Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 536 of 2019 Petitioner :- Smt. Kajal Khan @ Kajal And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sajiya Parveen,Kumar Anish Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Ms. Sajiya Parveen for the petitioners; learned A.G.A. for the respondents 1 to 4; Sri Vinay Kumar Srivastava for the respondent no.5; and Sri Sanjay Maurya for the respondent no.6.
This habeas corpus petition has been filed by Jayad Khan (petitioner no.2) for production of the corpus (Kajal).
It appears that Anisha (respondent no.5) lodged a first information report at P.S. Khandaduli, District Agra against Jayad (petitioner no.2) and two others, under Sections 363, 366 IPC, which was registered as Case Crime No.125 of 2019. It appears that the statement of the corpus was recorded under Section 164 Cr.P.C. in which she has stated that no force had been used upon her and that she has voluntarily entered into relationship with the petitioner no.2 (Jayad Khan). However, as the date of birth of the corpus was found 17.11.2003 in her school records, the Child Welfare Committee directed the corpus to be placed in a Protection Home.
In this habeas corpus petition, the petitioner no.2 has alleged that the actual date of birth of the corpus is 01.01.1998 as reflected by the transfer certificate appended at page 46 of the paper book, therefore the corpus is an adult.
Upon finding that there existed two transfer certificates issued by the same institution, on 30.07.2019, the Court had passed the following order:-
"Pursuant to the order dated 25.06.2019, office has submitted a report that notice has been personally served upon the respondent no.5.
No one has appeared for the respondent no.5.
Heard learned counsel for the petitioner; and the learned A.G.A. for the respondents 1 to 4.
This habeas corpus petition has been filed by Jayad Khan (petitioner no.2) for production of the corpus (Kajal-petitioner no.1) as also for quashing the order dated 29.03.2019 passed by the Child Welfare Committee under which the corpus has been placed in a Government Child Protection Home at Swarup Nagar, Kanpur upon finding that the corpus is a minor, whose date of birth is 17.11.2003.
The order of the Child Welfare Committee dated 29.03.2019 reveals that transfer certificates produced before the Child Welfare Committee depicted different dates of birth. One transfer certificate indicates the date of birth of the corpus as 17.11.2003 and the other transfer certificate indicated date of birth as 01.01.1998. The transfer certificate which indicated the date of birth as 17.11.2003 has been accepted.
The petitioner has questioned the transfer certificate in which the date of birth is recorded as 17.11.2003.
We have perused the record.
A perusal of the record would indicate that the transfer certificate indicating the date of birth as 17.11.2003 is not in the stationery of the institution concerned, namely, St. Mary's Public Inter College, whereas the transfer certificate which indicates the date of birth of the corpus as 01.01.1998 is in the stationery of the institution concerned. Further, from page 48 of the paper book it appears that the transfer certificate indicating the date of birth of the corpus as 17.11.2003 was issued on 30.08.2018 and thereafter reissued on 19.03.2019.
What was the justification to reissue the earlier transfer certificate is not clear from the record.
Under the circumstances, we deem it appropriate to require the petitioner to implead St. Mary's Public Inter College, Ram Nagar, Khandauli, Agra as respondent no.6. Such impleadment shall be made during the course of the day. Notice shall be issued to the respondent no.6 and shall be served through CJM, Agra, fixing 22nd August, 2019.
List on 22nd August, 2019. On the next date, the Principal/Headmaster of the said Institution or any person authorized by him, shall produce the original of the scholar register of the institution concerned to disclose whether the name of the corpus is entered in the scholar register. If so, what is the date of birth entered therein.
In the meantime, the corpus shall be taken back to the Protection Home from where she has been produced and she shall be produced before us on the next date.
The notice to be served upon the newly impleaded respondent no.6 shall accompany a copy of this order.
Let a copy of this order be also supplied to the learned A.G.A. for information."
Pursuant to the above order, sixth respondent has sent Sri Shiv Kumar Upadhyay, a Teacher in the Institution, along with the Scholar Register and Transfer Certificate Form, which indicates that on 30th August, 2018, a transfer certificate was issued in respect of Kajal (the corpus). The said register reflects the date of birth of Kajal as 17.11.2003. The representative of the Principal has stated that the transfer certificate appended at page 46 of the paper book was not issued by the institution and the same is bogus.
The corpus has been produced before us. The mother and brother of the corpus are also present in Court. The corpus has stated before us that she would like to go with her mother and brother.
In view of the above, as we find that the corpus is yet to attain the age of majority, as per her date of birth recorded in her educational records, and she has expressed her willingness to go with her mother, we deem it appropriate to dispose off this petition by providing that the custody of the corpus shall be handed over to her mother Anisha (respondent no.5). Anisha (respondent no.5) shall take care of the corpus and shall not harass or torture her.
Order Date :- 22.8.2019 AKShukla/-