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[Cites 6, Cited by 2]

Gujarat High Court

Ramjubhai Keshubhai Chauhan vs State Of Gujarat on 7 May, 2019

Author: R.M.Chhaya

Bench: R.M.Chhaya, S.H.Vora

       R/SCR.A/1949/2019                                   ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CRIMINAL APPLICATION NO. 1949 of 2019

==========================================================
                   RAMJUBHAI KESHUBHAI CHAUHAN
                               Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR AZIZ AN ALVI(1366) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR LAXMANSINH M ZALA(5787) for the Respondent(s) No. 4,5,6
NOTICE UNSERVED(8) for the Respondent(s) No. 3
MR PRNAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR.JUSTICE S.H.VORA

                       Date : 07/05/2019
                        ORAL ORDER

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

1. Heard Mr. Aziz AN Alvi, learned advocate for the petitioner and Mr. Pranav Trivedi, learned Additional Public Prosecutor for the respondents no.1 and 2.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:­ "(A) issue a writ of habeas corpus or any other appropriate writ or order in the nature of writ directing the Respondents No.2 to 6 to produce corpus minor Muskan before this court Page 1 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER as early as possible.

(B) ... ... ..."

3. It is the case of the petitioner, who has posed himself to be the father of the Corpus - Muskan, that the Corpus - Muskan was staying at the house of the petitioner's mother­in­law at Village Ishwariya since her childhood and she has studied upto Std.10 only. It is specifically averred in the petition that the Corpus - Muskan is born on 5.8.2008. At this stage, Mr. Alvi, learned advocate for the petitioner states that the same is a typographical error and according to the petitioner, date of birth of the Corpus-Muskan is 5.8.2001. The petition also recites the fact that as the "minor" Corpus - Muskan was not available, an offence came to be registered with Songadh Police Station bearing CR no.I­42/2018 under Sections 363 and 366 of the Indian Penal Code, 1860 and Section 18 of the Protection of Children from Sexual Offences Act. The FIR is also annexed at Annexure­A to the petition. On bare reading of the FIR, it is alleged that the offence has been committed by the accused and the first informant is Ramjubhai-the present petitioner. It is also stated in the FIR that the age of Corpus - Muskan is 17 years and 3 months. It prima facie appears that what is averred in Page 2 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER the present petition, as observed hereinabove, is translation of the FIR. In the FIR also, it is mentioned that the birth certificate of the Corpus - Muskan is attached herewith. On inquiry, the In­Charge Circle Police Inspector-Mr. R.P. Chudasama who is present before this Court, after verification in the file, has produced photocopy of the birth certificate purported to have been issued by Bhavnagar Municipal Corporation, which is also produced along with the petition at Annexure­B to the petition.

4. The petitioner has also enclosed herewith the statement given before the police on 19.11.2018, wherein also, the petitioner has reiterated that the Corpus - Muskan is 17 years old, apart from other allegations. The petitioner has heavily relied upon the birth certificate purported to have been issued by Bhavnagar Municipal Corporation and on the aforesaid factual matrix, it is asserted by the petitioner that the Corpus - Muskan, being minor, is in illegal confinement of the private respondents herein. This Court issued notice vide order dated 19.2.2019 making it returnable on 12.3.2019. Thereafter, the matter was adjourned to 18.3.2019. On 18.3.2019, learned Additional Public Prosecutor submitted report and this Court was Page 3 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER informed that the Corpus is not traced and that the efforts shall be continued and accordingly, the matter was adjourned on 8.4.2019. On 8.4.2019, the matter was adjourned to 11.4.2019 and on 11.4.2019, the matter was adjourned to 1.5.2019. On 1.5.2019, the Corpus - Muskan was produced before this Court. Relying upon the birth certificate at Annexure­B to the petition even this Court was made to believe that the Corpus - Muskan is minor and that she is born at Bhavnagar on 5.8.2001. When the Corpus - Muskan was produced before this Court, she refuted the fact that she was a minor and that she was born on 5.8.2001. This Court was informed by Corpus - Muskan that her correct date of birth is 5.8.2000 and that she has studied upto Std.8 in Shri Ishwariya Primary School at Ishwariya. In order to ascertain the statement of Corpus - Muskan, Mr. R.P. Chudasama, In­ Charge Circle Police Inspector, who was present on 1.5.2019, was asked by learned Additional Public Prosecutor in the Court to ascertain and inquire the said fact. The Court was informed that the competent authority of Bhavnagar Municipal Corporation has informed that no such certificate is issued, which is relied upon by the petitioner at Annexure­B to the petition. In addition to that, the learned Additional Public Prosecutor has also produced Page 4 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER on record a scanned copy of the school leaving certificate issued by the Ishwariya Primary School, birth certificate issued by the said school as well as the extracts of the same along with the scanned copy of the Adhar Card of the Corpus, which shows that her name is Jakhra Muskan Rajubhai and date of birth being 5.8.2000. The aforesaid documents were taken on record and this Court was, prima facie, of the opinion that the certificate at Annexure­B is a bogus, false and fabricated and therefore, in order to ascertain the authenticity of the document, which is relied upon by the petitioner and on the basis of which, this Court was made to issue notice, passed the following order on 1.5.2019:­ "1. Heard Mr. Aziz AN Alvi, learned advocate for the petitioner and Mr. Pranav Trivedi, learned APP for respondents no. 1 and 2.

