Gujarat High Court
Musaddiq Muhammed Yusuf Soniwala vs State Of Gujarat on 29 April, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/2994/2022 ORDER DATED: 29/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2994 of 2022
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MUSADDIQ MUHAMMED YUSUF SONIWALA
Versus
STATE OF GUJARAT
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Appearance:
MR ABHISHEK M MEHTA(3469) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 4,5,6
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 29/04/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition preferred by the person who claimed to be the husband of corpus and who admittedly married the corpus as his second wife. This court noticed the absence of any express consent of the first wife and passed a couple of orders and some of those orders need reproduction.
1.1. Order dated 31.03.2022 reads thus:-
"1. This Court on 28.03.2022 passed the following order:
"1. This is a petition preferred seeking the following reliefs:
"27.) In the aforesaid premises, the petitioner most humbly prays that:Page 1 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022
R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 A. YOUR LORDSHIPS may be pleased to admit and allow this Special Criminal Application;
B. YOUR LORDSHIPS may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction in nature of Habeas Corpus and be pleased to direct the Respondent Nos.1 to 3 to forthwith search and find out the whereabouts of the Corpus Syeda Juveriya and produce her before this Hon'ble Court on the returnable date and to hand over the custody to the petitioner, in the interest of justice;
C. Pending Admission and hearing of the present application, this Hon'ble Court may be pleased to direct the Respondents to produce Syeda JuveriyaCorpus, before this Hon'ble Court, who is kept under illegal and wrongful confinement of the Respondent No.4 to 6 and other family members of the respondent No.4, in the interest of justice;
D. YOUR LORDSHIPS may be pleased to direct the Respondent No.1 to 3 to find out the whereabouts of respondent NO.4 to 6 and produce before this Hon'ble Court; E. Any other and further relief/s as may deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice;"
2. This Court on 22.03.2022 passed the following order:-
"In this petition the petitioner is seeking writ of habeas corpus in respect of his wife Syeda Juveriya, the daughter of respondent no.4, alleging that she is in illegal confinement of respondents No. 4, 5 and 6 since 6.3.2022 that came from Hyderabad and had taken away his wife since they were not in favour of their marriage.
2. We have noticed that the petitioner is already married and has got a daughter from his wife Saima.Page 2 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022
R/SCR.A/2994/2022 ORDER DATED: 29/04/2022
3. Learned advocate Mr. Abhishek Mehta submits that the petitioner being a Muslim is entitled to marry 4 times and what is needed is the consent of his wife before he chooses to marry. Such consent of his first wife has already been given to the Registrar of Marriage which is not forming the part of the record. He shall firstly produce that for which he requires three days' time. 4. Stand Over to 28.3.2022."
3. Mr. Mehta, learned advocate for the petitioner has produced before this Court today additional affidavit of the petitioner, wherein he has emphasized that all along it has been declared that wife of the petitioner has given her written consent to the marriage of the petitioner with the corpus, which was submitted before the Registrar of Marriages. His wife also had given affidavit before the Registrar of Marriages and copy of the affidavit is also placed before this Court. He has agreed that certified copy has not been produced nor the copy, which has been given as a result of the application under the RTI, since that would take five more days. He has urged the Court that the issues whether the consent is required to be given by the first wife and where and at what stage the same has been done or not may not be gone into by this Court because what is far more important is the life of the corpus.
4. The petitioner since has approached this Court in his capacity as a husband, the Court shall need to get the certificate or the official copy from the Registrar of Marriages, which the learned Additional Public Prosecutor shall obtain through the Police Inspector in-charge of the Vejalpur police station. The complaint, which had been lodged by the girl's parents shall also be made known to the Court. Police Inspector, Vejalpur police station shall remain present before the Court on the next date. He will also ascertain telephonically the well being of the corpus by contacting the counter part through the office of the senior officer.
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5. Matter is being posted on 31.03.2022."
1.1 Pursuant to the same, today, the learned advocate, Mr.Abhishek Mehta for the petitioner has argued extensively before this Court attempting to point out as to in what manner the text in Islam does not require any permission of the first wife before the second marriage is performed. His emphasis is also on the complaint filed by him on 12.03.2022 before the Vejalpur Police Station and his mobile having been seized by the DCP, Zone-7.
