# Satish Kumar v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-31
- **Case number:** Application U/S 482 Cr.P.C. No. 12047 of 2020
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-kumar-v-state-of-u-p-ors-46156
- **Pages:** 11

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 363 - punishment for
kidnapping, Section 376 - punishment for
rape , Protection of Children from Sexual
Offence (POCSO) Act - Section 3 -
Penetrative sexual assault , Section 4 -
Punishment for penetrative sexual assault
- victim may at best be a witness - no law,
where under the Magistrate may direct
the detention of a witness simply because
he does not like him to go to any
particular place, and as such the petitioner
has been sent to Nari Niketan pursuant to
a judicial order which per-se appears to be
without jurisdiction - detention can not be
said to be a "legal" just because it carries
the thrust of a judicial order which is
patently tangent to a established norm in
this regard - child marriage is voidable at
the instance of minor, otherwise the
marriage is not void ipso-facto. (Para -
24,26)

Applicant and victim (girl) were undergoing in
their teens, as a natural outcome - developed
tender affinity towards each other which
ultimately turned into a torrid and dense love
affair between them - Eventually on 25.01.2019
she on her own free will and accord, decided to
534 INDIAN LAW REPORTS ALLAHABAD SERIES
join the company of applicant and flee away on
25.01.2019 to some unknown destination -
father of the victim girl asserted his right over
the victim lodging a report U/s 154 Cr.P.C
against the applicant. (Para -8)

HELD:- After changing her (minor girl) marital
status, she has got every right to chose her
future as to whom with she wants to go,
ignoring her wish, she was virtually detained an
dumped into Protection Home/ Nari Niketan
since last one year, is against one's freedom
and liberty which is a touch stone of Article 21
of the Constitution of India - even assuming
that victim was minor at relevant point of time,
she cannot be detained in Nari Niketan or any
protective Home against her wish and desire -
no case for prosecution U/s 363, 376 I.P.C. is
made out against the applicant. (Para - 20,22)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases cited: -

## Text

2 All. Satish Kumar Vs. State of U.P. & Ors.
533
perusal of Section 3 of the Evidence Act as
well as the decision of the Constitution
Bench, that a document is required to be
produced and proved according to law to
be called evidence. Whether such evidence
is relevant, irrelevant, admissible or
inadmissible, is a matter of trial. It is,
therefore, clear that the word "evidence" in
Section 319 Cr.P.C. means only such
evidence as is made before the court, in
relation to statements, and as produced
before the court, in relation to documents.
It is only such evidence that can be taken
into account by the Magistrate or the Court
to decide whether power under Section 319
Cr.P.C. is to be exercised and not on the
basis
of
material
collected
during
investigation."

9. Perusal of the impugned order
shows that the learned Trial Court has
passed the impugned order summoning the
accused persons on the basis of evidence of
P.W. 1 to 4. All these witnesses were crossexamined by the counsel of the defence.
The
statements
of
above-mentioned
witnesses are available on the record. They
all have stated that the petitioners along
with other accused persons used to demand
dowry and used to torture and harass the
deceased and the petitioners were also
involved in the crime. As far as the call
details are concerned, those can be
considered only when these are duly
proved at proper stage.

10. Hence, in the light of the
discussions made herein above and the law
laid down by the Apex court, there appears
no illegality or infirmity in the impugned
order, therefore, the petition deserves
rejection.

11. The petition under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2021)02ILR A533
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 Cr.P.C. No. 12047 of 2020

Satish Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Shashi Kant Pandey

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 363 - punishment for
kidnapping, Section 376 - punishment for
rape , Protection of Children from Sexual
Offence (POCSO) Act - Section 3 -
Penetrative sexual assault , Section 4 -
Punishment for penetrative sexual assault
- victim may at best be a witness - no law,
where under the Magistrate may direct
the detention of a witness simply because
he does not like him to go to any
particular place, and as such the petitioner
has been sent to Nari Niketan pursuant to
a judicial order which per-se appears to be
without jurisdiction - detention can not be
said to be a "legal" just because it carries
the thrust of a judicial order which is
patently tangent to a established norm in
this regard - child marriage is voidable at
the instance of minor, otherwise the
marriage is not void ipso-facto. (Para -
24,26)

Applicant and victim (girl) were undergoing in
their teens, as a natural outcome - developed
tender affinity towards each other which
ultimately turned into a torrid and dense love
affair between them - Eventually on 25.01.2019
she on her own free will and accord, decided to
534 INDIAN LAW REPORTS ALLAHABAD SERIES
join the company of applicant and flee away on
25.01.2019 to some unknown destination -
father of the victim girl asserted his right over
the victim lodging a report U/s 154 Cr.P.C
against the applicant. (Para -8)

