(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. Heard learned Additional Public Prosecutor, Mr.L R Pujari with Mr.R C Kodekar, learned Additional Public Prosecutor for respondent No.1 - State of Gujarat.
1.1 Heard learned Advocate Mr.Jayraj Chauhan with Mr.Paresh A Patel, learned Advocate for the applicant. Learned Additional Public Prosecutor placed on record a communication dated 15/01/2012 under the signature of the Deputy Commissioner of Police, Crime Branch, Ahmedabad City. Learned Additional Public Prosecutor submitted that pursuant to order passed by this Court (Coram: Hon'ble Mr.Justice Jayant Patel and Hon'ble Mr.Justice Paresh Upadhyay) dated 28/12/2011, corpus - 'Nirali', daughter of Aatmaram Magandas Patel appeared before the learned Additional Chief Metropolitan Magistrate, Gheekanta, Ahmedabad City on 13/01/2012.
1.2 Learned Additional Public Prosecutor submitted that the statement recorded before the learned Additional Chief Metropolitan Magistrate is already sent to the Registrar of this Court in a sealed cover. The same was sought for. It is received from the Registry and is found to be 'not in sealed cover'. It is received by the Registry today - 16/01/2012. We have perused the same. It is with forwarding letter of the learned Chief Metropolitan Magistrate, Ahmedabad. It is 13 pages in number. Page No.1 is an application given by Mr.R D Vadher, PSI, Crime Branch, Ahmedabad City on which an order is passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad allowing the corpus to go to Jodhpur-Rajashthan from the Court. Page No.4 is the xerox copy of 'Rasid Nikas Mijanib Kaji' (Marriage Certificate). Page No.5 is the school leaving certificate. Page No.6 is a pursis filed by an Advocate (M I Sheikh) to appear in the matter. Page Nos.7 to 13 are the copies of the process issued by the office alongwith the copy of the order passed by this Court on 28/12/2011.
2. Learned Additional Public Prosecutor was asked to furnish a copy of communication dated 15/01/2012 to learned Advocate appearing for the applicant. The matter was kept at his request at 2:30 p.m.
3. At 2:30 p.m. learned Advocate for the applicant invited attention of the Court to Annexure - J (Page No.35). It is a xerox copy of an inland letter stated to have been received by the applicant. Learned Advocate for the applicant on instructions from the applicant, who is present in the Court, states that the original was handed over to the writer in the office of the Commissioner of Police. He further states that he is not given any receipt for the same. He further submits that he was told that the same will be sent to the Investigating Officer in the matter. Learned Additional Public Prosecutor inquires from the Police Personnel who are present in the Court. It is stated that they have not received the original so far.
3.1 Learned Advocate for the applicant submitted that the contents of the statement which is stated to have been recorded before the learned Additional Chief Metropolitan Magistrate, clearly shows that the said statement is not recorded as required. Firstly, it is not in 'question-answer' form. It is not in the language of the deponent (the corpus). The learned Advocate for the applicant submitted that in light of the contents of Annexure - J (page Nos.34-35), the said statement may not be treated to have been made under 'free will' and the Police personnel be directed to produce the corpus before this Court. Learned Advocate for the applicant submitted that the Police Officer as well as the learned Additional Chief Metropolitan Magistrate, ought to have appreciated that the order passed by this Court was only that, "... she may be produced before the Judicial Magistrate or Civil Judge concerned...."
Learned Advocate for the applicant submitted that this discretion was given to the Police Officer only in light of the fact that the order was passed on 28/12/2011 and the matter was kept on 16/01/2012 as was required to. (the High Court was closed for Winter Vacation from 30/12/2011 to 08/01/2012). In between if the corpus is traced she was required to be produced immediately before a Judicial Officer.
3.2 Learned Advocate for the applicant submitted that it would have been in the fitness of things if the Police had asked for and learned Additional Chief Metropolitan Magistrate had granted permission for keeping the girl 'out of the influence' of the people from whose custody she was coming from. Learned Advocate for the applicant submitted that as is the case of the applicant, the girl is in custody of the person/s concerned since 20-21/06/2011. The language of the statement is apparently not the one which can be said to be that of the corpus. She is only 12th standard pass and is not expected to use the phrase in which it is recorded.
4. On careful consideration of the aforesaid submission, this Court is of the opinion that, the Police Officer has misunderstood the order passed by this Court. Taking into consideration the fact of the case it would have been proper on the part of the Police Officer to ask for a 'stay of the girl out of the influence of the person/s accompanying her' and after at least three to four days the statement of the corpus ought to have been recorded. In the meantime she could have been produced before this Court to enable the Court to ascertain her 'free will'.
5. Learned Advocate for the applicant invited attention of the Court to the fact that to the best of the knowledge of the applicant in the State of Rajashthan also a circular is issued by the authorities providing for 'prior permission' for conversion from one religion to another. That being so, it will be the duty of the Police personnel to inquire and find out that circular, if any.
6. The matter assumes a different complexion in light of the contents of Annexure - J. Taking into consideration the contents of the same, Police Officer ought to have immediately inquired into the origin of that letter; writer of that letter, intention behind that letter and other relevant aspects. The Police Officer ought to have undertaken exercise of 'verification of handwriting' of the said letter to find out the writer of that letter.
6.1 The Police Officer have not looked into the matter from this angle. This Court is of the opinion that Police Officer shall procure the corpus and produce before this Court, as the whereabouts of the corpus is already known to the Police personnel.
7. Matter is adjourned to 23/01/2012.
8. A copy of this order be made available to learned Additional Public Prosecutor for its onward communication.
(RAVI R TRIPATHI, J.) (G B SHAH, J.) sompura