Court No. - 32
Case :- HABEAS CORPUS WRIT PETITION No. - 3724 of 2018 Petitioner :- Kriti Agrahari And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Awadhesh Kumar Yadav Counsel for Respondent :- G.A.
Hon'ble Shashi Kant Gupta,J. Hon'ble Shashi Kant,J.
Heard Sri Awadhesh Kumar Yadav, learned counsel for the petitioners, learned AGA and perused the record.
This writ petition has been filed seeking issuance of a writ, order or direction in the nature of habeas corpus directing the respondent no. 2 to produce the petitioner no. 1 (corpus Kriti Agrahari) before this Court and set her free from their illegal custody.
In pursuance of the order dated 5.10.2018, the detenue petitioner no. 1 Kriti Agrahari has been produced before us today.
Upon a specific query made from the corpus petitioner no. 1 Kriti Agrahari, flatly refused to stay with her father and expressed her willingness to live with alleged husband Akash Varun @ Akash Kannaujiya, petitioner no. 2.
Learned counsel for the petitioner stated that in the statement recorded under Section 164 Cr.P.C. (Annexure-6) on 22.09.2018, the corpus had not supported the prosecution case rather stated that she herself had accompanied Akash Kannaujiya, petitioner no. 2. to Allahabad from Gorakhpur and wants to live with him. According to Certificate issued by C.M.O., Gorakhpur (Annexure-5) her radiological age was found to be 19 years. In the order passed by C.J.M., Maharajganj dated 24.09.2018 (Annexure-10), reference has been made to her High School Marksheet according to which, her date of birth is 25.07.2003. In this view of the matter, her detention in Nari Niketan, Gorakhpur is wrong and illegal and she be set at liberty.
According to Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, for determination of age High School Certificate will prevail over other documents and only in absence of it, other documents and medical evidence have to be considered. In view of above the corpus was minor on the date of incident and is still minor.
We are aware that normally even minor corpus should not be kept in Nari Niketan against her wishes but in the instant case, the corpus petitioner no. 1 does not want to go with her parents and express her willingness to live with her friend Akash Varun @ Akash Kannaujiya, petitioner no. 2, who is an accused in the case lodged by father of the petitioner no. 1 on 26.08.2018 as Case Crime No. 224 of 2018, under Sections 363, 366 IPC and Section 17/18 Protction of Children From Sexual Offences Act, 2012, Police Station Nautanwa, District Maharajganj in respect of incident alleged to have been taken place on 17.08.2018. In view of this, corpus could not be permitted to live with him. Admittedly corpus is minor and she could not be left on the street. In these circumstances, keeping in view of protection of interest of corpus along with her safety and security, we find it desirable that she should be kept in protection home/Nari Niketan till attaining her age of majority and thereafter she should be set at liberty to move the place of her choice.
For the above discussion, we do not find any merits in this writ petition and it is liable to be dismissed.
The writ petition is accordingly, dismissed.
The corpus petitioner no. 1 Kriti Agrahari (detenue) who has been produced today, be taken back to the concerned Nari Niketan where she shall be kept until attaining majority. The Superintendent of Nari Niketan, Gorokahpur will strictly adhere to Rule of law and procedure prescribed and she/he will also ensure that during stay of corpus in Nari Niketan, she should not be caused any physical, mental or psychological harm in any manner.
Concerned District Magistrate and District Judge shall ensure that CCTV Camera, if not already installed, be installed in the Nari Niketan/Protection Home immediately and regular monitoring be made by them.
Order Date :- 29.10.2018 Monika