HELD:- After changing her (minor girl) marital
status, she has got every right to chose her
future as to whom with she wants to go,
ignoring her wish, she was virtually detained an
dumped into Protection Home/ Nari Niketan
since last one year, is against one's freedom
and liberty which is a touch stone of Article 21
of the Constitution of India - even assuming
that victim was minor at relevant point of time,
she cannot be detained in Nari Niketan or any
protective Home against her wish and desire -
no case for prosecution U/s 363, 376 I.P.C. is
made out against the applicant. (Para - 20,22)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases cited: -

1. Kajal & ors. Vs St. of U.P. (Habeas Corpus
Petition No. 3914/18 decided on 22.02.2019)

2. Raj Kumari Vs Suptd., of Women, 1997 (2)
AWC 720

3. Kalyani Chaudhary Vs St. of U.P. 1978 Cr.L.J.
1003

4. Smt. Pushpa Devi Vs St.of U.P. through
Principal Secretary (Misc. Bench No. 265/2019)
decided on 30.08.2019

5. Shafin Jahan Vs Ashokan K.M. (Crl. Appeal
No. 366/2018 decided on 8th March, 2018 )

6. Juhi Devi Vs St. of Bihar, 2005 (13) SCC 376

7. Gian Devi Vs Superintendent, Nari Niketan,
Delhi, 1976(3) SCC 234

8. Suhani Vs St. of U.P. , Crl. Appeal No.
4532/2018 decided on 26th April, 2018

9. Smt. Kanchan Singh & anr. Vs St.of U.P. &
ors. , Habeas Corpus Writ Petition No. 33676 of
2015

10. Jaymala Vs Home Sec., Govt. of J.& K. ,
[AIR 1982 SC 1296]

11. Smt. Raj KumariI Vs Suptd., Women
Protection, Meerut 1997 (2) AWC 720

12. Sonu Paswan Vs St. of U.P. , 2013 31 LCD
1107(DB)

13. Saheen parveen & anr. Vs St of U.P. & ors. ,
Misc. Bench No. 3519 of 2015 (decided on
23.7.2015)

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Shashi Kant Pandey,
learned counsel for the applicant, Mohd.
Afzal, brief holder of the State and learned
A.G.A. for the State and perused the
material on record.

2. Formulating moot question of law,
as to whether girl's freedom could be
numbed, butchered or sacrificed in the
name of minority, though she has changed
her marital status after tying marital knots
with Satish Kumar; in the garb of pendency
of criminal trial against Satish Kumar
(herein the applicant).

3. While hearing the arguments on
29.07.2020, the learned counsel for the
applicant informed this Court that, the
victim Ms. Sonam is presently detained in
Nari Niketan, Meerut for the last more than
one year, which pricked the judicial
conscious of the Court and it ordered to
summon the girl on 31.07.2020 from Nari
Niketan, Meerut.

4. Today, the girl Ms. Sonam is
before this Court, brought by Devendra
Kumar, Sub Inspector, Police Station
Bahadurgarh
and
Sri
Rajesh,
Head
Constable 42 of the same Police Station
2 All. Satish Kumar Vs. State of U.P. & Ors.
535
and the court had an opportunity to have a
brief conversation with her.

5. After the aforesaid conversation,
this Court decided that the instant 482
Cr.P.C. application be adjudicated at the
threshold/admission stage itself. In the
opinion of the Court, her detention in
Protective Home/Nari Niketen is de-hoarse
and against the established legal norms,
more particularly in the current scenario
when there is a rampant impact of the
pandemic (Covid-19), the conditions of
such Nari Niketans are pathetic. This Court
is aware of the emerging recent news,
where considerable number of detenues
were found Corona Positive, some were
suffering from AIDS and few of them are
pregnant in a different Nari Niketan, i.e.,
Bal Sanrakshan Grih (Child Protection
Home) especially Kanpur. This is the
horrifying and alarming stage, which
warrants immediate action by law courts
regarding such poor victims left on their
destiny, in the garb of legal orders passed
by law courts.

