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Judgment
Virendra Saran, J.—The case was heard on 18-6-92 and orders were reserved.
The present writ petition has been filed by Oroos Fatima alias Nisha and Sabeeh Haider for quashing the FIR and the investigation in Crime No. 191 of 1992 of P. S. Civil Lines, Aligarh, u/s 363/366 IPC.
The petition was originally filed by Sri Prakash Chandra Srivatava and there is also a vakalatnama of Sri K. D Tripathi but at the time when the petition came up before me Sri I. M. Khan filed his Vakalatnama on behalf of Sabeeh Haider.
The facts giving rise to the present petition are that on 5-5-92 Sri Jagdish Prasad Jain gave an information to the Police regarding the disappearance of his daughter Km. Nisha Jain. Subsequently he lodged an FIR on 10-5-92 with the allegations that after the disappearance of his daughter he learnt from reliable sources that his daughter had been taken away under some deception by Sabeeh Haider, Petitioner No. 2. He suspected the hand of Aslam, brother of Sabeeh Haider. It was further stated in the FIR that a sum of Rs. 10,000/- and some other amount of money which was in possession of Km. Nisha Jain was found missing. It was further stated that Km. Nisha Jain had also taken away all the papers regarding her education including the mark-sheets, certificates and degrees except the B. A. Degree, Sri Jagdish Prasad Jain expressed fears that the life of her daughter may be in danger. The police was requested to recover his daughter and do the needful. On lodging of the FIR a case was registered as Crime No. 191 of 92 at P. S. Civil Lines, Aligarh u/s 363/366 IPC,
Adverting to the allegations made in the writ petition, it is stated that the two Petitioners were students in computer training institute at Aligarh and they fell in love with each other and decided to marry and ultimately they entered into a marriage on 12-1-1992. Copy of Nikhanama has been filed as Annexure "1" to the writ petition. It is further stated in the writ petition that the age of the Petitioner No. 1 was about 23 years and photostat copy of the mark sheet showing her date of birth as 3-1-1969 has been filed as annexure 2 to the writ petition In para 6 of the writ petition it is mentioned that after the marriage the two Petitioners started living as husband and wife in Mohalla Noor Nagar, Okhala, Delhi.
In paras 7 to 14 of the writ petition it was stated that the Petitioner No. 1 withdrew from the society of husband, Petitioner No. 2 and hence a suit for restitution of conjugal rights was filed at Delhi which ended in a compromise and the husband and wife again started living as husband and wife In the subsequent paras of the writ petition it is stated that the informant Sri Jagdish Prasad Jain became very much annoyed with the Petitioners and lodged a false FIR which is sought to be quashed in the present writ petition.
On 11-6-92 the petition came up before me. Sri Viresh Misra Advocate informed the Court that he wanted to oppose the present petition and prayed for time. 1 passed the following orders on 11-6-92:
Put up as unlisted on 17-6-92. Till 10-7-92 the Petitioners shall not be arrested by the Police in connection with the FIR in crime No. 191 of 92, u/s 363/366 IPC.
The case was again taken up on 17-6-92. On 17-6-92 Petitioner No. 1 Oroos Fatima alias Nisha appeared in the court in the company of Sabeeh Haider. The father of Petitioner No. 1 Jagdish Prasad Jain and his wife also appeared in the court and were represented by Sri Viresh Misra Advocate. In the circumstances of the case I made an oral direction in the court that the Petitioner No. 1 may sit in the room of the court Officer and the father and other relatives of Petitioner No. 1 may talk to her at leisure through out the day. This was done. At 4 p.m. the case was again called out The father of Petitioner No. 1 stated that he had enough opportunity to have conversation with his daughter and felt satisfied. However, I gave another opportunity to the parents to talk to their daughter and try to convince her. The case was again taken up on 18-6-92, and again the Petitioner No. 1 and her parents were allowed to talk among themselves at leisure The case was called out after lunch The statement of Petitioner No. 1 was recorded by me in the presence of Petitioner No. 2 as also the parents of Petitioner No. 1. Her statement is a part of the record of the present writ petition.
In her statement Petitioner No. 1 Oroos Fatima alias Nisha Jain disclosed her age to be 23 years From her appearance she appears to be a grown up girl and in my opinion she was about 23 years of age as stated by her. On being questioned, Petitioner No. 1 stated that she had married Petitioner No. 2 on 12-1-92 and that the Petitioner No. 2 had not played any deception on her. She expressed her desire to go and live with her husband and she has further stated that she was living with him out of her own free will.
It is the own case in the FIR that the Petitioner No. 1 had disappeared from her house and that she had not only taken away more than 10.000/- rupees in cash but also her certificates, mark-sheets degrees etc. Since Petitioner No. 1 had disappeared in this fashion and her whereabouts were not known to the complainant. It was but natural for him to apprehend that the life of his daughter might be in danger. The statement given by the Petitioner No. 1 goes to show that she is a major and had herself gone away with Petitioner No. 2 without any deception played upon her. It further shows that she was living there out of her own free will, I am not expressing any opinion regarding the allegations of marriage of the two Petitioners and its legality. However, in my opinion the suit for restitution of conjugal rights was apparently a collusive suit, but once again I am not expressing any final opinion about the same.
It is commendable that Sri Jagdish Prasad Jain has shown restraint in his FIR by not making any wild or untrue allegations but at the same time hard fact remains that Petitioner No. 1 who is a major girl has left her parental roof of her own will not give rise an offence u/s 363/366 IPC. In the circumstances of the case it would be waste of public time and money to allow the investigation or a prosecution to go on when the same is not likely to bear any fruits. I am fortified in ray conclusion from a Division Bench case in Civil Misc. Writ petition No. 7708 of 1991 Pratibha Singh v. State of U.P. and Ors. decided on 1-5-91. The facts and the circumstances of the case were identical with the case in hand,
So far as the Petitioner No. 1 Oroos Fatima alias Nisha Jain is concerned, she is no tan accused in the case but she is the alleged victim. She cannot be arrested or detained even if an offence had been committed. She has filed the present writ petition seeking protection from arrest and detention and in my opinion her apprehension of detention are well founded and she has locus standi to file the present writ petition. Our experience tells us that when young females leave their parental roofs the police out of sheer sympathy towards the parents or for other reasons forcibly detain such women and even if they are major and have taken a decision of their own the police coaxes and some times coerces them to make a statement suited to the prosecution. The apprehensions of Petitioner No. 1 cannot be said to be without foundation.
Even a temporary illegal detention is violative of the fundamental rights guaranteed under Article 21 of the constitution. Coercion of any kind is an antidote to the concept of the personal liberty. Blackstone''s commentary on the Laws of the England I 134, describes personal liberty as including "the power to locomotion of changing situation or removing person to whatever place one''s inclination may direct, without imprisonment or restraint unless by due course of law." I respectfully agree with the notions of liberty mentioned above, The word coercion in modern times cannot be construed in a narrow sense. It includes psychological restraints psychological restraints are much deterrent than physical restraints. They include all fear complexes of external origin which can be described as infringements of personal liberty. The fear of detention by police dilutes the concept of personal liberty and every attribute of living with human dignity. In ray opinion Petitioner No. 1 is also entitled to relief from this Court.
In the result the writ petition succeeds and the FIR and investigation in Crime No. 191 of 1992 of P. S. Civil Lines, Aligarh u/s 363/366 I.P.C. is quashed. The police shall not arrest any of the Petitioners in connection with the above crime.