Criminal Writ Petition No. 539 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Writ Petition No. 539 of 2009 Date of Decision: 5.5.2009 Manoj Kumar …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Mohit Garg, Advocate for the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) On 30.4.2009, this Court had passed the following order:- “Present petition has been filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of habeas corpus for release of Kavita, wife of the petitioner. Counsel for the petitioner has submitted that on his oral prayer, this Court may treat the present petition to be a petition under Section 482 Cr.P.C. also. Issue notice of motion. On the asking of Court, Mr. S.S. Mor, Sr. Deputy Advocate General, Haryana accepts notice Criminal Writ Petition No. 539 of 2009 2 on behalf of the State. Copy of the petition has been supplied to Mr. S.S.Mor. It is stated that petitioner Manoj Kumar married Kavita. Father of Kavita had lodged case FIR No. 41 dated 07.02.2003 at Police Station Uchana District Jind under Sections 363, 366, 120-B IPC. Manoj Kumar was arrested and was subsequently released on bail. Kavita was produced before the Court of Sub Divisional Judicial Magistrate, Narwana. Order passed by the Sub Divisional Judicial Magistrate, Narwana is annexed as Annexure P-2. Relevant portion of the said order reads as under: “Present: Public Prosecutor for the State. Victim Kavita produced by Borstal Jail, Hisar. Victim produced before me. She has again been asked about her willingness to go with her parents. Mother of victim is also today present in the Court and she has submitted that victim should be directed to go with her. But the victim has categorically refused to go with her mother and she has made a statement to the Criminal Writ Petition No. 539 of 2009 3 effect that she does not want to go with her parents because she apprehends danger to her life from them. Heard. As per version of the prosecution victim is minor whereas as per claim of victim she is major. Victim has in clear terms expressed apprehension to her life at the hands of her parents. She has earlier also expressed such apprehensions so she was ordered to be kept at Nari Niketan and since there was shortage of space so victim is being to be kept at Borstal Jail, Hisar. In the entirety of facts and circumstances of the matter, it is directed that the victim be further kept at Borstal Jail and be produced before Court on 30.4.2009.” This case in the morning was adjourned to be taken up after lunch, in order to enable the counsel to seek instructions as to what orders have been passed by the Sub Divisional Judicial Magistrate, Narwana, today. Counsel at bar has stated that today also, Kavita has been sent to Borstal jail, Hisar till 20th May, 2009. A perusal of the order reveals that Kavita has expressed before the Court that she had Criminal Writ Petition No. 539 of 2009 4 married petitioner at her own accord and according to her own free will. The question which the Court had to determine was whether Kavita was a major or minor. On the pretext of providing security, Kavita was not to be sent to jail. Jail is not a protection home. Therefore, orders passed by Sub Divisional Judicial Magistrate, Narwana, whereby Kavita was sent to Borstal jail, Hisar, are hereby stayed. Superintendent, Borstal Jail, Hisar is directed to set Kavita free at-once. Since security of Kavita is primary concern, Superintendent of Police, Jind is directed to provide her adequate security. Kavita, even though stated to be minor, is legally wedded wife of the petitioner. Till her age is determined, she may stay anywhere, according to her own desire, including with the petitioner. Superintendent of Police, Jind shall immediately provide security to Kavita. Case to come up for further hearing on 5th May, 2009. Copy of this order, under the signatures of Court Secretary, be handed over to counsel for the parties. A copy of this order be sent by Mr.S.S. Mor to Superintendent of Police, Jind for compliance, today itself, through FAX”. Criminal Writ Petition No. 539 of 2009 5 Counsel for the State submits that in compliance with the order dated 30.4.2009 detenue has been released from the custody. Counsel for the State, on instructions from Ram Avtar, Assistant Sub Inspector, has stated that detenue Kavita is not wanted in any case as she is not an accused. Taking this into consideration, the order passed by the Sub Divisional Judicial Magistrate, Narwana, whereby Kavita was sent to Borstal Jail at Hisar, is set aside. Therefore, the present petition is disposed off with the direction that Kavita may reside at any place according to her own will as she is legally wedded wife of the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, at this stage, has stated that statement of Kavita has to be recorded by the Investigating Officer Ram Avtar, Assistant Sub Inspector, and ossification test of Kavita is to be conducted. Mr. Mohit Garg, Advocate, appearing for the petitioner states that Kavita will appear before the Investigating Officer, on 11.5.2009 for recording of her statement and conduct of ossification test. Petition is disposed off in above terms. (Kanwaljit Singh Ahluwalia) Judge May 5, 2009 “DK”