Allahabad High Court
Smt. Priyanka vs State Of U.P. Thru. Prin. Secy. ... on 30 June, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- APPLICATION U/S 482 No. - 4127 of 2022
Applicant :- Smt. Priyanka
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Others
Counsel for Applicant :- Ashish Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant and learned A.G.A.
This petition has been filed for quashing the impugned order dated 6.7.2021 passed on the application moved by the investigating officer passed by the Additional Session Judge, Court No. 12, District- Sultanpur in S.T. No. 928 of 2021 arising out of case crime no. 57 of 2021 under Sections 363, 366, 376 I.P.C. and 3/4 of the POCSO Act, Police Station- Akhandnagar, District- Sultanpur.
Brief facts of the case emerge as such that F.I.R. was lodged by the father of the applicant against Sudarshan Chauhan with the allegation that in the night of 30-31 March, 2021, one boy of his village Sudarshan Chauhan as well as his friend Satyam had lured the daughter of opposite party no.5/complainant aged about 15 years old, was residing at her aunty (Bua) house at Village- Gihauna since the past 5 months and took her away with them. On 3.4.2021 at around 01.07 pm, the opposite party no.5 lodged an FIR against the applicant.
It is further submitted that the applicant was aged about 18 years at the time of alleged incident and was having love affair with Sudarshan Chauhan and she solemnized the marriage with him at Haridwar Mandir at her own free will. The counsel further submits that the investigating officer after recording the statement of witnesses as well as the applicant filed the charge-sheet in the aforesaid case crime. After investigation, charge-sheet was submitted against the husband of the applicant under Sections 363, 366, 376 I.P.C. and 3/4 of the POCSO Act.
Learned counsel for the applicant further submits that statement of applicant was recorded under Section 164 Cr.P.C. in the presence of Magistrate in which she stated that she was having love affair with Sudarshan Chauhan and both of them solemnized marriage in Haridwar Mandir at her own free will. It is further submitted that on 6.7.2021, the investigating officer filed an application before A.S.J., court no. 12 with request to pass an order to sent the applicant to Naree Niketan as parents of the applicant is not willing to take the custody of kidnappee (applicant), thus, the trial court without knowing the wishes of the applicant sent her to Nari Niketan vide order dated 6.7.2021.
It is further submitted that being aggrieved, an application for release of the applicant was filed by the husband of the applicant on 14.6.2022 which is still pending in the court concerned.
In support of his submission learned counsel for the applicant relied upon the judgment of the Hon'ble Apex Court passed in the case of Smt. Parvati Devi Vs. State of U.P. reported in 1992 All Cri Cases 32, wherein it has been held that confinement of victim in Nari Niketan against her wishes cannot be authorized either under Section 97 or under Section 171 Cr.P.C. and the respondents failed to bring to the notice of the court any legal provision where under the Magistrate has been authorized to issue direction that a minor female shall against her wishes be kept in Nari Niketan. Identically in the case of Mrs. Kalyani Chaudhory Vs State of U.P. and others reported in 1978 Criminal Law Journal 103 a Division Bench of this Court held that no person can be kept in 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. 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.
This Court has also passed the order dated 23.1.2015 in the case of Gajraj Singh Vs. State Of U.P. in the Application under Section 482 Cr.P.C. No. 50877 of 2014 in which this Court after relying of the aforesaid two judgments passed the following order:-
"In the case in hand, the question of the applicant being a minor is irrelevant as even a minor cannot be kept in protective home against her will. The applicant may hardly be said that she is not a women or girl which come within a preview of Suppression of Immoral Traffic in Women and Girls Act. Thus, it is clear cut case of illegal confinement of minor against her wishes violating fundamental right. Hence, the impugned order dated 26.05.2014 passed by the Special Judge/ Additional Sessions Judge, Court No.1, Kasganj is hereby quashed and it is directed the Superintendent of Nari Niketan, Mathura to release the victim Dolly daughter of Gajraj Sing be set at liberty to go in according to her own wish."
Learned counsel for the applicant also relied on the judgement and order passed by this Court in Abhay Pratap Mishra alias Ujjwal Mishra vs. State of U.P. in Application U/s 482 CrPC No. 1646 of 2022.
On perusal of the impugned order, it is not clear that girl was sent to the Nari Niketan on her wishes. It is, therefore, directed to the trial court to call the applicant from the Nari Niketan for taking her wishes and pass an appropriate order for her custody in accordance with law keeping in view the wishes of the applicant.
The petition is, accordingly, disposed of.
Order Date :- 30.6.2022
Shravan
