Smt. Renu Maurya And Another vs State Of U.P. And Another
2014 Latest Caselaw 2060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44								    A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 43295 of 2012
 

 
Applicant :- Smt. Renu Maurya And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Anil Kumar Shukla
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Het Singh Yadav,J.

The applicants have preferred this application under Section 482 of the Code of Criminal Procedure (in short 'the Code') for invocation of inherent jurisdiction of this Court for quashment of the order dated 21.11.2012 passed by the C.J.M., Sonbhadra in Misc. Case No. 71 of 2012 arising out of Case Crime No. 244 of 2012 under Sections 363, 366 I.P.C., Police Station-Pannuganj, District -Sonbhadra whereby the applicant no. 1 was directed to be lodged in Rajkiya Sanrakshan Griha (Mahila), Varanasi.

2. The facts of the case in brief necessary for the disposal of the controversy involved herein are that on 11.4.2012, the father of the applicant no. 1 lodged F.I.R. alleging therein that his minor daughter Renu Keshri, aged about 15 years, had left the house on 10.4.2012 for appearing in Intermediate Board Examination, but she did not return. He suspected that the applicant no. 2 might have enticed away his daughter.

3. It would appear that the applicants preferred Criminal Misc. Writ Petition No. 5571 of 2012 in the this Court in which the Division Bench on 17.8.2012 passed the following order:-

".....5. Petitioners may appear before the CJM, Sonebhadra by 7th September, 2012. The CJM will record the statement of petitioner no. 1 in Crl. Misc. WP No. 5571 of 2012 and ascertain her age by medical examination or by other evidence. Thereafter appropriate order may be passed under section 98 of the CrPC.

6. Till the CJM passes appropriate order regarding petitioner no. 1 under section 98 of the CrPC, the other petitioner will not be arrested in the aforesaid crime number. Considering the order passed under section 98, CrPC, it will be open for the CJM to pass appropriate order for other petitioners or for the investigating officer to proceed in the matter.

7. Needless to add that in case petitioner no. 1 is major and does not support the prosecution story then the other petitioners will not be arrested. It is clarified that in case the petitioners do not appear before the CJM by the date fixed, the order restraining the arrest of the petitioners will be deemed to have been vacated. "

4. In the light of the aforesaid order of the Court, the applicant no. 1 appeared before the C.J.M., Sonbhadra. Her statement was recorded by the C.J.M. which substantially mentioned that she was about 19 years; and that her date of birth was 23.9.1993. The applicant no. 1 also produced School Living Certificate said to have been issued by the Headmaster of the primary school duly verified by the District Basic Education Officer, Sonbhadra in which 23.9.1993 is mentioned as her date of birth. Her statement further reads that she had walked out of her parents' house out of her own volition, met the applicant no. 2 and thereafter, they tied up the nuptial knots. Subsequently, the marriage was duly registered in the office of the Registrar, under the Hindu Marriage Act in accordance with law. Her statement further reads that she was not enticed away by the applicant no. 2 but she being in love with the applicant no. 2, both performed marriage out of love and affection and now she wanted to reside with the applicant no. 2 as his wife. It is also stated that the case of kidnapping has been falsely foisted on applicant no. 2 by her parents.

5. It would appear that to begin with, the learned C.J.M., Sonbhadra sent the applicant no. 1 for being medically examined by the Chief Medical Officer, Sonbhadra in order to ascertain her age as directed by this Court mentioned above. The Chief Medical Officer after obtaining report of the Radiologist, who conducted epiphyses test of her knee, elbow and writ joints, opined that the age of the applicant no. 1 was about 18 years. Learned C.J.M., in the impugned order observed that in her High School Marks Sheet, her date of birth is mentioned as 23.9.1996 and thereafter proceeded to converge to the conclusion that the school transfer certificate submitted by the applicant no. 1 was forged and fictitious document and therefore, no reliance could be placed upon it.

6. The learned C.J.M. it would appear, set great store by the date mentioned in the High School Marks Sheet of the applicant no. 1, but did not take into reckoning the medical opinion submitted by the Chief Medical Officer. It would further appear that the CJM relying upon the Rule 12 of the Juvenile Justice Rules 2007 had taken note of the High School Marks-Sheet and held that the applicant no. 1 was below 18 years of age as a necessary consequence, she was held to be minor. From the statement recorded by the CJM, it would clearly transpire that the applicant no. 1 refused to go with her parents and exhibited her willingness to go with her husband, the applicant no. 2. To cap it all, it would also transpire that her father also refused to take the applicant no. 1 in his custody and guardianship urging that she had brought disgrace and dishonour to the family.

