Court No. - 1
Case :- HABEAS CORPUS WRIT PETITION No. - 2900 of 2018 Petitioner :- Sinku And Another Respondent :- State Of U.P. 3 Others Counsel for Petitioner :- Vijay Bahadur Maurya,Varun Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Krishna Pratap Singh,J.
Heard Ram Adhar, Advocate holding brief of Sri Vijay Bahadur Maurya, learned counsel for the petitioners and Sri Vikas Sahai, learned A.G.A. for the State.
On 29.03.2018 when the matter was taken up and on that date one Sri Dinesh Mishra, Advocate made a mention before the Court that he wishes to file his power on behalf of the respondent no. 4 which was allowed and on his request the matter was posted for today and listed in the additional cause list. When the matter called out neither Sri Dinesh Mishra, Advocate has appeared nor has filed power on behalf of the respondent no. 4. Moreover from the office report dated 28.03.2018 the notice issued to respondent no. 4 has been served through his daughter, thus notice upon respondent no. 4 deemed sufficient.
This petition has been filed by the petitioner with a prayer to direct the respondent nos. 3 and 5 Incharge, Nari Niketan, Allahabad to produce the corpus-petitioner no. 2 namely Smt. Savitri Devi, D/o Sri Bade Lal, W/o Sinku before this Court on date fixed or released the corpus as per liberty and sweet will and also quash the entire consequences arising out of order dated 22.04.2017 passed by learned Additional District & Sessions Judge/Special Judge (POCSO Act), Court NO. 2 Kaushambi.
On 27.02.2018 this Court has passed the following orders:-
"Heard Sri V.B. Maurya, learned counsel for the petitioners and Sri Vikas Sahai, learned A.G.A., who has accepted notice on behalf of the State.
Learned counsel for the petitioners submits that as per the medical report, the corpus-petitioner no. 2 is a major girl and in her statement recorded under section 164 Cr.P.C. she has expressed her desire to go with petitioner no. 1 and denied the prosecution case. In the F.I.R. which was lodged by respondent no. 4 final report has been submitted. The learned Magistrate only on the basis of statement of father of petitioner no. 2 has sent her to Nari Niketan. 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.
Issue notice to respondent no. 4 returnable within two weeks. Steps be taken within one week.
Respondent no. 5 is directed to produce the corpus petitioner no.1 Smt. Savitri Devi before this Court on 13th March, 2018.
List on 13th March, 2018.
copy of the order may be issued to learned A.G.A. free of cost for its compliance.
Learned counsel for the petitioners is permitted to make necessary correction in the present petition.
On 13.03.2018 this Court passed an order which reads as under:-
Heard Sri V.B.Maurya, learned counsel for the petitioners and Sri Vikas Sahai, learned A.G.A. for the State.
As per office report dated 12.03.2018 notice issued to respondent No.4 has been received back after service. In compliance of the Court's order dated 27.02.2018, the corpus petitioner No.2 Savitri Devi is present before this Court in the police custody. On a query, she desire her expression that she want to go with petitioner No.1, who is also present in the Court and identified by his Counsel.
It has been stated by the learned counsel for the petitioners that the father of the petitioner No.2 had made statement before the Magistrate concerned that his daughter petitioner No.2 is aged about 16 years but no documentary evidence in support of the said submission produced by him. As per medical report, she is found to be major aged about 19 years. It has next submitted that final report has been submitted in the case, which was lodged against the petitioner No.1 Sinku under Section 363 and 366 IPC. It has next submitted that in spite of notice, respondent No.4 has not appeared before this Court.
As per under Section 164 Cr.P.C. statement of the corpus, it is apparent that it is not a case of taking or enticing away.
Considering the above facts, we direct the respondent No.5 Incharge Nari Niketan, Allahabad to release the corpus with undertaking given by learned counsel for the petitioners that corpus petitioner No.2 along with petitioner No.1 shall produce on the next date.
The corpus be taken back to Nari Niketan from where she shall be released with petitioner No.1 Sinku.
List this matter again on 29.03.2018.
On that date Corpus petitioner No.2 along with petitioner No.1 Sinku shall appear before this Court."
The corpus-petitioner no. 2 was produced on 13.03.2018 in compliance of Court's order dated 27.02.2018 by respondent no.5 in police custody and on a query was made, she had stated that she wants to go with her husband Sinku, who has filed the present petition.
Considering the facts and circumstances of the case and in view of the fact that the victim is major girl as per medical report and statement recorded under Section 164 Cr.P.C. where she has expressed her desire to go with petitioner no. 1 and the Magistrate only on the basis of statement of her father sent her to Nari Niketan.
In view of the above, the impugned order dated 22.04.2017 passed by court below sending the corpus-petitioner in Nari Niketan is hereby set aside.
Let the corpus -petitioner Smt. Savitri Devi, who was produced before this Court on 13.03.2018 be set at liberty by respondent no. 5 to go according to her wishes.
Accordingly, the present petition is allowed.
(Krishna Pratap Singh,J.) (Ramesh Sinha,J.) Order Date :- 30.3.2018 A.K.Verma