Smt.Poonam Throu Her Husband Sri ... vs State Of U.P.Throu.Secy.Home ...
2015 Latest Caselaw 2360 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR  
 
Court No. - 7
 

 
Case :- HABEAS CORPUS No. - 156 of 2015
 

 
Petitioner :- Smt.Poonam Through her Husband Sri Bauwa Alias Suneel Kr.Singh
 
Respondent :- State Of U.P.Throu.Secy.Home Deptt.U.P.Lko.And Ors.
 
Counsel for Petitioner :- Pawan Kumar Pandey
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Ashok Pal Singh,J.

1- This petition seeks issuance of a writ in the nature of CERTIORARI quashing order dated 7.1.2015 passed by Additional Chief Judicial Magistrate IIIrd, bearing Case Crime No.-510 of 2014 under Sections 363/366 of the Indian Penal Code, Police Station Kasimpur, district Hardoi.

2- This petition also seeks issuance of a writ in the nature of Habeas Corpus directing respondent no.-4 (Superintendent, Nari Niketan, Parag Narain Road, Lucknow) to release the petitioner.

3- Mother of the petitioner (respondent no.-3) has been served twice, however, has not put in appearance, either in person or through her Counsel.

4- The facts of the case, as they emerge from the available record, are required to be noticed.  Allegedly, the petitioner got married to Bauwa alias Suneel Kumar Singh son of Kallu of her own free will and accord.  The marriage, however,  has not been accepted by respondent no.-3 (mother of the petitioner).  Criminal proceedings have been initiated, bearing Case Crime No.-510 of 2014 under Sections 363/366 of the Indian Penal Code, Police Station Kasimpur, District Hardoi (Annexure No.-2).

5- It appears that the petitioner and her husband had earlier approached this Court for quashing of the First Information Report (Supra) by way of filing Writ Petition No.-10460 of 2014.  The petition was disposed of vide order dated 17th October 2014. 

6- A perusal of order dated 17th October 2014 indicates that the petitioner claimed that she has attained age of majority, and of her free will entered into matrimonial alliance with Suneel Kumar Singh. No offence under Section 363/366 of the Indian Penal Code, accordingly is made out.

7- The State Counsel opposed the contention of the petitioner on the ground that as per the F.I.R. the girl was a minor.

8- The Court directed that statement of the girl be recorded under Section 164 Cr.P.C. Magistrate was directed to satisfy himself as to whether the girl has attained age of majority or not. It has been further observed that in case the girl is found to be major and does not support the F.I.R. version, the petitioner be not arrested till filing of report by the police under Section 173 (2) Cr.P.C. In case the girl appears to be a minor, it shall be open to police to arrest the accused. It was directed that custody of the alleged kidnapped girl shall be decided by the Magistrate concerned , in accordance with law.

9- Evidently, in deference to order of the Court referred to above, the petitioner was produced before the Magistrate concerned.  The Magistrate, vide order dated 7.1.2015 (Annexure No.-1) issued a direction to confine the petitioner in Nari Niketan, Parag Narain Road, Lucknow (respondent no.-4).

10- Perusal of the order passed by the Magistrate dated 7.1.2015 (Annexure No.-1) indicates that at one place, the petitioner has said that she had passed IVth class , at another place, she has said that she had passed Vth Class.  Date of birth of the petitioner, as given at various stages, is also different viz. 12.12.1997, 6.6.1999 and 6.6.2000.

11- It appears that in the course of investigation, the petitioner was also subjected to ossification test, in which her age has been determined as 18 years.

12- The plea of mother of the petitioner, before the Magistrate, as is recorded in Annexure No.-1 is that the petitioner is 13-14 years of age.

13- The Magistrate, for considering the age of the petitioner has relied on the date of birth of the petitioner recorded in High School certificate, which is 6.6.2000.  It has been concluded that the petitioner was a minor on the date of incident i.e. 30.11.2013. No legally tenable reason has been given to disregard the date of birth recorded in other school certificate or the ossification test report.

14-  In the course of investigation, statement of the petitioner has been recorded under Section 164 Cr.P.C. which has been placed on record as Annexure No.-7.  The petitioner gave her statement to the effect that she has studied up to IVth class.  On 12.8.2014 in the afternoon, she went of her free will with Bauwa alias Suneel Kumar Singh and she stayed with him for 3-4 months happily in Lucknow and got married to Suneel Kumar Singh.  She was not induced to get married and wants to go with Suneel Kumar.  She has clearly stated that she did not want to go with her mother.   The petitioner claimed that she is 22 years of age. 

