Smt. Farha Alias Mantasha ... vs State Of U.P. Thru' Secy. And 3 ...
2017 Latest Caselaw 1314 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 
Case :- HABEAS CORPUS WRIT PETITION No. - 4789 of 2017
 
Petitioner :- Smt. Farha Alias Mantasha (Corpus)
 
Respondent :- State Of U.P. Thru' Secy. And 3 Others
 
Counsel for Petitioner :- Rajesh Kumar Tiwari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

The Order of the Court was delivered by

Bala Krishna Narayana,J.:- This habeas corpus writ petition was heard by us on 17.05.2017 on which date we had passed the following orders :

"Case called out.

Heard Sri Rajesh Kumar Tiwari, learned counsel for the petitioner and Sri Rajiv Gupta, learned counsel for respondent nos. 1, 2 and 3.

Office report dated 19.04.2017 indicates that in pursuance to the order dated 08.02.2017, notice sent to respondent no.4 has been served, but neither anyone has appeared on his behalf nor any counter affidavit has been filed.

Counter-affidavit has been filed by learned A.G.A., the same is taken on record.

Learned counsel for the petitioner has stated that he does not propose to file rejoinder affidavit in reply to the counter affidavit filed on behalf of the State.

With the consent of the learned counsel for the parties, we proceed to decide this writ petition at the admission stage in accordance with the High Court Rules. We will give reasons later but we are making the operative order now

This Habeas Corpus Writ Petition is allowed and the impugned order dated 04.03.2016 passed by Additional District/Sessions Judge, Fast Track Court, Kaushambi, in Case Crime No.797/2015 under Section 363, 366, 376(2) Jha I.P.C. and 3/4 POCSO Act, Police Station- Kokhraj, District- Kaushambi is hereby set aside by us.

Detenu who is presently confined in the Rajkiya Sanrakshan Grih Mahila/Nari Niketan, Allahabad shall be released forthwith."

We are giving reasons now:-

This habeas corpus writ petition has been filed on behalf of the petitioner Smt. Farha Alias Mantasha (Corpus) through her husband Raju Maurya alias Mithlesh alleging her illegal detention by the respondent no.4 with a prayer to issue writ order or direction in the nature of habeas corpus directing the respondent no. 2 to produce the corpus of the petitioner Smt. Farha Alias Mantasha before this Court and set her at liberty. A further prayer has been made to issue a writ order or direction in the nature of certiorari quashing the order dated 04.03.2016 passed by Additional District & Sessions Judge, Fast Track Court, Kaushambi in case crime no. 797 of 2015 under Section 363, 366, 376(2) Jha IPC and Section 3/4 POCSO Act, P.S. Kokhraj, District Kaushambi (Annexure-5) as well as order dated 14.12.2016 passed by Chief Judicial Magistrate, Kaushambi (Annexure-7).

Briefly stated the facts of this case are that respondent no.4 Kalim Ahmad lodged an FIR on 04.11.2015 at 13.30 hours at P.S. Kokhraj, District Kaushambi with regard to an incident which had allegedly taken place on 02.11.2015 at 17.00 hours in which one Raju Maurya had forcibly entered into his house and enticed away is minor daughter Farah while she was alone in her house and watching television and thereafter he had threatened him telephonically with dire consequences in case he made any effort to search his daughter Farah.

According to the facts stated in the writ petition the detenu Farah, who was major on the date of the incident being aged about 22 years had left her parental home on her own accord on 02.11.2015 and solemnized marriage with Raju Maurya on 19.12.2015 voluntarily. During investigation of the aforesaid case the police recovered the detenu. She was produced before the CJM, Kaushambi on 01.03.2016 and for determination of her age she was referred to CMO, Kaushambi and subjected to medical examination on the same day. Her medical examination report dated 01.03.2016 is on record as Annexure- 4 to the writ petition. According to the said report the petitioner was aged about 18 years on 01.03.2016. The petitioner in her statement recorded under Section 164 Cr.P.C. on 02.03.2016 categorically stated that she wanted to live with her husband Raju Maurya. The Investigating Officer moved an application before Additional District & Sessions Judge, Fast Track Court, Kaushambi for deciding the issue regarding the custody of the petitioner along with a transfer certificate purporting to have been issued by Head Mistress of Gulab Devi Balika Inter College, Sikandarpur, Bajhan, Kaushambi in which 18.10.1999 was recorded as date of birth of the petitioner and according to which she was minor on the date of occurrence. However, since the petitioner in her statement made before Additional District & Sessions Judge, Fast Tract Court, Kaushambi reiterated her desire to go to her matrimonial home and refused to return to her parental home and as her parents had not come forward to claim her custody, learned Additional District & Sessions Judge, Fast Track Court, Kaushambi by his order dated 04.03.2016 sent her to Nari Niketan and directed that she would be kept there till she attained majority or until further order. Thereafter Raju Maurya alias Mithlesh petitioner's husband moved an application before C.J.M., Kaushambi in case crime no. 0797 of 2015 appending thereto, copy of the leaving certificate issued by the head master of Baram Baba Prathmik Vidyalaya Charva Chail, District Kaushambi stating therein that the petitioner had studied in the aforesaid school from 28.07.2008 to 20.05.2009 and according to the date of birth of the petitioner recorded in the aforesaid certificate which was 22.06.1996, the petitioner was major on the date of the incident and hence she be released. In the aforesaid application petitioner's husband had also challenged the genuineness of the leaving certificate showing the date of birth of the petitioner as 18.10.1999 by alleging that it was fabricated by the Investigating Officer in collusion with the father of the petitioner.

