# Smt. Saroj v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 750
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-10
- **Bench:** Dharnidhar Jha, Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-v-state-of-u-p-and-others-42273
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Habeas
Corpus Petition-petitioner being 17-18
years old girl-as per statement made
under Section 164 before Magistrate as
well as per ossification test-more than
18 years-on her ownfree will living as
husband and wife with her lover Manishcan not be act of "taking away" on
"enticing away" but a case of elopementcan not be termed as an accuseddirection of Magistrate sending Nari
Niketan amounts to attack upon her
freedom-held-order
passed
by
Magistrate-as well as revisional court-
2 All] Smt. Saroj V. State of U.P. and others
751
not sustainable-petition allowed with
exumptory cost of Rs. 50,000/-towards
wrongful confinement.

Held: Para 9

The learned Chief Judicial Magistrate
was simply ignorant of the constitutional
provisions
on
the
procedure
being
reasonable and liberty being the most
valuable fundamental right of a person.
There is no age bar when it comes to
valuing the liberty of a person be she a
woman or be he a gent. Even a child has
a right to avail of his or her liberties, of
course within the caring custody of
parents. No law could be upheld even in
a case of a child if he is deprived of the
right to life and valued the right to
liberty. Might be, that the liberty of a
child may be confined to the laps of his
parents, but that lap is more wider than
the whole world and the horizon of
universe. No judicial authority on planet
earth has such much of jurisdiction and
power if so as to committing any
encroachment upon the liberties of a
person,
if
no
law
permits
or
the
curtailment of his or her liberty.
Case law discussed:
AIR 1982 SC 1297

## Text

750 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
office from his residence can not be
charged additional tariff on commercial
basis. However, in case office is run by
him from an independent and commercial
place, then he can not be exempted from
the commercial tariff. Thus, a distinction
was made between the office of a lawyer
situate in a residential area or in a
residence and the office situate in a
commercial place.

21. The profession of lawyer and
that of a doctor stand on equal footing as
both are professionals and so is the
lawyer's office and that of doctor's
clinic/dispensary or even a pathology lab.
The building in question is recognized by
the respondents themselves partial as
residential in nature, therefore the portion
of the doctor's clinic/dispensary or lab
situate therein would be a part of the
residential premises. The area has also
been notified by the Jhansi Development
Authority as residential in nature. In short,
the clinic/dispensary or laboratory is
being run from a residential area and the
portion would not be covered by
commercial establishment or shop within
the meaning of Sub-section (4) and 16 of
Section 2 of the Adhiniyam and its market
value is not determinable as a commercial
building as provided under Rule 2 (d) of
the Rules.

22. In view of the aforesaid facts
and circumstances, I hold that the
authorities below have erred in treating
the ground floor portion of the building in
question to be commercial in nature for
the reason that at one point of time a
doctor's clinic or a pathology lab was
being run from there. It is a part of a
residential building.

23. Accordingly, a writ of certiorari
is issued quashing the impugned orders
dated 10.3.2011 and 29.5.2010 passed by
the Commissioner, Jhansi Division, Jhansi
and Additional Collector respectively.

24. The writ petition is allowed. No
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Habeas Corpus Writ Petition No. - 19037
of 2011

Smt. Saroj

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.P. Tewari
Sri S.S. Tripathi
Sri S.P. Tiwari

Counsel for the Respondents:
A.G.A.
Sri B. Narain Singh
Sri N.D. Rai
Sri Sudhir Mehrotra

Constitution of India, Article 226-Habeas
Corpus Petition-petitioner being 17-18
years old girl-as per statement made
under Section 164 before Magistrate as
well as per ossification test-more than
18 years-on her ownfree will living as
husband and wife with her lover Manishcan not be act of "taking away" on
"enticing away" but a case of elopementcan not be termed as an accuseddirection of Magistrate sending Nari
Niketan amounts to attack upon her
freedom-held-order
passed
by
Magistrate-as well as revisional court-
2 All] Smt. Saroj V. State of U.P. and others
751
not sustainable-petition allowed with
exumptory cost of Rs. 50,000/-towards
wrongful confinement.

