Court No. - 52
Case :- HABEAS CORPUS WRIT PETITION No. - 3752 of 2018 Petitioner :- Rachna Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Nazrul Islam Jafri Counsel for Respondent :- G.A.,Braham Singh,Raj Kumar Tripathi,Sushil Kumar Tewari,Vivek Saran,Ajay Kumar Mishra
Hon'ble Rajul Bhargava,J.
Heard Sri N.I. Jafri, learned counsel for the petitioner, Sri Ajay Kumar Mishra, learned counsel for the private respondents and the learned A.G.A. for the State and perused the record.
The present writ petition has been filed on behalf of corpus, Rachna through her friend Farmana Rajput with the prayer for issuing a writ in the nature of habeas corpus directing the respondent nos. 4 to 8 to produce the corpus before the Court and set her free at liberty and she being a major girl may be permitted to go with whomsoever she wants as per her wishes.
Briefly, the facts germane for deciding the controversy in the present case are that admittedly the corpus, Rachna is a major girl aged about 28 years. According to learned counsel for the petitioner, the marriage of the corpus was solemnized with one Vishal on 2.4.2018 forcibly against her wishes and she was subjected to torture by her husband and in-laws, therefore, somehow she came back to her parental home on 5.4.2018 and thereafter she refused to go to her matrimonial home. It is stated that the corpus was having a love affair with one Shahzad Ali with whom she eloped and travelled to different places and also maintained a live-in relationship with him for several months. However, as Shahzad Ali belongs to Muslim community and the corpus belongs to Jatt community it was not liked by the private respondents who were hell bent upon killing the corpus and Shahzad Ali and threats were also extended. After the elopement of the corpus with Shahzad Ali, the respondent no.4, father of the corpus, lodged a first information report on 8.4.2018 at P.S. Parikshitgarh, Meerut vide Case Crime No. 186 of 2018, under Sections 147, 149, 341, 341, 323 and 366 I.P.C. against Shahzad Ali and the corpus. The said F.I.R. was challenged by Shahzad Ali and the corpus in Criminal Misc. Writ Petition No.11392 of 2018 which was disposed off by an order dated 14.9.2018 with certain directions and especially keeping in view that the petitioner nos. 1 and 2 are major and no coercive action shall be taken or initiated against them, however, the investigation shall go on. In the aforesaid order it was observed that the petitioners to the writ petition were living with each other in live-in relationship out of their own sweet free-will without any pressure, threat and coercion. During investigation of Case Crime No. 186 of 2018, the statement of the corpus was also recorded in which she disclosed her age to be 28 years and detailed version of the manner she was forced to marry one Vishal against her wishes and she also stated that she was in live-in relationship with Shahzad Ali. Thereafter, the corpus was produced before the Magistrate and when she refused to go with her parents the ACJM 8th, Meerut vide an order dated 26.5.2018 directed her to be detained in Nari Niketan. Since the corpus was a major girl and had refused to go with her parents on account of apprehension of serious threat to her life; whose copy has been annexed as Annexure-5 to the affidavit wherein the father of the corpus and other persons from whom the corpus apprehended danger to her life were restrained from harassing or causing any harm to her and she was set to free by the learned Magistrate vide an order dated 29.5.2018 with a direction that she may go with whomsoever she likes or wishes. Thereafter, private respondents fabricated a criminal case and the corpus was also implicated for an offence under Section 307 I.P.C. and she was granted bail after remaining in jail for about four months. It has been argued that she has been falsely implicated in this case only to create pressure that she should not join the company of Shahzad Ali. However, after her release she was detained by her father and other family members for several months. Thereafter, in order to set the corpus free from the clutches of private respondents the instant habeas corpus writ petition has been filed.
By an order dated 11.10.2018, notices were issued to respondent nos. 4 to 8 for filing counter affidavit and producing the corpus, Rachna before the Court on 29.11.2018. On 29.11.2018, statement was made by Sri Ajay Kumar Mishra, learned counsel for respondent nos. 4 to 6 that the corpus is not keeping proper health, thus, she has not appeared before the Court. Therefore, by order dated 29.11.2018, the Court in no certain terms observed that no excuse would be entertained for her absence on the next date fixed then the matter was posted for 17.12.2018. On that date also, the corpus was not produced and the statement was made by Sri Deepak Kumar Tripathi, holding brief of Sri Ajay Kumar Mishra, learned counsel for respondent nos. 4 to 6 that the corpus will definitely be produced before the Court on 8.1.2019 failing which he is ready to pay Rs.10,000/- as costs to learned counsel for the petitioner. Then the matter was posted for 8.1.2019 and on the said date also same request was made by Sri Ajay Kumar Mishra, learned counsel for respondent nos. 4 to 6 that on account of illness the corpus is not in a position to walk and thus she has not appeared before the Court. Though, in this behalf no certificate or any document to demonstrate the same was filed. The court still accommodated learned counsel for respondent nos. 4 to 6 though they had failed to produce the corpus before the Court and directed that Rs. 10,000/- shall be paid as costs. The Court further made it clear that if the corpus is not produced on the next date fixed, the Court will be constrained to impose further heavy costs on respondent nos. 4 to 8 and the matter was posted for 25.1.2019. On that date also the corpus was not produced before the Court, therefore, the Court imposed Rs. 50,000/- as costs on respondent nos.4 and 5 to be deposited within a week along with arrears of Rs. 10,000/- as directed earlier. It was also directed that if the amount of cost is not deposited within the said period, the District Magistrate, Meerut is directed to realize the same as arrears of land revenue from respondent nos. 4 and 5. The Court had also issued non- bailable warrants against respondent nos. 4 and 5 through C.J.M. Meerut who shall execute the warrants through respondent no. 3 and shall produce them before the Court along with corpus without fail on 12.2.2019. Office was directed to communicate the order to respondent no. 2 S.S.P. Meerut.
