The Allahabad High Court disposed of a petition observing that even a minor girl cannot be detained against her will or at the will of her father in a protective home.
A single-judge bench of Justice Suresh Kumar Gupta passed this order while hearing an Application under section 482 Cr.P.C filed by Abhay Pratap Mishra @ Ujjwal Mishra.
The petition has been filed for quashing the order dated 22.2.2022 passed by the Additional Session Judge/Special Judge (POCSO Act), District Sultanpur, in case crime under Sections 363, 366, 376 I.P.C and 5/6 of the POCSO Act, Police Station Kurebhar, District Sultanpur.
The facts of the case are that the FIR was lodged by the father of the victim against the applicant Abhay Pratap Mishra with the allegation that his daughter was kidnapped by Mishra and the FIR was lodged on 27.12.2021 under Sections 363, 366, 506 IPC.
After recovery of the girl, the victim’s statement was recorded under Section 161 CrPC in which she said she voluntarily entered into the relationship with the applicant and both of them solemnized marriage in Devkali Mandir. In her statement recorded under Section 164 CrPC she supported the statement made under Section 161 CrPC.
An application was filed on 15.2.022 by the applicant to release the girl in favour of the applicant. The trial court, without knowing the wishes of the victim sent her to Nari Niketan, Ayodhya.
Being aggrieved ,the applicant has filed the petition that the trial court has passed the order without any basis and further submitted that as per medical report the age of the victim is 18 years.
The Court noted,
In support of his submission, the counsel for the applicant relied upon the judgment of the Apex Court passed in the case of Smt Parvati Devi Vs State of U.P reported in 1992 All Cri Cases 32 wherein it has been held that confinement of victim in Nari Niketan against her wishes cannot be authorized either under Section 97 or under Section 171 CrPC and the respondents failed to bring to the notice of the court any legal provision where under the Magistrate has been authorized to issue direction that a minor female shall against her wishes be kept in Nari Niketan.
Identically in the case of Kalyani Chaudhary Vs State of U.P and others reported in 1978 Criminal Law Journal 103, a Division Bench of the Court held that no person can be kept in protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a Home. In such cases the question of minority rights is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home, the Court held.
“On the perusal of the impugned order, it is not clear that the girl was sent to the Nari Niketan on her wishes and it is also not clear that any application was moved by the father of the victim for taking custody. It is, therefore, directed the trial court to call the victim from the Nari Niketan for taking her wishes and pass an appropriate order for her custody in accordance with law keeping the wishes of the victim”
-the Court said while disposing the petition.
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