Hon'ble Anil Kumar Agarwal,J.
Heard Sri S.A. Sharma, learned counsel for the petitioner, learned A.G.A. for the State of U.P. on Habeas Corpus Writ Petition No. 36656 of 2012 Km. Abhilasha, Singh, learned counsel for the petitioner, Sri Shiv Avtar Sharma, appearing on behalf of Sandeep, learned A.G.A. for the State of U.P. in criminal misc. Habeas Corpus Writ petition no. 51025 of 2012.
The criminal misc. habeas corpus writ petition no. 36656 of 2012 and criminal misc. habeas corpus writ petition no. 51025 of 2012 have been filed having the same prayer that the corpus Km. Kiran may be released from Nari Niketan, therefore, both the habeas corpus writ petitions are being disposed of by a common order.
The facts, in brief of this case are that the F.I.R. has been lodged by Rameshwar Prasad on 28.5.2011, at 1.10. p.m. in respect of the incident allegedly occurred on 19.5.2011, at about 5.00 p.m. in case crime no. 516 of 2011 under sections 363,366 I.P.C. P.S. Rajpura district Budaun, it has been lodged against the accused Sandeep with a allegation that on 19.5.2011 Km. Kiran, aged about 13 years has been enticed away by the accused Sandeep in which after completing the investigation the charge sheet has been submitted against the accused Sandeep on which the learned magistrate concerned has taken cognizance, and summoned the accused vide order dated 14.9.2011. The order dated 14.9.2011 has been challenged by the accused Sandeep with a prayer to quash the same as well as the proceedings of criminal case no. 3737 of 2011 arising out of the charge sheet submitted in case crime no. 516 of 2011 under sections 363,366 I.P.C. P.S. Rajpura district Budaun pending in the court of learned A.C.J.M. II Budaun. The criminal Misc Application under section 482 Cr.P.C. No. 10377 of 2012 has been disposed of by the learned Single judge of this court on 28.3.2012 by directing the accused Sandeep to produce the corpus Km. Kiran before the C.J.M Budaun within three weeks, thereafter, the C.J.M. Budaun, shall upon proper identification get her medically examined by the C.M.O. Budaun, whereafter, he shall record her statement under section 164 Cr.P.C. in the presence of the Investigating Officer and decide the issue of her custody also. In pursuance of the order dated 28.3.2012 the corpus Km. Kiran was produced before the C.J.M. Budaun, she was medically examined by the C.M.O. Budaun. According to her medical examination report she was aged about 19 years. Thereafter, her statement under section 164 Cr.P.C. was recorded in which she stated that she had performed the marriage with Sandeep, she had gone in her company with her free will and she had developed physical relationship with Sandeep, her parents wanted to marry her with some other person without her consent, after taking the money her parents had performed the marriage of her elder sister, she was pregnant having the pregnancy of six months. Her statement under section 164 Cr.P.C. was recorded and the issue of her custody has been decided by the learned C.J.M. Budaun. on 27.4.2011 by which she has been sent to Nari Niktan, Bareilly. For her custody one application was moved by Sandeep, he has filed the criminal Misc. writ petition No. 36656 of 2012 on behalf of corpus Km. Kiran her father Rameshwar Prasad Sharma has filed criminal habeas corpus writ petition No. 51025 of 2012 with a prayer that the corpus is minor, which may be given in his custody.
The learned C.J.M. Budaun has decided the issue of custody of corpus by passing the impugned order dated 27.4.2012 by holding that the corpus is minor, only on the ground that the I.O. has submitted the charge sheet after recording the statement of the father of the corpus who stated that the corpus was minor. According to the evidence collected by the I.O. the corpus was minor but no definite opinion has been recorded by the C.J.M. Budaun with regard to her actual age whereas according to the medical examination report she was aged about 19 years. The corpus has given birth to a child, she along with her child has been produced before this court on 6.11.2012. On query made by this court she orally stated that she is major and she has given birth to a child, she does not want to live in Nari Niketan, she has performed marriage with Sandeep, Sandeep was also present in the court, on query made by this court he stated that he is a married person. He is having a child from his first wife, she is not coming to his house, no judicial divorce has taken place. The corpus has also stated that she did not want to go with her father as she was having the apprehension of her life, she wants to go with Sandeep, on query made by the court, sri Rameshwar Prasad Sharma, father of the corpus stated that he was ready to have the corpus along with his child.
In physical appearance the corpus was appearing to be major and she did not want to live in Nari Niketan. The learned C.J.M. Badaun committed error by passing the impugned order dated 27.4.2012 by which the corpus has been sent to the Nari Niketan. Bareilly. The impugned order dated 27.4.2012 is illegal and the same is hereby set aside. The corpus is directed to be released forthwith from Nari Niketan, Bareilly.
The corpus has stated before this court that she wanted to go in the company of Sandeep, Sandeep has admitted before this court that he is already a married person and is having a child from his wife and no divorce has taken place from her wife, he has been charge sheeted in the present case also. In such circumstances, the prayer for releasing the corpus in the custody of Sandeep is refused. The corpus is major, she refused to go in the company of her father, in such circumstances, no direction may be issued giving the custody of the corpus to her father. The corpus who is major and has given birth to a child, she is free to live anywhere according to her free will and consent in case the law permits to do so.
Accordingly both the habeas corpus writ petitions are disposed of.
Dt. 19.11.2012 NA/RPD