7. The learned C.J.M in ultimate analysis, held the view that since the applicant no. 2 was an accused in Case Crime No. 244 of 2012, under Section 363 and 366 I.P.C. on the F.I.R. lodged by the father of the applicant no. 1, therefore, her custody could not be given to the applicant no. 2. In ultimate analysis, the learned C.J.M. exercising the powers under Section 98 of the Code, ordered to lodge her in the Rajkiya Sanrakshan Griha (Mahila), Varanasi.

8. I have given my most careful consideration to the submissions made by learned counsel for the parties across the bar. I have also been taken through the materials on records.

9. The moot point which surfaces for consideration in this case is that as to whether a woman/girl, even minor, could legally be detained in the Rajkiya Sanrakshan Griha (Mahila) against her wishes.

10. Before delving into the legality and propriety of the impugned order it is expedient to have a look at the provisions of Section 98 of the Code which reads thus:-

"98. Power to compel restoration of abducted females.

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."

11. On critical analysis of the aforesaid provisions, the section may be summarised as under:

(I) A complaint on oath must be made to a District Magistrate, Sub Divisional Magistrate or a Magistrate Ist class.

(II) The complaint about the abduction or unlawful detention of a woman or a female child under the age of 18 years for any unlawful purposes.

(III) On such complaint, the District Magistrate, Sub Divisional Magistrate or a Magistrate Ist Class may make an order for the immediate restoration of such woman to her liberty or such female child to her husband, parents, guardian or other persons having lawful charge of such child.

(IV) To ensure compliance of the order passed as above, the District Magistrate, Sub Divisional Magistrate or the Magistrate Ist Class used such force as may be necessary.

12. From a perusal of the impugned order passed by the C.J.M., Sonbhadra, it would transpire that he has assessed the age of the applicant no. 1 below 18 years on the basis of her date of birth as mentioned in her High School Marks Sheet. Learned C.J.M. has eschewed from consideration the medical opinion as he was of the view that her date of birth mentioned in the High School Marks Sheet is a reliable documentary evidence while her age as disclosed by the Chief Medical Officer is based on his medical opinion, which is not much reliable. The C.J.M. was also of the view that as per the Rule 12 of the Juvenile Justice Rules, 2007 where the documentary proof of age as per the provisions of the said rule, is available then, the medical evidence which is based on opinion is an evidence having trapping of evidence of a secondary nature and thus, cannot be relied upon.

13. In my considered opinion, the view taken by the learned C.J.M., Sonbhadra in the impugned order was not only illegal but unreasonable and unconstitutional. Obviously, there was no occasion for the C.J.M., Sonbhadra to prolong/authorize detention of the applicant no. 1 in Rajkiya Sanrakshan Griha (Mahila), Varanasi, even her age was below 18 years, against her wishes. To prop up my view on the point, I feel called to refer to the observations made by the apex court in Smt. Parvati Devi Vs. State of U.P., 1992 All Crl. Cases 32 in which it has been observed by the Apex Court that the confinement of a victim in Nari Niketan against her wishes, cannot be authorized under any provisions of the Code. There is no such legal provision wherein the Magistrate had been authorized to issue directions that a minor female child shall, against her wishes, be kept in Nari Niketan.

14. In Mrs. Kalyani Chaudhary Vs. State of U.P. and others, 1978 CRI. L.J. a Division Bench of this Court held that no person can be kept in the protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or under some other law permitting her detention in such a Home.

15. In the case in hand, the question of the applicant being minor is irrelevant as even a minor can not be kept in a protective home against her will or at the will of her father. The position of the applicant no. 1 may hardly have complexion of a victim. She is not a woman or a girl which may come within the purview of Suppression of Immoral Traffic Act. Thus, the impugned order passed by the C.J.M., Sonbhadra mentioning provisions of Section 98 of the Code under which he has issued directions of sending the applicant no. 1 to Rajkiya Sanrakshan Griha (Mahila), Varanasi manifestly suffers from inherent lack of jurisdiction. Therefore, the custody of the applicant no. 1 in Rajkiya Sanrakshan Griha (Mahila), Varanasi under the impugned order of the C.J.M., Sonbhadra cannot be, therefore, held to be a legal custody. Rather it is a clear cut case of illegal confinement of a married woman against her wishes violating her fundamental right.