1.1 He has also filed an additional affidavit of the petitioner giving the details of the Mohammedan Law and the validity of the second marriage. He has relied on the decision of Jafar Abbas Rasoolmohammad Merchant Versus State Of Gujarat & Anr., reported in 2015 SCC online 5552. According to him, the corpus is required to be brought before this Court as the petitioner and the corpus have faced false accusations at the hands of the family of the corpus. She, all along, had remained with the petitioner and he has been subjected to various criminal prosecutions only because the parents of the corpus are unwilling to accept this relation.
2. Learned advocate, Mr.Samir Afzalkhan appears for respondent Nos.4 to 6. Without issuance of notice, the father of the corpus came to know about this litigation when the Investigating Officer inquired from him about the corpus. According to him, various newspapers have also published this news item, which made him approach this Court by saying that before the Court issues any notice, he needs to place on record various aspects by way of an affidavit. According to him, this is a fall-out of a legal prosecution, which has been initiated by the corpus herself under Section 376 of the Indian Penal Code as well as under the provisions of the Information Technology Act, 2000 for subjecting her to serious sexual exploitation. He urged that the petitioner is the religious preacher and has unfortunately indulged into making videos of intimate moments to blackmail the family.
Page 4 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 2.1 Learned advocate, Mr.Samir Afzalkhan has also urged that 'talaq' has already been given in presence of his own father and brother, which has been also notarized before the Notary Public. Inspite of being aware of all the above facts, the petitioner has now approached this Court because he is facing serious prosecution. The ground of serious suppression of facts has also been earnestly pressed into service.
3. Learned APP, Ms.Jhaveri, on instructions, has confirmed existence of videos in the mobile phone seized from the petitioner. According to her, both the petitioner and the corpus are clearly visible in the videos, watching of which would hurt sense of decency of any reasonable man. According to her, she has received instructions from the Telangana Police, to the effect that the FIR has already been registered with Asifnagar Police Station for the offences punishable under Sections 376, 366, 354 B, 354C, 384, 385, 493 r/w Section 120 B of the Indian Penal Code and Section 67A of the Information Technology Act, 2000. The FIR initially was filed on 25.03.2022 with the Cyber Crime Department and was later transferred to Asifnagar Police Station with '0' number and registered on 28.03.2022.
3.1 According to her, the corpus is quite safe and she is with her parents. She does not mind appearing before this Court through the video conference from whichever place the Court may direct. It is also further submitted to this Court that any leeway that may be granted in this petition to the petitioner may become his shield in the criminal prosecution.
4. Having heard the learned advocates on both the sides and also having noticed the FIR which has been lodged recently at Telangana so also considering the version given by the learned APP, we would want Mr.Delu, DCP, Zone 7 to remain present before this Court. He shall also let the Court know of the details of the seizure of the mobile phone. Copies of objectionable content/s shall be kept in a sealed cover with him.
5. Respondent Nos.4 to 6 shall file their affidavit. Registry to permit learned advocate, Mr.Samir Page 5 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 Afzalkhan to file his appearance.
6. This court is conscious that it is dealing with the petition for issuance of a writ of Habeas Corpus on the one hand and that there are serious allegations of the parents' objecting to the marriage of their ward because of this being a second marriage of the person, who is preaching religion as Maulana. The version, which has come from the parental side, is of alleged serious sexual exploitation of the corpus and therefore, this Court without choosing to issue the notice finds it necessary to have these details on affidavit, after once the appearance is filed by the learned advocate for respondent Nos.4 to 6.
7. We are given to understand that both the sides have already lodged their respective versions, complaints/FIR before the police. We need to clarify that pendency of this petition shall not be the reason for any of the prosecutions is to be hampered.
8. The matter is adjourned to 05.04.2022. A copy of the affidavit, which is to be filed on 05.04.2022 shall be given to the other side a minimum of 24 hours in advance."
1.2. On 06.04.2022, the following order was passed:-
"1. This Court passed an order on 5.4.2022 which deserves to be reproduced:
"1. Pursuant to the order passed by this Court on 31.03.2022, today the Deputy Commissioner of Police, ZoneVII Mr. Premsukh Debu is present before this Court. He has also tendered his report dated 05.04.2022 and the mobile phone in an envelop is handed before this Court. His report is indicative of the developments which have taken place which, at present, may not be necessary for the Court to divulge.
