Smt. Manoja Devi & Another vs State Of U.P. & Others
2012 Latest Caselaw 5110 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Civil Misc. Habeas Corpus Writ Petition No. 46770		of 2012
 
Smt. Manoja Devi and another Versus State of U.P. and others
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Anil Kumar Agarwal,J.

Heard Sri Abhay Raj Singh, learned counsel for the petitioners, learned A.G.A. for the State of U.P. and Sri Y.D.Misra, learned counsel appearing for respondent no. 5 Rajeshwar.

This Habeas Corpus Petition has been filed on behalf of Manoja Devi by Santosh Kumar Singh, petitioner no. 2 with the following prayers :-

1.issue a writ, order or direction in the nature of Habeas Corpus thereby directing the respondent no. 3 to produce the corpus Smt. Manoja before this Hon'lbe Court and set her at liberty forthwith from the custody of respondent no. 3.

2.issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 3.7.2012 and 4.8.2012 passed by leaned A.C.J.M. court No. 2 Budaun         (Annexure No. 8 and 9 to the  writ petition) by which corpus Smt. Manoja has been detained illegally in Nari Niketan Bareilly.
 
3.issue any other such and further order or direction which this Hon'lbe court may deem fit and proper under the circumstances of the case.
 

The facts of this case are that the FIR has been lodged by Rajeshwar, the father of the corpus Manoja Devi, on 16.6.2012 at 9.15 a.m. at P.S. Dataganj in case crime no. 286 of 2012 under sections 363,366 I.P.C. against the petitioner no. 2 Santosh, Narsingh and Jai Singh with the allegation that Narsingh was purchasing the milk from the first informant Rajeshwar for the last two years, whenever he was not coming to take the milk, his brother Santosh and Jai Singh used to come to his house for taking the milk, about one month prior to lodging of the F.I.R. Santosh and his brother came to his house in night and enticed the corpus Manoja Devi and taken away her. The corpus Manoja Devi was recovered, she was medically examined on 18.6.2012. According to the medical examination report no marks of injury was seen on her person, her hymen was torn and old healed. According to the x-ray report her age was about 18 years. According to the x-ray report epiphysis of wrist, elbow joint and knee were found fused, but the epiphysis of clavicle were not fused. After the recovery of corpus, she was handed over to her father Rajeshwar Singh by the I.O. on 20.6.2012. Thereafter the statement of the corpus Manoja Devi was recorded under section 164 Cr.P.C. on 7.7.2012 in the court of Additional Sessions Judge (Junior Division)/ Judicial Magistrate, Budaun in which she stated that she was aged about 20 years, she had gone to the house of her sister Santosh with her free will, she was not enticed by any person and she has not gone in the company of Narsingh, Santosh and Jai Singh. She had gone to the house of her sister by telling her parents, she was not enticed and kidnapped by any person. After completing the investigation the charge sheet has been submitted against petitioner no. 2 and others under sections 363,366 I.P.C. According to the police papers the corpus was handed over to her father Rajeshwar on 20.6.2012 but according to petitioner no. 2 she was not handed over to her parents, she remained in police custody, thereafter, an application was moved by the mother of the corpus for releasing the corpus in her custody, in support of that application school certificate has also been filed showing therein that the corpus was minor but the corpus was sent to Nari Niketan on 4.8.2012 because she had refused to go in the company of her parents, she had expressed the apprehension about her life. The corpus was again summoned on 9.7.2012 by that time two applications one by her father and one by Smt. Ram Piyari were moved for releasing the corpus in their favour. Smt. Ram Piyari, is the mother of the accused Santosh Singh, both the applications have been decided on 9.7.2012. According to the school certificate her date of birth is 3.7.1995 but she had refused to go to the house of her parents. She again expressed danger to her life. In such circumstances, she was sent to Nari Niketan. The order dated 4.8.2012 and 9.7.2012 are under challenged.

The learned counsel for the petitioner made his submission as follows:-

1.That the corpus is major and mature lady and has got married with petitioner no.2. As per medical evidence on record, her own statement and voter list prepared at the instance of respondent no. 4, she is major girl. The respondent no. 4 has mentioned in F.I.R. itself that she is aged about 16-17 years on the day of alleged incident.

2.That the respondent no. 4 after obtaining fake and fabricated academic record (T.C. Annexure no. 7 to writ petition) dated 2.7.2012 has filed before learned court below regarding her age where upon learned court below without testing its veracity has relied upon the same and declared her as minor which is illegal and erroneous.

3.That when the veracity and authenticity of academic documents is doubtful and suspicious then authenticity and veracity must be proved and without proving it no reliance can be placed on such bogus document. Here in the case said T.C. has not been proved by respondent no. 4 and same is not proved document as such reliance placed by learned court below is illegal erroneous and unjust.

4.That the court has specifically stated before this Hon'ble court that she has never gone to any school for getting education and she is totally illiterate lady even she could not make her signature which also goes to falsify the academic T.C.( Annexure no. 7 to the writ petition) itself.

5.That since the petitioner no. 1 has been detained illegally hence other controversy may not be taken into consideration at this stage.

6.That it has been stated in para 13 of the writ petition that supurdginama was prepared on 20.6.2012 even then she was remained under police custody since 18.6.2012 to 9.7.2012 i.e. till the day of passing the impugned order dated 9.7.2012 and said factum has not been explained by prosecution in counter affidavit in para no. 5 thus it is apparent on record that the corpus it illegally detained ever since the day of her alleged recovery till date.

7.That it is also submitted that corpus did not make any allegation against the accused persons including petitioner no. 2 thus no offence under sections 363,366 IPC could be said to have been made out.