16. One more point that crops up for consideration is that the provisions of Rule 12 of the Juvenile Justice Rules, 2007- procedure of ascertaining the age of a juvenile- has no application in the present case. The applicant no. 1 as aforementioned, is not a juvenile nor she can be seen as a victim. Therefore, the provisions of Rule 12 regarding ascertaining the age has no application to this case. The applicant no. 1 in her statement recorded by the C.J.M. has disclosed her age 19 years. She has also filed School Leaving Certificate issued by the Headmaster of the school which she first attended. In the facts and circumstances, I feel called to say that in the instant case, the C.J.M. without any iota of evidence or material on record, declared the certificate so submitted by the applicant no. 1 about her age, as forged and fictitious document. Learned C.J.M. even eschewed from consideration the medical evidence which is based on fusion of epiphyses of wrist, elbow and knee joints and based on scientific test. As per medical opinion, she was about 18 years of age.

17. In Jaya Mala Vs. Home Secretary, Government of J & K and others, AIR 1982 SC1297, it is held that there can be a variation of three years on the either side in the opinion regarding age based on ossification test. The margin benefit of three years will go in favour of the person undergoing the medical test. Thus, as per the medical opinion, the age of the applicant no. 1 was above 18 years and as such, she was major at the time when she left her home. The applicant no. 1 as aforementioned in her statement stated that she had left her home out of her own volition. Thus, it could not be said that she was taken away or enticed away by the applicant no. 2 or anyone else. Rather it could be a case of elopement as was enunciated by the Hon'ble Supreme Court in S. Varadarajan Vs. State of Madras, AIR 1965 SC 942. Their Lordship had distinguished the case of taking or enticing away, from the mere act of elopement and in that connection it was pointed out that even if a lady, who had not attained majority, i.e. age of 18 years herself goes out with a man of her own volition then it could not be said to be a case of either 'taking away' or 'enticing away' a minor woman out of the keeping of her lawful guardianship. Hon'ble Supreme Court further held that in such factual situation, no offence either under Sections 363, 366-A or 366 I.P.C. could be said to be made out.

18. In the light of the above rulings, it leaves no manner of doubt that the learned C.J.M. did not consider these aspects of the matter, rather he slurred over the provisions of law held as above by the Hon'ble Supreme Court and even did not consider the common procedural aspect of the criminal prosecution that a victim of offences under Sections 363, 366 I.P.C. could not be falling in the category of an accused and as such he could not be authorized under any provisions of law to send the applicant no. 1 to Rajkiya Sanrakshan Griha (Mahila), Varanasi even ignoring the objections and wishes of the applicant no. 1. Rather the applicant no. 1 has been treated as if she was a juvenile in conflict with law and applied the provisions of Juvenile Justice Act in ascertaining her age.

19. It appears that the learned C.J.M. has a fragmentary knowledge of basic law as well as constitutional provisions revolving round the fundamental right of liberty of a person. The esoteric aspect is that the learned C.J.M. made no efforts to know what the Apex Court as well as the High Courts have ruled in a catena of decisions in a similar type of matters wherein it is clearly held that Section 98 of the Code does not enact to confine even a girl below 18 years of age in Rajkiya Sanrakshan Griha (Mahila), against her wishes. I wish I could do without making the harsh comments but twinged by my conscience that the right and liberty of a person has been trampled upon and a lady has been ordered to be confined in the Protection Home against her wishes, I feel that I would be wanting in my duties as a Judge of this Court if such an officer is allowed to go scot-free who would be inclined to repeat his intemperate performance in other similar cases if not adversely commented upon. In my firm view, the officer needs to sharpen his knowledge about the basic laws and hone up his expertise and skills which is a must for a judicial officer to impart his duties properly and fairly in accordance with the provisions of law.

