Nand K.Singh vs State of U.P.

Surendra Singh, J.

Counter affidavit has been filed by the learned A.G.A. which is taken on record.

Heard learned counsel for the applicant and the learned A.G.A. appearing on behalf of the State and also perused the material on record.

Km. Premavati Singh @ Monika Singh has been produced before this Court today by Constable Smt. Urmila Sharma brought from Women Protection Home, Barabanki in compliance of the order dated 2.12.2009 passed by this Court.

It transpires from the impugned order dated 7.11.2009 (Annexure1) that according to the medical report as well as School Leaving Certificate both, the age of the victim Km. Premavati Singh @ Monika Singh is about 17 years. In paragraph no.8 of the counter affidavit it has been averred that accused Shashivendra Singh @ Chhotakke Singh has already been married with Smt. Sheela Singh elder daughter of the applicant and in any manner the marriage of the victim with the alleged accused is not permissible under the law and thus cannot be held to be legal. The fact that accused is married with her elder daughter has not been denied by the prosecutrix Km. Premavati Singh @ Monika Singh, therefore, she cannot be given into the custody of the accused.

It is significant to indicate that Shashivendra Singh @ Chhotakke is an accused in the present case under Section 363/366 IPC vide Crime No.1129 of 2009 and has yet not surrendered before the court concerned. The victim Km. Premavati Singh @ Monika Singh is detained in Women Protection Home, Barabanki in pursuance of the impugned order dated 7.11.2009 passed by learned Magistrate, Bahraich.

An application was moved on behalf of the applicant on 9.11.2009 before the Magistrate concerned for the custody of the victim, but the same was rejected by the order dated 10.11.2009 without taking into account that the victim is aged about 17 years and the applicant Nand Kumar Singh is her father and natural guardian? and Shashivendra Singh @ Chhotakke who is an accused in the aforesaid case is a married man and she cannot be given in his custody.

It has been contended by the learned counsel for the applicant that the application dated 9.11.2009 was rejected by the learned Magistrate in a? slip shod manner, solely on the ground that the final order was already passed by the court on 7.11.2009 in compliance of which the victim was sent to Women Protection Home, Barabanki and therefore there was no occasion for reconsideration of the said application, is not sustainable in the given circumstances.

In view of the given facts and circumstances of the case, the order dated 9.11.2009 is hereby set aside. It is provided that in case the applicant moves a fresh application for the interim custody of the victim within a period of two weeks from today, the Magistrate concerned shall pass a detailed and reasoned order in the light of the observations made above without unnecessary delay, taking into consideration the paramount interest of the victim.

Victim Km. Premavati Singh @ Monika Singh is directed to be taken back to the Women Protection Home, Barabanki through Constable Smt. Urmila Sharma and she need not be produced before this Court unless she is directed to be produced in future.

List this case after two weeks before appropriate Bench.