# Smt. Shahana @ Shanti v. State of U.P. and others

- **Citation:** (2003) 1 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-04
- **Case number:** Habeas Corpus Writ Petition No. 54624 of 2002
- **Bench:** U.S. Tripathi, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shahana-shanti-v-state-of-u-p-and-others-39886
- **Pages:** 5

## Headnote

Constitution
of
India-
Article
226-
Habeas Corpus- even a minor cannot be
detained in Government Protective Home
against
her
wishes-
petitioner
has
desired to go with Sunil Kumar. Besides
this according to the two medical reports
i.e. of the Chief Medical Officer and
LLRM.
Medical
College,
Meerut
the
petitioner is certainly not less than 17
years and she understands her well
being and is also capable of considering
her future welfare. As such 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
http://www.allahabadhighcourt.nic.in
1All] Smt. Shahana @ Shanti V. State of U.P.and others 123
detention till the party concerned gets a
declaration by the civil court or the
competent court of law regarding her
age, is not sustainable and is liable to be
quashed.

Held- Para 10

In the instant case Magistrate had
directed the petitioner to be released
and to go to place of her choice.
However,
a
revision
was
preferred
against the said order and the Revisional
Court directed detention of petitioner in
Nari Niketan Bareilly. Undisputedly, the
petitioner is not accused in any offence.
Assuming that her age is about 17 years
she cannot be detained against her will
as provisions of Sections 97 and 171
Cr.P.C. do not justify detention of the
petitioner. No other provision has been
shown under which the petitioner could
be
detained
against
her
wishes.
Therefore, we are of the view that
detention of the petitioner in Nari
Niketan Bareilly is illegal and order
directing her detention passed by the
Sessions Judge, Bareilly in Criminal
Revision No. 605 of 2002 being against
law is quashed. The respondent no. 2,
Superintendent, Nari Niketan, Bareilly is
directed to release the petitioner forth
with to go to place of her choice.
Case law referred:
1983(2) ACC, 168
1997 JIC, 473 (All.)
1982 (19) ACC. 32
1995 (1) JIC, 189

## Text

http://www.allahabadhighcourt.nic.in
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
working since then. 12 posts of Assistant
Excise Commissioner fell vacant in
December 2000, which were to be filled
in by promotion from Excise Inspectors.
The petitioner made a representation vide
Annexure 3 to the writ petition requesting
for promotion. He was awarded special
entry for the calendar year 1990-91 and
1991-92.

3. However, he was not considered
for promotion because he was awarded
adverse entries for the years 1994-95 vide
Annexure 4 the petitioner filed a writ
petition, being writ petition no. 15315 of
1996 which is pending in this Court and
the impugned adverse entry has been
stayed vide order dated 1.5.1996.

4. As regards the two adverse entries
for the year 1995-96, dated 10.10.1996
and 24.12.1996, vide Annexures 5 and 6,
one was awarded because he did not
participate in the meeting of 19.7.1996,
and the other because he did not
participate in the meeting of 14.12.1996
along with the register. The petitioner
made representations against these entries
vide
Annexure
3.
The
petitioners'
representations against those entries have
been allowed and those entries have been
quashed, vide orders dated 12.5.2001,
Annexure 7 to the petition.

5. A counter affidavit has been filed
by the respondents and we have perused
the same. It has been admitted in
paragraph 10 of the same that in view of
G.O. dated 4.5.1995 if a representation is
pending against an adverse entry the said
adverse entry will not come in the way of
promotion. It has also been admitted in
paragraph 8 that the entries for 1995-96
have been deleted.

6. Presently there is no material
against the petitioner since the adverse
entry for 1994-95 has been stayed by this
Court. Hence we allow the writ petition
and direct that the petitioner shall be
considered for promotion as Assistant
Excise Commissioner when the next
D.P.C. meets. However, this order will be
subject to the decision in writ petition no.
15315 of 1996.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 4.2.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Habeas Corpus Writ Petition No. 54624 of
2002

Smt. Shahana @ Shanti
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sarvesh

Counsel for the Respondents:
Sri Mohd. Shabbir
A.G.A.