1.1. It is, in a gist, necessary to make a mention of the fact that the complaint given by the petitioner to the police on 11.03.2022 is being looked into. There are statements recorded and Page 6 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 the process is on. The Police Officer from the Vejalpur Police Station is inquiring into the matter.
2. We could notice that the affidavit-in-reply filed by the father of the corpus who is also present today before the Court. His extensive details we choose not to refer in this order which includes FIR at Hyderabad and other allegations of sexual exploitation by the petitioner, since the same is yet to be answered by the petitioner in his rejoinder affidavit, for which, time of one day is sought by the petitioner.
3. We have heard learned advocate Mr. Abhishek Mehta for the petitioner, learned advocate Mr. Samir Khan appearing for the respondent nos. 4, 5 and 6 and learned Additional Public Prosecutor Ms. Jhaveri appearing for the respondent - State and its authorities.
4. Let the rejoinder affidavit be filed by the petitioner in reply to the affidavit of respondent no.4 by tomorrow. A copy of which shall be given to learned APP as well as learned advocate Mr. Khan.
5. We deem it appropriate, without even going into the merit and the contentions raised by rival sides including of the non-continuation of the marital status presently so as to ensure the welfare of the corpus which can be at the hands of anyone, by directing to produce the corpus through video conference from the office of the State Legal Service Authority, Hyderabad.
5.1. The Registrar General of this Court in coordination with the Registrar (Judicial) shall further coordinate with the Registrar General of the Telangana High Court at Hyderabad and the Member Secretary of the State Legal Services Authority.
5.2. It will be desirable for any senior lady officer from the cadre of District Judge on deputation to remain present with the corpus at the setup from Page 7 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 where the corpus shall appear before this Court.
5.3. The link of which shall be created by the I.T.Cell of this Court and send by today evening.
5.4. The video conference shall be initiated tomorrow i.e. on 06.04.2022 at 10:45 a.m.
6. The report given by the Deputy Commissioner of Police, Zone-VII shall be kept in a sealed cover and without the permission of the Court the same shall not be parted with.
6.1. The mobile phone which has been handed over, shall be kept with the Registrar (Judicial) in a sealed envelop and further order in that respect shall be passed in presence of Mr. Amit Vasava, Deputy Commissioner of Police, Cyber Crime Department.
7. Present proceeding shall not in any manner hamper pace of any investigations of the FIR/complaint lodged by either side. So far as the request for the investigation presently done by Police Inspector, Vejalpur to be handed over to the Senior Officer, after hearing the parties, tomorrow the Court shall take a call.
8. A copy of this order shall be sent to the Registrar General and the Registrar (Judicial) for necessary implementation of the order with a request that during the proceedings of video conference with corpus, baring the officer named no one be permitted. Learned advocate Mr. Khan ensures that the corpus shall reach the High Court tomorrow at 10:15 a.m. at Hyderabad.
9. Matter to appear tomorrow i.e. on 06.04.2022 at 10:45 a.m."
2. The Corpus was presented through Video Conference at 10:45 a.m. and the same was taken up in the chamber, by ensuring that barring us, no one else is kept present. When we spoke to the Corpus, an authorised lady officer from Telangana High Court, Ms. Raja Ramani, District Judge on deputation Page 8 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 remain present pursuant to the request sent by this Court through the Registry.
3. We have also directed the entire proceedings to be video recorded. After once we had satisfied ourselves in relation to the details which the Court was required to know in the Petition of Habeas Corpus, we had also permitted the learned advocate of both the sides to join along with learned Public Prosecutor Mr. Mitesh Amin, learned APP Ms. Jirga Jhaveri and Mr. Amit Vasava, Dy.C.P. and the FSL officer Mr.H.A. Trivedi.
4. The Corpus has been quite clear that she does not want to travel to Gujarat as she had no reason to so do it and joining her parents at Telangana was out of her own volition. Certain details which she has revealed, we would like both the sides to argue the matter and thereafter in our final order we shall reflect the same.
