the statement of the victim under Section 164 Cr. P.C. was recorded by the learned Magistrate, assessing her age to be 15 years old. Thereafter, the learned Magistrate after hearing the petitioner for custody of her

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 5/10

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daughter, granted the custody of minor girl to the petitioner directing the Investigating Officer to ensure the safely drop of the victim and the petitioner to their village home under police protection and inform the court. The Investigating Officer dropped the petitioner, the victim (daughter of the petitioner) and her sister Poonam Devi at their sworn aunt Parvati Devi’s Home at Bariarpur Town where they stayed and took dinner, tea and slept there. Thereafter, on 28.01.2022, when the petitioner woke up at 3.00 A.,M., she found that her daughter was not there. On 05.02.2022, an F.I.R. bearing Bariyarpur P.S. Case No. 10/2022 was also lodged by the petitioner against the above named accused persons under Sections 366(A)/34 and 120(B) of the I.P.C. but the police did not lodge F.I.R. against Parvati Devi’s family. On 14.02.2022, the petitioner sent applications to D.I.G., Munger and D.G.P., Patna, to take cognizance of the matter concerning Kharagpur P.S. Case No. 476/2021 and Bariyarpur P.S. Case No. 10/2022 and direct the I.O. in Bariyarpur P.S. Case No. 10/2022 to register the case against Parvati Devi’s family and arrest them in order to have the information of the girl so that she can be recovered. On 23.02.2022, the petitioner had also filed a protest petition before the learned A.C.J.M.-II, Munger, in respect of Bariyarpur P.S.

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 6/10

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Case No. 10/2022. On 28.02.2022, the I.O. submitted charge sheet in connection with Kharagpur P.S. Case No. 476 of 2021 under Sections 366(A), 376 of the I.P.C., 4 of POCSO Act and 9 of Prevention of Child Marriage Act against only one accused and gave clean chit to other six accused persons. However, learned A.D.J.-VI, Munger, took cognizance against all the accused persons finding enough material on record and also added Section 115 of I.P.C. On 29.04.2022, the petitioner also sent an application to the S.P., Munger, informing about the whole incident which occurred on 27.01.2022. On 17.05.2022, the petitioner also sent representations to the Chairman of Bihar Commission for Protection of Child Rights and the Chairman, National Commission for Protection of Child Rights informing about the inaction on the part of the police authorities and District Administration in order to recover her minor daughter but no action was taken by them. On 27.05.2022, the petitioner also sent a representation to the Deputy Director, District Unit of Protection of Child Rights, Munger, for recovery of her minor daughter but no action was taken. The I.O. has submitted Charge Sheet No. 104/2022 under Sections 366(A) and 120(B)/34 of the I.P.C. in Bariyarpur P.S. Case No. 10 of 2022 against only one accused Ajay Kumar and supplementary

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 7/10

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investigation is going on against the absconding other accused persons. Still the minor girl has not been rescued and traced. Hence, the present criminal writ application has been preferred.

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Learned counsel for the petitioner has submitted that the petitioner has exhausted all the other available remedies and is left with no other option but to invoke the extra ordinary jurisdiction of the Court by filing the present criminal writ application in the nature of Habeas Corpus. The daughter of the petitioner is still traceless and no steps are being taken by the police to recover her missing daughter.

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Learned counsel for the State submits that investigation is going on.

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At this juncture, it is noteworthy to reproduce the statement of the Corpus which was recorded under Section 164 of the Cr.P.C. before the learned Magistrate in connection with Kharagpur P.S. Case No. 476 of 2021.

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“ Schedule XLII Form No. (J) 12

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FORM OF HEADING OF DEPOSITION

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U;k;ky;& Jh fceys”k dqekj

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CASE No. Kharagpur 476/21 U;k- n.Mkf/kdkjh] izFke Js.kh Year 2021. Deposition of Witness No…….01 eqaxsj For the U/S 164 Cr. P.C. Aged about….15…..years…... …………………...taken on solemn affirmation on the …………………...27………….. day of ………………………...01…………….. year….. 2022..... My name……….Sejal Kumari...........……………………………………………………………….... I am daughter of……….. Aman Kumar………………………………………………………………. My age is……..18……. years. I am by religion ……………………. Hindu…………………… My nationality is ……….Indian………………………………………………………………………...

