The present Petition has been filed by the Petitioner under Article 226 of the Constitution of India as well as Code of Criminal Procedure (without mentioning any provision) for the prayer that appropriate writ, order or direction may be issued as per the representation of the Petitioner dated 1.3.2011 which is at Annexure-C. This representation is of March, 2011 and the present Petition is filed after about a year. However, when the I.O. is present and learned APP Mr. H.L.Jani has on instructions stated that the victim - Chakuben @ Kanchanben is married to one Bhupatbhai who is not made a party in this proceedings. It is further stated that they have married and she is present in the Court with an infant child of about one month. Therefore, the matter is taken up in chamber in camera and the wish of the victim was ascertained where she refused to go with the Petitioner (brother) and has categorically stated that they have married and she desires to live with Bhupatbhai as her husband.
It appears from the record which has been produced by learned APP Mr. H.L.Jani from the I.O. that the evidence in Sessions Case No.15 of 2011 has also been recorded, including the evidence of Dr. Jigar Rajput who has stated that he had referred the victim to the Civil Hospital and as per the opinion of the Radiologist she is more than 17 years but less than 19 years. The certificate of the General Hospital, Surendranagar recording the history of the victim, wherein she has stated that she has married voluntarily and her age is stated to be more than 17 years.
It is in these circumstances, the present Petition cannot be entertained and deserves to be dismissed in limine as no prayer can be granted in light of the evidence recorded hereinabove.
The present Petition accordingly stands dismissed. The victim Chakuben @ Kanchanben is permitted to go with Bhupatbhai (husband) and no harassment will be caused to her, which shall be ensured by the I.O. who is present in the Court.
This order is only with regard to the custody or the wish of the victim for her residence and it is without prejudice to the merits of the case, including the age of the victim which will be considered by the Sessions Court on its merits.
(Rajesh H. Shukla,J) Jayanti* Top