On 13.2.2019 when the corpus was not produced before the Court, a further cost of Rs.1 lac was imposed on them. The C.J.M., Meerut was directed to execute non-bailable warrants on private respondents, however, the warrants could not be executed as respondent nos. 4 and 5 were not found in their house. Yesterday, the respondent nos. 4 and 5 appeared before the Court along with the corpus and time was sought by Sri Braham Singh, learned counsel for respondent no.4 for filing counter affidavit then the matter was posted for today. I had detailed conversations with the corpus in my chamber and several questions were posed to her and she has stated that she is aged about 28 years and her parents had married her to one Vishal against her wishes and she hardly stayed for two days at her matrimonial home and somehow escaped from their clutches. She further states that she was in live-in relationship with one Shahzad Ali for the past ten years, however, as she and Shahzad Ali belong to different community it was not liked by her father and other family members, however, she of her own free-will eloped with Shahzad Ali and travelled to different places and also established live-in relationship with him. However, despite the orders of the Court when she was set at liberty to go with whomsoever she wanted to go, her father and other family members forcibly took her away and kept her in illegal detention for about five months and she was not even allowed to move out the house and was tortured. She was also implicated in a case and she had to remain in jail for about four months. She further states that she is an educated lady and has passed Masters of Art examination and has expressed her desire to be set at liberty from the illegal custody of private respondents and may be permitted to go with whomsoever she wants to go. She has also given her statement in writing which is taken on record.
The respondent nos. 4 and 5 have stated that they could not produce the corpus on the date fixed because the police was not permitting them to move out and the orders passed by the Court were never communicated. However, learned counsel for private respondents states that he does does not want to enter into factual controversy at this stage and the Court may proceed on the basis of statement of the corpus who is admittedly major and may proceed to dispose of the matter without entering into the factual controversy of dispute.
In the light of aforesaid facts and circumstances of the case, it is abundantly clear that the corpus is major and she has stated that she apprehends danger to her life from her father and brother and may be set at liberty to go with whomsoever she wants as per her wishes, she is free to go either along with her next friend through whom the instant petition has been filed or with whomsoever she wishes or wants to lead her life peacefully from the Court itself.
Now, so far as the imposition of costs is concerned, learned counsel for the private respondents has stated that on account of non-communication of the order of the Court to the police authorities who were not permitting the corpus to be presented before the Court, they were helpless and could not produce the corpus on the date fixed. Therefore, the cost imposed by the Court may be withdrawn.
I am absolutely not in agreement with the submissions made by learned counsel for the private respondents that they could not produce the corpus as the police was not permitting them to go as the same appears to be preposterous on the face itself, inasmuch as, non-bailable warrants issued by the Court for arrest of respondent nos. 4 and 5 have not been executed upon them and they still remained scotfree. Secondly, I may record that Sri Ajay Kumar Mishra, learned counsel for the private respondents had made statement on 29.11.2018 and 8.1.2019 that the corpus is not keeping well and she is not able to come to Court. The Court on the assurance given by learned counsel for the private respondents has afforded more time for production of the corpus, yet the orders of the Court were flouted with impunity. Therefore, I am unable to accept the submissions of learned counsel for the respondent nos. 4 and 5 that it was on account of police pressure that they could not produce the corpus before the Court. However, learned counsel for the private respondents stated that the respondents are quite poor and small farmers and they are not in a position to pay the cost of Rs.1 lac 60 thousands as imposed by the Court and some lenient view may be taken.
In my opinion, after taking into account all the factors and that the respondent no.5 is the father of the corpus who must have felt ignominy and pain on account of her daughter being Hindu had run away with a Muslim boy might have been the factor of not producing the corpus and flouting the Court's order. Therefore, considering the totality of submissions made by learned counsel for the respondent nos. 4 and 5, I impose a cost of Rs.50,000/- only on respondent nos. 4 and 5 with a direction to deposit the same within one month before the District Magistrate, Meerut.
Since, non-bailable warrants have not been executed upon respondent nos. 4 and 5 and they are present before the Court, the warrants are hereby recalled.
If the amount so directed is not deposited within a period of one month, the District Magistrate, Meerut shall be at liberty to realize the same as arrears of land revenue from respondent nos. 4 and 5.
The amount of Rs.50,000/- so realized shall be forwarded by way of demand draft in favour of "Army Welfare Fund Battle Casualties" payable at New Delhi at the following address:-
"Director Accounts Section Adjutant General's Branch Ceremonial & Welfare Directorate IHQ of MoD (Army) New Delhi-110011"
In the light of aforesaid facts and circumstances of the case, the instant habeas corpus writ petition stands allowed.
The District Magistrate, Meerut is further directed to submit a report in this behalf after the cost as imposed is deposited or realized within two weeks to this Court and the same shall be placed on record.
Office is directed to communicate a copy of this order to District Magistrate, Meerut and Superintendent of Police, Meerut for necessary compliance.
Order Date :- 28.2.2019 Vikas