FACTUAL
MATRIX
OF
THE
CASE:-

6. The learned counsel for the
applicant, Shri S.K. Pandey tried to invoke
the extraordinary jurisdiction of this Court
U/s 482 Cr.P.C. assailing the charge sheet
dated
19.10.2019
as
well
as
entire
proceedings of S.S.T. No. 107/2019 Inre:
State Vs. Satish Kumar and others arising
out of Case Crime No. 0016/2019 U/s 363,
376 I.P.C. and U/s 3/4 Protection of
Children from Sexual Offence (POCSO)
Act, P.S. Bahadurgarh, District Hapur and
also to quash the order dated 03.03.2020
passed by Special Judge (POCSO), Hapur.
In addition to above, it was also prayed to
release the girl Ms. Sonam, wife of
applicant
(Satish
Kumar)
from
Nari
Niketan, Meerut, who is languishing there
from the last more than one year in a most
inhuman,
horrendous
and
pathetic
condition. This prayer of the applicant was
rejected by the learned Trial Judge while
passing
the
impugned
order
dated
03.03.2020, attributed the reason that since
the applicant is facing trial /prosecution, by
means of S.S.T. No. 107 of 2019, thus his
application for release the victim Ms.
Sonam is stood rejected.

7. Before coming to the legal aspect
of the issue, it is imperative to give an
eagle's eye view to the facts of the case to
appreciate the controversy involved therein.

8. Applicant Satish Kumar and victim
Ms. Sonam daughter of Nepal Singh are
resident
of
Village
Pasvada,
P.S.
Bahadurgarh, Hapur. Both of them were
under going in their teens, as a natural
outcome, they developed tender affinity
towards each other which ultimately turned
into a torrid and dense love affair between
them. Eventually on 25.01.2019 she on her
own free will and accord, decided to join
the company of applicant and flee away on
25.01.2019 to some unknown destination.

9. After coming to know that his
daughter has fled away with the applicant,
opposite party no. 3, Nepal Singh, father of
the victim girl, shed crocodile tears in the
name of 'concern' and 'affection', asserted
his right over the victim. As per prevailing
practices now-a-days, father succeeded in
lodging a report U/s 154 Cr.P.C. on
28.01.2019 at Police Station Bahadurgarh,
Hapur against the applicant Satish Kumar
and his named accomplice; namely; Arjun
projecting the age of his daughter as minor
(16 years), that she went to attend the
classes of sewing on 25.01.2019 around
536 INDIAN LAW REPORTS ALLAHABAD SERIES
1.00 in afternoon and since then, she did
not return home. In the F.I.R. it is alleged
by the informant that Satish Kumar and
Arjun have enticed away his minor
daughter
on
a
motorcycle
and
her
whereabouts are not known to him since
then. Contended by the learned counsel that
this is a tailored story, that too, after elapse
of three days of the alleged incident,
relying upon the figment of imagination of
the complainant, which do not even contain
a grain of truth in it. Eventually, the
aforesaid F.I.R. was got registered as Case
Crime No. 0016/2019 U/s 363 I.P.C. at
Police Station Bahadurgarh, District Hapur.

10. Pursuant to the F.I.R., the
investigation started rolling and police
nabbed the victim as well as the applicant
Satish Kumar after considerable period, say
about 5-6 months after the alleged incident.
The girl (victim) Ms. Sonam was produced
before Civil Judge (Junior Division), Hapur
for recording her statement U/s 164 Cr.P.C.
on 28.06.2019 (after almost 5 months from
the date of alleged F.I.R.), wherein she
completely blasted and negated every word
of the F.I.R. and so-called "concern" and
"sentiments" of her father Nepal Singh qua
her, by mentioning that she in her 164
Cr.P.C. statement categorically stated that
she is aged about 20 years, had prior
acquaintance with Satish Kumar for the last
2 years, later on they developed deep
affinity and tender feeling towards him.
Sensing that her father wants to marry her
with some other person against her wish,
she on her own, joined the company of the
applicant, Satish Kumar, both of them
decided to flee to Delhi. She further stated
in her 164 Cr.P.C. statement that she joined
the company of the applicant, according to
her own sweet and free will and accord.
Thus, after keeping certain clothes and
belongings with her, she went along with
the applicant to Delhi and started residing
there in a rented accommodation as
husband and wife. On 10th of June, 2019,
they performed their marriage in a Arya
Samaj Temple, Delhi. She further stated
that she wants to live in the company of
applicant Satish Kumar and does not want
to return to her parental home. In support of
his contention, the learned counsel for the
applicant
has
annexed
the
marriage
certificate issued by Arya Samaj Mandir,
Harit Vihar, Delhi dated 10.06.2019. A
marriage registration certificate issued by
S.D.M. Civil Line, Central, Delhi dated
12.06.2019 (Annexure No.4) and her
Aadhaar Card showing her date of birth as
05.01.2001. Thus on the date of marriage
i.e. 10.06.2019, her age was 18(+) and she
has attained the age of majority and thus
contended by counsel that victim was on
the relevant date i.e. 25.01.2019 was Sui
juris, no fetters could be placed upon her or
her choice of person with whom she is
staying as husband and wife nor can any
restriction could be imposed upon her as to
where she should stay or with whom she
should stay. Not only this, the applicant
along with his wife approached before this
Court and filed a Civil Misc. Writ Petition
seeking protection but prior to that father of
the suffering girl i.e., Ms. Sonam, filed a
Habeas Corpus Petition No. 205/2019
before this Court projecting wrong and
state facts.

