Smt. Jyoti vs State Of U.P. & Others
2012 Latest Caselaw 5158 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Habeas Corpus Writ Petition No. 47186 of  2012
 
Smt. Jyoti through her husband Bantoo Yadav  @ Chandra Shekhar..........Petitioner
 
Vs.
 
State of U.P. and others
 

 
Hon. Ravindra Singh, J.

Hon. Anil Kumar Agarwal, J.

Heard Sri Arvind Agarwal, learned counsel for the petitioner, learned A.G.A. for the State of U.P., Sri Santosh Shukla and Sri Tufail Hasan, learned counsel for the respondent No. 4.

This habeas corpus petition has been filed on behalf of Smt. Jyoti through Bantoo Yadav @ Chandra Shekhar with a prayer:

(a) issue a writ of Habeas Corpus releasing the petitioner form illegal detention of the respondent NO. 5 and provide her custody to her legally wedded husband.

(b) Issue writ of certiorari for quashing the impugned order dated 4.9.2012 passed by learned C.J.M. Firozabad in Case Crime No. 170 of 2012 Police Station Eka, District Firozabad by which petitioner was given under illegal detention of respondent no. 5.

(C) Pass an appropriate writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

The facts in brief of this case are that the FIR in case crime No. 170 of 2012 under sections 147, 363, 366 IPC, P.S. Eka, District Firozabad has been lodged by respondent No. 4 Smt. Rakesh Devi on 5.7.2012 at 2.00 P.M. against accused persons namely Bantoo Yadav, Sanju Yadav, Boby, Ramesh, Smt. Vimla Devi and Smt. Om Prabha Devi alleging therein that her daughter Km. Jyoti (hereinafter referred as corpus) aged about 16 years had gone to attend the call of nature on 17.6.2012 at about 5.30 A.M., thereafter she did not return to her house. Subsequently the information was given by Sukhbir Singh and Bhurey that the corpus was seen in the company of the accused persons namely Bantoo Yadav, Sanju Yadav and Boby when they were boarding in a while colour motor vehicle. After lodging the FIR the accused persons including the corpus Jyoti challenged the FIR by way of filing the Criminal Misc. Writ Petition no. 4153 of 2012, the same was disposed of with some directions on 16.8.2012. According to the directions given, the corpus was directed to appear before the court of C.J.M. Firozabad, I.O. was directed to produce her before the C.M.O. concerned for the purpose of her medical examination done for ascertaining her age and the I.O. was also directed to record her statement under section 161 Cr.P.C. and corpus be produced before C.J.M./Magistrate concerned for recording her statement under section 164 Cr.P.C. The I.O. was directed to provide the proper security also. It was also directed that in case the corpus is found to be minor then the C.J.M./ Magistrate concerned shall pass the appropriate orders regarding her custody as deems fit and proper and future security of the corpus the accused Bantoo Yadav was directed to deposit Rs. 60,000/- in a nationalised bank/post office in the form of fixed deposit for a period of not less than three years in the name of corpus. In pursuance of the order dated 16.8.2012 the corpus appeared before the court of C.J.M. Firozabad, she was medically examined by C.M.O. Firozabad. According to the medical examination report dated 28.8.2012 she was found to be aged about 20 years. The application was moved by the corpus for giving her custody to the accused Bantoo Yadav by submitting that she was pregnant. Such application was moved by Chandra Shekhar also. The learned C.J.M. Firozabad decided the issue of custody by order dated 4.9.2012 by holding that the corpus was minor and she was sent to Nari Niketan, Mathura.

Being aggrieved from the order dated 4.9.2012 this petition has been filed.

This petition has been filed by mentioning therein that corpus is major, her date of birth, according to the Scholar's Register and Transfer Certificate Form is 23.6.1993, she has appeared in the High School Examination in the year 2011, she has performed the marriage with Chandra Shekhar, the marriage certificate has been issued by Registrar of Hindu Marriage, Allahabad on 6.8.2012. According to the Marriage certificate, she has solemnized the marriage with Chandra Shekhar on 19.4.2012. Chandra Shekhar is also major, according his High School Mark sheet his date of birth is 20.6.1989. According to the Medical Examination report also the corpus is major, she does not want to live in Nari Niketan, she may be set her at liberty because she has been illegally sent to Nari Niketan, Mathura by learned C.J.M. Firozabad.