Held: Para 9

The learned Chief Judicial Magistrate
was simply ignorant of the constitutional
provisions
on
the
procedure
being
reasonable and liberty being the most
valuable fundamental right of a person.
There is no age bar when it comes to
valuing the liberty of a person be she a
woman or be he a gent. Even a child has
a right to avail of his or her liberties, of
course within the caring custody of
parents. No law could be upheld even in
a case of a child if he is deprived of the
right to life and valued the right to
liberty. Might be, that the liberty of a
child may be confined to the laps of his
parents, but that lap is more wider than
the whole world and the horizon of
universe. No judicial authority on planet
earth has such much of jurisdiction and
power if so as to committing any
encroachment upon the liberties of a
person,
if
no
law
permits
or
the
curtailment of his or her liberty.
Case law discussed:
AIR 1982 SC 1297

(Delivered by Hon'ble Dharnidhar Jha, J.)

1. Even on repeated calls during
revision of the list, none appears on behalf
of the petitioner.

2. We have heard the learned AGA
Sri Sudhir Mehrotra and Sri B. Narain
Singh learned counsel appearing on
behalf of respondent no. 5.

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

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

5. It appears that the lady was
recovered by the police and she was sent
for medical examination as appears from
Annexure 3 submitted by the Emergency
Medical
Officer,
District
Hospital,
Maharajganj which report appears at
pages 22 and 23 of the present petition.
After carrying out the ossification test, it
was found that the lady was aged about 18
years. The lady further appears produced
before a Judicial Magistrate for recording
her statement under section 164 Cr.P.C.
and a copy of the same has been enclosed
as Annexure 4 which appears at page 24
of the present petition. The lady stated
that she had met accused Manish some 2 -
4 months ago and fell in love with that
boy and further, that date of birth which
was stated in her matriculation certificate
was not correct and she was aged in
between 17-18 years. The lady stated that
her father was residing in Mumbai in
connection with earning livelihood and
her mother and she herself were residing
at their native place. She stated that the
752 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
case which was lodged by her father was
not correct and further that she herself
gave a ring to the accused Manish Kumar,
called him and came out of her school and
thereafter took an auto rickshaw to go to
Farendra and from there to different
place. She stated that during her sojourn
out of her parent's house and the village
she and Manish resided as legally wedded
couple and during that course she had
sexual entercourse with the boy also. She
stated that it might be that accused
Manish was guilty of the offence, but still
she wanted to remain as his wife and
further that if he was in custody then she
also should be at that particular palace
and further that she would not like to go
to Nari Niketan.

6. Thus, what appears from the
statement of Smt. Saroj was that it could
not be said that it was an act of 'taking
away' or 'enticing away', rather it could be
a case of 'elopement' as was indicated by
the Supreme Court in S. Varadarajan vs
State of Madras AIR 1965 SC 942.
Their Lordship had distinguished the case
of taking or enticing away from the mere
act of elopement and in that connection
had pointed out that even if a lady, who
had not attained majority, i.e., age of 18
years herself goes out with a man of her
own volition then it could not be said to
be a case of either 'taking way' or
'enticing away' a minor woman out of the
keeping of her lawful guardianship. Their
Lordships further went on to hold that in
such factual situation, no offence either
under section 363, 366-A or 366 I.P.C.
could be said to be made out. This is one
aspect of the matter.

7. The lady had stated that the age
indicated in her matriculation certificate
was incorrect and that her age was in
between 17-18 years. That statement
appears getting support from the medical
report which appears at pages 22 and 23
of the present petition. The medical report
indicated as if the lady was aged about 18
years. We have regularly been pointing
out that in the light of Jaya Mala v.
Home
Secretary,
Government
of
Jammu and Kashmir AIR 1982 SC
1297 an addition of three years is to be
made to medically assessed age and thus,
we could not have any hesitation in
recording that the lady could be above 18
years of age.

