Gujarat High Court
Pravinbhai Kavabhai Sankalia vs State Of Gujarat on 24 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1020
Author: Sonia Gokani
Bench: Sonia Gokani, N.V.Anjaria
R/SCR.A/799/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 799 of 2020
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PRAVINBHAI KAVABHAI SANKALIA
Versus
STATE OF GUJARAT
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Appearance:
MS TASNIM A ZABUAWALA(10756) for the Applicant(s) No. 1
MS. NAYNAVATI S JETHVA(10030) for the Applicant(s) No. 1
MR PINAKIN B RAVAL(3468) for the Respondent(s) No. 6,7,8
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 4,5
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 24/09/2020
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. The present petition is preferred under Article 226 of the Constitution of India, where the Coordinate Bench had Page 1 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER issued notice on 11.02.2020. After elaborate efforts made by the police authority, the corpus could be found. Apt would be to reproduce a detailed order passed by this Court on 09.09.2020: -
"1. This is a petition seeking writ of habeas corpus and any other appropriate writ under Article 226 of the Constitution of India. The petitioner's daughter had left home without intimating anyone when she was 17 years and 5 months of age. He doubted the respondent no.4 and alleged against him of having taken away her forcibly. The First Information Report came to be lodged being I-CR No. 43 of 2019 registered with Dholera Police Station, Ahmedabad (Rural) for the offences punishable under Sections 363 and 366 of the Indian Penal Code.
2. This Court (Coram: - Mr. R.M.Chhaya and Mr. V.B. Mayani, JJ.) issued notice on 04.02.2020. Periodically the orders came to be passed in such connection and last such order is passed on 01.09.2020 which is profitably reproduced as under: -
"1. In this petition under Article 226 of the Constitution of India where notice for the first time had been issued on 11.02.2020. The efforts are made to trace the corpus. The last order was passed on 20.08.2020 which runs as follows: -
"The present petition was filed by the petitioner father seeking production of his daughter named Sakalia Payalben Pravinbhai, who was found to be not available in the house on a particular date.Page 2 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020
R/SCR.A/799/2020 ORDER
2. Notice was issued on 4.2.2020. Thereafter, this Court (Coram: Hon'ble Ms. Justice Sonia Gokani and Hon'ble Ms. Justice Gita Gopi) on 11.3.2020 passed the following order.
"1. Mr. Ronak Raval, learned Additional Public Prosecutor, has supplied the report dated 11.03.2020 of the Circle Police Inspector, Dhanduka Circle, Dhanduka, which is taken on record.
2.We notice from the report that an attempt wasmade to execute the warrant issued under section70 of the Code of Criminal Procedure and that necessary steps have been taken for initiating action under section 82 of the Code.
3. Let the investigation into the case be supervised by the Superintendent of Police, Ahmedabad Rural, who shall be at liberty to constitute his own team for carrying out the investigation. If need be, the aid of the CyberCell of the Police Depart ment may also be taken.Let intensive efforts be made by the police to trace the corpus. S.O to 30.03.2020."
3. It was stated that though the matter was to come up on 30.3.2020, due to intervening period of lockdown, the same appears to have not been posted on board, but only today.
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4. Today, when it came up for consideration, learned Additional Public Prosecutor Mr. Manan Mehta produced before the Court a report dated 19.8.2020 prepared by the Superintendent of Police, Ahmedabad Rural, Ahmedabad, in which the steps taken to trace out the corpus and the investigation carried out in that regard are spelt out.
5. In the report, it was mentioned that three teams were constituted and the relatives of the person, who is stated to have abducted the daughter of the petitioner were contacted and their mobile call details were investigated. It is stated in the report that rigorous efforts are being made to trace out the corpus by gathering the relevant information from various sources. A Senior IPS officer has been investigating the matter, stated learned Additional Public Prosecutor.
6. Learned Additional Public Prosecutor requested further time so as to get the concrete status of the case to be submitted to the Court.
