r "’5 I o v HIGH COURT OF CHHA’I‘TISGARH AT BILASPUR W‘ Pu {Ha'beas Corpus! No.590 of 2009 APPLICANTS: {Petitioners} Smt. Fan'da Khatun and another Versus M NON APPLICANTS: Sub \‘ .RtispoxidentS Divisianal Magistratg, Bilaspur and othms ORDER FOR CONSIDERATION‘ ‘ Sdl— Ji I Dhirendra Mi§hga, 7 -sf V Judge ’ ‘\ HON’BLE MR. JUSTICE KN. CHANDRAKAR r // ¥W 3¢W Sd/— ‘ R.N. Chandrakar‘ Judge M W7 W¥L POST FOR ORDER ON lgMAY. 2009 5d/- . Dhirendra M‘Sh‘a Judge ‘ APPLICANTS: (Petitioners) NON APPLICANTS: Respcndents 1. Smt. Fan'da Khatun, agcd about 34 years, Widow of Late Jabbar Khan Reman'ied: Nasir Khan ' Nasir Khan, aged about 44 years, S/o Late Sher Khan Both R/o Rapta Chowk, Chatidih Naar Sabji Mandi, Bilaspur {CG} Versus 1. Sub Divisional Magistrate, Bilaspur, Tah. «31. Distt. Bilaspur (CG) 2‘ Shli Pramod Shanna, Sub Divisional Oiiicer, Bilaspur (C.G.) Narayan Singh, aged about 42 years, Sfo Late Shri Bilash Singh, Caste: Thakur, R/o Vidya Nagar. Bilaspur, Tah. 3r, Distt. Bilaspur (CG) Shri KS. Kanwar, Town Inspector, Officer Incharge, Police Station Sarkanda, Bilaspur, Tah. 85 Distt. Bilaspur (CG) 5. CORPUS: Ku. Sheenam Khan, D/o Late Jabbar Khan, Step Father; Mr. Nasir Khan, aged about 12 years 3 months, C/o Narayan Singh, aged about 4‘2 years, S/o Late Shri Bilash Singh, Caste: Thakur, R/o Vidya Nagar, Bilaspur, Tah. 8r. Distt. Bilaspur (CG) ,1 f x \ / I ’ Shri Utkarsh Verma, counsel for respondent No.4. Present: Shri V.G. Tamaskar, counsel for petitioner No. 1. Shzi Prafull Bhaxat, counsel for petitioner No.2. Shri U.N.S. Deo, Govt. Advocate for respondent No. 1/ State. Shli Manindra Shrivastava. Sr. Advocate with Shli Anand Verma, Advocate for respondent No.2. Smt. Fouzia Mirza with Shri U.K.S. Chandel, counsel for respondents ’ i No.3 and 5. HIGH COURT OF CHHATTISGARH AT BILASPUR W. P. (Habeas Corpus} No.590 of 2009 / / 96‘” Division Bench: Hon. Shri Dhirendra Mishra & Hon. $hti R.N. Chandrakar, JJ. ORDER Passed on 3—mMay, 2009) The following order of the Coun was passed by Dhirendra Mishra, J. 1. Th6 pambners have filed the instant petition under Article 226 of the Constitution of India for issuance ofwrit of habeas corpus against respondents No.1 to 4 for production of respondent No.5. In rejoinder, petitioner No.1 has also prayed for CBI enqujxy of the offence uncier Cn‘me No. 10/ 09 registered on her complaint. . After §Hng of this petition, petitioner No.2 has sepaxately appeared before this Court through his counsel Shxi Prafuil Bhamt and has disassociated himself from petitioner No.1 and alleged that he has not iiled any such petition nor he has authorized any person to fLle any case before this Court, though he has admitted that petih'oner No. l is his wife. . From pleadings of the respective paities as also from perusal of the documents available on record including charge sheet filed in connection with Crime No.10/09 and case diary of the aforesaid offence, following undisputed facts emergesz~ agi) Petitioner No. 1 is the mother of respondent No.5. Petitioner No. l lodged missing report No.76/08 on 13-11-2008 mentioning therein that her daughter (respondent No.5) aged about 12 years and another daughter aged about 15 years are together missing. On the basis (of above .freport, the matter was investigated and crime No.10/09 was registered on 7th January, 2009 under Sections 363 and 366 of the IPC against one Mukesh Dewangan, on the basis of report of’l‘own Inspector, Sarkanda, Bilaspur. {in Respondent No.5 and other girl were produced by the police before respondent No. 1 on 17-1-2009 , who ordered on the same day to send them to Nari Nik'etan after recording their statements and the case was filed. (iii) Both the girls were again produced from Nari Niketan on 19-1— _\p 2009 before respondent No. 1 with a memo of Nari Niketan. It also \ \\ \\ (iv) appears that petitioner No. 1 moved an applicam'on supported with affldavit on 20th January, 2009 for the custody of her both the daughters. She also requested for medical examination of both the daughters alleging that the accused physically ravished them. Another application was tiled for her custody by Agnelo Menuel and Asgar Khan supported with amdavit of Agnelo Menuel claiming themselves to be maternal uncle and brother 0f ‘ respondent No.5. Respondent No.3 also made an application along with aiiidavit for the custody of the child claiming himself to be father of minor. The Sub Divisional Magistrate arter record ing statements of both the girls handed over the custody of elder girl to her maternal uncle Agnelo Menuel and custody of respondent No.5 to respondent No.3. Charge sheet has been tiled only against Mukesh Dewangan under Sections 363 and 366 of the IPC on 17-3—2009. On the date of oh‘ence i.e. 13-11-2008, as per the mark sheet of other girl (elder) available in the charge sheet, she was also less than 18 years. The mark sheet of class-5th of respondent No.5 has been seized in which her date of birth has been shown as 26—11-96. however, mark sheet has not been annexed along with charge sheet. The medico legal examination reports of both the girls have also not been annexed with charge sheet. 