Constitution
of
India-
Article
226-
Habeas Corpus- even a minor cannot be
detained in Government Protective Home
against
her
wishes-
petitioner
has
desired to go with Sunil Kumar. Besides
this according to the two medical reports
i.e. of the Chief Medical Officer and
LLRM.
Medical
College,
Meerut
the
petitioner is certainly not less than 17
years and she understands her well
being and is also capable of considering
her future welfare. As such 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
http://www.allahabadhighcourt.nic.in
1All] Smt. Shahana @ Shanti V. State of U.P.and others 123
detention till the party concerned gets a
declaration by the civil court or the
competent court of law regarding her
age, is not sustainable and is liable to be
quashed.

Held- Para 10

In the instant case Magistrate had
directed the petitioner to be released
and to go to place of her choice.
However,
a
revision
was
preferred
against the said order and the Revisional
Court directed detention of petitioner in
Nari Niketan Bareilly. Undisputedly, the
petitioner is not accused in any offence.
Assuming that her age is about 17 years
she cannot be detained against her will
as provisions of Sections 97 and 171
Cr.P.C. do not justify detention of the
petitioner. No other provision has been
shown under which the petitioner could
be
detained
against
her
wishes.
Therefore, we are of the view that
detention of the petitioner in Nari
Niketan Bareilly is illegal and order
directing her detention passed by the
Sessions Judge, Bareilly in Criminal
Revision No. 605 of 2002 being against
law is quashed. The respondent no. 2,
Superintendent, Nari Niketan, Bareilly is
directed to release the petitioner forth
with to go to place of her choice.
Case law referred:
1983(2) ACC, 168
1997 JIC, 473 (All.)
1982 (19) ACC. 32
1995 (1) JIC, 189

(Delivered by Hon'ble U.S. Tripathi, J.)

1. The petitioner has filed this
petition for issue of a writ, order or
direction in the nature of habeas corpus
commanding the respondents to set her at
liberty immediately and a writ. Order or
direction in the nature of mandamus
commanding the respondent no.2 to
produce her before this Court.

2. It is alleged by the petitioner that
she is the wife of Damodar Das with
whom she married in the month of
February, 2002 with her own free will and
she changed her name as Shanti and
started living with her husband. After her
marriage
with
Damodar
Das
she
conceived and is in a family way. The
petitioner went to her parental place in the
month of May, 2002 where she was
beaten
and
threatened
with
dire
consequences for marrying a Hindu boy.
She was asked to severe all her relations
with Damodar Das. When she refused to
do so, she was assaulted and threatened
that her husband would be sent to jail.
However, the petitioner escaped from her
parental house and reached her in laws
place on 18.8.2002 and after some time
she started living at Pilibhit. Thereafter,
her father, uncle and brother along with
some other relatives came to the house of
petitioner and scolded her saying that she
had lowered down their image and
reputation. They tried to forcibly take her
away, but she was saved by the
neighbours. The petitioner along with her
husband went to the police station to
lodge report of the occurrence, but her
report was not written by the police. She
was very much disappointed and shocked.
Then she filed a complaint against the
accused persons, which was registered as
Case No. 1543 of 2000 under Sections
323, 304, 504 and 452 IPC and got her
statement recorded under Section 200
Cr.P.C. before the Additional Chief
Judicial Magistrate IInd, Pilibhit. The
father of the petitioner lodged a FIR
against her husband under Sections 363,
366 and 376 IPC. In the said case her
husband
was
released
on
bail
on
1.11.2002. The petitioner was detained by
the police and therefore her father-in-law
made an application before the Additional
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124 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Chief Judicial Magistrate, VII Bareilly in
connection with Case Crime No. 335 of
2002 under Sections 363, 366 and 376
IPC, P.S. Nababganj, district Bareilly and
also made an application for the custody
of the petitioner. The A.C.J.M., VII
Bareilly passed an order on 30.9.2002
summoning
the
petitioner
fixing
30.10.2002. However, on the request of
father-in-law of the petitioner the case
was fixed for 7.10.2002 and thereafter on
8.10.2002. On 8.10.2002 the Magistrate
passed an order directing the police to set
the petitioner at liberty to go to place of
her choice. Father and brother of the
petitioner filed revision against the order
of the Magistrate before Sessions Judge.
The Revisional Court stayed the order of
the Magistrate and the petitioner is
languishing in Nari Niketan where she
had been tortured and beaten.