According to the counter affidavit filed on behalf of I.O. the corpus is minor, according to her High School Mark Sheet her date of birth is 23.6.1996 and according to the provisions of Juvenile Justice Care Protection Act, the age mentioned in High School Mark sheet has to be given preference with any other certificate. Since the corpus is minor her consent for marriage may not be proper, in such circumstance, learned Magistrate has not committed any error in passing the order by which corpus has been sent to Nari Niketan Mathura. The corpus may not be given to the accused Bantoo Yadav alias Chandra Shekhar because he is an accused for the offence punishable under sections 147, 363, 366 I.P.C. in which the corpus is the star witness. In case corpus is given to the accused, the fair investigation/trial may not be ensured. The custody of the corpus is not illegal, the present petition is devoid of the merits, the same may be dismissed.

In this petition after perusing the marriage certificate and other documents, the Registrar Hindu Marriage, Allahabad was directed to appear before this Court along with documents with regard to registration of the marriage of the corpus with Chandra Shekhar on 6.8.2012 and notice was issued to the respondent no. 4 also for her appearance before this Court. In pursuance of the order dated 14.9.2012, Sri Gyanendra Kumar, Registrar, Hindu Marriage, Allahabad has appeared before this Court but he did not produce all the documents by which the process of registration of marriage was completed by him. It was submitted by him that Domicile certificate of the corpus was issued from Allahabad, whereas corpus was not resident of Allahabad, admittedly, she was resident of district Firozabad. The Domicile Certificate issued from Allahabad also made the whole case suspicious. Therefore, the authority who issued the Domicile Certificate, was directed to appear before this Court to explain as to why Domicile Certificate was issued. In pursuance of the order dated 1.10.2012 Smt. Rakesh Devi, respondent no. 4 has appeared before this Court. On a query made by this Court, she stated that she was firstly married with Bobby Yadav, from his wed lock, she gave birth to the corpus, but after death of Bobby Yadav, she performed her marriage with Ram Sewak who was already married with Vidya Devi. Ram Sewak performed the marriage with her with the consent of Vidya Devi because from their wedlock no child was born. From the wedlock of Ram Sewak a male child has been born. The corpus has not married with Bantoo Yadav alias Chandra Shekhar. The school transfer certificate in which the corpus date of birth 23.6.1993 has been mentioned is forged because the corpus has been born in the year 1996, she was ready to have the custody of the corpus.

In pursuance of the order dated 1.10.2012, SDM Tehsil Sadar, Allahabd, who had issued the Domicile Certificate of the corpus has not appeared. Sri Gyanendra Kumar, Registrar, Hindu Marriage Allahabad was present in the court who filed his affidavit also. Again S.D.M. Sadar Allahabad and Sri Gyanendra Kumar Registrar Hindu Marriage Allahabad were directed to appear before this Court on 8.10.2012. In pursuance of the order dated 8.10.2012 Smt. Vandana Tripathi, SDM Sadar Allahabad appeared before this Court. She filed her affidavit also mentioning therein that Tehsildar Sadar Allahabd reported that certificate was never issued by the authority of the Tehsil Sadar, Allahabad, it was forged and fabricated document, it shows that by filing the forged domicile certificate, the corpus obtained marriage certificate. Sri Gyanendra Kumar, Registrar Hindu Marriage, Allahabad also filed his affidavit mentioning therein that in good faith he issued the marriage registration certificate but he tendered unconditional apology for causing inconvenience to the court, which shows that in the present case by playing fraud and forged domicile certificate was obtained. According to the school certificate the date of birth of the croups is 23.6.1996. According to the provisions of Juvenile Justice (care and protection) Act, the age mentioned in the High School certificate shall be given preference over any other certificate. The learned C.J.M. Firozabad passed a reasoned order on 4.9.2012 by which the corpus has been sent to Nari Niketan, Mathura. The impugned order dated 4.9.2012 is not suffering from any illegality or irregularity. In pursuance of the order dated 4.9.2012 the corpus has been detained in Nari Niketan, Mathura, in any manner detention of the croups is not illegal. The prayer for setting side the impugned order dated 4.9.2012 passed by the learned C.J.M. Firozabad and to give the custody of the corpus to Bantoo Yadav alias Chandra Shekher is refused. The corpus may not be given in the custody of respondent no. 4 because she has already refused to go in her company. The present writ petition is devoid of merits, the same is dismissed.

Accordingly this petition is dismissed.

Dt: 16.10.2012

RPD/SU/NA