Allahabad High Court
Smt. Suman & Another vs State Of U.P. & 2 Others on 13 May, 2014
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 21
A.F.R.
Case :- CRIMINAL REVISION No. - 2637 of 2013
Revisionist :- Smt. Suman & Another
Opposite Party :- State Of U.P. & 2 Others
Counsel for Revisionist :- A.P. Tewari,S. Kumar
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Vijay Lakshmi,J.
Heard Mr. A.P. Tewari assisted by Mr. S. Kumar, learned counsel for the revisionists as well as learned A.G.A. on behalf of opposite party nos. 1 and 2. No one is present on behalf of opposite party no. 3 (informant) despite the fact that she has been personally served with the notice as per the report dated 10.12.2013 of the Chief Judicial Magistrate, Deoria.
Learned counsel for the revisionists prays that the case be decided on merits today as it is pending since long specially in the light of the note appended on the top of the cause list that "no case shall be adjourned on the ground that learned counsel for the informant is not present". Learned counsel has further submitted that even after expiry of one year from personal service of notice the opposite party no. 3 (informant) has neither appeared nor engaged any counsel to argue the case on his behalf.
In view of the aforesaid facts, I am deciding this criminal revision today on merits, after hearing learned counsel for the revisionist, learned A.G.A. and after carefully perusing the records.
The instant criminal revision is being preferred against the order dated 13.8.2013 passed by the Chief Judicial Magistrate, Court No. 17, Deoria in Criminal Case No. 310 of 2013 (State Vs. Udaiveer and others) under Sections 363 and 366 I.P.C., Police Station Khampur, district Deoria whereby the prosecutrix-revisionist no. 1 was sent to Nari Niketan.
The contention of the revisionist is that inspite of the fact that the revisionist no. 1/prosecutrix Smt. Suman was found to be major aged about 18 years in the medical report and as per her statement recorded under Section 164 Cr.P.C. refuting the allegations made in the F.I.R., the learned Magistrate has rejected the application of the revisionist and directed to send her to Nari Niketan, Jaitpura, Varanasi against her will.
Learned counsel for the revisionist has argued that on account of illegal detention of the revisionist against her will, her right to liberty is being infringed and violated. He has further argued that even a minor person cannot be ordered to be detained and kept in Nari Niketan against wishes. There is no provision in the Code or Criminal Procedure which authorises the learned Magistrate to keep a woman in Nari Niketan against her will. Hence it has been prayed that by learned counsel for the revisionist that the impugned order which has been passed in a mechanical manner without application of judicial mind be set aside. The learned counsel for the revisionist has placed reliance on a Division Bench judgement of this Court reported in 1997 All LJ 2197 ( Raj Kumari Vs. Superintendent, Women Protection House) in which, the Division Bench of this Court relying on two earlier Division Bench judgments in the matter of Smt. Parvati Devi (1982 All LJ 115) and Smt. Kalyani Chowdhary v. State of U.P. reported in 1978 Cri LJ 1003 has held 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 & 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."
In the case of Smt. Parvati Devi (supra) the Division Bench of this Court has held that :
"...confinement of an accused in Nari Niketan against her wishes could not be authorised either under Section 97 or under Section 171 Cr.P.C. and the respondents have failed to bring to the notice of the Court, any legal provision where under the Magistrate has been authorised to issue direction that a minor female witness shall against her wishes, be kept in Nari Niketan."
Per contra learned A.G.A. has contended that the learned Magistrate has committed no illegality while holding the prosecutrix as minor on the basis of her school certificates relying on two judgments of the Supreme Court cited in the impugned order and sending her to Nari Niketan.
After hearing the rival submissions of learned counsel for the parties and considering the materials on record I am of the considered view that this revision deserves to be allowed and the impugned order dated 13.8.2013 is liable to be quashed and set aside for the following reasons :-
1.The learned Magistrate while passing the impugned order has neither considered the radiological age of the prosecutrix, which was found to be of 18 years nor the statement of prosecutrix recorded under Section 164 Cr.P.C. and has passed the impugned order by relying blindly on school leaving certificate of the girl and judgment of connected criminal trial.
2.The statement recorded under Section 164 Cr.P.C. of the prosecutrix which is available on record as annexure-5 clearly shows that the prosecutrix has categorically stated that she is aged about 20 years and she understands her welfare. Her mother had came to Nari Niketan with two other family members to meet her and to take her home. All of them were talking that as she (the girl) has brought a bad name to the family they would kill her after taking her home. The prosecutrix has further stated that when they reached at the station, taking advantage of the crowd, present at railway platform she ran away. Udai Veer has not not done anything wrong with her. Udai Veer is her husband and she intends to live with him. Her mother has falsely implicated Udai Veer.
The aforesaid statement of the prosecutrix not only shows that both the revisionists are living together as husband and wife after performing marriage with their free will and consent but also shows the apprehension of prosecutrix that due to prestige issue, her family members may eliminate her. Killing a girl for securing honour of family is very common in India especially in rural areas.
In such situation, it was neither safe nor proper for the Magistrate to send the girl to Nari Niketan.
3.Even assuming for the sake of arguments, that the prosecutrix was minor at that time, she should not have been sent to Nari Niketan against her wishes in wake of the clear law as laiddown earlier by the Division Bench of this Court in the 3 decisions cited above.
For the abovesaid reasons, the revision is allowed. The impugned order dated 13.8.2013 is set aside. The opposite party nos. 1 and 2 are directed to release the prosecutrix forthwith, if not wanted in any other case, and send her to her husband's (revisionist no. 1 Udai Veer) home under proper security.
Order Date :- 13.5.2014
S.B.
