# Smt. Poonam v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1041
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-17
- **Case number:** Habeas Corpus No. 156 of 2015
- **Bench:** Ajai Lamba, Ashok Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-poonam-v-state-of-u-p-ors-43343
- **Pages:** 10

## Headnote

Constitution of India, Art.-21-Habeas
Corpus-detention
in
Nari
Niketan-on
pertext in her statement under Section
164 Cr.P.C. Different stand taken-in
occification
test found more than 18
years-petitioner detained in Nari Niketan
ignoring
her
will-held-illegal-none
1042
 INDIAN LAW REPORTS ALLAHABAD SERIES
wanted in any criminal case-detention
order quashed.
Held: Para-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.
Case Law discussed:
(2015) 13 SCC 376; W.P. No. 10180 of 2012
decided on 24.05.2015; 3519 (MB) 2015.

## Text

3 All] Smt. Poonam Vs. State of U.P. & Ors.
1041
We have already noted that the
personal liberty of a person should be
paramount consideration in such cases
and keeping that in view and for
protecting the personal liberty of a
person, the court should lean towards
considering the medical age than to
consider the age which is recorded in
school documents."
13. Relying upon the case of Jaya
Mala vs. Home Secretary, Government of
Jammu and Kashmir [AIR 1982 SC
1297], another Division Bench of this
Court in the case of Smt. Saroj vs. State
of U.P. and Others vide judgment and
order dated 08.05.2012 (Habeas Corpus
Writ Petition No. 19037 of 2011) has
taken a similar view i.e. medical report
has to be believed.
14. Learned Single Judge of this
Court in the case of Asmat Jahan and
Another vs. State of U.P. [2014 (2) All.
Cr. J. 664] has taken a similar view.
Relevant extract of the judgment is being
reproduced hereinbelow:-
"Learned Magistrate has not kept in
mind the situation that he was not
determining the age of a juvenile in
conflict with law but was determining the
age of prosecutrix who admittedly had
eloped with her lover and had married
him."
15. In view of the above, it is apparent
that opinion of the Doctor in respect of age
should
have
been
given
preference.
Moreover
when
girl
was
expressing
apprehension, Magistrate should have been
careful in sending her with father. As stated
above, marriage i.e. nikahnama is not
disputed. Consequently, as wife, she is
ready to live with her husband, husband is
entitled to have her custody.
16. It is settled law that against the
wishes, even minor cannot be sent to Nari
Niketan and husband being natural
guardian is entitled to custody of wife.
17. In view of the discussion made
above, this criminal revision is allowed.
Order dated 23.12.2014 passed by Chief
Judicial Magistrate, Muzaffarnagar is set
aside.
18. Learned Magistrate, Muzaffarnagar
is directed to pass fresh order regarding the
custody of the victim within a week from the
date of production of certified copy of this
order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ASHOK PAL SINGH, J.
Habeas Corpus No. 156 of 2015
Smt. Poonam
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Pawan Kumar Dubey
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-21-Habeas
Corpus-detention
in
Nari
Niketan-on
pertext in her statement under Section
164 Cr.P.C. Different stand taken-in
occification
test found more than 18
years-petitioner detained in Nari Niketan
ignoring
her
will-held-illegal-none
1042
 INDIAN LAW REPORTS ALLAHABAD SERIES
wanted in any criminal case-detention
order quashed.
Held: Para-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.
Case Law discussed:
(2015) 13 SCC 376; W.P. No. 10180 of 2012
decided on 24.05.2015; 3519 (MB) 2015.
(Delivered by Hon'ble Ajai Lamba, J.)
1- This petition seeks issuance of a
writ in the nature of CERTIORARI
quashing order dated 7.1.2015 passed by
Additional Chief Judicial Magistrate IIIrd,
bearing Case Crime No.-510 of 2014
under Sections 363/366 of the Indian
Penal Code, Police Station Kasimpur,
district Hardoi.
2- This petition also seeks issuance
of a writin the nature of Habeas Corpus
directing
respondent
no.-4
(Superintendent, Nari Niketan, Parag
Narain Road, Lucknow) to release the
petitioner.
3- Mother of the petitioner (respondent
no.-3) has been served twice, however, has
not put in appearance, either in person or
through her Counsel.