15-  Considering the discrepancy in age, this Court had directed that medical/ossification test of the petitioner be conducted by the Doctors of King Georges Medical University, Lucknow.  Ossification test report has been received, according to which age of the petitioner is more than 18 years and less that 19 years. 

16- In deference to the direction of the Court, the petitioner has been produced before the Court. 

17- The petitioner apparently has attained the age of discretion, as also age of majority.  On questioning by this Court, the petitioner has reiterated the stand taken in her statement recorded under Section 164 Cr.P.C.  The petitioner refuses to go with her mother while saying that she feels threatened.

18- We are faced with a situation wherein there are various inputs in regard to the age of the petitioner, as noticed above.  Somewhat similar facts came up for consideration before the Hon'ble Supreme Court of India in (2015) 13 SCC 376, Juhi Devi Versus State of Bihar and Others.  In the judgment , the following has been held in paragraph nos.-2 and 3 :-

"2.The petitioner herein is alleged to have married another person of her age and the 5th respondent herein, the father of the petitioner, objected to the said marriage. It seems that the petitioner had eloped with that person and the father of the petitioner-5th respondent, has filed a complaint and the petitioner was produced before the C.J.M.,Patna. The petitioner claims that she was major and voluntarily left with her husband. The father of petitioner alleged that the petitioner was a minor and the question of age was referred to a Medical Board. The Medical Board opined that as on 17.05.2003, the petitioner must have been aged between 16 and 17 years. However,the father of the petitioner produced two certificates before the Revisional Court and contended that her date of birth is 12.10.1985 and she has not attained majority. However, the medical report shows that she must have been aged more than 16 years,even on 17.05.2003. Having regard to these facts,we are of the view that she must have attained majority and her stay at the remand home would not be in the interest of justice and we think that her continued stay at the remand home would be detrimental and she would be in a better environment by living with the person whom she had allegedly married.

3. In the circumstances, we direct that the Respondent 3 Superintendent, Rajkiya Nari Uttar Raksha Sansthan, Gaighat, Patna to release the petitioner from the remand home forthwith. The petitioner would be at liberty to produce a copy of this order before the third respondent for appropriate action."

[Emphasised by us]

19- A Division Bench of this Court has also considered facts and circumstances, that are similar to the case under consideration, in Smt. Reena Versus State of U.P. and Others (Habeas Corpus Writ Petition No.-10180 of 2012) decided on 24.5.2012.  The following has been held in relevant portion of the judgment:-

"It appears that the lady, petitioner was apprehended by the police and was produced before the Sub Division Magistrate, Sadar, Maharajganj. The father of the lady was also present in the court. He filed a petition seeking custody of his daughter. The statement of the petitioner was recorded and that of her father was also recorded by the Sub Divisional Magistrate, Sadar, Maharajganj. In her statement the petitioner, Smt. Reena stated that she was major and she had eloped with accused Rabdullah and had gone into his house to reside there. The father of the petitioner, Hari Lal, in his statement also stated that his daughter had eloped with Rabdullah on 3-3-2011 and refused to take the petitioner with him. The learned Sub Divisional Magistrate found that the date of birth of the petitioner, Smt. Reena, as recorded in the certificate was 3-4-1998. As such, she was only 13 years of age when her father was not ready to take her back who was desirous that her custody be authorised to the Nari Niketan Jaitpura, District - Varanasi.

We find from facts of the case that it was a pure and simple case of elopement of petitioner, Smt. Reena with Rabdullah and the petitioner, thereafter went straight away to his house from where she appears recovered. There was some dispute in respect of the age of the girl but we find from argument appearing at page 20 of the present petition that the Chief Medical Officer, Maharajganj had assessed her 18 years of age. Thus, the lady was undisputedly above 18 years of age, if we add three years to the medically assessed age. In our considered view in case of being a conflict between the age recorded in any school document and that assessed by the doctor then only for the present purposes, the court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific tests to assess the age of a victim. This is necessary as liberty of a person has to be protected. No person could be deprived of his liberty unless reasonable procedure has been adopted. Medical opinion on age may not be exact, but it is generally acceptance and it is based on scientific method of assessing the age. As such, inspite of there being some sort of margin in assessing the age and actual age, there could be chances that the assessed age is almost exact.

We have already noted that the personal liberty of a person should be paramount consideration in such cases and keeping that in view and for protecting the personal liberty of a person, the court should lean towards considering the medical age than to consider the age which is recorded in school documents. Besides, there is no dispute in the fact that the petitioner, Smt. Reena had eloped with Rabdullah on 3-3-2011 and had wet into his house and was living there. We very often refer to S. Varadarajan vs. State of Madras reported in AIR 1965 SC 942 to point out the distinction between an act of elopement and act of taking or enticing away a woman below 18 years of age from her lawful guardianship. Under the present set of facts, there could not be any doubt that it is a simple and pure case of elopement and as such no offence or offences could be said to be constituted under the admitted facts.