8.That personal liberty of citizen is a fundamental right and guaranteed by Article 21 of the Constitution of India and said right has been provided to each person and such right shall be exercised by minor and major both. Here in the case it is apparent on record that corpus is major girl even then she has been detained in Nari Niketan Bareilly in compliance of impugned order dated 9.7.2012 and 4.8.2012 which are liable to be set aside/quashed.

9.That the age of detenu petitioner is about 20-21 years which is otherwise apparent on record that too on the basis of Medical evidence, deposition of detenu petitioner herself and voter list. The respondent no. 4 procured a forged and fabricated School T.C. dated 2.7.2012 of said victim showing her date of birth is as 3.7.1995 whereas she never joined any school and she is totally illiterate.

10.That there are catena of pronouncements of Hon'ble Apex Court as well as this Hon'ble Corut that personal liberty of a person as guaranteed by Article 21 of the Constitution of India, can not be curtailed in any manner whatsoever except due process of law. Here in the case the corpus who is major and mature lady has been detained illegally pursuant to impugned illegal orders dated 9.7.2012 and 4.8.2012 as such same is liable to be set aside and quashed and she may be set at liberty forthwith.

11.That the learned magistrate concerned has placed its reliance on such fake and fabricated school T.C. which is not proved and which has been procured merely to get the benefit of case showing her as major. The date of birth has also not been mentioned in the F.I.R. and now at highly belated stage alleged ''not proved' documents has been placed before the learned court below thus conclusion drawn by the learned court below is illegal and erroneous and consequential effect thereof, detention in Nari Niketan Bareilly is illegal and against the provisions of Constitution of India.

12.That the croups Manoja Devi is beyond doubt a major girl as it apparent on record and merely on the basis of fake and forged document of school T.C. issued on 2.7.2012 the learned court below has held her as minor and directed to detain in Nari Niketan. Thus the conclusion drawn by the learned court below is not only illegal but it is also arbitrarily and against the spirit of constitution of India and detention in Nari Niketan Bareilly of corpus is illegal and arbitrary besides being against the provisions of Article 21 of the Constitution of India.

In reply to the above submission it is submitted by the learned A.G.A. and Sri Y. D. Misra appearing on behalf of respondent no. 4 that the corpus is minor, her school certificate has been filed, according to the school certificate, her date of birth is 3.7.1995, she remained in the custody of the accused persons, it is not known as to why she was threatened, tortured or some allurement have been given, that is why she did not make allegation against the accused persons in her statement recorded under section 164 Cr.P.C. She did not say that she had gone in the company of petitioner no. 2 or she wanted to marry with him, or she had married with him. Subsequently, application moved by the mother of petitioner no. 2 also does not show that the corpus was married with petitioner no.2. Now this petition has been filed with the submission that she has married with petitioner no.2. In fact, no marriage has been performed and petitioner no. 2 has been charge sheeted in case crime no. 286 of 2012 under sections 363,366 I.P.C. in which corpus is the victim she is the main witness of the alleged offence, in such circumstances she may not be given in the custody of petitioner no.2 or his mother etc. The natural guardian is her father, she may be given in his custody.

Considering the submission made by the learned counsel for the petitioners, learned A.G.A. for the State of U.P. and Sri Y. D. Misra, appearing on behalf of respondent no.4 and from the perusal of the order sheet it appears that in the present case the petitioner no. 1 was summoned from the Nari Niketan, she appeared before this court before this court on 1.10.2012 and her parents also appeared in the court on 1.10.2012 in their presence query was made with the father and mother of the corpus, they stated that the corpus has passed 5th class examination, she was aged about 17 years, the brother of petitioner no. 2 was coming to their house to purchase the milk, but on query made by the court, the corpus stated that she was an uneducated girl and had married with Santosh Singh, she had left her parents in the company of Santosh Singh, she performed her marriage in temple, she did not want to go in the company of her parents, she wanted to go in the company of her husband Santosh Singh. Santosh Singh was also present in the court, on query made by the court, he stated that he was a driver, he was having the agricultural land, he was the driver of the vehicle of the police line but he could not disclose the name and address of his owner, he stated that he wanted to keep the corpus in his company and ready to maintain her as wife but in appearance he was not appearing to be a mature person. This petition has been filed by mentioning that the corpus is an uneducated girl, when the corpus was replying the query made by the court, she was addressing the court by saying 'sir' she was using some word of English language. According to her expression and appearance she was not appearing to be an uneducated girl. The school leaving certificate has been filed in which her date of birth is mentioned as 3.7.1995. The corpus has not stated in her statement recorded under section 164 Cr.P.C. that she had gone from her parent house in the company of petitioner no.2 Santosh Singh but now in the court she stated that she had left her parent house in the company of Santosh Singh, she had not stated before the learned magistrate concerned that she had performed the marriage with Santosh Singh, now in the court she stated that she had performed the marriage in a temple with Santosh Singh. it appears that the corpus was telling a lie. According to the medical examination report also, she was aged about 18 years not above 18 years, and she did not want to go to the house of her parents, who are the natural guardian of the corpus, in such circumstances, we can not compel her to go to her parents house, she cannot be handed over to petitioner no. 2 who is accused, has committed the offence punishable under sections 363,366 I.P.C. in which the corpus is the star witness. She cannot be given into his custody, in case she is given in the custody of the accused, the trial of the above mentioned offence shall be adversely affected. In such circumstances, we are having no option except to keep the corpus in Nari Niketan where she is detained. She shall be detained in Nari Niketan Bareilly till she attains the age of majority. As soon as she completed the age of 18 years, she shall be produced before the court concerned for passing appropriate order with regard to her custody. The impugned orders dated 4.8.2012 and 9.7.2012 are not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

Accordingly this petition is dismissed.

Dt. 15.10.2012

NA