2. Pursuant to our earlier order dated 19.02.2019 and 18.03.2019, corpus Muskanben is brought before this Court today.

3. As pleaded in the petition, the petitioner has posed himself to be father of corpus Muskanben and the petitioner has relied upon the photocopy of the birth certificate purported to have been issued by the Bhavnagar Municipal Corporation under registration no. 7235/60. In order to verify the same, Mr. Alvi, learned Page 5 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER advocate appearing for the petitioner was asked to show the original. Mr. Alvi has produced the certificate purported to have been issued by the Bhavnagar Mahanagarpalika as observed above and the same is ordered to be placed in sealed cover and the same be retained by the Registrar General of this Court till further orders.

4. Corpus Muskanben informed the Court that her date of birth is 05.08.2000, whereas, in the certificate relied upon by the petitioner, purported to have been issued by the Bhavnagar Municipal Corporation, mentions 05.08.2001. In the petition, the case of the petitioner is that corpus Muskanben is minor. When the said fact was brought to the notice of the corpus Muskanben, she refuted the same and informed the Court that the certificate relied upon by the petitioner is incorrect/false and the Court was informed that he was not born at Bhavnagar at all. Such assertion made by the corpus necessitate further inquiry and learned APP Mr. Pranav Trivedi after making inquiry with the police officer present before us Mr. R.P. Chudasama, Incharge Circle Inspector, Palitana, it was found that the police authorities pursuant to the FIR lodged by the petitioner made some inquiries. Mr. Pranav Trivedi, learned APP has produced a photocopy of the school leaving certificate of corpus Muskanben issued by Shree Ishwariya Prathmik Shala, photocopy of the aadhar card of corpus Muskanben and the birth certificate issued by Ishwariya Primary School Page 6 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER and photocopy of the relevant extracts of school register. The aforesaid documents clearly shows that the date of birth of corpus Muskanben is 05.08.2000. It further shows that the petitioner is not the father, but one Rajubhai Jhakhara is the father of corpus Muskanben. The school leaving certificate further indicates that place of birth of corpus Muskanben is Sihor, Dist. Bhavnagar. At this stage, it would also be appropriate to note that Mr. Pranav Trivedi, learned APP has produced scanned photocopy of the communication dated 30.04.2019 issued by Sub­Registrary, Janma Maran Vibhag, Bhavnagar Municipal Corporation. The said copy is also taken on record. The communication addressed by the Sub­Registrar of Birth and Death department, Bhavnagar Municipal Corporation, states that there is no such entry in the name of Muskanben as asserted and relied upon by the petitioner based upon the birth certificate. The said communication further recites that since 2008, the birth as well as death certificates are computerised in Bhavnagar Municipal Corporation and that there is no practice prevailing for issuing handwritten birth certificates.