11. This Court has perused the orders
of
Habeas
Corpus
Petition
dated
30.08.2019, whereby Shri Mahraj Singh,
Investigating Officer was directed to
enquire about as to whether Ms. Sonam has
completed High School Examination or
not. Thereafter, the Court was informed
that in year 2018, she appeared in the High
School Examination and her date of birth in
the High School Certificate has been
2 All. Satish Kumar Vs. State of U.P. & Ors.
537
mentioned
as
01.01.2003.
On
these
premises, the Habeas Corpus Petition was
disposed-off directing the Chief Judicial
Magistrate, Hapur to decide the question of
custody of victim Ms. Sonam strictly in
accordance with law.

12. After having direction from this
Court, the parent of victim moved an
application for taking the custody of their
daughter, Ms. Sonam. The order of Chief
Judicial
Magistrate,
Hapur
dated
18.10.2019 is explicit, self speaking that
though she was under age on the date of
incident but in the opinion of the Chief
Judicial Magistrate concerned since her
parent were highly umbraged qua her and if
the custody of girl is given to them, it is
every likely that any thing untoward may
happen for her. On the other hand Ms.
Sonam too has given an application before
Chief Judicial Magistrate, Hapur and
appeared before him expressing grave
concern and threat from her own parent,
that they may kill her or compel to marry
her with some stranger for money. Taking
into
account
the
entire
gamout
of
circumstances, the learned C.J.M. Hapur
vide order dated 18.10.2019 remitted her to
Nari Niketan, Meerut. From the order it is
also borne out that during investigation Ms.
Sonam/the victim was sent to Nari Niketan,
Meerut on 28.06.2019 and infact since then
she is in Nari Niketan, Meerut. While
passing order, dated 18.10.2019 the learned
C.J.M. Hapur simply ignored her wish and
willingness to handover her to the applicant
to whom she got married. It seems that
while passing order dated 18.10.2019, the
learned counsel for the applicant has drawn
the attention of the court to the ossification
report of the victim Ms. Sonam dated
11.12.2019
conducted
during
the
investigation by C.M.O. Hapur (Annexure
No.10) and on a perusal of x-ray report and
general appearance, the panel of doctors
opined that she is of 19 years.

13.

From
the
above
factual
controversy, two facts are explicitly clear
that (a) she is married to the applicant,
Satish Kumar in a Arya Samaj Temple,
Delhi and got the marriage registered as per
legal requirement. (b). At no stage, prior to
sending her Nari Niketan, Meerut her
consent was taken by the learned Chief
Judicial Magistrate, Hapur while passing
the impugned order dated 18.10.2019,
though in her 164 Cr.P.C. statement, she is
repeatedly urging that she is a married wife
of applicant and wants to go with him.
Thus the Magistrate concern has given a
complete goby to the establish norms,
practice and judicial pronouncement in this
regard.

14. Even if this court computes the
age of the victim Ms. Sonam as of day i.e.
on 31.07.2020, her age comes to 17 years,
7 months, taking her date of birth as
01.01.2003 mentioned in her High School
Certificate on its face value. Though in
Aadhaar Card her date of birth is
mentioned as 01.01.2001 and as per the
opinion of the doctors, her age is 19 years.
She has crossed the magical figure of 18
years.

15. The applicant Satish Kumar
moved an application for release of his wife
Ms. Sonam from Nari Niketan, Meerut,
referring her age as 19 years as per the
medical experts and there is marriage
between the applicant and victim Ms.
Sonam but her date of birth as mentioned in
her High School Certificate is 17(+) years
and thus the learned Trial Judge vide order
dated 03.03.2020 rejected the release
application moved by applicant holding
that she is still short of that magical number
538 INDIAN LAW REPORTS ALLAHABAD SERIES
and trial against the applicant is still in
progress thus the applicant's application
was declined.

