Jharkhand High Court

Ankit Kishor Nath Sahi vs The State Of Jharkhand & Others on 3 October, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           W.P.(Cr.)(Hb) No.752 of 2024
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Ankit Kishor Nath Sahi ... ... Petitioner Versus The State of Jharkhand & Others ... ... Respondents

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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

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For the Petitioner : Mr. Rajveer Singh, Advocate For the Respondent : Mr. Deepankar Roy, AC to G.A.-III

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rd Order No. 02/Dated 3 October, 2024

I.A. No.10272 of 2024

1. At the outset, learned counsel appearing for the

petitioner has submitted that one interlocutory

application being I.A. No. 10272 of 2024 has been filed

for ignoring of defect of service of copy of Respondent

No.9 in the instant writ petition but since the same

defect has already been removed by serving the copy

upon Respondent No.9, he is not pressing the instant

interlocutory application.

2. In view of such submission, I.A. No.10272 of

2024 is dismissed as not pressed.

3. The writ petition is under Article 226 of the

Constitution of India filed for issuance of writ of Habeas

Corpus.

4. The writ petition has been filed by a friend of

Respondent No.14, the woman.

5. It needs to refer herein that to secure the identity of

the Respondent No.14, she is being referred as 'X'.

6. Learned counsel appearing for the petitioner, has

submitted that the writ petition has been filed by the friend

of the Respondent No.14.

7. The petitioner who has stated at paragraph 6 that

he and the Respondent No.14 are close friends and in a

relationship for the past 4 to 5 years and both are of the

same locality, however, of different religions.

8. The respondent No.12, the father and his son, were

against the said relationship in between the petitioner and

the Respondent No.14 and, as such, the Respondent No.14

was compelled to marry a man of the same district but

without her free and voluntary consent.

9. It has been stated that the Respondent No.14 has

been carried by the Respondent No.13 to district Bagpat in

the State of Uttar Pradesh and there she was being

subjected to torture.

10. It has further been stated that one F.I.R. was

instituted against the petitioner by the Respondent No.12

in which the statement of the Respondent No.14 was

recorded under Section 164 Cr.P.C. wherein she has

expressed great concern about her personal safety stating

that she is facing life threatening warnings from her own

family members.

11. The writ petition has been filed in the aforesaid

backdrop alleging the illegal confinement of Respondent

No.14 under the Respondent No.12.

12. The petitioner has also approached to the different

bodies, i.e., Jharkhand State Women Commission,

Jharkhand Human Rights Commission, Uttar Pradesh

Police, Uttar Pradesh State Women Commission etc., but

when no response has been given, thereafter, the present

petition by way of Habeas Corpus has been filed.

13. Learned counsel appearing for the petitioner has

relied upon the judgment passed by Hon'ble Apex Court on

11.03.2024 in the case of Devu G Nair V. The State of

Kerala & Others passed in Special Leave Petition

(Criminal) No.1891 of 2023 wherein the guidelines have

been issued to entertain the writ of Habeas Corpus for

police protection, as has been formulated at paragraph 16.

14. It has been stated that the Hon'ble Apex Court at

paragraph 16(a) has laid down that the Habeas corpus

petitions and petitions for protection filed by a partner,

friend or a natal family member must be given a priority in

listing and hearing before the court. A court must avoid

adjourning the matter, or delays in the disposal of the case.

15. Further, it has been laid down that in evaluating of

the locus standi of a partner or friend, the court must not

make a roving enquiry into the precise nature of the

relationship between the appellant and the person.

16. Learned counsel for the petitioner, therefore, has

submitted that since the life of the Respondent No.14 is in

danger, and, as such, immediate steps are required to be

taken.

17. Mr. Deepankar Roy, learned AC to G.A.-III

appearing for the State of Jharkhand, however, has sought

for one week's time to seek instruction in the matter.

18. We are granting such time.

19. This Court has considered the nature of the lis as

also taken into consideration the judgment passed by the

Hon'ble Apex Court in the case of Devu G Nair V. The

State of Kerala & Others (Supra), wherein guidelines

have been formulated at paragraph 16, for ready reference,

the same is being referred herein :-

"16. Guidelines for the courts in dealing with habeas corpus petitions or petitions for police protection are formulated below:

a. Habeas corpus petitions and petitions for protection filed by a partner, friend or a natal family member must be given a priority in listing and hearing before the court. A court must avoid adjourning the matter, or delays in the disposal of the case;

b. In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the

precise nature of the relationship between the appellant and the person;

c. The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus;

d. The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person. The court must conduct in-camera proceedings. The recording of the statement must be transcribed and the recording must be secured to ensure that it is not accessible to any other party;

e. The court must ensure that the wishes of the detained person is not unduly influenced by the Court, or the police, or the natal family during the course of the proceedings. In particular, the court must ensure that the individuals(s) alleged to be detaining the individual against their volition are not present in the same environment as the detained or missing person. Similarly, in petitions seeking police protection from the natal family of the parties, the family must not be placed in the same environment as the petitioners;

f. Upon securing the environment and inviting the detained or missing person in chambers, the court must make active efforts to put the detained or missing person at ease. The preferred name and pronouns of the detained or missing person may be asked. The person must be given a comfortable seating, access to drinking water and washroom. They must be allowed to take periodic breaks to collect themselves. The judge must adopt a friendly and compassionate demeanor and make all efforts to defuse any tension or discomfort. Courts must ensure that the detained or missing person faces no obstacles in being able to express their wishes to the court;

g. A court while dealing with the detained or missing person may ascertain the age of the detained or missing person. However, the minority of the detained or missing person must not be used, at the threshold, to dismiss a habeas corpus petition against illegal detention by a natal family;

h. The judges must showcase sincere empathy and compassion for the case of the detained or missing person. Social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed. The court must ensure that the law is followed in ascertaining the free will of the detained or missing person;

i. If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay;

j. The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity;

k. The Court shall not pass any directions for counselling or parental care when the corpus is produced before the Court. The role of the Court is limited to ascertaining the will of the person. The Court must not adopt counselling as a means of changing the mind of the appellant, or the detained/missing person;

l. The Judge during the interaction with the corpus to ascertain their views must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus. The court must act swiftly against any queerphobic, transphobic, or otherwise derogatory conduct or remark by the alleged detainers, court staff, or lawyers; and

m. Sexual orientation and gender identity fall in a core zone of privacy of an individual. These identities are a matter of self-identification and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.

20. This Court, in view thereof, is of the view that the

Director General of Police, Jharkhand may have a talk to

the Director General of Police, Uttar Pradesh for production

of Respondent Nos.12 and 14 in the Court on 17.10.2024

at 10:30 A.M. in order to pass appropriate order.

21. The matter will be heard in Chamber so as to

protect the identity of the parties.

22. In the meanwhile, notice be issued to Respondent

Nos. 12, 13 and 14 both by registered post with A/D as well

as through ordinary process for which requisites etc. be

filed.

(Sujit Narayan Prasad, J.)