5. The aforesaid facts therefore prima facie establishes that the real date of birth of corpus Muskanben is 05.08.2000 and not 05.08.2001. It prima facie shows that the petitioner has relied upon an incorrect, fake and false birth certificate to buttress is case before this Court that corpus Muskanben is a minor. We Page 7 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER prima facie are of the opinion that the petitioner has relied upon a false certificate and has thereby misguided this Court. In addition to that, the petitioner has also suppressed the fact that the petitioner is not the real father of corpus Muskanben but is step father.

6. Under such peculiar facts and circumstances, we hereby issue following directions ­

1) The Sub­Registrar or any equivalent officer from the department of birth and death, Bhavnagar Municipal Corporation, Bhavnagar shall remain present personally on 07.05.2019 with original records pertaining to entry no. 7235/60 and date of registration being 07.08.2001.

2) The Principal of Shree Ishwariya Prathmik Shala, at Post Iswariya, Taluka Sihor, Dist. Bhavnagar shall depute an employee of the school with original record of school leaving certificate, birth certificate and original register showing name of corpus Muskanben Rajubhai Jhakhra before this Court on 07.05.2019.

3) Both the authorities shall be informed by Incharge Circle Police Inspector, Shri Chudasama who is personally present before this Court.

4) The birth certificate which is in the laminated form produced by Mr. Alvi, learned advocate for the petitioner is ordered to be placed in a sealed cover and shall be retained by the Registrar General.

Page 8 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 
       R/SCR.A/1949/2019                                        ORDER




           5) The    police   authorities  shall

provide adequate security to the corpus Muskanben and respondent no.3.

7. In facts of this case, as there is prima facie evidence to believe that real date of birth of corpus Muskanben is 05.08.2000 and as she is major, we permit her to stay at the place of her desire. However, the police authorities shall produce the corpus Muskanben before us again on 07.05.2019.

8. Copy of this order as well as photocopy of the documents which are permitted to be placed on record of this petition be given to the learned APP Mr. Pranav Trivedi in two sets to enable the police authorities to serve copy of this order along with relevant documents to the authorities of Bhavnagar Municipal Corporation and the Principal of Shree Ishwariya Prathmik Shala, Post Ishwariya, Taluka Sihor, Dist. Bhavnagar. 

           For    further             orders,         S.O.          to
           07.05.2019."

5. In response to the order dated 1.5.2019, Mr. Manoj Parmar, Sub­Registrar, Birth and Death, Bhavnagar Municipal Corporation, Bhavnagar has remained personally present along with the original record and original register of Bhavnagar Municipal Corporation, which records the birth at Bhavnagar from 20.7.2001 to 12.10.2001. We have been taken through the entries which are made on 7.8.2001. As per the Page 9 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER certificate at Annexure­B, entry number is 7235/60. We are informed by Mr. Manoj Parmar, Sub­Registrar of Bhavnagar Municipal Corporation that numerical /60 indicates the number of entry of the said date. We have been taken through the original register and Mr. Parmar had further informed the Court that on the said date, there is no entry upto /60. Mr. Parmar has further appraised this Court and has stated before this Court that in Bhavnagar Municipal Corporation, after 2008, all the certificates are given in form of a Computer copy. Mr. Parmar was also shown the copy of the birth certificate at Annexure­B and he has stated before the Court that the said certificate is not genuine as in the preamble of the said certificate, the word "Bhavnagar" is Computerized, whereas, all other details are handwritten. Mr. Parmar has stated before us that a copy of the seal and signature may be correct. However, even according to Mr. Parmar, the other handwritten details are inserted and interpolated, which do not reflect with the original record. On such preliminary inquiry, we are of the opinion that the petitioner has purposely relied upon the fake and false document so as to state before this Court that the birth date of the Corpus - Muskan is 5.8.2001 and in order to buttress the contention that the Corpus -

Page 10 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019

R/SCR.A/1949/2019 ORDER Muskan is a minor. Thus, we have a reason to believe that the petitioner has purposely and with ulterior motive, adduced false evidence before this Court.