5. Rejoinder affidavit has been filed today by the petitioner, copy of which has been given to both the sides.
6. We had also requested the Registrar (Judicial) to join-in. The mobile phone which has been provided to the police by Mr. Nasir Husain Zabir Husain Shaikh, resident of Juhapura, Ahmedabad on 14.3.2022 and handed over to this Court in a sealed envelope by Dy.C.P. Zone-7 on 5.4.2022, is in the custody of the Registrar (Judicial). Let the same be handed over to learned Public Prosecutor and learned APP Ms. Jirga Jhaveri. The same shall be given in presence of both the FSL officer Mr.H.A.Trivedi, In-charge, Asst. Director, Computer Forensic Division, Directorate of Forensic Science Laboratory, Gandhinagar, and Mr. Amit Vasava, Dy.C.P. Cyber Crime, Ahmedabad. Let the entire data be preserved by the FSL and one mirror image with hash value in the disc form or in any other form as may be found suitable by the expert shall be handed over to Registrar (Judicial) by placing it on record.
7. According to Mr. Trivedi, it may take about 2-3 days for him to complete the task. It shall be ensured Page 9 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 that in no manner any evidence is lost. By following the procedure prescribed and the guidelines given under the Information Technology Act shall be borne in mind along with the requirements of the provisions of the Indian Evidence Act.
8. Copy of this be sent to Registrar (Judicial) and one copy be given to learned APP. Pendency of this proceeding will in no manner hamper any pending investigation of prosecution initiated by either side.
9. The pen-drive handed by learned advocate Mr. Mehta, of the conversation between the petitioner and the Corpus, he has requested to take it on record. Let the copy be given to both the sides.
10. Matter to be posted on 12.4.2022."
1.3. On 20.04.2022, this Court passed the following order:-
"1. Today, the Court has received the report from the Office of DCP, Cyber Crime Branch, Shahibaug, Ahmedabad. The Observation Report of forensic analysis done by the FSL of the mobile phone seized from the petitioner provides the summary of objectionable videos, which has been bifurcated into three categories by the FSL, however, Court chooses not to reproduce those details.
2. From the pen drive provided by the learned advocate Mr. Abhishek Mehta to the DCP, Cyber Crime Branch transcription of audio file has also come on the record. According to the Officer from Cyber Crime Branch, the meta data of the same also does not reveal the dates presently, although, it will be attempted to get such date.
3. We are of the opinion that the presence of the corpus in person would be necessary. Let her remain present before this Court on 26.04.2022.
4. Learned advocate Mr.Mehta, on instructions, submits that the petitioner is ready to pay the expense of the corpus. Learned advocate Mr.Samir Khan has also requested for expense of the person Page 10 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 accompanying the corpus for her visit at Gujarat. He has urged that this Court has already met the corpus through video conference and has also ascertained her willingness and hence, if the report, which is tendered today of audio files is the reason for calling her, it is supplied separately by the learned advocate for the petitioner and its source is not known.
5. On hearing both the sides and on taking into account the developments after video conference, the corpus needs to be called physically. It will be decided whether there will be any need of imposing of cost however, for present, let the petitioner deposit the amount of Rs. 50,000/- (Fifty thousand only) for now with the Registry by 22.04.2022. The observation report of Cyber Crime Branch shall be handed over to the Court Master in a sealed envelop.
We offered the observation report to the learned advocates on both the sides, however, the learned advocate Mr. Mehta specifically submitted that it may not be necessary for him to see the same and let this be kept in a sealed envelop before this Court.
6. Mr. B.U. Jadeja, DCP, Zone-7, shall look into the investigation and DCP, Cyber Crime Branch shall remain present before this Court on the next adjourned date.
7. Ms. Kanan Desai, DCP Head Quarter, Ahmedabad shall ensure the security of the corpus, while she is at Gujarat. The flight details of the corpus shall be given to the learned APP."
1.4. On 26.04.2022, the following order was passed:-
"1. Pursuant to the order passed by this Court on 20.04.2022, today the corpus was brought before this Court. She came with her parents protected by Ms. Kanan Desai, Deputy Commissioner of Police, Headquarter, Ahmedabad. Mr. Vasava, Deputy Commissioner of Police, Cyber Crime Ahmedabad Branch also remained present along with Mr. B.U.Jadeja, Deputy Commissioner of Police, Zone-VII.