3. A counter affidavit was filed by
Km. Tahira Begum, Incharge Assistant
Superintendent
Nari
Niketan
district
Bareilly deposing that the petitioner was
admitted in Nari Niketan by the order of
the Court and she had not been tortured or
ill treated.

4. Heard Sri Sarvesh, learned
counsel for the petitioner, Mohd. Shabbir,
learned counsel for respondent no. 3 and
learned A.G.A. for respondents no. 1 and
2 and perused the record.

5. It is not disputed that the
petitioner was produced before A.C.J.M.
Court No. 7, Bareilly in connection with
Case Crime No. 335 of 2002 under
Sections 363, 366 and 376 IPC on
8.10.2002. The learned A.C.J.M. perused
the case diary and medical report.
According to medical report the age of the
petitioner was found as 17 years.
Considering the above age ascertained on
ossification of bone test and giving grace
of two years on both sides and the
statement of the petitioner the learned
Magistrate
directed
to
release
the
petitioner to go to place of her choice,
vide order dated 8.10.2002, Annexure-3.
It is also not disputed that thereafter
namely, respondent no. 3 father of the
petitioner filed Criminal Revision No. 605
of 2002 before the Sessions Judge,
Bareilly.
The
Revisional
Court
on
11.10.2002 passed following order :

"Heard. Admit.

Issue notice fixing 23.10.2002 for
disposal Meanwhile, Smt. Shehana will
remain in Nari Niketan. Transfer to the
Court of Special Judge S.C. & S.T. Act."

6. It is also clear from the counter
affidavit
of
Km.
Tahira
Begum,
respondent no. 2 that the petitioner is
detained in Nari Niketan by the order of
the Revisional Court. It is also not
disputed that the above revision has yet
not been finally decided.

7. The contention of the learned
counsel for the petitioner was that the
petitioner was not an accused in any case
and she is major and had married with
Damodar Das with her own free will and
she cannot be detained in Nari Niketan
under any law. That the petitioner is
above 19 years of age and in medical
report, her age was wrongly assessed as
17 years. He also placed reliance on
Division Bench decisions of this Court in
Tara Chand Seth vs. Superintendent,
District Jail, Rampur and others, 1983 (2)
ACC
168,
Smt.
Raj
Kumari
vs.
Superintendent Women Protection House,
Meerut and others 1997 JIC 473 (All),
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1All] Smt. Shahana @ Shanti V. State of U.P.and others 125
Smt. Parvati Devi vs. State of U.P. and
others, 1982 (19) ACC 32 and Single
Judge decision in Pushpa Devi @
Rajwanti Devi vs. State of U.P. and others
(1995)1 JIC, 189.

8. In the case of Parvati Devi (supra)
the mother of Smt. Parvati Devi lodged a
report under section 366 IPC against
Jokhu alleging that he had enticed away
Smt. Parvati Devi, who was a minor girl.
The police arrested Jokhu and also
recovered Smt. Parvati Devi from his
house and produced Smt. Parvati Devi
before the Judicial Magistrate, Handia and
prayed for appropriate orders for her
custody. The Magistrate took steps to
obtain medical report with regard to age
of Smt. Parvati Devi and directed that in
the meantime she be kept in the Nari
Niketan, Khuldabad, Allahabad. On the
above
fact
it
was
held
that
the
confinement of Smt. Parvati Devi in Nari
Niketan, Khuldabad, Allahabad against
her wished could not be authorised either
under section 97 or under Section 171
Cr.P.C. The respondents failed to bring to
the notice of the Bench any legal
provision where under the Magistrate has
been authorised to issue direction that a
minor female witness shall, against her
wishes, be kept in Nari Niketan.