It is true that the lady was not ready to go with her father and her father for some unknown reasons, was not ready to take her back, but for that reason the lady ought not have been confined in the Nari Niketan as was directed by the learned Sub Divisional Magistrate Sadar, Maharajganj. There is no age, as regards the personal liberty of a person. Anyone who is born as a human being and who is found living in India even if he is not an Indian, has a right to enjoy his or her liberties by virtue of the constitutional guarantees. Any order which curtails or encroaches upon the liberties of such a person and has always to be held falling short of the constitution requirements and safeguards and, as such, we have to struck down the same in exercise of the powers Under Article 226 of the Constitution of India.

In the result, we quash the order dated 6-6-2011 passed by the Sub Divisional Magistrate, Sadar, Maharajganj and direct that the petitioner Smt. Reena be immediately released from custody of respondent no. 4, so that she enjoys her liberties and goes to what ever place she likes."

[Emphasised by us]

20- Related issue is as to whether husband of the petitioner namely Bauwa alias Suneel Kumar Singh has committed offence in context of the victim (petitioner) or not.  Circumstances similar to the case in hand have been considered by this Court (this Bench) while dealing with Writ Petition no.- 3519(MB) of 2015 Shaheen Parveen and Another Versus State of U.P. through Principal Secretary, Home Department, and Others.  The following has been held in paragraph nos.-18 to 30 :-

"18. Petitioner No.1 the victim/prosecutrix would be the best witness, rather the only witness of commission of offence under Sections 363/366 I.P.C.  Surely, the victim will not support the prosecution case, as has been made evident by her in her statement, recorded in the course of investigation under Section 164 Cr.P.C., and therefore the trial would result in acquittal.  During course of trial, considerable number of man hours would be wasted in prosecution/ defending and judging the case.  No useful purpose would be served and the entire exercise of trial would be in futility because the victim has declared that she was not victimised or kidnapped.

19.  The facts that have emerged from the record make it evident that the impugned criminal proceedings have been initiated because mother of the Prosecutrix/victim ( respondent no.-4) has not accepted the marriage of her daughter with petitioner No.2.

20. In case, despite the evidence that has come on record, as noted above, proceedings are not quashed, petitioner no.-2 would be required to face criminal charges and undergo the agony of a trial.

21. We have also taken into account the fact that in case the petitioner No.2 is allowed to be prosecuted, the matrimonial life of petitioner No.1/the alleged victim would be disrupted.   Her husband would be incarcerated and there would be no one to take care of her child, who is yet-to-be-born.

22.   If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing.  Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused.  In case the victim/ prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him. 

23.   A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act that she had gone with the boy and got married to him.  In such circumstances, desire of the girl/victim is required to be seen.  Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation.

24.  Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person.  In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian. 

25.   So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. ( The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme Court of India reported in (1965)1 SCR 243 S. Varadarajan versus State of Madras).

26.    When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years.  The said petitioner had attained age of discretion, however, not age of majority.  Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly.  It is a consensual act on the part of petitioner No.1 all through.  Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged.  Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him.

27.    The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed hereinabove.

28.  In view of the facts and circumstances of the case noted above, the Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law.  A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion, particularly when there is no evidence to indicate that the marriage is void.

29.   The stand of the Prosecuting Agency that the victim was a few months below age of majority when she joined the company of the accused/petitioner No.2, and therefore offence has been committed, cannot be accepted if ground reality is taken into account.  It has come on record that the prosecutrix is an expecting mother and is carrying a pregnancy of 31 weeks.  Coupled with this fact is the statement of the prosecutrix wherein she has said that she was neither kidnapped nor abducted, rather has been living with petitioner No.2 as his wife. It is the prosecutrix who went in the company of the accused, willingly, knowingly, and rather than the accused taking the prosecutrix out of the custody of the lawful guardian;  the victim herself had eloped with petitioner No.2. In the considered opinion of the Court, substantial justice cannot be sacrificed at the altar of technicality, as is being concluded by the Investigating Agency. 

30.   In view of above, petitioner No.2 cannot be said to have committed offence either under Section 363 I.P.C. read with Section 361 I.P.C. or under Section 366 I.P.C."

[Emphasised by us]

21- We are coming across a large number of cases in which parent/ parents of a girl do not accept marriage of choice of their daughter, on account of different reasons, be it the caste , financial conditions, social status or religion. Although, the girl elopes with the boy voluntarily, however, criminal proceedings are initiated with allegation of abduction, kidnapping or inducing the girl to get married. In most of such cases the complainant takes a ground that his daughter is a minor. For showing that his or her daughter is a minor, school certificates are relied upon .