2. We deemed it appropriate to call her in the Page 11 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 chamber so that she can open up and would have a surety to speak her mind out. We have already recorded her version through zoom application on dated 06.04.2022. She has repeated her say by further elaborating as to how she had been forced to come to Gujarat. She, in fact, had consistently maintained that some intoxication resulted into her not being in the right frame of mind to know as to how she was brought to Gujarat and what followed thereafter.
2.1. She has maintained however all throughout that it is not out of her volition that she has joined the petitioner. She has detailed the manner in which the family members had harassed her particularly alleging against the physical assault by mother-in-law and also against other members of the family.
2.2. It was quite disturbing for her to narrate the details of those moments where she felt that she was ravished. She also confirmed the fact of recording of objectionable videos made under threat. She also confirmed that the divorce taken by her was not under any duress or pressure. According to her, her treatment for physical healing and the mental scars is going on. She denied of having entered into the detailed correspondence with the petitioner.
3. We have chosen to call the petitioner after talking to the corpus. The petitioner herein is a Maulvi. He is not available. According to the corpus also the Telangana Police had camped here for 5 days and as unable to trace the petitioner. Learned advocate Mr. Mehta representing the petitioner admits that he is not available because he is attempting to take a legal recourse at Telangana. He is apprehensive of his arrest and hence, could not be in a position to appear before the Court.
4. With regard to the text messages which have been forming the part of the report tendered by the Cyber Forensics Department, the preliminary report of Mr. Vasava, the DCP is that there is no source available of those messages.
4.1. Learned advocate Mr. Mehta has sought Page 12 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 permission to file an affidavit in this regard. Let a copy of that be given to learned APP who, in turn, will hand it over to Mr. Vasava. It will be for him to then further inquire into the matter.
4.2. The mobile phone which contains the objectionable videos is with the Registrar (Judicial). A copy of which is lying with Mr. Vasava as a part of a Cyber Forensic Expert.
5. The parents, who later on had been permitted to address the Court, have ventilated their grievance of the threat being perpetrated at the end of the petitioner and the videos of their daughter being circulated in retaliation. The mobile phone which their daughter had and SIM card which was with her have already been handed over to the Telangana Police in wake of the FIR lodged against the petitioner and others. Therefore, there is no likelihood of these objectionable videos to be with anyone.
6. It is being directed that the family members of the petitioner or others who, if have got these videos, they shall not be made any use of and should on the contrary have deleted them.
6.1. The police, if finds any such video being used, circulated or misused by anyone, needless to state that it shall be a bounden duty to take cognizance of the same and initiate the prosecution against the person concerned promptly.
6.2. Mr. B.U.Jadeja, DCP, Zone-VII shall inquire further into the matter since he is already now the DCP, Zone-VII. According to him, there will not be any requirement of recording the statement of the corpus, however, if he so requires, instead of calling her once again to Gujarat or anybody traveling to Telangana, the same can be recorded today.
6.3. Till the corpus boards her flight back home, the police protection will be available to her, however as the father has been apprehensive, a copy of this order shall be sent to the Director General of Police for him to communicate to the Director General of Page 13 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 Telangana to provide the necessary protection to the corpus and her family for the duration for which the investigation is going on. Thereafter, the necessary directions may be sought from the Court concerned for it to be continued.
7. We have chosen to give these elaborate directions and also further choose to mention that this being a case of not only her expressing her desire not to join the husband but having been forced to be brought to Gujarat and also having engaged her in recording objectionable videos depicting her as one of the willing partners against her will and wish, her physical and mental health is since a serious concern as a part of the jurisdiction under Article 226, where this Court would fail in its duty if it does not take note of the need of protection of the corpus in every respect. It shall need to be ensured that not only she remains safe but the investigation also is in no manner allowed to be derailed. We must make a mention that this is not a simple case of a young girl being overawed by a cleric and having married against will and wish or her parents. There is much more and we have restricted ourselves to mention the details bearing in mind the possibilities of serious prejudice to the ongoing prosecution. However, any attempt to jeopardize the safety and security of corpus or breach of law and order shall need to be sternly dealt with.