6. As per the order dated 1.5.2019, the Principal of Ishwariya Primary School - Mr. Hasmukh K. Patel is personally present before this Court. We have been shown the original register maintained by Ishwariya Primary School on the basis of which the school leaving certificates are issued. Mr. H.K. Patel has shown relevant entry in the name of Corpus - Muskan at entry no.3902. It further recites that the name of the Corpus - Muskan is Jakhra Muskan Rajubhai and name of the mother is Sonalben. That, she has born at Sihor and her date of birth is 5.8.2000 (fifth august two thousand). Mr. H.K. Patel, Principal of Ishwariya Primary School has also shown us the carbon copy of the leaving certificate issued to the Corpus- Muskan on 7.5.2014, a copy of which is produced by Mr. Chudasama on 1.5.2019. Mr. H.K. Patel, Principal of Ishwariya Primary School has also stated before us that the date of birth of Corpus - Muskan is 5.8.2000 relying upon the original record of the school which has been perused by both of us. During the course of hearing today, Mr. Alvi, on instructions of the petitioner, has again Page 11 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER brought on record a completely different birth certificate. The said birth certificate is issued by the Sub­Registrar, Birth and Death, Sihor Nagarpalika, Sihor, a copy of the same is taken on record. The details of the birth certificate issued by Sihor Nagarpalika, which is now asserted by the petitioner to be the correct date of birth of the Corpus - Muskan records the following details:­ Name Mustan Date of birth 1.3.2001 Name of mother Sonaben Gender Female Place of birth Krishna Maternity Name of father Munnabhai Bachubhai Permanent address Ishwariya Registration no. 511 Date of registration 19.3.2001

7. It appears from the copy that the petitioner has obtained that copy from Sihor Nagarpalika and has received the same on 3.5.2019.

8. Even if the said certificate now placed on record by the petitioner is believed to be true, the birth certificate at Annexure­B is false and fabricated, which has been purposely adduced in evidence before this Court by the petitioner knowing fully well that it is false Page 12 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER and fabricated and that the birth date of the Corpus - Muskan is not 5.8.2001. At this stage, it deserves to be noted that the typed copy of the birth certificate at Annexure­B, which is true copy made by the learned advocate for the petitioner is also produced on record at Page­12/A and the same is heavily relied upon in the petition.

9. In view of the above, we are of the opinion that the petitioner has not only made an attempt to misguide this Court, but has adduced false and fabricated evidence in form of the birth certificate at Annexure­B to the petition with an intention to procure conviction of an offence punishable with imprisonment of life or imprisonment, as provided under Section 195 of the IPC read with Section 340 of the Code of Criminal Procedure, 1973. We therefore think it fit to refer the same to the Additional Registrar, Legal, Law and Inquiry of this Court and we direct him to register the complaint in writing before the competent jurisdictional Court. The original certificate produced which is in a sealed cover along with the photocopies produced on record and the birth certificate issued by Sihor Nagarpalika, Sihor is placed on record of this petition and the same may be produced by the Additional Page 13 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER Registrar, Legal, Law and Inquiry before the competent Court along with the other relevant documents.

10. In light of the aforesaid, even if the certificate now relied upon by the petitioner is taken into consideration which also creates some doubt, the Corpus - Muskan is major and not minor. We have ascertained the wish of the Corpus and we find that she is not in illegal confinement of any of the private respondents. This Court takes note of the services rendered by Mr. Manoj Parmar, Sub­Registrar, Bhavnagar Municipal Corporation and Mr. Hasmukh K. Patel, Principal of Ishwariya Primary School who have remained present with the original record as per the order dated 1.5.2019.

11. The petition is not entertained on merits. The Additional Registrar, Legal, Law and Inquiry shall carry out the above order, as expeditiously as possible. The certificate issued by Sihor Nagarpalika today is taken on record, a copy thereof may be placed in the file of this petition and the original may be kept in a sealed cover along with the sealed cover which is on record as per the earlier order dated 1.5.2019 and the same may be made available to the Additional Registrar, Legal, Law and Inquiry for necessary action as per Page 14 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019 R/SCR.A/1949/2019 ORDER the order passed in this petition.

12. With these observations and directions, the petition is disposed of. Registry is directed to serve a copy of this order upon Mr. Pranav Trivedi, learned Additional Public Prosecutor for its onward communication and compliance.

(R.M.CHHAYA, J) (S.H.VORA, J) MRP Page 15 of 15 Downloaded on : Sun Jun 30 17:56:28 IST 2019