Aggrieved
by
the
aforesaid
developments and orders, the accused
Satish Kumar preferred present 482 Cr.P.C.
application invoking the extraordinary
powers of this Court.

16. As mentioned above, pursuant to
the earlier order of this court dated
29.07.2020, the victim Ms. Sonam is before
this Court. The Court has put certain
questions to her, which were replied by Ms.
Sonam; whereby she states that her name is
Sonam, she has willingly married to the
applicant, Satish Kumar in a Arya Samaj
Temple at Delhi and got her marriage
registered. She has attained the age of
majority and wants to go with her
husband/Satish
Kumar.
She
further
apprized the court that she is coming from
Nari Niketan, Meerut where she is residing
from last more than a year in an inhuman
conditions. Her biological existence was
assured but no human dignity. On these
unequivocal and explicit reply, the court
has opportunity to scruitinize the legal
premises and veracity, validity of orders of
C.J.M., Hapur and order dated 03.03.2020
passed by Addl. District and Sessions
Judge (Special Judge POCSO) Hapur dated
03.03.2020, whereby the learned Trial
Judge refused to release the girl in favour
of applicant.

17. So far as custody of the girl is
concern, she is in Nari Niketan, Meerut
since mid of 2019 pursuant to the judicial
orders, ignoring her will, wish and desire
on the ground that on the relevant date, she
was just short of 18 years, is unacceptable.
The learned counsel for the applicant in
support of his contention has cited number
of citations viz (1) Kajal and others Vs.
State of U.P. (Habeas Corpus Petition
No. 3914/18 decided on 22.02.2019) (2)
Raj Kumari Vs. Superintendent, of
Women 1997 (2) AWC 720 (3) Kalyani
Chaudhary Vs. State of U.P. 1978
Cr.L.J. 1003 (4) Smt. Pushpa Devi Vs.
State of U.P. through Principal Secretary
(Misc. Bench No. 265/2019) decided on
30.08.2019, The Hon'ble Apex Court
citation in the case of (i) Shafin Jahan Vs.
Ashokan K.M. (Crl. Appeal No. 366/2018
decided on 8th March, 2018 (ii) Juhi
Devi Vs. State of Bihar, 2005 (13) SCC
376 (iii) Gian Devi Vs. Superintendent,
Nari Niketan, Delhi, 1976(3) SCC 234
and lastly (iv) Suhani Vs. State of U.P.
(Crl. Appeal No. 4532/2018) decided on
26th April, 2018.

18. In Habeas Corpus Writ Petition
No. 33676 of 2015 (Smt. Kanchan Singh
and another Vs. State of U.P. and others)
decided on 14.07.2015 this Court has held
as under: -

"For the aforesaid reasons and in
view of the settled law on the issue that
even a minor cannot be detained in the
Government Protective Home against her
wishes,
the
petitioner
no.1,
who
is
seventeen and half years old as per her
High School Certificate and as per medical
opinion, is aged about nineteen years and
she understands her well being, her
detention in Nari Niketan against her
wishes, is per se undesirable and the order
dated 28.2.2015 passed by the Special
Judge, POCSO Act, Deoria directing her
detention
in
Nari
Niketan
without
specifying the period of detention is not
sustainable".

The tone, texture and tanner of
above observation is the same which relates
2 All. Satish Kumar Vs. State of U.P. & Ors.
539
to
girl's
liberty,
respect
and
acknowledgment of her desire and any
number of criminal prosecution or technical
justification would not going to curt or
deter her from her desire.

19. Let us examine rest of cases one
by one:-

(I) In the case of KAJAL AND
OTHERS VS. STATE OF U.P. (supra),
the father lodged a FIR that his minor
daughter aged about 15 years left his house
and it was suspected that accused might
have enticed her away. Her interest was
protected by this Court that she may
produced for recording her statement and
for medical examination. Though in her
164 Cr.P.C. statement where she has
blasted the prosecution story in the court.
In this case too ignoring the wish and
desire to join the company of her husband,
she was dumped into Nari Niketan.

(II) The Division Bench relying
upon the judgment in the case of
JAYMALA VS. HOME SECRETARY,
GOVERNMENT OF JAMMU AND
KASHMIR [AIR 1982 SC 1296] has held
that:-

It may be further appreciated that
a victim of offence under section 363, 366A, 366 of 376 I.P.C. could not be falling in
the category of an accused and as such no
court could be authorized under any
provisions of law to authorize the detention
of such a lady even into protective custody
if the lady objects to such detention. In
various decisions this Court opined that
generally an order was passed sending the
girl to Nari Niketan being ignorant of the
constitutional provisions. 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 agent. 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.