4- The facts of the case, as they emerge
from the available record, are required to be
noticed. Allegedly, the petitioner got married
to Bauwa alias Suneel Kumar Singh son of
Kallu of her own free will and accord. The
marriage, however, has not been accepted by
respondent no.-3 (mother of the petitioner).
Criminal proceedings have been initiated,
bearing Case Crime No.-510 of 2014 under
Sections 363/366 of the Indian Penal Code,
Police Station Kasimpur, District Hardoi
(Annexure No.-2).
5- It appears that the petitioner and
her husband had earlier approached this
Court
for
quashing
of
the
First
Information Report (Supra) by way of
filing Writ Petition No.-10460 of 2014.
The petition was disposed of vide order
dated 17th October 2014.
6- A perusal of order dated 17th
October 2014 indicates that the petitioner
claimed that she has attained age of
majority, and of her free will entered into
matrimonial alliance with Suneel Kumar
Singh. No offence under Section 363/366
of the Indian Penal Code, accordingly is
made out.
7- The State Counsel opposed the
contention of the petitioner on the ground
that as per the F.I.R. the girl was a minor.
8- The Court directed that statement
of the girl be recorded under Section 164
Cr.P.C. Magistrate was directed to satisfy
himself as to whether the girl has attained
age of majority or not. It has been further
observed that in case the girl is found to
be major and does not support the F.I.R.
version, the petitioner be not arrested till
filing of report by the police under
Section 173 (2) Cr.P.C. In case the girl
appears to be a minor, it shall be open to
police to arrest the accused. It was
directed that custody of the alleged
kidnapped girl shall be decided by the
Magistrate concerned , in accordance with
law.
3 All] Smt. Poonam Vs. State of U.P. & Ors.
1043
9- Evidently, in deference to order of
the Court referred to above, the petitioner
was produced before the Magistrate
concerned. The Magistrate, vide order
dated 7.1.2015 (Annexure No.-1) issued a
direction to confine the petitioner in Nari
Niketan, Parag Narain Road, Lucknow
(respondent no.-4).
10- Perusal of the order passed by the
Magistrate dated 7.1.2015 (Annexure No.-1)
indicates that at one place, the petitioner has
said that she had passed IVth class , at another
place, she has said that she had passed Vth
Class. Date of birth of the petitioner, as given
at various stages, is also different viz.
12.12.1997, 6.6.1999 and 6.6.2000.
11- It appears that in the course of
investigation, the petitioner was also
subjected to ossification test, in which her
age has been determined as 18 years.
12The plea of mother of the
petitioner, before the Magistrate, as is
recorded in Annexure No.-1 is that the
petitioner is 13-14 years of age.
13- The Magistrate, for considering
the age of the petitioner has relied on the
date of birth of the petitioner recorded in
High
School
certificate,
which
is
6.6.2000. It has been concluded that the
petitioner was a minor on the date of
incident i.e. 30.11.2013. No legally
tenable reason has been given to disregard
the date of birth recorded in other school
certificate or the ossification test report.
14- In the course of investigation,
statement of the petitioner has been
recorded under Section 164 Cr.P.C. which
has been placed on record as Annexure
No.-7. The petitioner gave her statement
to the effect that she has studied up to
IVth class. On 12.8.2014 in the afternoon,
she went of her free will with Bauwa alias
Suneel Kumar Singh and she stayed with
him for 3-4 months happily in Lucknow
and got married to Suneel Kumar Singh.
She was not induced to get married and
wants to go with Suneel Kumar. She has
clearly stated that she did not want to go
with her mother. The petitioner claimed
that she is 22 years of age.
15- Considering the discrepancy in
age,
this
Court
had
directed
that
medical/ossification test of the petitioner
be conducted by the Doctors of King
Georges Medical University, Lucknow.
Ossification test report has been received,
according to which age of the petitioner is
more than 18 years and less that 19 years.
16- In deference to the direction of
the Court, the petitioner has been
produced before the Court.
17- The petitioner apparently has
attained the age of discretion, as also age
of majority. On questioning by this Court,
the petitioner has reiterated the stand
taken in her statement recorded under
Section 164 Cr.P.C. The petitioner refuses
to go with her mother while saying that
she feels threatened.