7. At the request of learned Additional Public Prosecutor, the Registry shall list the present application on 1.9.2020."
2. Mr. Nitesh Pandey, ASP, Dholka Division has been handed over the investigation in the instant case. He is before us with his report and has given us the elaborate details as to how the investigation so far has been carried out. He also has future plan to trace the corpus and bring her before this Court.
Page 4 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020R/SCR.A/799/2020 ORDER He ensures the Court that within two weeks the concrete result should be available.
3. Let all concerted efforts be made for the said purpose noticing the fact that she is a young girl who is not available for a long time. Over and above the Head of Cyber Cell of the Police Department, the help of the AntiHuman Trafficking Cell or any other body, if is required by the officer, he shall be free to seek such help and concerned department shall render the same carrying out his duty. He may also keep in mind the guidelines issued by this Court in Special Criminal Application No. 1648 of 2012 and allied matters on 26.12.2012. For the ready reference, the relevant paragraphs are reproduced as under: -
"(6.0) Having beard the learned advocates appearing for respective parties and considering the submissions made by the learned advocates appearing on behalf of the respective petitioners - respective parents of the respective corpus and Shri Prakash K Jani, learned PP, under the instructions from Shri Anil Pratham, Inspector General of Police (Women Cell & Crime), CID Crime, Gandhinagar, State of Gujarat, it appears to the Court that the present Special Criminal Applications are disposed with following directions and guidelines, the same shall meet the ends of justice at this stage and the same may achieve the result in finding our and/or tracing out the missing girl/concerned accused, who is alleged to have committed the offence of kidnapping, rape etc. : -Page 5 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020
R/SCR.A/799/2020 ORDER
1. As and when any complaint is made by the concerned person/father/mother/parents of the missing girl/missing person making allegation for the offences punishable under Sections 363, 366, 376 and/or any other offence under the Indian Penal Code, 1860, more particularly, related to the offence against women with allegations of missing and/or kidnapping, etc., the concerned police officer must immediately register the same as FIR and start investigating immediately and all such efforts should be made by the concerned 10 to find out and/or trace out the missing girl/accused
2. For any reason and despite best efforts, the concerned police officer is not in a position to find out and/or trace out the missing girl/worried or concerned accused within a period of three months, the same shall be immediately reported to the concerned SP/Dysp and for a further period of three months, the concerned S.P./Dysp, and/or higher Authority a hall monitor and/or supervise the investigation and get the weekly report from the concerned police officer/Investigating Officer.
3. If the concerned police officer/Investigating Officer and/or the concerned higher Officer apprehends that the missing girl/accused is outside the State and there is any non cooperation by the concerned police officer concerned State, the same shall be immediately reported to IG/DIG Secretary, Home Department, State of Gujarat and it should be seen that the requisite required Page 6 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER assistance is received from the concerned police officer of the concerned State.
4. If despite the aforesaid all efforts inclusive of obtaining warrants under Section 70 of the CPC giving public notices in local newspapers/news papers, in Doordarshan are., the missing girl/accused is/are not traced out, investigation of all such cases shall be transferred to the CID Crime Branch immediately after a period of six months and the CID Crimes, State of Gujarat either through missing cell/women cell or the CID Crimes shall investigate such a case and to find out the missing girl/corpus/accused
5. The State Government to consider the proposal to increase staff in the CID Crimes more particularly in the Women Cell and Missing Cell of the CID Crime immediately and see to it that the staff is increased in the office of CID Crimes more particularly Women Cell and Missing Cell and/or respective ones which is required to expedite the investigation in such cases All efforts should be made by the State Government to increase the staff at the earliest.
