Court No. - 51
Case :- HABEAS CORPUS WRIT PETITION No. - 106 of 2019
Petitioner :- Rashmi @ Sneha Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Mishra Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.
Short counter affidavit filed on behalf of State in the Court today is taken on record.
Heard Sri Santosh Kumar Mishra, learned counsel for the petitioner, Sri R.K. Maurya, learned A.G.A. for the State and perused the record.
Despite order of this Court dated 31.1.2019 by means of which notices were issued to respondent no. 4. However, neither any counsel has put in appearance on behalf of respondent no. 4 nor nay counter affidavit has been filed on his behalf.
We have also perused the office report dated 23.2.2018.
The contention is that the girl is adult; further contention is that even a minor can not be detained at Nari Niketan against her wishes.
We have also perused the order dated 22.1.2018 passed by in-charge Special Judge POCSO Act/Addl. Sessions Judge, Court no. 14/Addl. Sessions Judge, Court no. 4, Kanpur Nagar, the Court which clearly records a finding "pidita ke mata-pita ki taraf se use apni sanraksha me liye jane ka koi prarthna patra nahi diya gaya hai."
It appears that parents are not interested for seeking the custody of the girl, thus the Court may proceed to hear the matter on merits.
We have also perused the statement of the girl recorded under Section 164 Cr.P.C. (Annexure-2), in which she has categorically stated that "esjs eEeh ikik esjh 'kknh tcjnLrh djuk pkgrs Fks eSus 'kknh ds fy, euk fd;k rks eq> ij ncko cukrs Fks vkSj ekjrs ihVrs Fks rFkk tku ls ekjus dh dksf'k'k djrs Fks blfy, eaS ?kj NksM dj fnukad 4-11-2017 dks fnYyh pyh x;h Fkh ogkW tkdj eSus dke <w<k rFkk ?kj esa cPpks dks V;w'ku i<kus yxh rFkk viuk thou ;kiu djus yxh eS ch-,- esa i<rh Fkh fnukad 13-12-2017 dks eS dkuiqj okil vk;h vkSj ,l- ih- lkgc ls feyh eS vius ?kj ugh tkuk pkgrh FkhA ,l- ih- lkgc us Qksu ua0 1098 ij Qksu djk;k Fkk ijUrq xkMh ugh vk;h rks eS okil fnYyh pyh x;h eS vkt ls pkj fnu igys o`gLifrokj dks okil dkuiqj vk;h D;ksafd esjs V;w'ku cUn gks x;s Fks vkSj iSls ugh Fks eq>sa dkuiqj vkdj irk pyk fd esjs ikik us esjs thtk th vfer ik.Ms ds f[kykQ >wBh ,Q- vkbZ- vkj- ntZ djk;h gS rc eSus Fkkuk iudh esa tkdj iqfyl dks lPph ckr crk;h vkSj iqfyl vkt eq>s c;ku ds fy, vnkyr esa yk;h gSA esjs ekSlh o ukuk esjs thtk th dks Qlkus dh dksf'k'k dj jgs gS >wBs vkjksi yxk jgs gS esjs ikik o ifjokj okyks us ;g fjiksVZ esjs thtk th ds f[kykQ >wBh o xyr fy[kk;h gSA tcfd eS vius vki viuh ethZ ls ?kj NksM+ dj x;h Fkh eS vius eEeh ikik ds ?kj ugh tkuk pkgrh gw¡A cl ;gh esjk c;ku gS eq>s dqN vkSj ugh dguk gSA"
In this factual scenario and in view of the fact that the Court has been informed that the corpus is produced before this Court from Nari Niketan, Kanpur in the custody of lady constable Reshma Tyagi and lady constable Vandana Singh from Nari Niketan, Kanpur, she has been identified by her counsel. The Court proceed to examine the corpus:
On being asked by this Court from the girl "aap ka kya naam hai." She said "mera naam Rashmi Tiwari hai." "aap ke pitaji ka kya naam hai". She said "mere pitaji ka naam Ram Khelawan Tiwari hai." She informed the Court that she is studying in B.A. Part-I.
On being asked "aap ke High School ke certificate me aap ki umar 22.8.2001 hai and she was being confronted with the school certificate she said "mere mata-pita ne umar kam karke likhaya hai, main 19 saal ki hoon."
Upon being questioned by the Court from the girl "aap yahan se kahan jana chati hain." She replied "main yahan se apni aunt ke paas jana chati hoon." On being asked "aap apne mata-pita ke paas kyon nahi jana chahati hain." She said "woh log mujhe padne nahi denge."
Learned counsel for the petitioner has placed reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No.13037 of 2014 Mohini Gupta vs. State of UP and others, Habeas Corpus Writ Petition No.36519 of 2015 Smt. Neelam vs. State of UP and others, Habeas Corpus Writ Petition No. 19037 of 2011 Smt. Saroj versus State of U.P. And Others and the judgments passed by the Apex Court in Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 and Shafin Jahan vs Ashokan K.M. and others, reported in AIR 2018 SC 1933.
