K.M. Munni vs State of U.P. and Others

Ravindra Singh and Anil Kumar Agarwal, JJ.—Heard Sri Sushil Kumar Pandey, learned Counsel for the petitioner and learned A.G.A. for the State of U.P. This habeas corpus writ petition has been filed on behalf of K.M. Munni by her father Latif with a prayer:

I. Issue a writ, order or direction in the nature of certiorari, calling for the record and to quash the order impugned dated 15.9.2012 (Annexure No. 5 to this writ petition) passed by the Court of learned Addl. Civil Judge (Jr. Division)/Judicial Magistrate, Deoband, Saharanpur in Case Crime No. 169 of 2012 (State v. Sumit), under sections 363 and 366 IPC, P.S. Nangal, District Saharanpur.

II. Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to handover the custody of victim in favour of her father/deponent on the basis of her date of birth as recorded in the High School Mark Sheet.

III. Issue any suitable order or direction to which this Hon''ble Court may deem fit and proper in the interest of justice.

IV. Award the costs of this writ petition in favour of the petitioner.

The facts in brief of this case are that FIR of this case has been lodged by Intzaar son of Latif at police station, Nangal, District Saharanpur on 10.9.2012 at 2.30 P.M. in case crime No. 168 of 2012 under sections 363 and 366 IPC alleging therein that his daughter K.M. Munni aged about 16 years has been kidnapped by one Sumit. During investigation the corpus was recovered, she was medically examined, her statement u/s 161/164 Cr.P.C. was recorded. During investigation the I.O. collected the birth certificate of the corpus K.M. Munni in the shape of High School certificate in which her date of birth was mentioned 8.6.1996. The corpus was minor at the time of the incident which occurred on 9.9.2012. On an application moved by the I.O. the statement of the corpus was recorded u/s 164 Cr.P.C. in which she stated that she herself had gone in the company of Sumit, she refused to go with her parents, she expressed her desire to go with the accused Sumit who was not present in the Court, thereafter she stated that she may be sent to nari niketan. An another application was moved by Intazar son of Latif in the Court of learned Judicial Magistrate, Deoband for releasing the corpus in his favour stating therein that the corpus was minor, she was kidnapped on 9.9.2012, thereafter she has been recovered by the police, she may be given his custody. The third application was moved by Kailash Chandra, the father of the accused Sumit mentioning therein that his son Sumit has made accused, the corpus has been medically examined. According to the medical examination report she was aged about 18 years. The statement of the corpus has been recorded u/s 164 Cr.P.C. in which she stated that she wanted to go with Sumit, therefore, she may be given in the custody of Sumit''s father. The learned Judicial Magistrate, Deoband decided the above mentioned three applications after perusing the case diary, medical examination report, High School Marksheet of the corpus and the statement of the corpus recorded u/s 164 Cr.P.C., after considering the same learned Judicial Magistrate, Deoband came to the conclusion that the corpus was minor. According to the High School Marksheet her date of birth was 8.6.1996. On account of her refusal to go with her parents'' house and corpus desired to go nari niketan, she was sent to nari niketan vide order dated 15.9.2012. After aggrieved from the order dated 15.9.2012 passed by learned Addl. Civil Judge (Jr. Div.)/Judicial Magistrate, Deoband, District Saharanpur the present writ petitioner has been preferred.

After filing this writ petition we summoned the corpus from nari niketan, Meerut, she was produced before this Court on 10.1.2013. On query made by the Court she stated that in school record her date of birth was mentioned as 8.6.1996, though she has not performed the marriage with Sumit but she wanted to go with Sumit, Sumit had passed the Intermediate examination. The first informant of this case namely Intazar was also present before this Court. In his presence the corpus stated that she would like to live in nari niketan but not in her parents house whereas her brother Intazar stated that he was having only one sister, he wanted to have the custody of the corpus. He also stated that the marriage of the corpus was not performed with Sumit, but corpus has not shown any reason in respect of the danger to her life at her parents'' house.

It is contended by learned Counsel for the petitioner that the petitioner is minor. According to the school record her date of birth is 8.6.1996. The corpus is not fully major girl and she is not able to take the decision for his good future life, she is immature girl. She herself stated that she had not performed the marriage with Sumit. In such circumstances, neither she may be kept in nari niketan nor she may be permitted to live in the company of Sumit. She may be released from nari niketan and may be given in the custody of her father, mother and brother.

In reply of the above contention, it is submitted by learned A.G.A. that in the present case the corpus is the victim of case crime No. 168 of 2012 under sections 363 and 366 IPC. According to the FIR she was kidnapped by Sumit, she remained in her company, she has been recovered. According to the High School marksheet she is minor and she has refused to go to her parents'' house, she had stated that she would like to live in nari niketan. In such circumstance, the learned Judicial Magistrate, Deoband has not committed any error in passing the impugned order dated 15.9.2012 by which she has been sent to nari niketan. The present petitioner is devoid of merit, the same may be dismissed. Considering the facts, circumstances of the case, submission made by learned Counsel for the petitioner, learned A.G.A. and considering the statement of the corpus and her school certificate it appears that according to the High School marksheet her date of birth is 8.6.1996, she is minor, she has been allegedly kidnapped, thereafter she remained in the company of accused Sumit, she is not full major girl to take the proper decision for her future life. She herself stated in the Court that she had not performed the marriage with Sumit but she wanted to go with the accused Sumit. In such circumstances she may not be permitted to go with Sumit who is accused in case crime No. 168 of 2012 under sections 363 and 366 IPC and the girl is not married with him. The corpus has stated that she was preferring to life in nari niketan than to life at her parents'' house. This petition has been moved by her father who is natural guardian of the corpus. The corpus may not be kept in nari niketan for indefinite period. The corpus has not disclosed any reason for not living at her parents house. The brother and father of the corpus are ready to take her custody. In such circumstances, we feel it proper that corpus may be released from nari niketan and she may be given in the custody of her father and brother. Therefore, we direct that corpus be released from nari niketan, Meerut forthwith in the presence of Officer Incharge of P.S. Nagal, District Saharanpur who shall take the corpus to her parents'' house and she shall be given in custody of her father and brother on undertaking that she shall be properly maintained. In any manner she shall not be harassed. The Officer Incharge of P.S. Nagal shall ensure that the corpus be properly nourished and maintained at her parents'' house and in any manner she shall not be harassed by any of the family members of her parents.

Accordingly this habeas corpus writ petition is allowed.