# Mohini Gupta Thru Her Husband Dilip Sharma v. State Of U.P. & Ors - **Citation:** (2016) 7 ILRA 742 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-20 - **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohini-gupta-thru-her-husband-dilip-sharma-v-state-of-u-p-ors-44207 - **Pages:** 8 ## Headnote Constitution of India - Art. 226 - Habeas corpus - Detention in Nari Niketan - Major woman - Right to personal liberty - Held, where detenue is major and has categorically stated that she acted of her own free will, continued detention in Nari Niketan is illegal. Personal liberty under Article 21 cannot be curtailed merely on technical objections or pending criminal proceedings when no offence is made out (paras 10-11). Habeas corpus - Scope - Held, writ court is duty bound to protect personal liberty and cannot permit procedural technicalities to defeat fundamental rights. Once illegal detention is established, court must order release (para 10). 7 All. Mohini Gupta Thru Her Husband Dilip Sharma Vs State Of U.P. & Ors. 743 Criminal law - Kidnapping/abduction - Consensual relationship - Held, where statement under Section 164 Cr.P.C. shows that the girl voluntarily went with the person and was not induced, offence under Ss. 363/366 IPC is not made out (paras 2, 6, 11). Right of major woman - Choice of residence - Held, a major woman has absolute right to choose where and with whom she wishes to reside. Confinement against her will violates her fundamental right to personal liberty (paras 11-12). In Result- Petition allowed - Detention order quashed - Detenue directed to be released forthwith to go as per her free will. Cases cited Smt. Poonam Vs. State of U.P. and others Writ Petition No.156 (H/C) of 2015 decided on 17.9.2015 Smt. Seema Devi through her next friend Vs. State of U.P. and others Writ Petition (Habeas Corpus) No. 10006 of 2016 decided on 25.5.2016 Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (2011) 1 SCC 694 ## Text 742 INDIAN LAW REPORTS ALLAHABAD SERIES 23. Learned counsel for the petitioner has drawn the attention of the Court to the judgement of Suryamani (supra), which clearly indicates that 27 posts are unfilled under physically handicapped category. 24. In view of the above, I find that the writ petition deserves to be allowed and it is accordingly allowed. A direction is issued upon the Commission to send the name of the petitioner to the State Government as one of the successful candidates in sub-category 'OL' under the physically handicapped category in accordance with law, expeditiously, preferably within six weeks from the date of communication of this order. 25. No order as to costs. ------------ ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 20.07.2016 BEFORE THE HON'BLE AJAI LAMBA, J. THE HON'BLE RAVINDRA NATH MISHRA-II, J. Habeas Corpus Writ Petition No. - 7425 Of 2016 Mohini Gupta Thru Her Husband Dilip Sharma ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Kaushal Kishore Tewari Counsel for the Respondents: Govt.Advocate, Rajiv Raman Srivastava Constitution of India - Art. 226 - Habeas corpus - Detention in Nari Niketan - Major woman - Right to personal liberty - Held, where detenue is major and has categorically stated that she acted of her own free will, continued detention in Nari Niketan is illegal. Personal liberty under Article 21 cannot be curtailed merely on technical objections or pending criminal proceedings when no offence is made out (paras 10-11). Habeas corpus - Scope - Held, writ court is duty bound to protect personal liberty and cannot permit procedural technicalities to defeat fundamental rights. Once illegal detention is established, court must order release (para 10). 7 All. Mohini Gupta Thru Her Husband Dilip Sharma Vs State Of U.P. & Ors. 743 Criminal law - Kidnapping/abduction - Consensual relationship - Held, where statement under Section 164 Cr.P.C. shows that the girl voluntarily went with the person and was not induced, offence under Ss. 363/366 IPC is not made out (paras 2, 6, 11). Right of major woman - Choice of residence - Held, a major woman has absolute right to choose where and with whom she wishes to reside. Confinement against her will violates her fundamental right to personal liberty (paras 11-12). In Result- Petition allowed - Detention order quashed - Detenue directed to be released forthwith to go as per her free will. Cases cited Smt. Poonam Vs. State of U.P. and others Writ Petition No.156 (H/C) of 2015 decided on 17.9.2015 Smt. Seema Devi through her next friend Vs. State of U.P. and others Writ Petition (Habeas Corpus) No. 10006 of 2016 decided on 25.5.2016 Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (2011) 1 SCC 694 (Delivered by Hon'ble Ajai Lamba, J. & Hon'ble Ravindra Nath Mishra-II, J.) 1. This petition seeks issuance of a writ in the nature of Certiorari quashing order of detention dated 19.6.2015, appended with the petition as Annexure-1. The petition also seeks issuance of a writ in the nature of Habeas Corpus directing respondent No.2-Superintendent, Women Protection Home, District Lucknow to produce the petitioner and set her free. 2. It has been pleaded on behalf of the petitioner that the petitioner got married to Dilip Sharma, the deponent of her free will. The petitioner has not been kidnapped. Offence has not been committed, however, respondent No.3 in abuse of process of the law and process of the Court initiated criminal proceedings vide Case Crime No. 0100 of 2015, under Sections 363 & 366 I.P.C., Police Station Ataria, District Sitapur. It has been pointed out that the petitioner has already attained the age of majority. The petitioner in her statement recorded under Section 164 Cr.P.C.