Allahabad High Court
Km. Ankita Throu Her Father Ramesh ... vs State Of U.P.And Another on 30 April, 2015
Bench: Ajai Lamba, Akhtar Husain Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 7 . A.F.R.
Case :- HABEAS CORPUS No. - 78 of 2015
Petitioner :- Km. Ankita Throu Her Father Ramesh Kumar
Respondent :- State Of U.P.And Another
Counsel for Petitioner :- K.K.Tewari
Counsel for Respondent :- Govt.Advocate
Hon'ble Ajai Lamba,J.
Hon'ble Akhtar Husain Khan,J.
1. The petition has been filed through Ramesh Kumar with the allegation that his daughter Ankita, the detenue has been kept in illegal detention in the Women Protection Home, Lucknow.
2. It has been pointed out that on 19.7.2014, one Chhanga Raidas abducted the detenue with the help of other accused. In that regard, Crime No.1205 of 2014 under Sections 363, 366 I.P.C., Police Station Asiwan, District Unnao was registered. During investigation, Section 376(2) (D) alongwith Section 3/4 of Prevention of Children from Sexual Offences Act(for short 'POCSO Act') were also added.
3. The prosecutrix was recovered on 1.11.2014 and was medically examined. Medical age of the detenue/prosecutrix was found to be 19 years. Statement of the detenue/prosecutrix was recorded. Mother of the detenue moved an application for custody of the detenue but the court refused to give custody to the mother and the detenue has been sent to Women Protection Home, Lucknow on the ground that she is a minor and she had refused to go with her parents, vide order Annexure No.1 dated 9.1.2015.
4. On 14.1.2015, the detenue gave an application to the Superintendent, Women Protection Home, Lucknow stating that she is pregnant and does not want to live in protection home and wants to live with her parents.
5. Order Annexure No.2 dated 12.2.2015 has been passed on the premise that vide earlier order Annexure No.1 dated 9.1.2015, the detenue had been confined to Women Protection Home, Lucknow because she had refused to go with her parents. The court concerned viz. Shri Jai Singh Pundeer, Additional Sessions Judge, Court No.1, Special Judge, POCSO Act, Unnao has stated that it would tentamount to review earlier of order Annexure No.1 dated 9.1.2015.
6. We have considered the contention of learned counsel.
7. We have also questioned the detenue Ankita. Ankita has stated in court that she had given an application dated 14.1.2015 showing her desire to go with her parents.
8. We find the approach of the Additional Sessions Judge to be wholly inappropriate. The impediment of review under Section 362 Cr.P.C. cannot be strictly invoked in such proceedings. Annexure No.1 is not an order passed during the course of a trial or other proceedings in appeal or revision. Such orders of detention of girls are passed only as stop gap arrangement.
9. At times, it is desirable, in the interest and welfare of a young girl that she be allowed to give a thought in regard to her future before deciding whether she wants to go with an accused or her parents. At times, the girl is a minor and therefore is not allowed to live in the company of the accused. The girl in such circumstances, can be confined to Women Protection Home/Nari Niketan only if she refuses to go with her parents.
10. In our considered opinion, the duration of stay of detenue, such as the petitioner, should be permitted for the shortest period of time. By such detention, liberty of girls is curtailed, which ordinarily is not permissible in law. A constitutional right vested in a person, particularly liberty cannot be curtailed for convenience of a court or for other such reasons.
11. In the case in hand, the detenue filed an application for being released in custody of her own parents. We fail to understand as to under what circumstance, law or procedure, the application of the detenue could have been dismissed. The detenue is a victim, and not the accused. The relevant considerations have not been kept in mind by the court while deciding the application.
12. The reality of the conditions prevailing in Nari Niketan/Protection Homes also cannot be ignored. Such protection homes are not being maintained under ideal conditions, under ideal staff. There is every likelihood of abuse of girls in such homes. Long confinement in such circumstances, is likely to torment the inmates mentally and emotionally. This is not permissible in law.
13. Considering the totality of the facts and circumstances of the case, we also record our anguish at the conduct of the court in entertaining application dated 14.1.2015 and forwarded to the court on 15.1.2015, on 12.2.2015, approximately after one month. Such application should be taken up and dealt with immediately, and not beyond a period of one week.
14. Considering the stand of the detenue, the court should have immediately passed orders for her release in the custody of the parents. The parents are not aliens for their daughter, who is pregnant. The order denying the detenue to live with her parents is not only wholly on account of insensitive approach, but is also injudicious, and irresponsible.
15. Considering the totality of the facts and circumstances of the case, the petition is allowed. Annexure No2 dated 12.2.2015 is hereby quashed. Detenue Ankita is hereby directed to be released in the custody of her father Ramesh Kumar.
16. Let a copy of this order be released under the signature of Bench Secretary of this Court.
17. Let a copy of the order be also forwarded to District & Sessions Judge, Unnao.
Order Date :- 30.4.2015
Shukla
