Court No. - 51
Case :- HABEAS CORPUS WRIT PETITION No. - 3796 of 2018 Petitioner :- Shivi And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sushil Kumar Rathore Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J.
Hon'ble Narendra Kumar Johari,J.
Learned counsel for the petitioners is permitted to carry out necessary correction in the array of the parties with regard to the name of the petitioner no.2 as Mangal Singh instead of Magal Singh, during course of the day.
Heard Sri Sushil Kumar Rathore, learned counsel for the petitioners and learned AGA appearing on behalf of the State.
This writ petition has been filed with the prayer to quash/set-aside the impugned order dated 23.06.2018 passed by the Additional Sessions Judge, Court No.2, Jalaun at Orai, in Case Crime No.205 of 2018, under Sections 363, 366, 7 and 8 POCSO Act, Police Station Kotwali Jalaun, District Jalaun and release the corpus to her husband according to her sweet and free will.
We have also perused the earlier order dated 26.10.2018 passed by another Bench of this Court, in pursuance of which the corpus Shivi has been produced before this Court, in custody of Madan Lal (Constable C.P. No.462, P.No.782240322), Nagina Rajpoot(Lady Constable C.P. No.4624569) and Sudha (Lady Constable No. 4623926).
The contention of the counsel for the petitioners is that the present habeas corpus writ petition has been filed on behalf of the corpus Shivi through her husband namely Mangal Singh. It has been contended that both Shivi as well as Mangal Singh, the petitioner nos. 1 and 2 are adult and they have solemnized marriage of their own free will without any fear, threat or coercion, however, the girl has been illegally detained with respondent no.4. Attention of the Court has also be drawn to the order dated 23.06.2018, a perusal of which shows that the parents of the girl have not approached the court concerned for the Supurdigi of the girl. It is also evident that there is a dispute with regard to the date of birth of the girl in the educational certificate. The High School Marksheet of the girl shows that her date of birth is 13.07.2002, whereas the Class-8th Marksheet/school teaving certificate of the girl shows that her date of birth is 24.03.2001.
In this view of the matter it has been contended that the age of the girl as certified by the Chief Medical Officer, Jalaun becomes relevant, copy of which has been annexed at page no.34 of the affidavit filed in support of the writ petition, as per the said certificate the age of the girl is 19 years.
The Court has been informed that both of petitioners are present before the Court, thus with the consent of learned counsel for the petitioners as well as learned AGA, the Court proceed to examine the corpus namely Shivi, who is present before the Court.
On being asked 'ki app ka naam kaya hai', she informed the Court 'ki mera naam Shivi hai'. On being asked 'ki app ke pita ji ka kaya naam hai', she informed the Court ki 'mere pita ji ka naam Jawala Prasad hai'. On being asked 'ki app ki umra kitni hai', she informed the Court ki 'meri umra 19 Saal aur kuch mahine hai'. On being further asked 'ki app ne shadi apani marji se kari hai aur kiske sath' she said yes 'shadi maine apani marji se kari hai, Mangal ke sath, bina kisi dar ya dabaw ke', i.e. petitioner no.2, who is also present before the Court.
The petitioner nos.1 and 2 have identified each other, and both the petitioners have also been identified by their counsel Sri Sushil Kumar Rathore, on the basis of the documents produced before him in his chamber.
Thus, keeping in view the facts and circumstances of the case, the statement made by the girl before this Court and also in view of the medical certificate issued by the Chief Medical Officer, Jalaun, showing the age of the girl 19 years, a case of grant of indulgence has been made out. There is no purpose will be served in keeping the matter pending before this Court.
The corpus Shivi is present before the Court, who is an adult, is set at liberty to go wherever she wants to go and no hindrance in her free movement will be placed by any of the respondents. She is accordingly released from the custody forthwith.
The Habeous corpus writ petition is accordingly stands, allowed. However, liberty is given that in case it is found that some facts has been concealed, in the present writ petition, the person concerned shall file a recall application before this Court to recall the present order.
Order Date :- 29.11.2018 VKG