Court No. - 32
Case :- HABEAS CORPUS WRIT PETITION No. - 3602 of 2018 Petitioner :- Sonika Patel Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Moeez Uddin Counsel for Respondent :- G.A.,Ashok Kumar Pandey
Hon'ble Shashi Kant Gupta,J. Hon'ble Shashi Kant,J.
Heard Sri Moeez Uddin, learned counsel for the petitioner, learned AGA, Sri Ashok Kumar Pandey, learned counsel for the respondent no. 4 and perused the record.
This writ petition has been filed seeking issuance of a writ, order or direction in the nature of habeas corpus directing the respondents to produce the petitioner before this Court and set her at liberty.
In pursuance of the order dated 4.10.2018, the detenue Sonika Patel has been produced before us by respondent no. 3, the Superintend, Nari Niketan, Allahabad.
Upon a specific query made from the corpus petitioner no. 1 Sonika Patel, she flatly refused to stay with her father and expressed her willingness to live with her friend Jang Bahadur.
It is evident from the perusal of the record that her date of birth has been shown in School Leaving Certificate and Mark sheet (Annexure-1) of Class Vth as 10.07.1999. While in the High School Certificate, (Annexure -1 of counter affidavit filed on behalf of respondent no. 4) her date of birth is mentioned as 10.08.2002. No report regarding her radio-logical age is available on record. Even in her statement recorded under Section 164 Cr.P.C. (Annexure-3) on 16.05.2018, she told her age 16 years.
According to Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, for determination of age High School Certificate will prevail over other documents and only in absence of it, other documents and medical evidence have to be considered. In view of above the corpus was minor on the date of incident and is still minor.
We are aware that normally even minor corpus should not be kept in Nari Niketan against her wishes but in the instant case, the corpus petitioner no. 1 does not want to go with her parents and express her willingness to live with her friend Jang Bahadur who is an accused in the case lodged by respondent no. 4, as Case Crime No. 193 of 2018, under Sections 363, 366, 376, 323, 504, 506 IPC and 3/4 POCSO Act (Annexure-2) by name of Dileep. In view of this, corpus could not be permitted to live with him. Admittedly corpus is minor and she could not be left on the street. In these circumstances, keeping in view of protection of interest of corpus along with her safety and security, we find it desirable that she should be kept in protection home/Nari Niketan till attaining her age of majority and thereafter she should be set at liberty to move the place of her choice.
For the above discussion, we do not find any merits in this writ petition and it is liable to be dismissed.
The writ petition is accordingly, dismissed.
The corpus petitioner no. 1 Sonika Patel (detenue) who has been produced today, be taken back to the concerned Nari Niketan where she shall be kept until attaining majority. The Superintendent of Nari Niketan will strictly adhere to Rule of law and procedure prescribed and she/he will also ensure that during stay of corpus in Nari Niketan, she should not suffer any physical, mental or physiological oppression in any manner.
Before parting with the case, we would take notice of the fact that from the perusal of the record, it appears that the offence is committed on 24.01.2018 but till today, no police report has been filed in this matter. In this view of the matter, concerned Investigating Officer is directed to conclude the investigation also file police report within a period of one month from the date of certified copy of this order.
Order Date :- 29.10.2018 Monika