6. In cases where the concerned Investigating Officer has submitted "A summaries in the respective cases, all such cases shall be reviewed by the concerned higher Officer/Dy.S.P. and the concerned Dysp.Higher Authority shall monitor and/or supervise such investigation by getting weekly reports and if thereafter, within a Page 7 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER period of three months, the result is not achieved and the concerned missing girl/women is still not traced out and/or found out, all such cases shall also be transferred to the CID Crimes for its investigation [6.1] The aforesaid directions and guidelines are issued so as to see that the concerned corpus/girl, minor or major, are traced out and the concerned respective parents may know about their minor girl/girl/corpus and as soon as such missing girl/corpus are traced out and/or found out, it can be known whether such corpus/girl is in illegal custody and/or detention of the concerned persons or not and/or whether such girl/corpus is subjected to any offence related to women such as kidnapping rape and/or human trafficking and the aforesaid directions are issued as it is reported that the concerned police officers though tried their best are unable to trace out and/or find out the missing girl/corpus despite more than six months have passed."
4. Let the matter be posted on 14.09.2020 for production of the corpus and also the Action Taken Report."
3. On the last occasion Mr. Nitesh Pandey, ASP, Dholka Division was before this Court and he had ensured the corpus to be traced into a week's time. Today appreciably before completion of two weeks', the corpus is before us. She has been produced through video conference which has been arranged at the District Court, Ahmedabad (Rural) in presence of Ms. Taruna Rana, learned 6th Additional District and Sessions Judge.
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4. In a breakout room when we conversed with the corpus, she in no uncertain terms has stated of having married to respondent no.4 on 22.08.2020. She turned major on 01.07.2020 and they have chosen to marry thereafter in the month of August,2020. She has adhered to her version that she is not desirous to join the petitioner - father and she insisted that she had left home out of her own volition and is keen to continue the company of her husband.
5. Noticing the fact that she was 17 years and 5 months when she left home and as the FIR is already lodged against respondent no.4, we had inquired from learned advocate Mr. Raval who appears for the other private respondents as to whether they are desirous to house the corpus as she is unwilling to join the parents. Learned 6th Additional District and Sessions Judge has also ascertained through the police officer who has now taken over the investigation that the parents of the respondent no.4 are unwilling to keep her with them. It is explained by learned advocate Mr. Raval that the parents are scared of their being dragged into the criminal proceedings as they have no role to play in the entire incident.
7. We have before us the ASP Mr. Nitesh Pandey who confirmed that both, the corpus and the Respondent no.4, were on their own and they were living on a very meagre means at a temple when they were found. Respondent no.4 is a young boy who otherwise has no criminal antecedents and was working in a diamond industry as a diamond policing worker for his livelihood. Due to Pandemic on account of COVID-19 virus, the diamond industries have not as geared up as yet and therefore, he is finding it difficult to earn his livelihood. Nothing adverse is found so far, so far as respondent no.4 is Page 9 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER concerned however, he ensured to get into the bottom of the entire aspect and report to the Court through Investigating Officer who has now taken over the investigation.
8. Noticing the young age of the respondent no.4 and also his present economic conditions, learned advocate Mr. Raval who otherwise appeared for other private respondents, barring respondent no.4, he is appointed in a legal aid for the respondent no.4 who had no means to feed himself and the corpus and who survived on the alms of the temple as per the version of the ACP.
9. For now, the girl shall need to be housed at Nari Vikash Gruh, Paladi after her quick Rapid Antigen Test for COVID19 virus is carried out. Let the same be done at the earliest and she can be taken from the Court itself for such a test and thereafter she can be housed at Nari Vikas Gruh, Paldi. Due care shall be taken of hers by the Superintendent, women protection home, Paldi. Once her Rapid Antigen test comes negative, she shall also be subjected to other medical tests as well as statement of hers be recorded as required under Section 164 of the Code of Criminal Procedure.
10. Let this matter be posted on 18.09.2020, considering the strong unwillingness on the part of the corpus to join the parents, there shall need to be some cooling period also for the corpus.
11. On the scheduled date, the corpus shall be produced before this Court through video conference to be arranged from District Court, Ahmedabad (Rural).
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12. The meeting of the parents, as desired by learned advocate Mr. Zabuawala, shall be permitted on 18.09.2020 if they reach at the Court of learned 6th Additional District and Sessions Judge, Ahmedabad (Rural).
