# Smt. Suman & Anr v. The State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-13
- **Case number:** Criminal Revision No. 2637 of 2013
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-suman-anr-v-the-state-of-u-p-ors-42805
- **Pages:** 4

## Headnote

558 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Revision-against order passed by
Magistrate sending Nari Niketan-without
considering her statement about agewithout
radiological
opinion-placed
reliance upon school leaving certificate-in
statement under section 164 Cr.P.C.-stated
living as husband and wife-having strong
possibility of honor killing-even a minor
girl can not be sent Nari Niketan against
her will-held-order illegal-set-a-side with
direction to send her husband's home with
full security-revision allowed.

Held: Para-10
The
aforesaid
statement
of
the
prosecutrix not only shows that both the
revisionists
are
living
together
as
husband
and
wife
after
performing
marriage with their free will and consent
but also shows the apprehension of
prosecutrix that due to prestige issue,
her family members may eliminate her.
Killing a girl for securing honour of
family is very common in India especially
in rural areas.

Case Law discussed:
1997 All LJ 2197; 1982 All LJ 115; 1978 Cri LJ

## Text

2 All] Smt. Suman & Anr. Vs. The State of U.P. & Ors.
557

(a) Discourage malafide amendments
designed to delay the legal proceedings;

(b) Compensate the other party for
the delay and the inconvenience caused;

(c) Compensate the other party for
avoidable expenses on the litigation
which had to be incurred by opposite
party for opposing the amendment; and

d) To send a clear message that the
parties have to be careful while drafting

the original pleadings.

On critically analyzing both the
English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment.

(1) Whether the amendment sought
is imperative for proper and effective
adjudication of the case?

(2) Whether the application for
amendment is bona fide or mala fide?

(3) The amendment should not cause
such prejudice to the other side which
cannot be compensated adequately in
terms of money;

(4) Refusing amendment would in
fact lead to injustice or lead to multiple
litigation;

(5)
Whether
the
proposed
amendment
constitutionally
or
fundamentally changes the nature and
character of the case? and

(6) As a general rule, the court
should decline amendments if a fresh suit
on the amended claims would be barred
by limitation on the date of application.

15. Further, in the present case, the
claim petition was filed on 19.05.2009
and an application for amendment was
moved on 09.07.2011. So, the same
cannot be allowed on the ground of
limitation in view of the provisions as
provided under Section 17 (1) (b) of the
Railway Claims Tribunal Act, 1987
because Hon'ble the Apex Court in the
case of Voltas Limited vs. Rolta India
Limited (2014) 4 SCC 516 held as under
:-

"Paragraph
no.30-In
Revajeetu
Builders
and
Developers
v.
Narayanaswamy and Sons (2009) 10 SCC
84 while laying down some basic
principles for considering the amendment,
the Court has stated that as a general rule
the court should decline amendments if a
fresh suit on the amended claims would
be barred by limitation on the date of
application."

16. Thus, keeping in view the above
said facts as well as finding given by
Railway Claims Tribunal while rejecting
the petitioners application for amendment,
I do not find any illegality or infirmity in
the impugned order under challenge in the
writ petition.

17. In the result, writ petition lacks
merit and is, accordingly, dismissed.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Revision No. 2637 of 2013

Smt. Suman & Anr. Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri S. Kumar, Sri A.P. Tewari

Counsel for the Respondents:
A.G.A.
558 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Revision-against order passed by
Magistrate sending Nari Niketan-without
considering her statement about agewithout
radiological
opinion-placed
reliance upon school leaving certificate-in
statement under section 164 Cr.P.C.-stated
living as husband and wife-having strong
possibility of honor killing-even a minor
girl can not be sent Nari Niketan against
her will-held-order illegal-set-a-side with
direction to send her husband's home with
full security-revision allowed.

