1 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. Date : 14.7.2008 HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.Vineet Jain for Mr.Sandeep Mehta, for petitioner. Mr.VR Mehta, PP. Mr.Pukha Ram, petitioner present in person. Mst. Chidi, corpus, present in person. Mr.Bugh Lal, Dy.SP, Bilara a/w Mr.Mangi Lal, HC 7, PS, Bilara. - - - - - Heard learned counsel for the petitioner, learned public prosecutor and Mst. Chidi, who was interrogated by this Court and who has been brought in the Court on 11.7.2008 by Gopi Kishan, Sub Inspector, from Gujarat specifically Rajkot. It appears from the facts of the case that the Kishore Ram, son of petitioner Pukha Ram, who is father of corpus Mst. Chidi, submitted a complaint under Section 97 Cr.P.C. before the S.D.M., Pipar City, District Jodhpur upon which criminal case no.14/2007 2 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. was registered and a search warrant was issued by order dated 26.5.2007. However, Mst. Chidi was not produced in the said court. Failing in obtaining the custody of said corpus Mst. Chidi in proceedings under Section 97 Cr.P.C., this habeas corpus petition has been filed by the father of corpus which is under consideration. According to the petitioner, father of corpus Mst. Chidi, is of the age of 15 years and the petitioner, at that time in the month of May, 2007, was working at Village Jhhabra, District Jaisalmer and on 8.5.2007, the respondents no.4 and 5 – Dina Ram and Chatura Ram, came to the house where the corpus was there and they told petitioner's son to send petitioner's daughter – corpus Mst. Chidi with them because Mst. Chidi was called by her father at Jaisalmer. Dina Ram is none else than the husband of elder sister of corpus Mst. Chidi. In view of this fact, there was no reason for corpus's brother Kishore Ram to disbelieve and, therefore, he send corpus with Dina Ram. After about 4- 5 days, when the petitioner contacted Kishore and asked about corpus Mst. Chidi, then he was told that Dina Ram took the corpus on 8.5.2007 by saying that she was asked to bring Mst. Chidi to the petitioner at Village Jhhabra. In these facts, the petitioner came to know that the corpus has been removed by Dina Ram and 3 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. thereafter, enquiries were made and this petition under Section 97 Cr.P.C. was submitted in the Court of Executive Magistrate on 21.5.2007. This Court issued notice to the respondents by order dated 25.10.2007. On 11.7.2008, the corpus was brought and the matter was taken and fixed for orders for today i.e. on 14.7.2008. On 11.7.2008, corpus Mst.Chidi stated that she is living with Dina Ram since last three years and presently, she is living at Rajkot and she was brought from by the police Rajkot to Jodhpur. She had one male child with her and she stated that the male baby is of the age of one year and has the name as Manish. Respondent Dina Ram also came with corpus Mst. Chidi and the corpus also submitted that Dina Ram came with her from Rajkot. This Court directed on 11.7.2008 the petitioner to remain present in court today as on 11.7.2008, case was listed in supplementary cause list and the petitioner was not present on that date. The petitioner Pukha Ram, present in person, stated that Dina Ram is his son-in-law married to elder sister of corpus Mst. Chidi. He also stated that elder sister of corpus was left at the house of her father- 4 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. in-law and mother-in-law – father and mother of Dina Ram and Dina Ram took the corpus to Rajkot. On interrogation, the petitioner stated that he has four children. Eldest being son Dharma Ram who is married and has four children, next to him is son Shyam Lal who is also married and next to Shyam Lal is Mst. Genda w/o Dina Ram who has one child. The petitioner stated that Mst. Chidi is of the age of 17 years and also stated that he or his family members did not try to contact corpus or Dina Ram at Rajkot, however, as per the facts pleaded in application under Section 97 Cr.P.C. and as per the affidavit of the petitioner's son Kishore Ram, they came to know that corpus has been detained at Rajkot in lock and key. The petitioner also stated that the corpus can be sexually abused. The petitioner also stated that the access of Dina Ram with corpus was not impossible rather say that was more probable in view of the relation between the parties. It is also submitted that even if the corpus has conceived from Dina Ram, then also, that does not affect the merits of the petition because the girl has been detained illegally and the consent of the minor has no value and the petitioner is guardian and is entitled to the custody of the corpus. 5 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. Corpus Mst. Chidi stated that she is living with Dina Ram since last three years and her child is one year old by now. She also stated that her elder sister was residing in the State of Rajasthan and never lived with Dina Ram and corpus at Rajkot in the State of Gujarat, which is corroborated from the fact that the corpus's elder sister was living in her inlaws house when the corpus was living with the husband of elder sister. The petitioner's contention is that the elder sister of corpus was brought from Dina Ram's parents' house. The above facts may not have been of any relevance provided the parties would not have the relations referred above. They are relevant because of the reason that learned counsel for the petitioner contended that access of Dina Ram to corpus was probable and we also found substance in the submission of learned counsel for the petitioner. In that situation, there is possibility that the corpus's brother might have faith in Dina Ram, therefore, the corpus might have been taken by Dina Ram from residence of the petitioner but so far as relevant timing is concerned, we found that the corpus has one child of one year with her and it is 6 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. alleged that she was taken away by Dina Ram on 8.5.2007 and according to corpus, her son is from Dina Ram. In that situation, the corpus must have child in her womb before she was taken by Dina Ram. Important aspect is that no complaint has been filed by corpus's elder sister - wife of Dina Ram for commission of bigamy inspite of the fact that time of an year has already passed to the incident of taking of corpus with Dina Ram. The corpus is saying that she is of the age of 22 years whereas her father says that she is of the age of 17 years. Looking to the maturity of the girl, we deem it proper to direct the parties to get the adjudication about the age of the girl from the Executive Magistrate i.e. Court of S.D.M., Pipar City where the proceedings under Section 97 Cr.P.C. are pending. In view of the above, we direct that the State authorities shall produce the corpus before S.D.M., Pipar City on 15.7.2008. In case Presiding Officer of the said Court is not available, then before the Link Court. Looking to the fact that the contention of corpus Mst. Chidi is that she is of the age of 22 years and we from her interrogation found that she is of the age of maturity and she wishes to live with Dina Ram, 7 D.B. Habeas Corpus Petition No.6834/2007 Pukha Ram vs. State of Rajasthan & Ors. therefore, we do not want to disturb the position as it exists today. Looking to the maturity of the girl, we set her free in this petition and appropriate order will be passed by the Executive Magistrate after holding enquiry in accordance with law and uninfluenced by any observation made by this Court in this order. In view of the above reasons, this habeas corpus petition is disposed of with directions referred above. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. S.Phophaliya