22- The facts and circumstances of the present case are required to be considered in context of the law , as noticed above. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty.

23- As noticed above, various documents have come on record indicating different dates of birth/age of the petitioner. Be that as it may, there is a conflict between the age of the petitioner determined on the basis of school documents, and the age assessed through ossification test. The Court is required to lean towards the report furnished by the Doctor, on the basis of scientific tests. This is particularly so because liberty of the petitioner is required to be protected, it being most precious Constitutional Right of the petitioner.

24- Considering the law laid down by this Court in Shaheen Parveen's case (Supra), as noticed above, it becomes prima-facie evident that the petitioner had neither been abducted nor kidnapped or induced by Suneel Kumar Singh. Rather statement of the petitioner recorded under Section 164 Cr.P.C. indicates that the petitioner had gone with Bauwa alias Suneel Kumar of her free will and voluntarily. Prima-facie, therefore, this Court concludes that offence has not been committed in context of the petitioner. Surely, the petitioner is not an accused. Under the circumstances, we are faced with a situation wherein liberty of an alleged victim has been curtailed under the direction of the Magistrate.

25- Considering the law laid down by Hon'ble Supreme Court of India in Juhi Devi's case (Supra) as extracted above, it becomes evident that in such cases reliance can safely be placed on the opinion of the Doctors in context of age of the girl, when the age recorded in school certificate(s) is at variance.

26- We have considered that there is consistency in the results of medical/ossification test reports, whereas the basis of making entry in school record in regard to date of birth, is generally not brought on record. In the circumstances, so as to consider whether a person has attained age of majority/ age of discretion in cases such as the present one, it is safer to rely on medical /scientific / ossification test reports.

27- Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. A person living in India has a Right to enjoy his or her liberty, as guaranteed by the Constitution of India. Any order which curtails or encroaches upon the liberty of such a person is required to be struck down, if it is not in accordance with procedure established by law.

28- Article 21 of the Constitution of India promises every citizen that he shall not be deprived of his life or personal liberty except according to procedure established by law. Petitioner not being an accused , it cannot be held that her personal liberty has been curtailed as per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice.

29- While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated , with a view to promote substantial justice.

30- On questioning the petitioner, we find that the petitioner is capable of taking decision in regard to her future.

31- Allegation against Suneel Kumar Singh is that the petitioner had been induced, kidnapped or abducted.  From the statement of the alleged victim recorded under Section 164 Cr.P.C., it becomes evident that the petitioner was neither induced nor abducted or kidnapped.

32- The entire sequence of events, from initiation of criminal proceedings by the parent of the petitioner, to confining the petitioner in a protection home by the Magistrate, has resulted in subverting the right of the petitioner to choose a life partner of her choice. The order passed by the Magistrate directing detention of the petitioner in a protection home is a clear violation of right to liberty of the petitioner. The impugned order Annexure No.-1, passed by the Magistrate, under the circumstances is illegal, and dehors the relevant considerations.

33- We have taken note of the fact that the petitioner has been housed in Nari Niketan, Parag Narain Road, Lucknow since more than eight months.  Surely, the conditions in Nari Niketan, are not conducive and healthy for housing young girls.  Under the circumstances, a Court or authority should detain a person in Nari Niketan, only as a last option.  In this case, the deponent (husband of the petitioner) is seeking custody of the petitioner. The choice of the petitioner is also to live with the deponent.

34- We have also taken note of the fact that the petitioner is a Hindu and even if it is concluded that at the point in time when the petitioner was married, she was a minor, the marriage would not be void under Hindu Marriage Act, 1955.

35- When the facts are cumulatively considered, we find that liberty of the petitioner is being curtailed without any legal cause.  Order Annexure No.-1 has been passed by the Magistrate without giving due importance to the personal liberty of the petitioner. The desire of the petitioner has been ignored without any legally tenable reason. The age determined through Medical/ossification test has been overlooked for the wrong reasons.

36- Consequently, we allow this petition.  Impugned order dated 7.1.2015 passed by Additional Chief Judicial Magistrate IIIrd, Hardoi, is hereby quashed.

37-  A writ in the nature of Habeas Corpus is issued directing respondent no.-4 ( Superintendent, Nari Niketan, Parag Narain Road, Lucknow) to release the petitioner, forthwith.

38- Let copy of the order be supplied under the signature of Bench Secretary.

39- Let a copy of the order be sent to the concerned Magistrate. Senior Registrar of the Court is directed to ensure compliance.

Order Date :- 17.9.2015

Jyoti/-