Court No. - 51
Case :- HABEAS CORPUS WRIT PETITION No. - 3990 of 2018
Petitioner :- Rashmi And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ramesh Chandra Pal,Habaldar Singh Katheria
Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.
Heard learned counsel for the petitioners and learned A.G.A. for the State.
This habeas corpus writ petition has been filed on behalf of corpus Rashmi through her father-in-law, Sri Satish Chandra.
Keeping in view the fact that as per High School certificate the date of birth of the corpus Rashmi is 10.5.2001.
We have perused the earlier order of this Court dated 12.12.2018 which is an elaborate order and the same is extracted herein as under:
“A different medical certificate dated 15/19.6.2017 of the same girl has been produced in Court today. The same is taken on record.
This habeas corpus writ petition has been filed by corpus Rashmi through her father-in-law, Mr. Satish Chandra.
From perusal of the record, it transpires that as per high school certificate of the girl, the date of birth of the girl is 10th May, 2001. Thus, she is minor apparently. Even otherwise, on the date of incident, she must be minor.
Reliance has also been placed upon the medical certificate dated 30.8.2017 issued by Chief Medical Officer, Firozabad, wherein her age is mentioned as 15 years.
However, we are surprised to peruse another medical certificate dated 15/19.6.2017, which is produced today in Court, issued by Chief Medical Officer, Firozabad, once again, wherein the age of the girl is mentioned as 16 years. Let an inquiry be conducted by the District Magistrate, Firozabad, who shall look into the matter and will try to find out as to why two different medical certificates dated 30.8.2017 and 15/19.6.2017 from Chief Medical Officer, Firozabad, have been issued by giving different age of the girl. The inquiry by District Magistrate, Firozabad, shall be conducted within a period of one month from the date of production of certified copy of this order.
Liberty is given to the District Magistrate, Firozabad to constitute a Medical Board of three doctors consisting of Chief Medical Officer, concerned and two other senior doctors, which would include one lady doctor and there will be also a radiologist, who will examine the girl/corpus Smt. Rashmi, for the purpose of determining her exact age, presently detained in the Nari Niketan, Mathura. The Medical Board will submit a report through the office of the District Magistrate which shall be produced before this Court through the office of the Government Advocate of this Court in a sealed cover on the next date of listing. It is being reiterated that the said Medical Board will submit an elaborate report regarding age of the girl/corpus Smt. Rashmi.
Writ petition along with the xerox copy of the medical certificate dated 15/19.6.2017, which has been produced today, shall be provided to the District Magistrate, Firozabad, within a period of 10 days from today.
List the matter on 16.01.2019 before the appropriate Court.
It is made clear that the matter shall not be treated as tied up or part heard to this Bench.”
Learned A.G.A. has filed a short counter affidavit, the affidavit of Circle Officer Sadar, district-Firozabad.
In compliance of the earlier order of this Court dated 12.12.2018, the report of the Chief Medical Officer, Firozabad has been annexued and as per the said report the corpus Rashmi is aged about 17 years.
Learned counsel for the petitioner has submitted that as on date the girl is adult as per her High School certificate, wherein her date of birth has been shown as 10.5.2001, the age or corpus on date would be 17 years and 8 months, i.e. almost at the verge of attaining majority and thus it has been contended that she cannot be detained in Nari Niketan against her own wishes.
We have also perused the statement of the girl recorded under Section 164 Cr.P.C. (Annexure7), wherein she has categorically stated that “;g c;ku eSusa viuh bPNk ls ugh fn;k FkkA iqfyl o ?kj okyksa ds ncko ls fnyk;k”A and she has been declared hostile.
In compliance of the order of this Court dated 6.2.2019 the Court has been informed that corpus Rashmi has been produced before this Court in the custody of Head constable Sri Suraj Singh, constable Prempal Singh and lady constable Deepa Rani from Nari Niketan, Mathura, 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 hai." On being asked “aap ke pitaji ka kya naam hai.” She said “mere pitaji ka naam Jawahar Lal hai.” “kya aap padi-likhi hain.” “ji haan main kaksha 11 tak padi hoon.” On being further asked “aap ke High School ke certificate main aap ki janam tithi sahi hai ya nahi.” and she was being confronted with the High School certificate she said “mere mata-pita ne umar kam karke likhaya hai.”
Upon being question by the Court "aap yahan se kahan jana chahati hain." She replied “main yahan se Kuldeep ke ghar apni susral jana chahati hoon.” Upon being asked “Kuldeep to jail main hai.”
Petitioner no. 2 Satish Chandra, father of Kuldeep is also present before this Court.
When a query made by the Court from the corpus “Satish Chandra kaun
hain.” She replied “Satish Chandra Kuldeep ke pitaji aur mere sasur hain.”
On being asked by this Court from Satish Chandra “kya aap Rashmi ko apni
bahu mante hain.” He replied that “ji haan main Rashmi ko apni bahu manta hoon.” Upon being further asked “kya aap inhe apne ghar le jana chahate hain.” He replied that “ji main ise apne saat le jaonga and acche se rakhoonga.”
In view of the statement made by the corpus as well as Satish Kumar, petitioner no. 2 before this Court and in view of the desire expressed by the corpus that she wants to go to her sasural, a case for grant of indulgence has been made out.
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 petitioner has also placed reliance upon the judgment of Lucknow Bench of this Court rendered in the case of Smt. Noor Bano Through Her Husband Sri Mubarak vs. State Of U.P.Through Secy.Deptt.Of Home Lko.And Ors. reported in 2018 (2) ALJ 295.
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."
In view of the statement made by the corpus before this Court and in view of the desire expressed by the corpus that she wants to go with her father inlaw, Satish Chandra, petitioner no. 2 a case for grant of indulgence has been made out.
The corpus Rashmi who is present before this Court, produced in the custody from Nari Niketan Mathura is hereby released from custody forthwith. Accordingly, the girl being adult is free to go wherever and with whom she wants to go.
Since the corpus Rashmi wants to go with her fatherinlaw, Satish Chandra, petitioner no.2, she is free to go with him and no hindrance will be caused in her movement by any of the respondents.
Accordingly, the habeas corpus writ petition is allowed. Corpus Rashmi is set at liberty forthwith.
Order Date :- 26.2.2019 Faridul