Allahabad High Court
Smt. Himani Thru' Devendra @ Banti vs State Of U.P. & Others on 12 July, 2013
Author: Ravindra Singh
Bench: Ravindra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Civil Misc. Habeas Corpus Petition No. 50591 of 2012 Smt.Himani ............. Petitioner Vs. State of U.P. Through Principal Secretary, Ministry of Home Affairs, Lucknow. and others .................................... Respondents. Hon'ble Ravindra Singh,J.
Hon'ble Anil Kumar Agarwal, J.
Heard Sri Devendra Saini, learned counsel for the petitioner, learned A.G.A.for the State of U.P., Sri Manish Kumar Pandey, Sri V.K.Upadhyay, learned counsel for the respondent No.4, Sri Shivaji Singh Shisodiya, learned counsel appearing on behalf of Pt.Vigyan Prakash Sharma.
This habeas corpus writ petition has been filed on behalf of Smt. Himani through Devendra alias Banti claiming himself to be husband of the corpus with a prayer that the corpus may be set at liberty from Nari Niketan, Moradabad.
The facts, in brief , of this case are that FIR in case crime No.111 of 2012 under sections 363, 366 I.P.C., Police Station Nangal, district Bijnor has been registered on 2.7.2012 in respect of the incident allegedly occurred on 20.6.2012 at about 11.00 A.M., the FIR has been lodged by respondent no.4 Komal Singh, father of the corpus, against Devendra alias Banti alleging therein that the corpus was enticed and taken away by Devendra alias Banti on 20.6.2012, the amount of Rs. 50,000/= in cash, a gold chain, ring and gold bangles were also missing from the house of respondent no.4. During course of investigation, the corpus was recovered, she was medically examined and her statement under section 164 Cr.P.C.was recorded and an application was moved by Investigating Officer with regard to the custody of the corpus, an application was also moved by respondent no.4 Komal Singh with a prayer that custody of corpus may be given to him, after considering the same, learned Civil Judge ( Junior Division) Najibabad passed the order dated 24.7.2012, the corpus was sent to Nari Niketan Moradabad. Being aggrieved from the order dated 24.7.2012, this petition has been filed.
It is submitted by learned counsel for the petitioner that the corpus has been medically examined by a Medical Board, constituted by Chief Medical Officer, Bijnor, according to the medical examination report, the age of the corpus was above 18 years and less than 20 years. The statement under section 164 Cr.P.C.has been recorded in which she stated that she had gone in the company of Devendra alias Banti with her free will and consent and she refused to go to her parents' house because she was having apprehension of danger to her life at her parents house. Considering the same, learned Judicial Magistrate has rightly rejected the application moved by her father Komal Singh but the corpus has been illegally sent to Nari Niketan, Moradabad whereas the corpus was major and according to the medical examination report submitted by Medical Board she was aged about 18 years and below 20 years. The learned Civil Judge ( Junior Division) Najibabad has illegally relied upon the date of birth of the corpus i.e. 10.5.1996 mentioned in the school record.
The corpus has been summoned by this Court who appeared before this Court on 3.12.2012, the corpus has clearly stated before this Court that she passed the 8th class examination but failed in 9th class. she was born in the year 1994, she was having two brothers and one sister, she had performed the marriage in a temple of Nagina with Devendra alias Banti and she wanted to go with Devendra alias Banti, she did not want to live in Nari Niketan Moradabad, she has refused to go with her father who was also present in the court because she was having apprehension of danger to her life. The father of the corpus namely Komal Singh respondent no. 4 also appeared before this court on 3.12.2012. He stated that his wife died in the year 2002, he had nourished all children including the corpus, he wanted to have the custody of the corpus so that her future interest may be protected. Devendra Singh alias Banti also appeared before this Court on 3.12.2012 who stated that he had failed in 9th Class Examination, he was driving tractor, he was having 5 bighas of land, he had performed the marriage with corpus and he wanted to have the custody of the corpus. The learned Civil Judge ( Junior Division) Najibabad has not properly considered the statement of the corpus recorded under section 164 Cr.P.C.and medical examination report of the corpuse and passed the order dated 24.7.2012, which is illegal, the same may be set aside and the corpus may be set at her liberty forthwith.