It may also be appreciated that
the issue whether the victim/detenue who is
a minor, can be sent to Nari Niketan
against her wish, is no longer res in tegra
and has been conclusively settled by a
catena of decisions of this Court. In the
case of Smt. Kalyani Chowdhary Versus
State of U.P. reported in 1978 Cr.L.J. 1003
(D.B.), a Division Bench of this Court has
taken the view that:

"No person can be kept in a
Protective Home unless she is required to
be kept there either in pursuance of
Immoral Traffic in Women and Girls
Protection Act or under some other law
permitting her detention in such a home. In
such cases, the question of minority is
irrelevant as even a minor cannot be
detained against her will or at the will of
her father in a protective home."

"In any event, the question of age
is not very material in the petitions of the
nature of habeas corpus as even a minor
has a right to keep her person and even the
parents cannot compel the detention of the
minor against her will, unless there is some
other reason for it.

20. After going through the above
citation and decisions, the court is of the
considered opinion that when a particular
minor is set at liberty in respect of her
person or whether she shall be governed by
a direction of her parent, the question of the
custody of a minor girl will depend upon
various factors, such as her marriage,
which she has stated that taken place with
Satish Kumar/the applicant and she wants
to go with him. After changing her marital
540 INDIAN LAW REPORTS ALLAHABAD SERIES
status, she has got every right to chose her
future as to whom with she wants to go,
ignoring her wish, she was virtually
detained an dumped into Protection Home/
Nari Niketan since last one year, is against
one's freedom and liberty which is a touch
stone of Article 21 of the Constitution of
India.

21. In the case of SMT. RAJ
KUMARI
VS.
SUPERINTENDENT,
WOMEN PROTECTION, MEERUT &
OTHERS reported in 1997 (2) AWC 720
decided by co-ordinate Bench of this Court
has opined that:-

"In view of the above, it is well
settled view of this Court that even a minor
cannot be detained in Government Protective
Home against her wishes. In the instant
matter, petitioner has desired to go with Sunil
Kumar besides this according to the two
medical reports i.e. of the Chief Medical
Officer and L.L.R.M. College, Meerut, the
petitioner is certainly not less than 17 years
and she understands her well being and also
is capable of considering her future welfare.
As such, we are of the opinion that her
detention in Government Protective Home,
Meerut against her wishes is undesirable and
impugned order dated 23.11.1996 passed by
the Magistrate directing her detention till the
party concerned gets a declaration by the
civil court or the competent court law
regarding her age, is not sustainable and is
liable to be quashed."

22. Thus in view of above, even
assuming that Ms. Sonam was minor at
relevant point of time, she cannot be detained
in Nari Niketan or any protective Home
against her wish and desire.

23. Learned A.G.A. has pointed out
that detention of Ms. Sonam cannot be said
to an illegal detention on the ground that
she has been sent to Nari Niketan pursuant
to the order of C.J.M.

24. This Court is of considered
opinion
that
this
objection
too
is
unsustainable in the eye of law in the light
of ratio of case law lay down in the case of
PUSHPA DEVI VS. STATE OF U.P.
(Supra), that the victim may at best be a
witness. But there is no law, where under
the Magistrate may direct the detention of a
witness simply because he does not like
him to go to any particular place, and as
such the petitioner has been sent to Nari
Niketan pursuant to a judicial order which
per-se appears to be without jurisdiction. A
detention can not be said to be a "legal" just
because it carries the thrust of a judicial
order which is patently tangent to a
established norm in this regard.

25. Yet another contention was raised
by learned A.G.A. before the court , Ms.
Sonam is a minor girl as per the High
School Certificate, thus she cannot be set at
liberty or allow to go with her husband,
merely on the account that she was having
an affairs with applicant and solemnized
marriage with him. As per the High School
Certificate, her age on the date of incident
was minor, but presently she has attained
almost age of majority, though 5 months
are still left. The parent have made an
application before C.J.M. Hapur seeking
custody of their daughter but there is clear
finding of C.J.M. concern dated 18.10.2019
(Annexure No. 9) that either they will kill
her or sell her for money with somebody
else. In this precarious condition, instead of
handing her over to her husband where she
can reside safely and happily and pursue
her future, she was dumped in to Nari
Niketan from last one year. Today more
than one year has been lapsed in Nari
2 All. Satish Kumar Vs. State of U.P. & Ors.
541
Niketan, Meerut and she is consistently
demanding that she may be permitted to
join the company of her husband but just
because, the Special Sessions Trial is
pending against her husband, her release in
the favour of her husband has been
declined by passing the impugned order
dated 03.03.2020 which is under challenge.

