Smt. Saroj vs State of U.P. and others

Dharnidhar Jha and Ramesh Sinha, JJ.—Even on repeated calls during revision of the list, none appears on behalf of the petitioner. We have heard the learned A.G.A. Sri Sudhir Mehrotra and Sri B. Narain Singh learned counsel appearing on behalf of respondent No. 5.

The case relates to confinement of petitioner Smt. Saroj, who was confined in Nari Niketan, Gorakhpur at the orders of the Chief Judicial Magistrate, Maharajganj passed in criminal case No. 1018 of 2010 which is dated 7th February, 2011, which order was upheld by the learned Session Judge by order dated 21st February, 2011 passed in Criminal Revision petition No. 24 of 2011, Manish Kumar v. State of U.P. and others.

The background facts of the case was that the above noted Case Crime No. 1018 of 2010 u/s 363 and 366, I.P.C. was registered on the basis of the written report of Ram Charan son of Jagroop, respondent No. 5, who happened to be the father of the above named lady petitioner, Smt. Saroj. The allegation was that when the petitioner went out of her house for attending to the classes, she did not come back and it appeared that the accused Manish son of Ram Bachan had probably taken or enticed her away.

It appears that the lady was recovered by the police and she was sent for medical examination as appears from Annexure-3 submitted by the Emergency Medical Officer, District Hospital, Maharajganj which report appears at pages 22 and 23 of the present petition. After carrying out the ossification test, it was found that the lady was aged about 18 years. The lady further appears produced before a Judicial Magistrate for recording her statement u/s 164, Cr. P.C. and a copy of the same has been enclosed as Annexure-4 which appears at page 24 of the present petition. The lady stated that she had met accused Manish some 2-4 months ago and fell in love with that boy and further, that date of birth which was stated in her matriculation certificate was not correct and she was aged in between 17-18 years. The lady stated that her father was residing in Mumbai in connection with earning livelihood and her mother and she herself were residing at their native place. She stated that the case which was lodged by her father was not correct and further that she herself gave a ring to the accused Manish Kumar, called him and came out of her school and thereafter took an auto rickshaw to go to Farendra and from there to different place. She stated that during her sojourn out of her parent''s house and the village she and Manish resided as legally wedded couple and during that course she had sexual intercourse with the boy also. She stated that it might be that accused Manish was guilty of the offence, but still she wanted to remain as his wife and further that if he was in custody then she also should be sent at that particular place, and further that she would not like to go to Nari Niketan.

Thus, what appears from the statement of Smt. Saroj was that it could not be said that it was an act of ''taking away'' or ''enticing away'', rather it could be a case of ''elopement'' as was indicated by the Supreme Court in S. Varadarajan Vs. State of Madras, . Their Lordship had distinguished the case of taking or enticing away from the mere act of elopement and in that connection had pointed out that even if a lady, who had not attained majority, i.e., age of 18 years herself goes out with a man of her own volition then it could not be said to be a case of either ''taking way'' or ''enticing away'' a minor woman out of the keeping of her lawful guardianship. Their Lordships further went on to hold that in such factual situation, no offence either u/s 363, 366A or 366, I.P.C. could be said to be made out. This is one aspect of the matter.

The lady had stated that the age indicated in her matriculation certificate was incorrect and that her age was in between 17-18 years. That statement appears getting support from the medical report which appears at pages 22 and 23 of the present petition. The medical report indicated as if the lady was aged about 18 years. We have regularly been pointing out that in the light of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, , an addition of three years is to be made to medically assessed age and thus, we could not have any hesitation in recording that the lady could be above 18 years of age.

The learned Chief Judicial Magistrate appears not considering these aspects of the matter. He further appears overlooking the ordinary law which appears from common procedural aspects of criminal trial or prosecution that a victim of offence under Sections 363, 366A, 366 or 376, I.P.C. could not be falling in the category of an accused and as such no court could be authorised under any provisions of law to authorise the detention of such a lady even into protective custody if the lady objects to such detention. Besides, a victim of such offences are often found treated as if she was a juvenile in conflict with law and till the enquiry on her juvenility is conducted she could not enjoy her freedom. The Bar also appears living with this wrong motion.

The learned Chief Judicial Magistrate was simply ignorant of the constitutional provisions on the procedure being reasonable and liberty being the most valuable fundamental right of a person. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties, of course within the caring custody of parents. No law could be upheld even in a case of a child if he is deprived of the right to life and valued the right to liberty. Might be, that the liberty of a child may be confined to the laps of his parents, but that lap is more wider than the whole world and the horizon of universe. No judicial authority on planet earth has such much of jurisdiction and power if so as to committing any encroachment upon the liberties of a person, if no law permits or the curtailment of his or her liberty.

We regret, that we should not point out these aspects of such matters as indicated to judicial officers of any rank, because we were living and continue to live under a very sanctified impression that Judges of all ranks are supposed to be respectful to personal liberties of a person and in no case they should utilise their jurisdiction or wrongly apply the same to put in peril the liberties and freedom of a person.

We are sad to note that this gem of the principle on fundamental rights was simply missed out by the highest court of the district when the session court was also upholding the completely erroneous order passed by the Chief Judicial Magistrate.

At the bar. today, we were informed by learned A.G.A., Sri Mehrotra, that the trial had ended and that the accused has been acquitted and he now is enjoying freedom of all sorts which could be enjoyed under the Constitution of India.

This is the saddest aspect of the trial of the case that the victim who was alleged to be kidnapped, is still confined within the precincts of a place which could never be proper place for the custody of a young lady. It is not unknown to us that Nari Niketans are as unsafe as any other places and definitely unsafe than the house of parents or a husband. We are pained to note that the trial Judge while acquitting the accused also was aware of this fact and did not care for the poor girl who was illegally authorised to be detained in Nari Niketan, Gorakhpur.

We direct that she should be immediately released today itself by the end of the next hour so that she avail of her liberties.

The learned A.G.A. is directed to communicate this order of ours verbally to the Superintendent, Nari Niketan, aforesaid that confinement of the lady is not only illegal but wrongful confinement and that should accrue criminal liability to any person.

We allow this petition and quash the order dated 7.2.2011 passed by the Chief Judicial Magistrate, Maharajganj and order dated 21.2.2011 passed by the Sessions Judge, Maharajganj. The facts which were presented before us legitimately require that some compensation should be allowed to the lady for being wrongfully confined and we direct the State of U.P. to pay a compensation of Rs. 50,000 to Smt. Saroj wife of Manish Kumar after due identification of hers, within two months of the present order.

Let a copy of this order be handed over to the learned A.G.A. for communication to the authorities and for implementation of the present order.