Held: Para-10
The
aforesaid
statement
of
the
prosecutrix not only shows that both the
revisionists
are
living
together
as
husband
and
wife
after
performing
marriage with their free will and consent
but also shows the apprehension of
prosecutrix that due to prestige issue,
her family members may eliminate her.
Killing a girl for securing honour of
family is very common in India especially
in rural areas.

Case Law discussed:
1997 All LJ 2197; 1982 All LJ 115; 1978 Cri LJ
1003.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Heard Mr. A.P. Tewari assisted
by Mr. S. Kumar, learned counsel for the
revisionists as well as learned A.G.A. on
behalf of opposite party nos. 1 and 2. No
one is present on behalf of opposite party
no. 3 (informant) despite the fact that she
has been personally served with the notice
as per the report dated 10.12.2013 of the
Chief Judicial Magistrate, Deoria.

2.

Learned
counsel
for
the
revisionists prays that the case be decided
on merits today as it is pending since long
specially in the light of the note appended
on the top of the cause list that "no case
shall be adjourned on the ground that
learned counsel for the informant is not
present". Learned counsel has further
submitted that even after expiry of one
year from personal service of notice the
opposite party no. 3 (informant) has
neither appeared nor engaged any counsel
to argue the case on his behalf.

3. In view of the aforesaid facts, I
am deciding this criminal revision today
on merits, after hearing learned counsel
for the revisionist, learned A.G.A. and
after carefully perusing the records.

4. The instant criminal revision is
being preferred against the order dated
13.8.2013 passed by the Chief Judicial
Magistrate, Court No. 17, Deoria in
Criminal Case No. 310 of 2013 (State Vs.
Udaiveer and others) under Sections 363
and 366 I.P.C., Police Station Khampur,
district Deoria whereby the prosecutrixrevisionist no. 1 was sent to Nari Niketan.

5. The contention of the revisionist
is that inspite of the fact that the
revisionist no. 1/prosecutrix Smt. Suman
was found to be major aged about 18
years in the medical report and as per her
statement recorded under Section 164
Cr.P.C. refuting the allegations made in
the F.I.R., the learned Magistrate has
rejected the application of the revisionist
and directed to send her to Nari Niketan,
Jaitpura, Varanasi against her will.

6.

Learned
counsel
for
the
revisionist has argued that on account of
illegal detention of the revisionist against
her will, her right to liberty is being
infringed and violated. He has further
argued that even a minor person cannot be
ordered to be detained and kept in Nari
Niketan against wishes. There is no
provision in the Code or Criminal
Procedure which authorises the learned
2 All] Smt. Suman & Anr. Vs. The State of U.P. & Ors.
559
Magistrate to keep a woman in Nari Niketan
against her will. Hence it has been prayed
that by learned counsel for the revisionist that
the impugned order which has been passed in
a mechanical manner without application of
judicial mind be set aside. The learned
counsel for the revisionist has placed reliance
on a Division Bench judgement of this Court
reported in 1997 All LJ 2197 ( Raj Kumari
Vs. Superintendent, Women Protection
House) in which, the Division Bench of this
Court relying on two earlier Division Bench
judgments in the matter of Smt. Parvati Devi
(1982 All LJ 115) and Smt. Kalyani
Chowdhary v. State of U.P. reported in 1978
Cri LJ 1003 has held 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 & 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."

7. In the case of Smt. Parvati Devi
(supra) the Division Bench of this Court
has held that :

"...confinement of an accused in Nari
Niketan against her wishes could not be
authorised either under Section 97 or
under Section 171 Cr.P.C. and the
respondents have failed to bring to the
notice of the Court, 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."

8. Per contra learned A.G.A. has
contended that the learned Magistrate has
committed no illegality while holding the
prosecutrix as minor on the basis of her
school
certificates
relying
on
two
judgments of the Supreme Court cited in
the impugned order and sending her to
Nari Niketan.

9.