4. Questions for our consideration are as follows:— o Whether respondent No.1 was justified in handing over custody of minor girl to respondent No.3? If not, in the 1%ts‘an’d‘ circumstances of the case, who is entitled for her custody? And In View of the fact that charge sheet has already been Eled by the concerned police station in Crime No.10/09, any direction for further investigation is necessary and if yes, Who should be enmsted with further investigation?. 5. Initially notices issued to respondents No.3 and 5 were returned unserved with an endorsement that address given in the summons is not proper. However, after respondent No.5 appeared on 23—3-2009 X sha was sent to Nari Niketan, .Raipur. Her Wishes were asccrtajnsd in me Chamber on 10m Ayxtil, 2009’ and she dccljné‘d to go with her mother. On the prayer of State counsel, respondent No.5 was sent to Bal Snmpreshan Grih, Rajnandgaon exclusively meant for girls. 0n the request of petitioner No.1, it was fulther directed that she be medically examined before she is sent to Bal Sampreshan Grih, Rajnandgaon. The Court was informed on 20m April, 2009 by the Government Advocate that on 20—4—2009 the treating doctor did not > conduct internal examination of Iespondent No.5, as her parents were not present. On 21-4-2009 also, a report was submitted that local examination (private part) could not be done because respondent No.5 did not give consent for the same. Finally, she was medically examined by a team of 2 gnecologist of CIMS in the presence of her mother, i.e. petitioner No. l and report was submitted only after speciiic direction of this Court to the Superintendent of Poiice, Bilaspur. . During the course of arguments, charge sheet filed by the police against one Mukesh Dewangan in relation to abduction of respondent No.5 and another girl has also been tiled and taken on record. Case diary of Crime No. 10/09 of Police Station Sarkanda was also produced for our perusal. . Shri V.G. Tamaskar, learned counsel for petitioner No.1 submitted that the date of birth of respondent No.5 is 26—11—96. She was less than 12 years on the date of the incident. The oEenoe was registered on the complaint of petitioner No.1. Two minor daughters of petitioner No.1 were abducted from Bilaspur and were kept in New Delhi for almost 2/‘i/non’ths. in They were recovered by the police on 15th of January, 2009. They were produced before respondent No. l, who initially sent them to Nari Niketan, Raipur on 17-1—2009. Their custody was given to Agnelo Menuel and respondent No.3 respectively, not considering the application of petitioner No. 1, who is their mother and natural guardian. Her prayer for medico legal examination of her daughters was also ignored. Both the minor girls were kept in Delhi‘after their abduction for a period of almost 2 months, however, no investigation has been conducted at Delhi from where they were recovered. The whole investigation has been w\ v . r\ /*’\. gm conducted with a motive to shield the offenders. A forged mark sheet has been produced by Iespondent No.3 showing him as late father of respondent No5 and her date of birth as 8-11—94. Petitioner No. 1 is a Muslim. She has hled various docnments to establish that respondent No.5 was admitted in Idaia Baqiyatus Swalehat, Kamptee Road, Nagpur in the year 2007. She has also filed her Nikahnama ' dated 25-2-2007 (Amiexure-Pl8) with Nasir and the group photograph of the family, whereas, respondent No.3 has not med any ‘ documentaiy evidence to establish his paternity or his marriage with petitioner No. 1. . Shri Manindra Shrivasfava, learned senior counsel appearing on behalf of respondent No.2 submitted that respondent No.2 has passed the order in his omcial capacity as per the provisions contained in the Criminal Procedure Code keeping in View the welfare and safety of the minor female child. Respondent No.5 in her statement before the SDM categorically declined to go with her mother. When she was again produced, she expressed her willingness to stay with her father Narayan Singh, respondent No.3. Exercising powers under Section 98 ofthe Cr.P.C. respondent No.2 handed over custody of the abducted minor female child to her father after conducting summary enquiry in order to extend immediate relief