18- We are faced with a situation
wherein there are various inputs in regard
to the age of the petitioner, as noticed
above. Somewhat similar facts came up
for consideration before the Hon'ble
Supreme Court of India in (2015) 13 SCC
376, Juhi Devi Versus State of Bihar and
Others. In the judgment , the following
has been held in paragraph nos.-2 and 3 :-
"2.The petitioner herein is alleged to
have married another person of her age and
1044
 INDIAN LAW REPORTS ALLAHABAD SERIES
the 5th respondent herein, the father of the
petitioner, objected to the said marriage. It
seems that the petitioner had eloped with
that person and the father of the petitioner5th respondent, has filed a complaint and
the petitioner was produced before the
C.J.M.,Patna. The petitioner claims that she
was major and voluntarily left with her
husband. The father of petitioner alleged
that the petitioner was a minor and the
question of age was referred to a Medical
Board. The Medical Board opined that as on
17.05.2003, the petitioner must have been
aged between 16 and 17 years. However,the
father of the petitioner produced two
certificates before the Revisional Court and
contended that her date of birth is
12.10.1985 and she has not attained
majority. However, the medical report
shows that she must have been aged more
than 16 years,even on 17.05.2003. Having
regard to these facts,we are of the view that
she must have attained majority and her stay
at the remand home would not be in the
interest of justice and we think that her
continued stay at the remand home would
be detrimental and she would be in a better
environment by living with the person
whom she had allegedly married.
3. In the circumstances, we direct
that the Respondent 3 Superintendent,
Rajkiya Nari Uttar Raksha Sansthan,
Gaighat, Patna to release the petitioner
from the remand home forthwith. The
petitioner would be at liberty to produce a
copy of this order before the third
respondent for appropriate action."
[Emphasised by us]
19- A Division Bench of this Court
has
also
considered
facts
and
circumstances, that are similar to the case
under consideration, in Smt. Reena
Versus State of U.P. and Others (Habeas
Corpus Writ Petition No.-10180 of 2012)
decided on 24.5.2012. The following has
been held in relevant portion of the
judgment:-
"It appears that the lady, petitioner was
apprehended by the police and was produced
before the Sub Division Magistrate, Sadar,
Maharajganj. The father of the lady was also
present in the court. He filed a petition seeking
custody of his daughter. The statement of the
petitioner was recorded and that of her father
was also recorded by the Sub Divisional
Magistrate, Sadar, Maharajganj. In her
statement the petitioner, Smt. Reena stated
that she was major and she had eloped with
accused Rabdullah and had gone into his
house to reside there. The father of the
petitioner, Hari Lal, in his statement also
stated that his daughter had eloped with
Rabdullah on 3-3-2011 and refused to take the
petitioner with him. The learned Sub
Divisional Magistrate found that the date of
birth of the petitioner, Smt. Reena, as recorded
in the certificate was 3-4-1998. As such, she
was only 13 years of age when her father was
not ready to take her back who was desirous
that her custody be authorised to the Nari
Niketan Jaitpura, District - Varanasi.
We find from facts of the case that it
was a pure and simple case of elopement of
petitioner, Smt. Reena with Rabdullah and
the petitioner, thereafter went straight away
to his house from where she appears
recovered. There was some dispute in respect
of the age of the girl but we find from
argument appearing at page 20 of the present
petition that the Chief Medical Officer,
Maharajganj had assessed her 18 years of
age. Thus, the lady was undisputedly above
18 years of age, if we add three years to the
medically assessed age. In our considered
view in case of being a conflict between the
age recorded in any school document and
that assessed by the doctor then only for the
present purposes, the court should lean
3 All] Smt. Poonam Vs. State of U.P. & Ors.
1045
towards acting upon the opinion of the
doctor furnished after carrying out scientific
tests to assess the age of a victim. This is
necessary as liberty of a person has to be
protected. No person could be deprived of
his liberty unless reasonable procedure has
been adopted. Medical opinion on age may
not be exact, but it is generally acceptance
and it is based on scientific method of
assessing the age. As such, inspite of there
being some sort of margin in assessing the
age and actual age, there could be chances
that the assessed age is almost exact.
We have already noted that the personal
liberty of a person should be paramount
consideration in such cases and keeping that
in view and for protecting the personal liberty
of a person, the court should lean towards
considering the medical age than to consider
the age which is recorded in school
documents. Besides, there is no dispute in the
fact that the petitioner, Smt. Reena had eloped
with Rabdullah on 3-3-2011 and had wet into
his house and was living there. We very often
refer to S. Varadarajan vs. State of Madras
reported in AIR 1965 SC 942 to point out the
distinction between an act of elopement and
act of taking or enticing away a woman below
18 years of age from her lawful guardianship.
