# Km. Ankita v. State of U.P. & Anr

- **Citation:** (2015) 1 ILRA 396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-30
- **Case number:** Habeas Corpus No. 78 of 2015
- **Bench:** Ajai Lamba, Akhtar Husain Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-ankita-v-state-of-u-p-anr-43168
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-Habeas
Corpus petition-rejection-for release of
custody to her parent-on ground of
impediment of review under Section 362
Cr.P.C.-held-earlier she confinement in
nari niketan-on refusal to join the
company
of
her
parent-now
being
pregnant getting majority desirous to go
with her father-held curtailment of her
liberty
not
permissible-approach
of
Judge wholly insensitive and injudicious
being
irresponsible-order
quasheddirection to release the detainee to
custody of her father given.
Held: Para-11 & 14

## Text

396
 INDIAN LAW REPORTS ALLAHABAD SERIES
of India with a prayer to quash the order
dated
17.05.2011
passed
by
the
Additional District Judge, Court no. 3
Lakhimpur Kheri. Thus, the writ petition
is also not maintainable to this aspect of
the matter.
34.
Accordingly the writ petition is
dismissed.
The
interim
order
dated
31.05.2011 stands vacated. The petitioner is
directed to vacate the premises in question
within a period of two months from today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.04.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Habeas Corpus No. 78 of 2015
Km. Ankita
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
K.K. Tewari
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-226-Habeas
Corpus petition-rejection-for release of
custody to her parent-on ground of
impediment of review under Section 362
Cr.P.C.-held-earlier she confinement in
nari niketan-on refusal to join the
company
of
her
parent-now
being
pregnant getting majority desirous to go
with her father-held curtailment of her
liberty
not
permissible-approach
of
Judge wholly insensitive and injudicious
being
irresponsible-order
quasheddirection to release the detainee to
custody of her father given.
Held: Para-11 & 14
11. In the case in hand, the detenue
filed an application for being released in
custody of her own parents. We fail to
understand
as
to
under
what
circumstance, law or procedure, the
application of the detenue could have
been dismissed. The detenue is a victim,
and not the accused. The relevant
considerations have not been kept in
mind by the court while deciding the
application.
14. Considering the stand of the
detenue,
the
court
should
have
immediately
passed
orders
for
her
release in the custody of the parents.
The parents are not aliens for their
daughter, who is pregnant. The order
denying the detenue to live with her
parents is not only wholly on account of
insensitive
approach,
but
is
also
injudicious, and irresponsible.
(Delivered by Hon'ble Ajai Lamba, J.)
1. The petition has been filed
through
Ramesh
Kumar
with
the
allegation that his daughter Ankita, the
detenue has been kept in illegal detention
in
the
Women
Protection
Home,
Lucknow.
2. It has been pointed out that on
19.7.2014, one Chhanga Raidas abducted
the detenue with the help of other
accused. In that regard, Crime No.1205 of
2014 under Sections 363, 366 I.P.C.,
Police Station Asiwan, District Unnao
was registered. During investigation,
Section 376(2) (D) alongwith Section 3/4
of Prevention of Children from Sexual
Offences Act(for short 'POCSO Act')
were also added.
3. The prosecutrix was recovered on
1.11.2014 and was medically examined.
Medical age of the detenue/prosecutrix
was found to be 19 years. Statement of
1 All] Km. Ankita Vs. State of U.P. & Anr.
397
the detenue/prosecutrix was recorded.
Mother of the detenue moved an
application for custody of the detenue but
the court refused to give custody to the
mother and the detenue has been sent to
Women Protection Home, Lucknow on
the ground that she is a minor and she had
refused to go with her parents, vide order
Annexure No.1 dated 9.1.2015.
4. On 14.1.2015, the detenue gave
an application to the Superintendent,
Women
Protection
Home,
Lucknow
stating that she is pregnant and does not
want to live in protection home and wants
to live with her parents.
5. Order Annexure No.2 dated
12.2.2015 has been passed on the premise
that vide earlier order Annexure No.1
dated 9.1.2015, the detenue had been
confined to Women Protection Home,
Lucknow because she had refused to go
with her parents. The court concerned viz.
Shri Jai Singh Pundeer, Additional
Sessions Judge, Court No.1, Special
Judge, POCSO Act, Unnao has stated that
it would tentamount to review earlier of
order Annexure No.1 dated 9.1.2015.
6.