26.
Learned
counsel
for
the
applicant has cited the judgment in the
case of SONU PASWAN VS. STATE
OF U.P. 2013 31 LCD 1107(DB), it was
held that child marriage is voidable at the
instance of minor, otherwise the marriage
is not void ipso-facto. In this view also
Magistrate does not have any right to
snatch the custody of Ms. Sonam from
her husband and place her into the
Protective Home.

27. Thus in the above noted
citations if it is considered with the facts
and circumstances of present case, it
would
become
evident
that
Ms.
Sonam/victim is few months short in
attaining the age of majority, she
understands the good and bad for her
future. After the conversation with her,
the court is of the view that she is an
intelligent girl who can express her
opinion about her future, her plans with
her husband and she states that she would
be
physically,
mentally
and
psychologically
at
ease
with
her
husband/the applicant. Her 164 Cr.P.C.
statement before the Magistrate needs no
elaboration. In the said statement she
clearly spelled out that on her own will
and accord, she joined the company of
her
husband/applicant.
She
vividly
narrated the entire story before the
learned Magistrate which clearly reflects
that there is no iota of any threat,
pressure or coercion from the side of
applicant. Even today, she has expressed
her willingness to go with her husband.
The victim could be safely termed as in
consensual
relationship
with
the
applicant.

28. To segregate the couple, on the
ground that she is minor by few months
or other technical reasons, is not only
unreasonable
but
tangent
to
the
established norms.

Under these circumstances, her
detention in the light of above judgments
is too harsh and would lead to grave and
unfathomable
miscarriage
of
justice
without any justifiable or reason just
because that she is "subject" of Sessions
Trial, her husband is facing prosecution
and on the other hand she is detained in a
Protective Home at Meerut under the
perverse judicial order of C.J.M. Hapur
dated 18.10.2019.

29. Last but not the least, the counsel
for the applicant has placed the reliance of
SAHEEN PARVEEN AND ANOTHER
VS. STATE OF U.P. AND OTHERS
decided by Lucknow Bench of this Court
bearing Misc. Bench No. 3519 of 2015
(decided on 23.7.2015) wherein the Court
has observed as under: -

"If a minor, of her own, abandons
the guardianship of her parents and joins a
boy without any role having been played by
the
boy
in
her
abandoning
the
guardianship of her parents and without
her having been subjected to any kind of
pressure, inducement, etc. and without any
offer or promise from the accused, no
offence punishable under Section 363
I.P.C. will be made out when the girl is
aged more than 17 years and is mature
enough to understand what she is doing. Of
542 INDIAN LAW REPORTS ALLAHABAD SERIES
curse, if the accused induces or allures the
girl and that influences the minor in
leaving her guardian's custody and the
keeping and going with the accused, then it
would be difficult for the Court to accept
that minor had voluntarily come to the
accused. In case the victim/prosecutrix
willingly, of her own accord, accompanies
the boy, the law does not cast a duty on the
boy of taking her back to her father's house
or even of telling her not to accompany
him."

30. Thus from the aforesaid judgment
it is clear that no offence U/s 363 I.P.C. is
made out against the applicant, where the
girl though minor by few months who
understands the pros and cons of action and
her future and thereafter her own volition
and accord she joined the company of the
applicant
as
his
married
wife.
The
ingredients of Section 361 I.P.C. are not
satisfied where though the minor girl of
more than 17(+) years age alleged to have
been joined the company of accused on her
own volition and accord, left her guardian's
protection, knowingly (having capacity to
know the full import of what she is doing)
and voluntarily joined the accused person.
Under these circumstances, the accused
person cannot be charged for taking her
away for keeping her under lawful
guardianship.
Because,
the
basic
ingredients of Section 361 I.P.C. i.e.
"enticement" is completely missing.

