Om Prakash Shukla vs State of U.P.& others

V.D.Chaturvedi, J.

Sri D.R. Shukla, learned counsel for the victim,in pursuance of his earlier undertaking, has brought Km. Renu and he moved two applications. In one application he has stated that the impugned order dated (08.01.2008) is revisable; that personal liberty is protected under Article 14 (9) (d) of the Constitution of India; that her statement under Section 161 Cr.P.C. was recorded. It is prayed by him that writ petition be dismissed and the interim order be vacated. In another application, he has stated that km. Renu be impleaded as opposite party no. 4.

These two applications moved by Sri D.R. Shukla cannot be disposed of without giving an opportunity of hearing and filing objection by the petitioner i.e.the father of the girl.

As prayed, two weeks'' time is allowed to file objection to the applications filed by Sri D.R. Shukla, counsel for Km. Renu.

Regarding custody of Km. Renu, Sri D.R Shukla requested that her statement be recorded in the Court and she be set at liberty to go at any place of her choice. He argued that she is a girl of sufficient and matured understanding. He has relied upon the judgment given by Hon''ble Barkat Ali Zaidi, J.in Akbar & another Vs State of U.P reported in 2008 (26) LCD 294.

While giving custody of a girl, the prime consideration before the Court is " the welfare of the girl".

The medical report does not lead to the conclusion that she is positively above the age of 18 years.

The custody of girl is a matter which requires a deep consideration so that the welfare of the girl may remain protected.

Sri D.R Shukla claims that she is married with Rajendra whereas the F.IR states that she is unmarried. The claim of Sri D.R.Shukla is contrary to the claim contended in the F.I.R, hence his claim cannot be considered.

So far as the interim custody of Km Renu is concerned, the option before this Court is, no. 1 to hand her over to her parents or no. 2 to leave her at liberty to go anywhere.

Since there is no medical opinion that the age of Km Renu is above18, hence, I have no option but to hand over her custody to her father who is the natural guardian and in whose custody she had lived from the date of her birth to the date of the offence. I see no cloud on her welfare if she is given in the custody of her father. Hence, I order that till further orders she will remain in the custody of her father (Sri Om Prakash, the petitioner himself).

At this juncture Sri Rajendra Kumar Dwivedi, A.G.A stood up and has vehemently opposed the order passed above. He states that F.I.R has been expunged and the order passed by the Magistrate is perfect and the order passed by this Court is against the law laid down by Hon''ble Supreme court in Lata Singh Vs State of U.P.

The A.G.A is permitted to file his written objection before the next date of listing and to produce the case laws relied upon by him.

At this juncture, the petitioner''s counsel told that Sri Om Prakash, father of the girl, is present in the Court. Sri Om Prakash is identified by Sri A..P.Shukla, counsel for the petitioner and also by Sri Aslam Khan, S.O of P.S Kotwali Dehat , district Gonda. Km Renu also identified him. She is being given in the custody of her father Sri Om Prakash.

Now it is the responsibility of Sri Aslam Khan to extend protection to Km Renu and her father see that they may go safely to the residence of Sri Om Prakash and may live there peacefully. They may not be harassed by the accused of this case or by any other person.

It is hoped that Sri Om Prakash will keep his daughter Km. Renu with love and affection.

Put up on 07.04.2008.

There is no need of the appearance either of the girl or of the S.O, Sri Aslam Khan on the next date of listing.