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

9. The learned Chief Judicial
Magistrate was simply ignorant of the
constitutional provisions on the procedure
being reasonable and liberty being the
most valuable fundamental right of a
person. There is no age bar when it comes
to valuing the liberty of a person be she a
woman or be he a gent. Even a child has a
right to avail of his or her liberties, of
2 All] Smt. Saroj V. State of U.P. and others
753
course within the caring custody of
parents. No law could be upheld even in a
case of a child if he is deprived of the
right to life and valued the right to liberty.
Might be, that the liberty of a child may
be confined to the laps of his parents, but
that lap is more wider than the whole
world and the horizon of universe. No
judicial authority on planet earth has such
much of jurisdiction and power if so as to
committing any encroachment upon the
liberties of a person, if no law permits or
the curtailment of his or her liberty.

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

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

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

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

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

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

16. We allow this petition and quash
the order dated 7-2-2011 passed by the
Chief Judicial Magistrate, Maharajganj
and order dated 21-2-2011 passed by the
Sessions Judge, Maharajganj.

17. The facts which were presented
before us legitimately require that some
compensation should be allowed to the
lady for being wrongfully confined and
we direct the State of U.P. to pay a
compensation of Rs.50,000/- to Smt.
Saroj wife of Manish Kumar after due
identification of hers, within two months
of the present order.

18. Let a copy of this order be
handed over to the learned AGA for
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
communication to the authorities and for
implementation of the present order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition No. 24625 of 2009

Raj Kumar

 ...Petitioner
Versus
The Central Administration Tribunal &
Others

 ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar Singh

Counsel for the Respondents:
Sri Govind Saran
Sr Sushil Kumar Srivastava

Constitution of India, Article 226-Right
to appointment-petitioner being selected
as Pro ASM-given four opportunities to
clear Practical Training-but remained
failed-original application rejected on
ground of un-explained delay of 8 yearsPost
of
Pro-ASM
is
a
post
of
responsibility-petitioner
being
wholly
incompetent can not be allowed further
opportunity-where
the
recruitment
process came to an end in the year 1999.

Held: Para 11 and 12

In our considered opinion no further
opportunity is required to be given to the
petitioner for clearing the training of the
post of Pro ASM now after lapse of
almost fourteen years of his passing of
the written examination and interview
particularly when no rule provides for
repeated
opportunities.
The
Original
Application was moved by the petitioner
after about eight years for which there is
no reasonable explanation in law . He
even did not move any application
alongwith the O.A. for condonation of
delay showing sufficient cause for delay.

For all these reasons stated above, there
is no illegality or infirmity in the
impugned order dated 27.3.2009 passed
by the Central Administrative Tribunal
rejecting to him and to appoint him as
Pro ASM. We, therefore, uphold the
impugned orders dated 27.3.2009 of the
Tribunal as well as the order dated
17.8.2007 passed by the authority.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. The petitioner challenges the
impugned order dated 17.8.2007 passed
by the Divisional Railway Manager,
Jhansi and order dated 27.3.2009 passed
by
Central
Administrative
Tribunal,
Allahabad in O.A. No. 314 (D) of 2009,
Raj Kumar Vs. UIO and others. He also
prayed for mandamus commanding the
respondents to permit him to work as
Assistant Station Master (hereinafter
referred as Pro ASM) and pay him his
salary of the post regularly.

3. The brief facts of the case are that
notification
no.
RRB/BPL/5/96
was
published in Newspaper by the Railway
Recruitment
Board,
Bhopal
inviting
applications for appointments on various
posts in the Railway. The petitioner
submitted
his
application
for
consideration of his candidature on the
post of Pro ASM. After clearing written
examination
and
interview
he
was
selected for the post of Pro Asm on
3.12.1997 at Faridabad and was required
to undergo practical training at Bhusawal
before appointment. A Perusal of the
communication
dated
17.8.2005
(Annexure No. 5 to the writ petition)