8. We had already earlier indicated at the time of handing over the mobile phone that if there are any cognizable offences culling out from the videos which were being scrutinized by the Cyber Crime Department, the police officers shall be lodging an FIR in that respect.
8.1. For present, the DCP Mr. Vasava has stated to this Court that nothing concerning the young child, he has found which would lead to any prosecution to be initiated. However, on a deeper scrutiny of videos, if any of those objectionable aspects get revealed leading to the necessity of registering the FIR, the needful shall be done without being hampered by any other consideration.
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9. The additional affidavit tendered by the petitioner today shall be sent to the DCP Mr. Vasava for him to look into the same. Over and above the report of today's date which does not reflect any source of those text messages which he has produced from the pen drive, if he is in a position to arrive at any preliminary conclusion from this additional affidavit, he shall tender another report on the next adjourned date.
10. So far as the amount of cost of travelling is concerned, both the sides will be permitted to address the Court at the time of final hearing which shall take place on 29.04.2022."
2. Pursuant to the order passed by this Court on 26.04.2022, a report is received of Deputy Commissioner of Police, Cyber Crime, Dafnala, Shahibagh dated 27.04.2022.
Mr. Vasava, Deputy Commissioner of Police, Cyber Crime is present before this Court. On examination of six audio files, his opinion is that resource is not mentioned in the file nos. 3 and 5 and in rest of the file nos. 1, 2, 4 and 6, for voice spectrography it has been sent to the Forensic Science Laboratory. Let this be decided by the officer investigating into the matter. For taking this entire issue to the logical conclusion, whatever is needed to be done in accordance with law, shall need to be done.
2.1. The traveling expense of the corpus and her family in all, according to learned advocate Mr. Samir Afzal Khan is Rs.
1,88,696/-. When the corpus was called on 26.04.2022, the Page 15 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 amount of expense is Rs.55,697/-. The amount of Rs. 50,000/-
has already been deposited and remaining sum would need to be deposited.
3. Learned advocate Mr. Mehta has no objection to the remaining amount of Rs. 5,697/- out of Rs.55,697/- to be deposited. However, he has objection to the traveling expenses of the earlier trips on dated 30.10.2021 and 01.11.2021. According to him, the traveling expense and the expense of staying at Hotel should not directed to be paid as it has nothing to do with the present proceedings and it is not in consonance with the settled laws as it has no connection with the present petition.
3.1. So far as the amount spent by the State towards the security is concerned, according to learned advocate Mr. Mehta, it is a sovereign function of the State to protect the corpus or any other citizen and hence, no charge should be leviable. He has further objected strongly to the grant of entire amount of Rs. 1,88,696/- as requested for by the private respondents.
3.2. He also further has urged that the habeas corpus petition has lived its life as the corpus is not desirous to join the petitioner and has traveled back to the Telangana with her Page 16 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 parents, let this petition be disposed of.
4. Learned Public Prosecutor Mr. Mitesh Amin also agrees that the corpus who was called in person has gone back safely. All concerned agencies are working in accordance with law. He, therefore, has no objection if the Court deems it appropriate to accede to the request of learned advocate Mr. Mehta. However, he urges that the direction for protecting the corpus while she visited the State of Gujarat was on account of the fact that the petitioner has approached this Court and the threat perpetrated had continued. The expense incurred by deputing the senior officer shall need to be borne by the petitioner for which he has quantified the expense to the tune of Rs. 5,750/-.
4.1. Learned advocate Mr. Mehta in rejoinder has submitted that the amount of Rs. 5,750/- towards the government security cost can be paid by the petitioner and he will have no objection to such payment as he does not want to enter into any kind of debate in this respect.
4.2. The additional amount of Rs. 5,697/- (over and above the amount of Rs. 50,000/-) so far as the expenses borne by the corpus and her parents is concerned, he also submitted that he has no objection for that additional amount to be paid, if Page 17 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 directed to be paid by the Court.
5. Having heard both the sides and also having noticed that the statement of the corpus has already been recorded under the complaint which has been filed by the petitioner separately at Vejalpur Police Station by Mr. Jadeja, Deputy Commissioner of Police, Zone-VII who is also present before this Court and as the report has come before us from the office of Deputy Commissioner of Police, Cyber Crime giving his observation and possibility of the voice spectography samples to be sent to the FSL, we choose not to enter into that realm any further.