13. We recognise the role of Learned 6th Additional District and Sessions Judge in conducting this matter through videoconferencing seamlessly. A copy be furnished to her also and to the learned APP for due execution of the order."
2. The corpus thereafter was found and on 18.09.2020 and through video conference, she was presented. The order passed on that day was as follows: -
"1. Today, the corpus is produced before us through video conference arranged at District & Sessions Court, Ahmedabad (Rural), in the presence of the learned 6th Addl. District & Sessions Judge, Ms. Ranan. She is not desirous to continue at Women Protection Home and is ready to go with her father till her husband is released . She also has expressed her desire to meet her in-laws who reside in the same village, and therefore, she asked keenly as to whether, she can join her in-laws.
2. Noticing the fact that there is a death in the family, as is conveyed by the learned Advocate, Mr. Raval, who represents the private respondents and respondent No.4 in legal-aid. Let the corpus JOIN the petitioner-father for now. He has ensured before this Court that in no manner or mode, the corpus shall be pressurized or forced or ill treated and she shall be produced before us on 24.09.2020 through video conference to be conducted at Page 11 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER the City Civil & Sessions Court, Ahmedabad (Rural).
3. An undertaking, as indicated by the learned Advocate, Mr. Jethva, shall be filled before this Court not to force the corpus in any mode or manner.
4. According to the learned Advocate, Mr. Raval, the husband of the corpus is attempting to get himself enlarged on bail. He also has urged that the in-laws of the corpus are ready to keep her as their daughter and they also do not mind her continuing further studies.
5. Presently, we are concerned with the well-being of the corpus. Let her be produced before as, as stated above, on 24TH SEPTEMBER, 2020. Police authority shall inform the Women Protection Home about the corpus joining her father.
6. S.O. to 24TH SEPTEMBER, 2020."
3. Today, again through video conference arranged from District and Sessions Court, Ahmedabad (Rural) she is brought before this Court in presence of learned 6th Additional District and Sessions Judge, Ms. Rana. It is given to understand that the respondent no.4 is already enlarged on regular bail on 22.09.2020 and is likely to join his family today. The corpus is coming from parental home and she is desirous of talking to her husband after his release. Parents Page 12 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER of the corpus are ready to accept this relationship, however, there are certain aspects which both the sides are desirous to ponder over. We made a request to learned Additional District and Sessions Judge who presided over this meeting today, according to her, certain rigid practices followed in the caste are being put forth as conditions to accept this relationship. The corpus is also waiting for the respondent no.4 to return and deliberate upon certain aspects after having a talk with him. The parents are also keen to see that the daughter continue her further studies.
4. Let this be worked out at the end of the parties. Learned advocates who are representing both the sides, shall also use their good offices for the said purpose. While so doing, let there be no endorsement to the wrong practices which are being followed in the caste system. However, for any hitch in giving shape to the compromise which may be arrived at, the parties will be at free to make a request for mediation which shall be addressed at District and Sessions Court, Ahmedabad (Rural).
5. We have requested learned 6th Additional District and Page 13 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020 R/SCR.A/799/2020 ORDER Sessions Judge to do the needful in the matter, if any such request is received from the parties.
6. The corpus since has joined the parents, with a clarity of joining husband at a later stage, nothing further needs to be done in this matter.
7. Learned advocate Mr. Zabuawala, at this stage, submitted that pursuant to the directions issued on 18.09.2020 of filing the undertaking regarding not to force the corpus in any mode or manner, the same is permitted to be taken on record.
8. The petition stands disposed of accordingly.
9. We recognise a very able assistance received periodically from Ms. Rana, learned 6th Additional District and Sessions Judge, Ahmedabad (Rural) in this matter.
(SONIA GOKANI, J) (N.V.ANJARIA, J) MISHRA AMIT V./Bhoomi Page 14 of 14 Downloaded on : Sat Sep 26 01:57:35 IST 2020