It is submitted by Sri Shivaji Singh Shisodiya, appearing on behalf of Pt. Vigyan Prakash Sharma, who has issued the marriage certificate that Pt. Vigyan Prakash Sharma is Purohit of Jharkhand Mahadeo Mandir, Gujarati Mandir, Mohalla Kala Lam, Nagina, District Bijnor where the marriages are being performed, the corpus and Devendra alias Banti had performed the marriage on 24.2.2012 that is why the marriage certificate has been issued,he was legally not authorized to issue such certificate for which he appeared before this Court and tendered his apology, therefore, no action may be taken against Pt. Vigyan Prakash Sharma.
In reply of the above submission, it is submitted by learned A.G.A.and Sri Manish Kumar Pandey and Sri V.K.Upadhyaya appearing on behalf of respondent no. 4 that the corpus has been kidnapped by Devendra alias Banti, its FIR has been registered against him on 2.7.2012 in Case Crime No. 111 of 2012 under sections 363, 366 I.P.C., Police Station Nangal, District Bijnor, the corpus has been medically examined. According to the medical examination report she was above 18 years and below 20 years and according to the school record the date of birth of the corpus is 10.5.1996. According to the date of birth of the corpus she was aged about 16 years. The learned Judicial Magistrate/Civil Judge (Junior Division) Najibabad recorded the finding that from her physical appearance she was appearing to be minor that is why she was declared minor, the corpus was not able to take the proper decision in respect of her future life that is why she was sent to Nari Niketan, Moradabad. The order dated 24.7.2012 is not suffering from any illegality or irregularity. Devendra alias Banti is an accused in the above mentioned case and he is a person of criminal nature. The corpus has not been legally married with Devendra alias Banti, even being minor the marriage may not be performed. In such circumstances, either the corpus may be kept in Nari Niketan or she may be given in the custody of the father of corpus, namely, Komal Singh who is natural guardian of the corpus.
Considering the facts, circumstance of the case, submission made by learned counsel for the petitioner, learned A.G.A.for the State of U.P., counsel appearing on behalf of respondent no.4 and counsel appearing on behalf of Pt. Vigyan Prakash Sharma, it appears that in the present case the corpus was allegedly kidnapped by Devendra Singh alias Bunty on 20.6.2012, its FIR has been lodged on 2.7.2012 in case crime no. 111 of 2012 under sections 363, 366 I.P.C., Police Station Nangal District Bijnor. According to the school certificate, the date of birth of the corpus is 10.5.1996, but according to the first medical examination report she was aged about 19 years but according to second medical examination done by Medical Board, constituted by C.M.O. Bijnor, she was found above 18 years and below 20 years of age. According to the statement recorded under section 164 Cr.P.C., she has not supported the prosecution story, she stated that she had gone in the company of Devendra Singh alias Bunty with her free will and consent. The Marriage certificate filed with this petition as Annexure-2 shows that it has been issued by Pt. Vigyan Prakash Sharma, Purohit of Sri Jharkhand Mahadeo Mandir on 24.2.2012 mentioning therein that the corpus and Devendra Singh have performed marriage in the temple on 24.2.2012 at 5.30 P.M. but marriage certificate shows that it was not bearing the signatures of family members of corpus and Pt. Vigyan Prakash Sharma was not legally authorized to issue such type of marriage certificate but Pt. Vigyan Prakash Sharma who appeared before this Court tendered his unconditional apology and assured the Court that in future he shall not issue such type of certificate, therefore, this Court is restrained to proceed further against Pt. Vigyan Prakash Sharma by accepting unconditional apology tendered by him. According to the school record, the date of birth of the corpus is 10.5.1996, according to her date of birth she was minor aged about 16 years on the date of the alleged incident. In such an age, she was playing with emotions and she was not capable to foresee her future prospects of her life. The corpus has refused to go in the company of her father. In such circumstances, the learned Judicial Magistrate/Civil Judge ( J.D.) Najibabad, District Bijnor sent the corpus to Nari Niketan Moradabad vide order dated 24.7.2012. The order dated 24.7.2012 is not suffering from any illegality or irregularity. The corpus has been detained in Nari Niketan Moradabad in pursuance of the judicial order dated 24.7.2012, therefore, her detention is not illegal. The present petition is devoid of the merits. The prayer for quashing the impugned order dated 24.7.2012 is refused.
Accordingly, this petition is dismissed.
Dated : July 12 , 2013.
Su