(Annexure-5) has made it evident that she had not been induced by Dilip Sharma to go with him, rather she had gone of her will and got married to him. It has further been clarified that petitioner wants to live with Dilip Sharma. 3. Considering some discrepancy in age, this Court vide order dated 18.5.2016 directed respondent No.2 to produce the petitioner in K.G.M.U.Lucknow, so that her age could be determined by a Board of Doctors. Order dated 18.5.2016 reads as under: "1. Shri Rajiv Raman Srivastava, Advocate has appeared on behalf of respondent no. 3. His power of attorney is taken on record. 744 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Counter affidavit has been filed on behalf of the investigating agency. As per document Annexure CA-2 age of the petitioner has been found to be 16 years. According to Annexure CA-6, however, age has been found to be 18 years. Both the certificates have been issued on the basis of ossification test. While Annexure CA-2 is based on ossification test conducted on 16th June, 2015, Annexure CA-6 is based on ossification test conducted on 14th October, 2015. 3. There is a serious discrepancy. The issue is required to be resolved. 4. We hereby direct respondent no. 2 to produce the petitioner before Registrar, K.G.M.U., Lucknow. The Registrar, K.G.M.U., Lucknow shall ensure that a board of doctors is constituted for conducting ossification test of the petitioner. Medical age of the petitioner shall be determined and the relevant document shall be filed in this Court on or before the next date of listing. The petitioner be produced before the Registrar, K.G.M.U., Lucknow on 25th May, 2015. 5. List on 02.06.2016. ". 4. Report has been received from a Board of six doctors dated 25.5.2016. As per determination the petitioner has been found to be 18-19 years of age. 5. Learned counsel appearing for respondent No.3 has raised a technical objection to the effect that the petitioner has been confined in Nari Niketan vide an order passed by Additional Chief Judicial Magistrate, Court No.2, Sitapur and, therefore, writ in the nature of Habeas Corpus would not lie. 6. Learned counsel for the State admits that age of the petitioner is 18-19 years. Learned counsel for the State has further admitted the contents of statement given by the petitioner under Section 164 Cr.P.C. in which she does not support the prosecution case, rather, has stated that the petitioner took Dilip Sharma to Barabanki. The petitioner had not been induced. The petitioner has stated that she wants to go with Dilip Sharma. Learned counsel for the State, under the circumstances, admits that the petitioner had not been kidnapped. 7. We have considered the facts and circumstances emanating from the record, in context of the arguments addressed by learned counsels, as noted above. 8. In 'Smt. Poonam Vs. State of U.P. and others' rendered by this Court in Writ Petition No.156 (H/C) of 2015 decided on 17.9.2015, the following has been held in relevant paragraphs:- " 21- We are coming across a large number of cases in which parent/ parents of a girl do not accept marriage of choice of their daughter, on account of different reasons, be it the caste , financial conditions, social status or religion. Although, the girl elopes with the boy voluntarily, however, criminal proceedings are initiated with allegation of abduction, kidnapping or inducing the girl to get married. In most of such cases the complainant takes a ground that his 7 All. Mohini Gupta Thru Her Husband Dilip Sharma Vs State Of U.P. & Ors. 745 daughter is a minor. For showing that his or her daughter is a minor, school certificates are relied upon . 22- The facts and circumstances of the present case are required to be considered in context of the law , as noticed above. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty. 23- As noticed above, various documents have come on record indicating different dates of birth/age of the petitioner. Be that as it may, there is a conflict between the age of the petitioner determined on the basis of school documents, and the age assessed through ossification test. The Court is required to lean towards the report furnished by the Doctor, on the basis of scientific tests. This is particularly so because liberty of the petitioner is required to be protected, it being most precious Constitutional Right of the petitioner. 