Under the present set of facts, there could not
be any doubt that it is a simple and pure case
of elopement and as such no offence or
offences could be said to be constituted under
the admitted facts.
It is true that the lady was not ready to
go with her father and her father for some
unknown reasons, was not ready to take her
back, but for that reason the lady ought not
have been confined in the Nari Niketan as
was directed by the learned Sub Divisional
Magistrate Sadar, Maharajganj. There is no
age, as regards the personal liberty of a
person. Anyone who is born as a human
being and who is found living in India even
if he is not an Indian, has a right to enjoy his
or her liberties by virtue of the constitutional
guarantees. Any order which curtails or
encroaches upon the liberties of such a
person and has always to be held falling
short of the constitution requirements and
safeguards and, as such, we have to struck
down the same in exercise of the powers
Under Article 226 of the Constitution of
India.
In the result, we quash the order dated
6-6-2011 passed by the Sub Divisional
Magistrate, Sadar, Maharajganj and direct
that
the
petitioner
Smt.
Reena
be
immediately released from custody of
respondent no. 4, so that she enjoys her
liberties and goes to what ever place she
likes."
[Emphasised by us]
20Related issue is as to whether
husband of the petitioner namely Bauwa
alias Suneel Kumar Singh has committed
offence in context of the victim (petitioner)
or not. Circumstances similar to the case in
hand have been considered by this Court
(this Bench) while dealing with Writ Petition
no.- 3519(MB) of 2015 Shaheen Parveen
and Another Versus State of U.P. through
Principal Secretary, Home Department, and
Others. The following has been held in
paragraph nos.-18 to 30 :-
"18. Petitioner No.1 the victim/prosecutrix
would be the best witness, rather the only
witness of commission of offence under
Sections 363/366 I.P.C. Surely, the victim will
not support the prosecution case, as has been
made evident by her in her statement,
recorded in the course of investigation under
Section 164 Cr.P.C., and therefore the trial
would result in acquittal. During course of
trial, considerable number of man hours
would be wasted in prosecution/ defending
and judging the case. No useful purpose
would be served and the entire exercise of trial
1046
 INDIAN LAW REPORTS ALLAHABAD SERIES
would be in futility because the victim has
declared that she was not victimised or
kidnapped.
19. The facts that have emerged
from the record make it evident that the
impugned criminal proceedings have been
initiated
because
mother
of
the
Prosecutrix/victim ( respondent no.-4) has
not accepted the marriage of her daughter
with petitioner No.2.
20. In case, despite the evidence that
has come on record, as noted above,
proceedings are not quashed, petitioner
no.-2 would be required to face criminal
charges and undergo the agony of a trial.
21. We have also taken into account
the fact that in case the petitioner No.2 is
allowed to be prosecuted, the matrimonial
life of petitioner No.1/the alleged victim
would be disrupted. Her husband would
be incarcerated and there would be no one
to take care of her child, who is yet-to-beborn.
22. 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 course, 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.
23. A girl who has attained the age of
discretion and was on the verge of
attaining majority and is capable of
knowing what was good and what was
bad for her, cannot be said to be a victim
of inducement, particularly when the case
of the victim/girl herself is that it was on
her initiative and on account of her
voluntary act that she had gone with the
boy and got married to him. In such
circumstances, desire of the girl/victim is
required to be seen. Ingredients of Section
361 I.P.C. are required to be considered
accordingly, and not in mechanical or
technical interpretation.
24. Ingredients of Section 361 I.P.C.
cannot be said to be satisfied in a case
where the minor having attained age of
discretion, alleged to have been taken by
the accused person, left her guardian's
protection knowingly (having capacity to
know the full import of what she was
doing) and voluntarily joins the accused
person. In such a case, it cannot be said
that the victim had been taken away from
the keeping of her lawful guardian.
25. So as to show an act of
criminality on the part of the accused,
some kind of inducement held out by the
accused person or an active participation
by him in the formation of the intention of
the minor to leave the house of the
guardian, is required to be shown.