to her. . Smt. Fouzia Mirza, learned counsel appearing on behalf of respondent No.3 argued that respondent No.3 is the father of respondent No.5, as is evident from the mark sheet annexed with the return of respondent No.3. The particulars regarding respondent No.5 were furnishé hyi‘p‘etitioner No.1 herself wherein she wrongly described her father as late Narayan Singh. Both of them resided together as husband and Wife for a certain period at Nayapara, Sirgitti, which would be evident from the anidavit of landlord in whose house they resided as tenants. The child has herselfidentihed respondent No.3 as her father and has expressed her preference to stay with her father, Th'ere is nothing on record to suggest that welfare of the child would be, in any way, in peril in the hands of her father and, therefore, no interference is called for in the order passed y respondent No.2. \ \\ Xm 10.Shri Utkarsh Verma, learned counsel appealing on behalf of respondent No.4 aérgued that wxit of habeas corpus for production of a person can be issued only Where such person is in illegal confmement/detention, In the instant case, investigation of the missing xeport was done by one head constable. After registration of the crime, investigation was done by the answering respondent. Medical examination could not be done, as patents did not consent for it. In the additional return, it has been stated that both the abducted girls were found with one Mukesh Dewangan in New Delhi. After the girls were produced during investigation of missing report lodged by petitioner No.1 before the Magistrate, the Magistrate ordered their custody to be given to respondent No.3 and Agnelo Menuel after recording statements of the abducted girls. The girls also claimed that they were their maternal uncle and father respectively. They are residing on their own free will with their near and dear and they are not in illegal detention, which is sine qua mm for issuance of writ of habeas corpus. The police after due investigation has already filed charge sheet against accused Mukesh Dewangan and there are no circumstances existing in the present case warranting further investigation, that too by the Central Bureau of investigation. Petitioner No.1 herself is a lady of dubious character. Respondent No.5 has already declined to go with her mother. in these circumstances, further investigation may be entrusted to some senior police onicer ofthe DSP rank. 1 1.We have heard learned counsel for the parties. We have also perused the material available on record. 12.The police after yégis‘terin‘g missing report on 13-11—2008 registered the offence against Mukesh Dewangan on 7‘11 January, 2009. ’E‘he girls were recovered from Delhi from the house of one Kadri Begum, wife of Aale Nabi and the recovery memo mentions their recovery from the custody of Mukku @ Mukesh Dewangan. From the school certificates of the abducted. girls seized by the police, it is evident that respondent No.5 was less than 12 years on the date of her recovery whereas, the other girl was also less than 18 years. There is no dispute that both of them are daughters of petitioner No. 1. However, they were not given in the custody of petitioner No. 1 only on the basis \ xa ’ of their statements that they do not want to live with their mother, as she m-treats them. .In their initial statements before the Sub Divisional Magistrate, both of them declined to go to their parents, however, on the basis of their subsequent statements, they were handed over to respondent No.3 and Agnelo Menuei. Prayer of learned counsel for petitioner No. 1 to cross—examine minor girls was also refused on the ground of their age. 13. Entrusting the custody of minor girls aged about 12 years and 17 - years, respectively, only on the basis of their statements on oath without any veriiication of their relationship with the persons to whom they are handed over is highly surprising. There was no ‘ occasion for the Magistrate to decide entitlement of legal custody of the minor female child, particularly, when one of rival claimants was indisputably their natural mother. It is also not in dispute that before they were abducted on 13-11—2008, both ofthem were residing with petitioner No. 1 and oifence was also registered only on the basis of complaint of her mother. The persons, who were entrusted with the custody of minors, appeared for the hrst time only on 20th January 2009 when they applied for custody of female child and on the same day their application was allowed by the Magistrate without ah‘ording any opportunity to petitioner No. 1 to oppose their application. We nnd force in the argument of Shri Tamaskar firstly that there was no occasion for the I.O. to produce the abducted girls before the Sub Divisional Magistrate, as a criminal case was already registered against accused Mukesh Dewangan for abducting both the girls and no circumstances existed for exercise of powers under Section 98 of the/Qr.P.C.