24- Considering the law laid down by this Court in Shaheen Parveen's case (Supra), as noticed above, it becomes prima-facie evident that the petitioner had neither been abducted nor kidnapped or induced by Suneel Kumar Singh. Rather statement of the petitioner recorded under Section 164 Cr.P.C. indicates that the petitioner had gone with Bauwa alias Suneel Kumar of her free will and voluntarily. Prima-facie, therefore, this Court concludes that offence has not been committed in context of the petitioner. Surely, the petitioner is not an accused. Under the circumstances, we are faced with a situation wherein liberty of an alleged victim has been curtailed under the direction of the Magistrate. 25- Considering the law laid down by Hon'ble Supreme Court of India in Juhi Devi's case (Supra) as extracted above, it becomes evident that in such cases reliance can safely be placed on the opinion of the Doctors in context of age of the girl, when the age recorded in school certificate(s) is at variance. 26- We have considered that there is consistency in the results of medical/ossification test reports, whereas the basis of making entry in school record in regard to date of birth, is generally not brought on record. In the circumstances, so as to consider whether a person has attained age of majority/ age of discretion in cases such as the present one, it is safer to rely on medical /scientific / ossification test reports. 27- Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. A person living in India has a Right to enjoy his or her liberty, as guaranteed by the Constitution of India. Any order which curtails or encroaches upon the liberty of such a person is required to be struck down, if it is not in accordance with procedure established by law. 28- Article 21 of the Constitution of India promises every citizen that he shall not be deprived of his life or personal liberty except according to procedure established by law. Petitioner not being an accused , it cannot be held that her personal liberty has been curtailed as 746 INDIAN LAW REPORTS ALLAHABAD SERIES per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice. 29- While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated , with a view to promote substantial justice." (Emphasised by us) 9. In context of issuance of writ in the nature of Habeas Corpus and in context of personal liberty and its relevance and importance, we refer judgment dated 25.5.2016 rendered by this Court in Writ Petition (Habeas Corpus) No. 10006 of 2016, titled "Smt. Seema Devi through her next friend Vs. State of U.P. and others" in which following has been held in relevant paragraphs:- "1. It is often said that "one realizes the value of liberty only when he/she is deprived of it". xxxxx 19. A writ of Habeas Corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English Courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The due process for such petition is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not to do something. 20. A writ of Habeas Corpus is known as "the great and efficacious writ in all manner of illegal confinement", being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that the prisoner be taken before the court, and that the custodian to present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. 21. There can be no doubt that personal liberty is a precious right, therefore, the writ of Habeas Corpus provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the detenue before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention of liberty or freedom of the prisoner or detenu. 7 All. Mohini Gupta Thru Her Husband Dilip Sharma Vs State Of U.P. & Ors. 747 22. Since issuance of the writ is in context of liberty of a citizen, we would like to highlight the essence, relevance, and importance of 'liberty'. 23. 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit legal justification. The negative right constitutes the essence of personal liberty. 24. It is very difficult to define the term 'liberty'. It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term 'liberty' may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three facts, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative. 25. It can be found that 'liberty' generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to 'liberty' and freedom is lost. At the same time, 'liberty' without restraints would mean liberty won by one and lost by another. So 'liberty' means doing of anything one desires but subject to the desire of others. 26. Life and liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society. 27. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of a right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why 'liberty' is called the very quintessence of a civil existence. (Vide Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others : (2011) 1 SCC 694. 28. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. 29. When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right that is to say, not to 748 INDIAN LAW REPORTS ALLAHABAD SERIES act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right. When right to personal liberty is guaranteed and the rest of the society, including the State, is compelled or obligated not to violate that right and if someone has threatened to violate it and the person whose right is so threatened resorts to Article 226 of the Constitution, the court is required to protect the right." (Emphasised by us) 10. Considering the law on the issue, as extracted above, we are of the considered opinion that precedence is required to be given to the constitutional rights of a citizen, and not to technicalities. Liberty is the most cherished right of a citizen. If a person is deprived of the said right, ordinarily a Court of equity will not allow technicalities to stand in the way. Complexities of law cannot be employed to frustrate right to liberty of a person. Writ court cannot contemplate any limitation on its power to deliver substantial justice. It is in this view of the matter that we reject the contention of learned counsel for respondent No.3, who appears to be aggrieved against the conduct of her daughter, who has exercised her right against wishes of respondent No.3. 11. Considering the age of the petitioner (18-19 years) and her statement recorded under Section 164 Cr.PC., we are of the considered opinion that any further confinement of the petitioner in Nari Niketan would violate the right of the petitioner vested under Article 21 of the Constitution of India. We have also taken into account the fact that the petitioner merely exercised her right to go with Dilip Sharma. The petitioner admittedly has not committed any offence. The petitioner is merely a witness, rather the alleged victim, of an incident, therefore confinement of the petitioner, by any stretch of imagination is not justified in law or equity. 12. We are also of the considered opinion that a girl should be housed in Nari Niketan only as a last resort, in case she has no other place to live. Nari Niketan do not offer ideal conditions of living. In the case in hand, the petitioner has offered to live with Dilip Sharma. 13. Considering totality of the facts and circumstances of the case, we are of the view that the liberty of the petitioner has been curtailed by confining her in Nari Niketan. Consequently, we allow this petition and quash the order dated 19.6.2015 (Anneuxre-1) passed by the Additional Chief Judicial Magistrate (Court No.2), Sitapur. 14. We hereby direct respondent No.2-Superintendent, Women Protection Home, District Lucknow to release the petitioner forthwith to allow her to go as per her free will. 15. Let a copy of this order be released under the signatures of Bench Secretary of this Court. 7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors. 749 ------------ ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.07.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE SHAMSHER BAHADUR SINGH, J. Writ C No.- 9513 Of 1989 M/S D.C.M. Ltd. & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Rahul Mishra, Sudeep Kumar Counsel for the Respondents: S.C., H.N. Tripathi. Criminal Procedure Code, 1973-Ss. 227, 228, 239 & 240-Framing of charge-Re-analysis of seized sample-Entitlement- No statutory or indefeasible right accrues to an accused to seek re-analysis of a seized sample after submission of charge-sheet and at the stage of framing of charge-Grant of such prayer depends on nature of commodity and stage of proceedings-Kerosene not shown to be perishable or susceptible to deterioration-Refusal to permit re-analysis at pre-trial stage justified. (Paras 6, 8) Essential Commodities Act, 1955-Ss. 3 & 7-Kerosene (PDS)-Seizure and analysis-Right of defence- Accused retains right to challenge report of Public Analyst during trial under S. 293 CrPC-Absence of express provision for re-analysis in Control Order does not render procedure arbitrary-Re-analysis, if warranted, may be permitted at appropriate stage subject to judicial discretion and proof of prejudice. (Paras 7, 8) Criminal Trial-Discharge-Scope of defence material- At stage of discharge, defence material is limited to unimpeachable documents of sterling quality capable of demolishing prosecution case-Principle in State of Orissa v. Debendra Nath Padhi does not extend to permitting collection of fresh evidence or reanalysis of seized samples-Reliance on Sadhan Sahkari Samiti Ltd. held misconceived. (Paras 9-11) In Result- Application dismissed. (Para 13) Cases cited State of Orissa v. Debendra Nath Padhi(2005) 1 SCC 568 (Delivered by Hon'ble Sudhir Agarwal, J.) 1. During pendency of writ petition, we are informed that petitioners 3, 6, 7, 8, 9, 10, 11, 15 and 16 have died long back and, therefore, writ petition has abated in respect of these petitioners including criminal proceedings initiated against them.