5.1. Let all agencies independently and in accordance with law pursue the matter bearing in mind the provision of law and facts which have emerged during the course of disputes as also while pursuing this petition before this Court.
6. So far as travel expenses in total is concerned, for the trip undertaken to present physically the corpus who travelld with parents is Rs. 55,697/-. The inclusion made of expenses of earlier travel trips from Hyderabad to Ahmedabad and Ahmedabad to Hyderabad we do not endorse to such payment of earlier expenses and without curtailing the right of the parties concerned for it to be agitated in an appropriate Page 18 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 separate proceedings, we are granting the amount of Rs.
55,697/- (Rupees Fifty Five Thousand Six Hundred and Ninety Seven only).
6.1. The charges of security service was necessary to be incurred by the authority as there was insistence on the physical presence of the corpus who according to the petitioner was under an owe of the father and other persons who had precluded her from speaking the truth and kept her without her own volition.
6.2. The amount of Rs. 5,750/- to be paid towards the cost of security provided to the corpus for which there is no objection on the part of the petitioner.
6.3. It was not necessary for the corpus to travel to the State of Gujarat, but, for the insistence on the part of the petitioner for her personal presence that the direction for her travel here has come. A strong concern had been voiced on the part of the learned advocate for the petitioner on instructions and corpus had shown strong apprehensions due to past events and hence, security was directed and this amount has been spent, therefore, the said sum shall be deposited by the petitioner within a period of one week as it is he alone who shall need to bear the expenses. Sovereign function of the Page 19 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 state to secure the person if is actually found inevitable due to any conduct of private parties, they need to be held accountable for such sum.
7. We noticed that this matter which was initially preferred for the purpose of producing the corpus who is said to be a second wife of the petitioner allegedly forcibly taken away because of the disapproval of the father of the young girl marring the person who was already married, in fact has taken a vary shape. The Court while exercising its discretion under Article 226 of the Constitution is initially and predominantly concerned with the safety and security of the corpus. The Court cannot set its eyes to the cognizable offences or other eventualities emerging before it, initiating appropriate directions to the concerned agencies considering the wider horizon of Article 226. It could also choose to pass other and further orders for ensuring the safe future of the corpus. However, as there is already a detailed FIR lodged at Telangana and as the police force there as well as here in Gujarat are active in the field pursuing the investigation, we have restrained ourselves and restricted only to the direction of deposit of the passport before this Court within a period of three days from the date of receipt of this order by the petitioner.
Page 20 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 7.1. Once received by the Registrar (Judicial), the same shall be retained by a competent Court till the further order.
8. To the conclusion of the pending FIRs so far as the present petitioner is concerned, emphasize on the part of the respondent of imposing the heavy cost for it to appear before this Court and defend in wake of the petitioner being in complete knowledge of the course of events and particularly of the divorce which had been given by him in presence of his own family members, we are of the opinion that, that issue is still in the realm of debate and that should not be the ground for the Court to impose the cost as that aspect should be left to the appropriate proceedings. Even if we do not question, that aspect should not be the ground for the Court to accede to the request of such imposition of cost.
9. The amount of expenses shall be paid by way of RTGS in the account of the father of the corpus who is respondent no.4 herein whose bank details shall be provided to this Court.
10. Petition is accordingly disposed of.
11. At this stage, learned advocate Mr. Mehta has urged the Court that none of the observations made by this Court should influence the investigating agency as there are rival stands Page 21 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022 R/SCR.A/2994/2022 ORDER DATED: 29/04/2022 taken by both the sides so far as the factum of marriage and divorce is concerned.
11.1. The parties have in their pleadings before this Court have approached with rival stands. This Court's observations so far as the production of the corpus and the version which has come from her will surely be what has been experienced by the Court, otherwise, the rest shall need to be tested before an appropriate forum.
12. Needless to state that the investigation in both the matters shall be independent and without being influenced by any extraneous consideration.
(SONIA GOKANI, J) (MAUNA M. BHATT,J) Bhoomi Page 22 of 22 Downloaded on : Thu May 05 20:15:44 IST 2022