Learned counsel for the complainant has placed reliance upon the judgment passed in Habeas Corpus Writ Petition No.55317 of 2017 Smt. Priyanka Devi vs State of UP and others.
However, at this stage it may be appreciated that the said judgment was rendered before the judgment of the Apex Court in Suhani's case (supra). If we look into the legal consistent position we find that in the present case the girl has clearly stated that her age is 19 years and has given her statement under Section 164 CrPC which is in favour of Ajay Sharma and as per the medical certificate also the age of the girl is 18 years.
Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296".
It may be further appreciated that a victim of offence under section 363, 366A, 366 or 376 I.P.C. could not be falling in the category of an accused and as such no court could be authorised under any provisions of law to authorise the detention of such a lady even into protective custody if the lady objects to such detention. In various decisions this Court opined that generally an order was passed sending the girl to Nari Niketan being ignorant of the constitutional provisions on the procedure being reasonable and liberty being the most valuable fundamental right of a person. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties, of course within the caring custody of parents. No law could be upheld even in a case of a child if he is deprived of the right to life and valued the right to liberty. (order dated 8.5.2012 in Habeas Corpus Writ Petition No. 19037 of 2011 Smt. Saroj versus State of U.P. And Others).
It may also be appreciated that the issue whether the victim/detenue who is a minor, can be sent to Nari Niketan against her wish, is no longer resintegra and has been conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary Versus State of U. P. reported in 1978 Cr. L. J. 1003 (D.B.), a Division Bench of this Court has taken the view that:
"no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home."
In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 a Division Bench of this Court has enunciated the same principle as hereunder:
"In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it.
We have no mind to enter into the question and decide as to when a particular minor is to be set at liberty in respect of her person or whether she shall be governed by the direction of her parents. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate.
Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though, it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen should be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Sections 363 and 366 I. P.
C. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no law at least now has been quoted before us whereunder the Magistrate may direct dentition of a witness simply because he does not like him to go to any particular place. In such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors."
In the case of Smt. Raj Kumari Versus Superintendent, Women Protection, Meerut and others House reported in 1997 (2) A. W. C. 720 another Division Bench of this Court has laid down the following dictum:
"In view of the above, it is well settled view of this Court that even a minor cannot be detained in Government Protective Home against her wishes. In the instant matter, petitioner has desired to go with Sunil Kumar besides this according to the two medical reports, i. e. of the Chief Medical Officer and L. L. R. M., College Meerut, the petitioner is certainly not less than 17 years and she understands her well being and also is capable of considering her future welfare. As such, we are of the opinion that her detention in Government Protective Home, Meerut against her wishes is undesirable and impugned order dated 23.11.96 passed by the Magistrate directing her detention till the party concerned gets a declaration by the civil court or the competent court of law regarding her age, is not sustainable and is liable to be quashed."
Thus in view of the above, it is clear that it is the consistent view of this Court that a minor cannot be detained in a protective home against her wishes."
As far as the question of maintainability of the writ petition is concerned, while considering the same question, a Division Bench of this Court in Habeas Corpus No. 146 of 2015; Smt. Preeti Nishad through her Husband, Mahendra Kumar Versus State of U. P. has held as hereunder:
"The main objection of Sri S. N. Tilhari, learned A.G.A. that the petitioner should be asked to file revision at this stage will be defeating the spirit of Article 21 of the Constitution of India. The petitioner is neither an accused nor an offender of law. She is simply a citizen of this country who has done no wrong. She is major. The C.M.O. concerned has given her age to be around 20 years. This is based on medical examination and x-ray report. So far the certificate submitted by the father is concerned, it appears to be fabricated. Detenue has clearly mentioned that she has never studied in the school from where the age certificate has been obtained. It is not a matriculation certificate. It is a lower class certificate issued recently after the controversy arose. It cannot be trusted compared to the C.M.O. report and her own version before the Court.
She has made statement before this Court that she does not want to live in any Nari Niketan or Sudhar Griha. She does not even want to live with his father. Somehow due to incorrect judicial order she is languishing in Nari Niketan for the last seven months. It will be a travesty of justice if this Court dismisses this petition on any alternative remedy. The law on the subject is very clear. The Court cannot shut its eyes and relegate a citizen to further harassment and illegal detention. Neither the S.D.M. nor the A.D.J. had any jurisdiction to send a lady to a protective home without her consent. The respective orders passed by them are set aside."
The corpus Rashmi @ Sneha Tiwari who is present before this Court, proudced in the custody from Nari Niketan, Kanpur is hereby released from custody forthwith. Accordingly, the girl being adult is free to go wherever and with who she wants to go.
Thus, in view of the consistent legal position, in view of the fact that girl is an adult as per the medical certificate and in view of the statement of the girl under Section 164 Cr.P.C, a case for grant of indulgence has been made out.
Accordingly, the habeas corpus writ petition is allowed. Corpus Rashmi @ Sneha Tiwari is set at liberty forthwith.
Order Date :- 25.2.2019 Faridul