Court No. - 1
Case :- HABEAS CORPUS WRIT PETITION No. - 2867 of 2018
Petitioner :- Sharfudeen And Anr. Respondent :- State Of U.P. And 6 Ors. Counsel for Petitioner :- Zafar Abbas
Counsel for Respondent :- G.A.,Meraj Ahmad
Hon'ble Ramesh Sinha,J. Hon'ble Krishna Pratap Singh,J.
Heard Sri Zafar Abbas, learned counsel for the petitioners, Sri Meraj Ahmad, learned counsel for respondent no. 7 and Sri Vikas Sahai, learned A.G.A. for the State.
This petition has been filed by the petitioners with a prayer to direct the respondent no. 2 to 6 to produce the corpus-petitioner no. 2 before this Court and release her after recording the statement for going anywhere according to her wishes.
Learned counsel for the petitioner submits that as per the High School certificate, the petitioner is aged about 17 and half years and she is at the verge of attaining majority. It is not a case of taking away or enticing away the victim. As per her statement u/s 164 Cr.P.C., she voluntarily eloped with petitioner no. 1 Sharfudeen, whose arrest in pursuance of the F.I.R. lodged by respondent no. 7 has already been stayed by this Court vide order dated 9.1.2018 passed in Crl Misc. Writ Petition No. 379 of 2018, and has married her, hence the order passed by the learned Magistrate to keep the corpus-petitioner no. 2 in Nari Niketan is bad in the eyes of law. Learned counsel for the applicant in support of his contention has placed reliance on the judgment passed in the case of S. Varadarajan Vs. State of Madras (1965 AIR 942, 1965 SCR (1) 243. He submits that even though the victim was taken to be minor by the Magistrate, she cannot be allowed to be kept in Nari Niketan against her wishes. In support of his arguments, he has further placed reliance on the judgment of the Apex Court as well as this Court in the case of Smt. Parvati Devi vs. State of U.P. reported in 1992 All. Crl. Cases 323 and Smt. Renu Maurya and another vs. State of U.P. and another reported in 2014 (86) ACC 128.
Learned counsel appearing on behalf of respondent no. 7 states that charge-sheet in pursuance of the F.I.R. lodged by respondent no. 7 has been submitted against petitioner no. 2 and non bailable warrant has been issued against him, hence the order which has been passed by this Court of no consequence to which learned counsel for the petitioners states that just to defect the order of this Court staying the arrest of the petitioner no. 2, the police in collusion with respondent no. 7, who is father of petitioner no. 1 has submitted charge-sheet in the matter and got a non bailable warrant issued against petitioner no. 2 from the court below though it is a case of elopement and no offence is disclosed against petitioner no. 2.
In compliance of this Court's order dated 19.2.2018, the corpus-petitioner no. 2 Smt. Saima Parveen @ Zaibun Nisa has been produced by respondent no. 4 before this Court today and on a query being made, she has stated that she wants to go with her husband-petitioner no. 1.
Considering the submissions advanced by learned counsel for the parties and taking into account the fact that as per the statement of the corpus- petitioner no. 2, she voluntarily gone with petitioner no. 1 and in view of the law laid by the Apex Court as well as this Court in the case of Smt. Parvati Devi (Supra), Smt. Renu Maurya (Supra) and S. Varadarajan Vs. State of Madras (Supra), the corpus-petitioner is set at liberty to go in accordance with her own wishes. Moreover, from the case set up in the F.I.R. and the statement recorded under section 164 Cr.P.C. of the victim- corpus petitioner no. 1, it is only a case of elopement and it further appears from the record that though the arrest of petitioner no. 2 was stayed by this Court during the course of investigation, the Investigating Officer under the influence and collusion of respondent no. 7, who was against their relationship got submitted charge-sheet against petitioner no. 2 so much so that he got non bailable warrant also from the competent court as it is stated by learned counsel for the respondent no. 7, hence taking into account the mischievous act of the Investigating Officer in collusion of respondent no. 7, we in exercise of extra ordinary power under Article 226 of the Constitution of India quash the impugned order dated 19.1.2018 passed by court below sending the corpus-petitioner no. 1 in Nari Niketan along with charge-sheet, non bailable warrant and all consequential proceedings in pursuance of the F.I.R. dated 18.12.2017 lodged by respondent no. 7.
The corpus-petitioner no. 2 Smt. Saima Parveen @ Zaibun Nisa shall be taken back to Nari Niketan from where she shall be released by respondent no. 4 to go according to her own wishes.
Accordingly, the present petition is allowed.
Office is directed to issue a certified copy of this order to the learned A.G.A. free of cost for its compliance.
The petitioners shall also produce a certified copy of this order before the court concerned forthwith.
(Krishna Pratap Singh, J.) (Ramesh Sinha, J.)
Order Date :- 28.2.2018 Shiraz