Upon filing of the aforesaid application learned CJM, Kaushambi called for a report from the concerned police station and according to the police report forwarded to him the petitioner was found to be major during investigation and as a result Sections 363 IPC and 3/4 POCSO Act were expunged from the FIR and at the relevant point of time the investigation of the case was confined to the offences under Section 366, 376 and 506 IPC. The CJM, Kaushambi rejected the aforesaid application holding that the earlier application moved by the Investigating Officer for deciding the issue of the custody of the detenu had already been disposed of by Additional District & Sessions Judge, Fast Track Court and he had sent her to Nari Niketan after she had refused to go to her parental home holding her to be minor and hence the second application with the same prayer was not maintainable.

Learned counsel for the petitioner submitted that Chief Judicial Magistrate, Kaushambi committed a patent error of law in refusing to release the petitioner detenu Farah alias Mantasha upon a wholly erroneous premise that the Additional District & Sessions Judge, Fast Track Court, Kaushambi having already decided the issue regarding the custody of the detenu by his order dated 04.03.2016 holding her to be minor, the second application moved by the detenu's husband before him was not maintainable illegally ignoring that the factual scenario had totally changed after passing of the order dated 04.03.2016 by learned Additional District & Sessions Judge, Fast Track Court with the discovery of the material by the Investigating Officer pointing out that on the date of the incident the detenu was major which resulted in expunging of Sections 363 IPC and Section 3/4 POCSO Act from the FIR. The aforesaid facts find mention in the report of the concerned police station which was forwarded to him. He lastly submitted that in view of the above the continued detention of the petitioner in Nari Niketan, Allahabad despite her being major is against the law.

Per contra Sri Rajiv Gupta, learned AGA submitted that the detention of the petitioner in Nari Niketan Allahabad is wholly justified and cannot be said to illegal as she has been sent to Nari Niketan pursuant to a judicial order.

He however, does not dispute the fact that during investigation of case crime no. 0797 of 2015, petitioner was found to be major and consequently Sections 363 IPC and 3/4 POCSO Act were expunged from the FIR.

Coming to the objection canvassed by learned A.G.A. before this Court that the detention of the petitioner cannot be said to be illegal as she has been sent to Nari Niketan in pursuance of a judicial order, we hold that the objection raised by learned A.G.A. is without any merit in view of the principle laid down by the Division Bench of this Court in the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 holding that "a victim may at best be a witness and there is no law at least now has been quoted before us where under the Magistrate may direct detention of a witness simply because he does not like him to go to any particular place".

Thus, merely because the petitioner has been sent to Nari Niketan pursuant to a judicial order, her detention cannot be labelled as "legal" rendering this Habeas Corpus writ petition liable to be dismissed as not maintainable.

In view of the above, we have no hesitation in holding that on the basis of the material brought on record by the petitioner including the medical report of the detenu, the leaving certificate issued by the Head Mistress Baram Baba Prathmik Vidyalaya Charva Chail, District Kaushambi, Annexure-6 to the writ petition report forwarded by P.S., Kokhraj to CJM, Kaushambi and the other material collected by the Investigating Officer during investigation the petitioner was major on the date of the incident hence her detention in Nari Niketan against her wish is perse illegal.

These are the reasons upon which we quashed the order of detention.

Order Date :- 29.5.2017

Abhishek Sri.