- (1.) Heard Sri Dharmendra Mishra and Sri Sanjeev Kumar Gupta-I, learned Counsel for the petitioner, learned A.G.A. for the State of U.P., Sri S.S. Tripathi and Sri Adya Prasad Tiwari appearing on behalf of the respondent No. 3. This Habeas Corpus writ petition has been filed on behalf of Smt. Kamlesh through Puspendra Kumar, petitioner No. 2 with a prayer to: (i) Issue a writ of Habeas Corpus who detained in Nari Niketan Bareilly in pursuance of order dated 7.8.2012 passed by learned Additional Chief Judicial Magistrate, Court No. 2, Badaun in case of State v. Netra Pal Singh under section 364 of I.P.C. (ii) Issue a writ, order or direction in the nature of certiorari to quash the order dated 7.8.2012 contained as (Annexure No. 5) to this writ petition passed by the learned Additional Chief Judicial Magistrate. (iii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present writ petition. (iv) To award the cost of writ petition to the petitioners.
(2.) The facts in brief of this case are that FIR has been lodged by Sri Urman, respondent No. 3 on 29.3.2012 at 1.30 p.m. in respect of the incident allegedly occurred in the night of 11.3.2012 at about 12 O'clock in case crime No. 174 of 2012 under section 364, I.P.C., P.S. Islam Nagar, District Badaun against Netrapal, Surendra, Rambho and Vijyendra. Against the FIR dated 29.3.2012 for quashing the same being Criminal Misc. Writ Petition No. 5842 of 2012 has been filed by Smt. Kamlesh and Pushpendra Kumar, the same has been disposed of 15.5.2012 by another bench of this Court. The petitioner No. 2 Pushpendra Kumar has been directed to deposit the amount of Rs. 25,000/- in a nationalised bank/post office in the form of fixed deposit for a period of not less than three years in the name of petitioner No. 2 Smt. Kamlesh and a direction for producing Smt. Kamlesh before the C.J.M. concerned for recording her statement under section 164, Cr.P.C. and to record statement by the I.O. under section 161, Cr.P.C. was passed. In pursuance of the above mentioned order Smt. Kamlesh was produced before the C.J.M. Badaun, she was medically examined. According to the X-ray report she was found aged about 18 years but according to the X-ray report the epiphysis of wrist joint are not completely fused, near to fusion and the epiphysis of clavicle joint are not fused. The statement of alleged kidnapped girl Kamlesh was recorded under section 164, Cr.P.C. in which she stated that she fled away in the company of Pushpendra from her house with her will and consent about three months back, she performed the marriage with Pushpendra in a temple of Delhi, she was having a friendship with Pushpendra with one year back, She was having illicit relationship with him. After marriage Pushpendra committed sexual intercourse with her consent. She wanted to live with Pushpendra. The application was moved by father of the corpus in the Court of learned A.C.J.M., Court No. 2 Badaun for giving the corpus in his custody mentioning therein that the date of birth of the corpus was 5.5.1998, she passed 5th class examination on 20.5.2010. The corpus filed an affidavit mentioning therein that she was major, aged about 19 years, she had performed marriage, she may be freed according to her will. After considering the same, learned A.C.J.M., Court No. 2 Budaun decided the above mentioned application and corpus was sent to Nari Niketan Bareilly on 7.8.2012. The order dated 7.8.2012 is under challenge in the present writ petition.
(3.) It is submitted by learned Counsel for the petitioner that according to medical examination report, X-ray report and physical appearance, the corpus was found aged about 18 years, she is major, she has formed the marriage with Pushpendra, she remained in her company, she had developed physical relation ship. Her statement has been recorded under section 164, Cr.P.C. in which she stated that she had performed marriage with Pushpendra, she may be sent in his company but the learned Magistrate concerned, without any proper reason on the ground of disputed age, she has been sent to Nari Niketan Bareilly on 7.8.2012. Impugned order dated 7.8.2012 is illegal and the same may be set aside and the corpus may be set at liberty forthwith.;