We
have
considered
the
contention of learned counsel.
7. We have also questioned the
detenue Ankita. Ankita has stated in court
that she had given an application dated
14.1.2015 showing her desire to go with
her parents.
8. We find the approach of the
Additional Sessions Judge to be wholly
inappropriate. The impediment of review
under Section 362 Cr.P.C. cannot be
strictly invoked in such proceedings.
Annexure No.1 is not an order passed
during the course of a trial or other
proceedings in appeal or revision. Such
orders of detention of girls are passed
only as stop gap arrangement.
9. At times, it is desirable, in the
interest and welfare of a young girl that
she be allowed to give a thought in regard
to her future before deciding whether she
wants to go with an accused or her
parents. At times, the girl is a minor and
therefore is not allowed to live in the
company of the accused. The girl in such
circumstances, can be confined to Women
Protection Home/Nari Niketan only if she
refuses to go with her parents.
10. In our considered opinion, the
duration of stay of detenue, such as the
petitioner, should be permitted for the
shortest period of time. By such detention,
liberty of girls is curtailed, which
ordinarily is not permissible in law. A
constitutional right vested in a person,
particularly liberty cannot be curtailed for
convenience of a court or for other such
reasons.
11. In the case in hand, the detenue
filed an application for being released in
custody of her own parents. We fail to
understand as to under what circumstance,
law or procedure, the application of the
detenue could have been dismissed. The
detenue is a victim, and not the accused.
The relevant considerations have not been
kept in mind by the court while deciding
the application.
12.
The reality of the conditions
prevailing
in
Nari
Niketan/Protection
Homes also cannot be ignored. Such
protection homes are not being maintained
under ideal conditions, under ideal staff.
There is every likelihood of abuse of girls in
398
 INDIAN LAW REPORTS ALLAHABAD SERIES
such homes. Long confinement in such
circumstances, is likely to torment the
inmates mentally and emotionally. This is
not permissible in law.
13. Considering the totality of the
facts and circumstances of the case, we
also record our anguish at the conduct of
the court in entertaining application dated
14.1.2015 and forwarded to the court on
15.1.2015, on 12.2.2015, approximately
after one month. Such application should
be taken up and dealt with immediately,
and not beyond a period of one week.
14.
Considering the stand of the
detenue, the court should have immediately
passed orders for her release in the custody
of the parents. The parents are not aliens for
their daughter, who is pregnant. The order
denying the detenue to live with her parents
is not only wholly on account of insensitive
approach, but is also injudicious, and
irresponsible.
15. Considering the totality of the
facts and circumstances of the case, the
petition is allowed. Annexure No2 dated
12.2.2015 is hereby quashed. Detenue
Ankita is hereby directed to be released in
the custody of her father Ramesh Kumar.
16. Let a copy of this order be
released under the signature of Bench
Secretary of this Court.
17. Let a copy of the order be also
forwarded to District & Sessions Judge,
Unnao.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
Special Appeal No. 256 of 2015
Manmohan Mishra
...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Kundan Rai, P.K. Jain, Vishal Kashyap
Counsel for the Respondents:
C.S.C., A.K. Yadav
U.P. Secondary Education Service Selection
Board Rules 1998-Rule-9-Bar to appoint
male teacher in girls institution-whether
can be termed unreasonable? held-'No'-
various reasons discussed.
Held: Para-19
In view of this legal position, we would
have to hold, though for the reasons which
we have indicated, that there is no merit in
the challenge to the view which has been
taken by the learned Single Judge. The rulemaking authority in framing Rule 9 has not
taken over an essential legislative function.
The
rule-making
authority
has
not
transgressed the limitations on its statutory
power under Section 35 of the Act of 1982.
Rule 9 is perfectly in conformity with the
provisions of the Act of 1982 and cannot be
regarded as being unreasonable.
Case Law discussed:
AIR 1981 SC 1829; AIR 1954 SC 321; (1979) 4
SCC 260; 2008 (3) ESC 409 (SC)
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1.

The
appellant
having
unsuccessfully pursued a writ proceeding
under Article 226 of the Constitution, is in
appeal against a judgment and order of
the learned Single Judge dated 15 April
2015.