- (1.) S. S. Kulshrestha, J. Heard the learned counsel for the applicant and the learned A. G. A. and also perused the materials on record.
(2.) THIS petition in the nature of habeas corpus has been brought for Miss. Takabul Jahan through her father for issuing appropriate directions to the respondents 1 to 3 to produce her in this Court and also to pass appropriate directions for setting her at liberty. It has been contended on behalf of the petitioner that at the time of bring of this petition she was about fourteen years of age and was totally dependant on her father. She is illiterate and was kidnapped by the respondent No. 1 Sri Rizwan along with other accomplice on 15-2-2002. Father of the petitioner persuaded the respondent No. 2 to return her daughter but of no avail. Ultimately a report was lodged at the police station for the offence under Sections 363 and 366 IPC against the respondents which was registered at case Crime No. 263 of 2002 at P. S. Asmauli Sanbhal, District Moradabad. The respondents brought the Criminal Misc. Writ Petition No. 1313 of 2002, Smt. Takabul Jahan and others v. State of U. P. and others, for quashing First Information Report dated 19-2-2003. That writ petition was dismissed by this Court on 21-3-2002. Even after the dismissal of that Writ petition the petitioner was not handed over by the respondents to her father. Even the police Moradabad did not take any action. Ultimately she was recovered from the possession of the accused and vide the orders of this Court dated 14-2-2003 she was sent to Nari Niketan, Moradabad. Now the prayer is confined for handing over Miss. Takabul Jahan to her father Sri Bhoore. This petition was resisted by the respondents. It was contended that Smt. Takabul Jahan is major and she was staying with respondent No. 1 at her free-will and also married with him. Further under the Muslim Law the criterion for making ascertainment of majority shall be that of her attaining puberty. Even if the judgment given by this Court in Writ petition No. 1313 of 2002 is considered to be final, she would be held to be about fifteen years of age. On attaining the age of puberty, her free-will would be determined as to where she would like to live. Suffice is to mention that in Criminal Misc. Writ Petition No. 1313 of 2002 she is held to be of fourteen years of age. All the argument with regard to her being major was rejected by this Court. It has also been mentioned that the aforesaid judgment of this Court had become absolute on the dismissal of the special leave petition by the Apex Court. Matter for re-determination of age cannot be opened. Since Miss. Takabul Jahan happens to be minor at the time of disposal of this petition and so her statement/desire would have no significance. Under the circumstances she can be handed over only to her natural guardian (father ).
(3.) FURTHER a report with regard to abduction has already been lodged against respondents at case Crime No. 263/02 at P. S. Asmauli, Sambhal, District Moradabad. Since the investigation of the offence is the function of the police under the superintendence of the State Government and so at the stage of investigation to handover the girl to the respondents would amount to be interference. Reliance may be placed on the case of State of Bihar v. Saldanna (1980) Crl. LJ 98 (Paras 25, 26 ). In view of the aforesaid discussion the petition deserves to be allowed. Superintendent, Nari Niketan, Moradabad is directed to handover Miss. Takabul Jahan to her father Bhoore after proper identification. Petition allowed. .;