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 8/10

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and belong to Schedule Caste/Scheduled Tribe. My home is at Mauza-... Lohchi.... Police Station-.. Shampur………………………….. ……………………………………………….District... Munger..……………………………... I reside at present in Mauza... do.…... Police station………do…...……………………………….... ……………………………...District………………………...do……………………………..where I am ………………………….student of Class VIII……………………………………………………………...

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Q. D;k vki viuk c;ku LosPNk ls fcuk fdlh Hk;] ncko dh ns jgh gks\

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Ans. th gk¡A

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Q. D;k c;ku nsuk gS\

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Ans. esjh ek¡ o ikik eq>s ekjihV djrs FksA ekjihV djus dk dkj.k gS fd vt; dqekj ds lkFk rhu&pkj eghuk igys tkya/kj pys x, FksA 18&12&2021 dks Hkh jk=h esa esjs lkFk ekjihV esjh eka&ikik fd,A eSa ?kj ls fudydj eSa cfj;kjiqj vk;h ogka ls Vªsu ls fd;wy taD”ku x,A Vªsu ls eSa tkya/kj pyh x;hA 21@12@2021 dks eSa tkya/kj igq¡ph mlh fnu eSa vt; dqekj ds lkFk eSa 21@12@2021 dks uSuk nsoh dY;k.k laLFkk esa 'kknh dhA vxys fnu paMhx< gkbZdksVZ esa tkdj 'kknh fd,A 24@12@2021 dks tkya/kj esa fdjk;s ij :e ysdj eSa o esjs ifr lkFk&lkFk ,d eghuk rd jghA 25&01&2022 dks genksuksa tkya/kj ls dksVZ vk,A fQj esjs ifr dks iqfyl idj (fxj¶rkj) dj tsy Hkst nhA bl ?kVuk esa eSa tks Hkh dh vius LosPNk ls dhA

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Q. c;ku esa vkSj D;k crkuk gS\ Ans. th dqN ughaA

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Q. U;k;ky; ls dgka tkuk pkgrh gks\ Ans. eSa vius ifr ds ikl tkuk pkgrh gq¡A

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eSus viuk c;ku idj viuk gLrk{kj dj nh

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Sd/- Sd/Sejal Kumari Chandan Kumar 27/01/2022 Judicial Magistrate 1^st Class 27/01/2022”

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From perusal of the aforesaid statement of the corpus,

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it is evident that the corpus had left her house out of her own will and volition. The corpus has specifically stated that she was physically assaulted by her parents and for this reason she had

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 9/10

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left her house. The corpus also states that she had married with Ajay Kumar. Lastly, the corpus has shown her inclination to live with her husband.

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In view of the totality of the circumstances of this case, we are not inclined to invoke the extra ordinary jurisdiction of this Court in this case. It would not be out of place to mention that Section 98 of Cr. P.C. reads as follows:

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“98. Power to compel restoration of abducted females.- Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.”

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Therefore, the petitioner is directed to file an application under Section 98 of Cr. P.C. before the authority concerned within a period of four weeks.

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If such application is filed, the authority concerned shall take appropriate action and pass necessary order, on the application filed on behalf of the petitioner, within a period of three months from the date of filing of such application, in accordance with law.

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Patna High Court CR. WJC No.1401 of 2022(2) dt.07-12-2022 10/10

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With the aforesaid observations and directions, the

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present criminal writ application stands disposed of.

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(Sudhir Singh, J)

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U.K./- U T

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( Shailendra Singh, J)

Kundan Kumari v. The State of Bihar through its Chief Secretary, Govt. of Bihar, Main Secretariat, Patna- 800015

Case brief

What is this about?

What did the court decide?

Kundan Kumari v. The State of Bihar through its Chief Secretary, Govt. of Bihar, Main Secretariat, Patna- 800015

Case brief

What is this about?

What did the court decide?

What the court decided

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