After
hearing
the
rival
submissions of learned counsel for the
parties and considering the materials on
record I am of the considered view that
this revision deserves to be allowed and
the impugned order dated 13.8.2013 is
liable to be quashed and set aside for the
following reasons :-

1.The learned Magistrate while passing
the impugned order has neither considered
the radiological age of the prosecutrix, which
was found to be of 18 years nor the statement
of prosecutrix recorded under Section 164
Cr.P.C. and has passed the impugned order
by relying blindly on school leaving
certificate of the girl and judgment of
connected criminal trial.

2.The
statement
recorded
under
Section 164 Cr.P.C. of the prosecutrix
which is available on record as annexure-5
clearly shows that the prosecutrix has
categorically stated that she is aged about
20 years and she understands her welfare.
Her mother had came to Nari Niketan with
two other family members to meet her and
to take her home. All of them were talking
that as she (the girl) has brought a bad name
to the family they would kill her after taking
her home. The prosecutrix has further stated
that when they reached at the station, taking
advantage of the crowd, present at railway
platform she ran away. Udai Veer has not
not done anything wrong with her. Udai
Veer is her husband and she intends to live
with him. Her mother has falsely implicated
Udai Veer.
560 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The aforesaid statement of the
prosecutrix not only shows that both the
revisionists are living together as husband
and wife after performing marriage with
their free will and consent but also shows
the apprehension of prosecutrix that due
to prestige issue, her family members may
eliminate her. Killing a girl for securing
honour of family is very common in India
especially in rural areas.

11. In such situation, it was neither
safe nor proper for the Magistrate to send
the girl to Nari Niketan.

3.Even assuming for the sake of
arguments, that the prosecutrix was minor
at that time, she should not have been sent
to Nari Niketan against her wishes in
wake of the clear law as laiddown earlier
by the Division Bench of this Court in the
3 decisions cited above.

12. For the abovesaid reasons, the
revision is allowed. The impugned order
dated 13.8.2013 is set aside. The opposite
party nos. 1 and 2 are directed to release
the prosecutrix forthwith, if not wanted in
any other case, and send her to her
husband's (revisionist no. 1 Udai Veer)
home under proper security.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2014

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Writ Petition No. 6046(S/S) of 2012
connected with W.P. No. 5352 of 2012, W.P.
No. 6109 of 2012, W.P. No. 6169 of 2012,
W.P. No. 5721 of 2012, W.P. No. 7551 of
2012 and W.P. No. 7534 of 2012

Sitaram Singh... Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar Singh

Counsel for the Respondents:
C.S.C., Miss Vina Sinha

Transport Corporation Act, 1950-Section 45readwith U.P.S.R.T.C. Employees Services
Regulation 1981-Regulation-37-Retirement
age-58 years-as per provision of U.P.
Fundamental(Amendment)Rules
2002-by
notification 27.06.2002 govt. employee shall
retire on 60 years-as per direction of courtretirement age shall by abide by decision of
govt.-not govt. decided to enhance the age
of retirement of corporation employee at 60
years-held-in terms of Court's direction
petitioner shall deemed to continue in
service till the age of 60 years-with all
consequential benefits-petition allowed.

Held: Para-28
Taking the facts and circumstances of this
case mentioned above and the law laid
down by the Hon'ble Supreme Court, the
court finds that a case has been made out
by the petitioners. Although the permission
has been given with prospective effect but
the petitioners case was already covered by
the court's order. As per the court's order
passed in W.P. No. 527 of 2012 ( Sitaram
Singh and two others) dated 30.1.2012. The
said order has already been quoted in the
body of the order. Since the retirement of
the petitioner was subject to the decision of
the
State
Government
and
State
Government has taken a positive decision
on extending the age of retirement from 58
to 60 years, hence, the case of the
petitioner should be included in the benefit
given to others vide order dated 24.7.2012.

Case Law discussed:
(1994) 3 SCC 1; W.P. No. 527 of 2012.

(Delivered by Hon'ble Shabihul Hasnain, J.)

1. Heard Sri Raj Kumar Singh, Sri
Rajendra Singh Chauhan learned counsel