Conclusion might be different in case
evidence is collected by the investigating
agency
to
establish
that
though
immediately prior to the minor leaving the
guardian's protection, no active part was
played by the accused, he had at some
earlier stage solicited or persuaded the
minor to do so. ( The Court in above
regards takes a cue from the judgment
rendered by Hon'ble Supreme Court of
3 All] Smt. Poonam Vs. State of U.P. & Ors.
1047
India reported in (1965)1 SCR 243 S.
Varadarajan versus State of Madras).
26. When the above noted situation
is considered in context of the facts and
circumstances of the present case, it
would become evident that the victim
(petitioner No.1) was a few months short
of attaining age of 18 years. The said
petitioner had attained age of discretion,
however, not age of majority. Petitioner
No.1, the victim in her statement recorded
under Section 164 CrPC has clearly
demonstrated that it was she who went of
her free will and accord on 10.2.2014
with
Mohd.
Sarfaraj,
without
any
coercion, and stayed with him, and got
married to him willingly. It is a
consensual act on the part of petitioner
No.1 all through. Such clear stand of the
victim makes it evident that Mohd.
Sarfaraj respondent No.2 cannot be
attributed with coercing petitioner No.1,
inducing petitioner No.1 or kidnapping or
abducting her in commission of offence,
as alleged. Surely, a girl who has attained
an age more than 17 years and who is
already carrying pregnancy cannot be
stated to have not attained age of
discretion. In such circumstances, a
technicality in law would not be attracted.
The Court has not been shown any
material which would indicate coercion,
inducement or forceful act on the part of
Sarfaraj (petitioner No.2) so as to
conclude that offence has been committed
by him.
27. The writ Court considering
totality of fact and circumstances, cannot
ignore or disregard the welfare of the
petitioners, particularly when the exercise
of trial is going to be in futility, as
observed hereinabove.
28. In view of the facts and
circumstances of the case noted above,
the Court is convinced that the impugned
proceedings have been initiated in abuse
of process of the Court and process of the
law. A personal grudge against marriage
of choice of the daughter is being settled
by virtue of initiating impugned criminal
proceedings,
which
would
not
be
permissible in law. Such prosecution
would abrogate constitutional right vested
in the petitioners to get married as per
their discretion, particularly when there is
no evidence to indicate that the marriage
is void.
29. The stand of the Prosecuting
Agency that the victim was a few months
below age of majority when she joined
the company of the accused/petitioner
No.2, and therefore offence has been
committed, cannot be accepted if ground
reality is taken into account. It has come
on record that the prosecutrix is an
expecting mother and is carrying a
pregnancy of 31 weeks. Coupled with this
fact is the statement of the prosecutrix
wherein she has said that she was neither
kidnapped nor abducted, rather has been
living with petitioner No.2 as his wife. It
is the prosecutrix who went in the
company of the accused, willingly,
knowingly, and rather than the accused
taking the prosecutrix out of the custody
of the lawful guardian; the victim herself
had eloped with petitioner No.2. In the
considered
opinion
of
the
Court,
substantial justice cannot be sacrificed at
the altar of technicality, as is being
concluded by the Investigating Agency.
30. In view of above, petitioner No.2
cannot be said to have committed offence
either under Section 363 I.P.C. read with
Section 361 I.P.C. or under Section 366
I.P.C."
[Emphasised by us]
21We are coming across a large
number of cases in which parent/ parents of a
1048
 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
3 All] Smt. Poonam Vs. State of U.P. & Ors.
1049
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 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.
30- On questioning the petitioner,
we find that the petitioner is capable of
taking decision in regard to her future.
31- Allegation against Suneel Kumar
Singh is that the petitioner had been induced,
kidnapped or abducted. From the statement
of the alleged victim recorded under Section
164 Cr.P.C., it becomes evident that the
petitioner was neither induced nor abducted
or kidnapped.
32- The entire sequence of events,
from initiation of criminal proceedings by
the parent of the petitioner, to confining the
petitioner in a protection home by the
Magistrate, has resulted in subverting the
right of the petitioner to choose a life partner
of her choice. The order passed by the
Magistrate
directing
detention
of
the
petitioner in a protection home is a clear
violation of right to liberty of the petitioner.
The impugned order Annexure No.-1, passed
by the Magistrate, under the circumstances is
illegal,
and
dehors
the
relevant
considerations.