31. It is the sacrosanct duty upon the
Court to try and guadge the basic
''intelligentsia' of the girl and after
examination. If the Court finds that the
alleged
girl
was
subject
matter
of
allurement, threat or pressure by the
accused/applicant, certainly, no mercy
would be extended to the boy, but in the
instant case, in the statement of victim
recorded U/s 164 Cr.P.C. she has narrated
the entire story as to how she met with the
applicant, since from how many years they
were under the intimate relationship, under
what circumstances she joined the company
of applicant and out of joint decision they
went to Delhi, where they spent about 5-6
months as husband and wife, solemnized
their marriage and got their marriage
registered and now she wants to go with the
applicant, as his married wife, then no case
for prosecution U/s 363, 376 I.P.C. is made
out against the applicant.

32. At this stage, the Court wants to
record its deep anguish and concern the
growing in the rampant practice of lodging
the FIR by father/guardian of the girl by
cooking up a story by kidnapping against
her husband/boyfriend. This is ostensibly to
show
their
so-called
"concern"
and
"welfare" qua their daughter. This is a
misnomer and misconception by initiating a
criminal prosecution. By this, the guardian
would give unbridgeable dent to the future
of their own daughter and ruining her
future. Instead of imparting good education
and inculcating good moral values so that
she may not deviate or divert from correct
path. The father/guardian wants to establish
their concern by lodging the FIR. It would
complex the entire issue. Emotions and
sentiments are not mechanical, it is
inculcated and nurtured, cannot obtain
perforce or exercising the external force or
by the threat of prosecution. This would
create more damage to the inter-se
relationship between the father/guardian
and the girl. It would be pertinent to
mention herein that first and foremost
responsibility and duty of a father is to take
care and guide his child towards the basic
moral of family and customary, if a father
fails to own such a basic responsibility
towards his family, he cannot be said to be
2 All. Cornel Vivek School Vs. State of U.P. & Anr.
543
a dedicated and loving father and on
happening of such a scene, he cannot raise
finger against anyone and curse on destiny.
In Vedas it is truly said as under:

यर्था ह्योकेन चक्रेण न िर्थस्य गलतभथवेत्।

एवं परुषकािेण लवना दैवं न लसद्धलत।।

Meaning

िर्थ कभी एक पलहये पि नहीं चि
सकता है उसी प्रकाि पुरुषार्थथ लवहीन व्यक्तक्त का
भाग्य लसद्ध नहीं होता।

It is further said in sanskrit shlokas
that a person might be learned, wealthy and
mighty but if he is not following his religion,
which is basically to maintain and nurture the
moral of his family high, he is the weakest and
most poor person in the society.

बिवानप्यशक्तोऽसौ धनवानलप लनधथनः।

श्रुतवानलप मूर्खोऽसौ यो धमथलवमुर्खो
िनः।।

Meaning in Hindi

िो व्यक्तक्त कमथठ नहीं है अपना धमथ
नहीं लनभाता वो शक्तक्तशािी होते हुए भी लनबथि है,
धनी होते हुए भी गिीब है औि पढे लिर्खे होते हुये
भी अज्ञानी हैं।

33. Even according to the christian moral
and values in sacred Timothy 5.8 it has been
mentioned:

"....But if anyone does not provide
for his relatives, and especially for members of
his household, he has denied the faith and is
worse than unbeliever.."

34. Retrieving to the current case, after
thorough scrutiny of the material available on
record and respecting and acknowledging the
desire of the girl, Ms. Sonam, this court is of the
firm opinion that the charge sheet dated
19.10.2019 U/s 363, 376 I.P.C. and U/s 3/4
POCSO Act, Police Station Bahadurgarh,
Hapur, leading S.S.T. No. 107/2019 (State Vs.
Satish Kumar) pending in the court of Addl.
Sessions Judge (Special Judge), Hapur is an
exercise in futility and accordingly quashed in
exercise of powers U/s 482 Cr.P.C.

35. The victim, Ms. Sonam is set at
liberty forthwith, she may be permitted to
join the company of her husband Satish
Kumar/applicant. The Superintendent of
Police, Hapur would ensure the safety and
security of the couple. Though there are no
chance that opposite party no.2, Nepal Singh
or his allies would commit some mischief
against the applicant and his wife Ms.
Sonam., however, for the purposes of their
safety, Superintendent of Police, Hapur may
keep close vigil regarding their welfare. The
police personal named above need not to
attend the court in connection with the case in
future. The office is directed to send a copy
of this judgment to Superintendent, Nari
Niketan, Meerut and the learned Trial Judge,
Hapur to apprise them about the order and
suitable follow-up action, pursuant to the
judgment.

36. The present 482 Cr.P.C. application
stands allowed.
----------
(2021)02ILR A543
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2020

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 12062 of 2020

Cornel Vivek School ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Pavan Kishore, Sri Piyush Kishore
Srivastava