“by the SDM and secondly, no evidence was produced by respondent No.3 to demonstrate that, he was father of respondent No.5 except the mark sheet, which is on the face of it, a suspicious document and the same was in variance with the mark sheet of class-5th already seized by the police. For the aforesaid reasons, we have no hesitation in holding that the Sub Divisional Magistrate granted custody of respondent No.5 without application of mind and without considering her welfare to respondent No.3 in a most casual, arbitrary and reckless manner and l4. ths order (Annexurs—P/ 5) of th€ Sub Divisional Magistrate cannot be sustained and the same deserves to be quashed. 15. Next question for consideration is as to who is entitled for the custody of the child? As already observed :in the foregoing paragraphs, We have ascertained the Wishes of respondent No.5, who has categorically declined to go to her mother. Taking into consideration over all View of the matter, the matter of custody of respondent No.5 cannot be decided in the present case in a proceeding under Article 226 of the Constitution of India, as the same would require a detailed enquiry only after anording an opportunity to the rival claimants to establish their entitlement by adducing documentary/oral evidence in support of their respective claims. 16. Now, coming to the next question whether any direction for further investigation would be necessary in the present case as prayed by learned counsel for petitioner No. 1. We have perused charge sheet as also case diary of Crime No.10/09 of Police Station Sarkanda. Two minor girls were abducted on 13-11-2008 and were taken to Delhi where they stayed for almost 2 months till 15m January, 2009 when they were recovered from the house of one Kadri Begum, wife of Aale Nabi. However, we nnd that there is virtually no investigation by the police regarding the places and persons with whom the girls were kept. Even owner of the house from Where she was recovered has not been interrogated. They were not subjected to medical examination on the pretext that her father Narayan Singh did not give consent for her medical examination though her mother petitioner No. 1 had submitted a w ' t'en application for medical examination of her daughters before the Sub Divisional Magistrate. Every attempt was made to ensure that respondent No.5 was not medically exarnined, as is evident fmm the proceedings before this Court. Looking to the age of respondent No.5 and also considering subsequent facts revealed in her medical examination and further considering casual manner in which investigation of such a serious crime has been conducted firstly by the Head Constable and thereafter by respondent No.4, we are of the opinion that further investigation of Crime No.10/09 registered in Police Station Sarkanda is imperative. i\ 17.Accoré13‘ngly, the instant petition is disposed of in the fouowing Hirins'. ‘ The order of Sub Divisional Magistrate of Annexure-P/5 whereby he has handed over the custody of respondent No.5 to respondent No.3 is hereby quashed. o The matter of custody of respondent. No.5 shall be decided by the Designated Court under the Guardian and Wards Act at Bilaspur. We direct the parties claiming custody of respondent No.5 to appear before the said Court on 22nd Maya 2009 and take appropriate steps for obtaining custody in accordance with law. On such application being made, the same shall be considered and decided by the concerned Court after an‘ording adequate opportunity to the parties in accordance with law. Keeping in View that the matter relates to entitlement of lawful custody of minor child, who has been placed in protective custody in Bal Sanrpreshan Grih, Rajnandgaon since 10-4—2609, we direct the concerned Court to make every endeavour to decide the matterm‘“ expeditiously, preferably within a period of 6 weeks. o We further direct the Superintendent of Police, District Bilaspur, to entrust further investigation of the matter to some senior police oiEcer, not below the rank of Deputy Superintendent of Police. The Superintendent of Police shall personally monitor investigation and ensure that the same is completed expeditiously. o Till the matter of custody of respondent No.5 is decided by the competent Court, respondent No.5 shall remain in protective \ custody of BalXgampreshan Grih, Rajnandgaon. Wee ‘ Sdl— ' Dhirendra lilislu‘a /i \ Chandraka" JUdge i RN. Judge Barve