33- We have taken note of the fact that
the petitioner has been housed in Nari
Niketan, Parag Narain Road, Lucknow since
more than eight months. Surely, the
conditions in Nari Niketan, are not conducive
and healthy for housing young girls. Under
the circumstances, a Court or authority
should detain a person in Nari Niketan, only
as a last option. In this case, the deponent
(husband of the petitioner) is seeking custody
of the petitioner. The choice of the petitioner
is also to live with the deponent.
34- We have also taken note of the
fact that the petitioner is a Hindu and even
if it is concluded that at the point in time
when the petitioner was married, she was
a minor, the marriage would not be void
under Hindu Marriage Act, 1955.
35- When the facts are cumulatively
considered, we find that liberty of the
petitioner is being curtailed without any
legal cause. Order Annexure No.-1 has been
passed by the Magistrate without giving due
importance to the personal liberty of the
petitioner. The desire of the petitioner has
been ignored without any legally tenable
reason. The age determined
through
Medical/ossification
test
has
been
overlooked for the wrong reasons.
36- Consequently, we allow this
petition. Impugned order dated 7.1.2015
passed by Additional Chief Judicial
Magistrate
IIIrd,
Hardoi,
is
hereby
quashed.
37- A writ in the nature of Habeas
Corpus is issued directing respondent no.-
1050
 INDIAN LAW REPORTS ALLAHABAD SERIES
4 (Superintendent, Nari Niketan, Parag
Narain Road, Lucknow) to release the
petitioner, forthwith.
38- Let copy of the order be
supplied under the signature of Bench
Secretary.
39- Let a copy of the order be sent to
the concerned Magistrate. Senior Registrar of
the Court is directed to ensure compliance.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Criminal Revision No. 168 of 1987
Nathoo
 ...Revisionist
Versus
State of U.P.
...Opp. Party
Counsel for the Revisionist:
Sri M.W. Siddiqui, Sri Neeraj Kumar
Srivastava
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section 397/401-Criminal Revisionagainst conviction u/s 7/16 prevention
of Food Adulteration Act-sole ground non
complinace of provisions Section 10 (7)-
held-when no people come forward to
witness the incident-proceeding would
not vitiate-trail court taken very lenient
view intervene by Revisional courtunwarranted-revision dismissed.
Held: Para-19
In the present case, the prosecution has
clearly proved that an attempt was made
to get independent witness at the time
of taking sample and seizure but since
none came forward, hence, the Food
Inspector proceeded further. Hence the
mere fact that independent witness is
not there, proceedings would not vitiate.
Case Law discussed:
1991 Cri.L.J. 2174; 1974 (4) SCC 491; 1993 All
Criminal Cases 47; 1993 (1) FAC 93; AIR 1992
SC 1121; Criminal Revision No. 976 of 1989;
2009 (7) SCC 254; 2010 (12) SCC 532; 2012
(8) SCC 734; 2013 (3) JT 444; 2013 (9) SCC
516; AIR 1951 SC 196; AIR 1962 SC 1788; AIR
1968 SC 707; AIR 1970 SC 272; AIR 1975 SC
580; 2008 Cr.L.J. 1627 (S.C.); 1986 (2) SCC
585; 2001 (9) SCC 631; 2004 (7) SCC 665.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Neeraj Kumar Srivastava,
learned counsel for revisionist, learned
A.G.A. of State-respondent; and, perused the
record.
2.
The prosecution story, inter alia, is
that on 11.11.1979 at about 10.00 AM the
accused-revisionist, Nathoo, was found selling
milk at Ardali Bazaar, Police Station Cantt.,
District Varanasi. There was 10 KG of milk in
a container with him. Milk was checked by
Chief Food Inspector, Sri J.P. Dhuria, who
purchased 60 ML of Cow milk as sample on
payment of Rs. 75/- after duly serving a notice
in Form-6. Thereafter at the spot the milk was
divided into three parts, kept in three bottles
which were duly sealed. One of the sealed
bottle was sent to Public Analyst for analysis
and remaining two bottles of sample were
kept in reserve in the office of local Health
Officer. According to report of Public
Analyst, sample was found adulterated. After
sending a copy of the said report to the
accused-revisionist and obtaining requisite
sanction
from
Chief
Medical
Officer,
Varanasi for instituting complaint, State filed
complaint Case No. 5410 of 1984 submitting
charge-sheet against the accused revisionist
under Section 7/16 of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to
as
"Act,
1954").