9. In the case of Smt. Raj Kumari
(supra) the mother of Raj Kumari moved
an application before the City Magistrate,
Bulandshahr for issuing search warrant
and for recovery of Raj Kumari. The City
Magistrate issued search warrant under
section 97 Cr.P.C. The petitioner was
recovered and the City Magistrate ordered
her detention in Government Women
Protective Home, Meerut. Her medical
examination was also got done and
according to medical report the age of the
petitioner was about 19 years. While the
petitioner
was
detained
in
the
Government
Protective
Home,
filed
Habeas Corpus Petition. Considering the
various decisions of the Apex Court and
of this Court Division Bench of this Court
held as below:-

"In view of 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 LLRM
Medical College, Meerut, the petitioner is
certainly not less than 17 years and she
under stands her well being and is also
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
23.11.96
passed
by
the
Magistrate
directing her detention till the party
concerned gets a declaration by the civil
court or the competent court of law
regarding her age, is not sustainable and is
liable to be quashed.

10. In the instant case Magistrate
had directed the petitioner to be released
and to go to place of her choice. However,
a revision was preferred against the said
order and the Revisional Court directed
detention of petitioner in Nari Niketan,
Bareilly. Undisputedly, the petitioner is
not accused in any offence. Assuming that
her age is about 17 years she cannot be
detained against her will as provisions of
Sections 97 and 171 Cr.P.C. do not justify
detention of the petitioner. No other
provision has been shown under which
the petitioner could be detained against
http://www.allahabadhighcourt.nic.in
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
her wishes. Therefore, we are of the view
that detention of the petitioner in Nari
Niketan Bareilly is illegal and order
directing her detention passed by the
Sessions Judge, Bareilly in Criminal
Revision No. 605 of 2002 being against
law is quashed . The respondent no. 2,
Superintendent, Nari Niketan, Bareilly is
directed to release the petitioner forth
with to go to place of her choice.

11. Copy of this order may be made
available to the learned counsel for the
petitioner within 48 hours on payment of
usual charges. Office is also directed to
send copy of this order immediately to
Superintendent, Nari Niketan, Bareilly for
information and compliance.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Revision No. 66 of 2003

Sunil Kumar

 ...Revisionist
Versus
State of U.P. and another ...Opposite
 Parties

Counsel for the Revisionist:
Sri K.M. Misra

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

Code of Criminal Procedure- Section 156
(3)- Magistrate being satisfied with
Prima feci case made out- directed the
S.O. to Register investigate and submit
its
report
u/s
173
Cr.P.C.-
order
challenged on the ground that such
direction amounts to submit charge
sheet
at
any
cost-
held
-
such
apprehension base less- in either case
the Police has to submit its either final
report under section 169 Cr.P.C. or
submit charge sheet under section 173
Cr.P.C.

Held- Para 2

The relevant provision of Section 173
Cr.P.C. shows that as soon as the
investigation is completed, the officer
Incharge of the police station shall
forward
the
same to a Magistrate
empowered to take cognizance of the
offence on a police report. It necessarily
does not mean the submission of the
charge sheet. The charge sheet shall be
submitted only if the case is made out
against the accused. If no case is made
out, the police has to proceed under
section 169 Cr.P.C. and submit a final
report. In both the circumstances, the
police has to submit a report under
section 173 Cr.P.C. It may either be in
the form of charge sheet or in the shape
of final report. Thus this apprehension,
on the part of revisionist, that the order
of the Magistrate directing the police to
submit a report under section 173 Cr.P.C.
would mean the direction to submit a
charge sheet, is without basis.

(Delivered by Hon'ble K.N. Sinha, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A.

2. The brief facts, giving rise to this
revision, are that Respondent no. 2 Smt.
Paiti filed an application under Section
156 (3) Cr.P.C. for registration and
investigation of the case. The Magistrate
after going through the application found
that
the
application,
discloses
a
cognizable offence and he accordingly
directed the concerned police of Police
Station Jaswant Nagar, Etawah to register
the case, investigate and submit a report
under section 173 Cr.P.C. This revision
has been filed against the said order, only