20. One more aspect which needs pointed attention is that learned C.J.M. concerned has passed the illegal order without any jurisdiction and against the basic principles of law even ignoring the ratiocinations laid down by the apex court as well as by this Court. This is a burning instance that either the C.J.M. concerned does not have enough knowledge of the basics of the criminal law or he has passed such a nasty order actuated by oblique motive. In such a situation, to my mind, the C.J.M. concerned seriously requires a proper training at the Institute of Judicial Training and Research, Gomti Nagar Lucknow for a considerable period. Therefore, the C.J.M., concerned is directed to be sent for a training de novo. The registry is directed to take follow up action.

21. In Smt. Saroj Vs. State of U.P. and others, 2012 (77) ACC 882, the Division Bench of this Court held thus:-

".....9. The learned Chief Judicial Magistrate was simply 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. Might be, that the liberty of a child may be confined to the laps of his parents, but that lap is more wider than the whole world and the horizon of universe. No judicial authority on planet earth has such much of jurisdiction and power if so as to committing any encroachment upon the liberties of a person, if no law permits or the curtailment of his or her liberty.

10. We regret that we should not point out these aspects of such matters as indicated to judicial officers of any rank, because we were living and continue to live under a very sanctified impression that judges of all ranks are supposed to be respectful to personal liberties of a person and in no case they should utilise their jurisdiction or wrongly apply the same to put in peril the liberties and freedom of a person.

11. We are sad to note that this gem of the principle on fundamental rights was simply missed out by the highest court of the district when the session court was also upholding the completely erroneous order passed by the Chief Judicial Magistrate.

12. At the bar today, we were informed by learned AGA, Sri Mehrotra, that the trial had ended and that the accused has been acquitted and he now is enjoying freedom of all sorts which could be enjoyed under the Constitution of India.

13. This is the saddest aspect of the trial of the case that the victim who was alleged to be kidnapped, is still confined within the precincts of a place which could never be proper place for the custody of a young lady. It is not unknown to us that Nari Niketans are as unsafe as any other places and definitely unsafe than the house of parents or a husband. We are pained to note that the trial judge while acquitting the accused also was aware of this fact and did not care for the poor girl who was illegally authorised to be detained in Nari Niketan, Gorakhpur. .........."

22. In view of the above, the application is allowed. The impugned order dated 21.11.2012 passed by the C.J.M., Sonbhadra in Misc. Case No. 71 of 2012 arising out of Case Crime No. 244 of 2012 under Sections 363, 366 I.P.C., Police Station-Pannuganj, District -Sonbhadra is hereby quashed. It is directed that the applicant no. 1, Smt. Renu Maurya be released immediately from Rajkiya Sanrakshan Griha (Mahila), Varanasi so that she avail of her liberty.

23. Learned G.A./A.G.A. is directed to communicate this order to the Superintendent Rajkiya Sanrakshan Griha (Mahila), Varanasi to release the applicant no. 1, Smt. Renu Maurya immediately itself so that she avail her liberty.

24. Let a copy of this order be handed over to the learned A.G.A. for communication to the authorities concerned and implementation free of charges.

25. Certified copy of this order, if so desired, be also given to the learned counsel for the applicants immediately on payment of usual charges.

26. In the last, one more point that has impinged upon my conscience is that the applicant no. 1, who is even not a juvenile in conflict with law nor involved in any offence, hardly she may be termed as a victim of an offence, has been confined in Rajkiya Sanrakshan Griha (Mahila), Varansi against her wishes even ignoring her choice that she wanted to live with her husband. The pathetic conditions of Rajkiya Sanrakshan Griha (Mahila)/Nari Niketan is not unknown to all. It is shocking to consicence that the applicant no. 1 is forced to live in sub-humane condition in the Protective Home that too under a judicial order passed by the C.J.M., Sonbhadra exercising the authority which is not vested in him and, thereby, this tended to infringe upon the fundamental right of the applicant no. 1 conferred upon her by Article 21 of the Constitution of India. Since the fundamental right of the applicant has been infringed upon, in my view, it is a fit case in which some compensation should be awarded to the applicant no. 1, Smt. Renu Maurya for her wrongful confinement for a period of 01 year and more than 8 months. I accordingly direct the State of U.P. to pay a compensation of Rs. 1,00,000/- to the applicant no. 1 Smt. Renu Maurya after her proper identification within three months of this order.

Order Date :- 27.5.2014

Naresh