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ABDUL HAMEED ALIAS BABHU AND ANOTHER versus STATE OF U.P. THRU' CHIEF SECRY. HOME AND OTHERS

High Court of Judicature at Allahabad

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Abdul Hameed Alias Babhu And Another v. State Of U.P. Thru' Chief Secry. Home And Others - CRIMINAL MISC. WRIT PETITION No. 8172 of 2007 [2007] RD-AH 9729 (22 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 50)

Criminal Misc. Writ Petition   No. 8172  of 2007

***

1.Abdul Hameed alias Babbu.

2.Abdul Raheem .

Both sons of Sohab,

Residents of Village Harraiya, Police Station

Jogiya Udaipur, District Siddharth Nagar. ....   Petitioners.

                         

                          Vs.

1.    State of U.P.

      Through Chief Secretary ( Home) U.P. Lucknow.

2.    Superintendent of Nari Niketan, Varanasi.

3.  Mehandi Hasan son of Hakki,

Resident of Village Sajini, Police Station Kotwali

Jogiya Udaipur, District Siddharth Nagar. ......  Opp. Parties.

****

Hon'ble Barkat Ali Zaidi, J

1.The facts of this petition under Article 226 of the Constitution of India, are that a girl Anjum Parveen daughter of Opp. Party no.  3  Mehandi Hasan  from village  Sajini Police Station Jogiya Udaiyapur District Siddharth Nagar was initially  engaged to the accused-petitoner no.1  Abdul Hameed alias  Babbu, who was residing nearby. The father of the girl decided not to marry  his daughter to petitioner Abdul Hameed and settled her marriage with another person, who was already married and has issues from her earlier marriage.

2.The girl Km. Anjum Parveen, went to the house of  petitioner  Abdul Hameed and thereafter they proceeded to Nepal and got themselves married according to Muslim rites, and where the petitioner Abdul Hameed commenced working as a tailor, and they both continued to reside there as husband and wife.

3.Subsequently, they learnt that the police had arrested the father of Petitioner  Abdul Hameed, which brought the couple  back to their native-cot and then the police did, what it usually, is inclined to do in such cases. They took the girl in their custody, foisted a case against petitoner Abdul Hameed, his parents and two others.

4.The question arose about the age of the girl while deciding her custody, which the Chief Judicial Magistrate, Siddharth Nagar vide order dated 2.3.2007 and subsequently, Sessions Judge, Siddharth Nagar in revision, vide order dated 20.4.2007,  decided, to the effect, that she was a minor.

5.The evidence before the Chief Judicial Magistrate,  about the date of birth of the girl, was entry in the Pariwar Register,  as  given 10.11.1992. As against it, a report ( dated 1.3.2007) of the Chief Medical Officer, Siddharth Nagar, after the examination of the girl, was that she was around 18 years of age . The girl herself in her statement under Section 164 Cr.P.C., dated 1.3.2007, stated that she was 18 years of age.

6.The Chief Judicial Magistrate, relied on the date of birth, given  in the Pariwar Register and held the girl as minor and ordered to send her to Nari Niketan.  

7.The Sessions Judge  relied upon  the entry of her date of birth, mentioned in her school certificate, given as 5.4.1992 and referred one the Supreme Court decision  in  case of Vishnu alias Indriya Vs. State of Maharashtra, J.I.C. 2007 (1) , 647  and  the other  Km. Sabnoor  and others Vs. State of U.P., 2007 (1) J.I.C., 38 of  our own High Court , in coming to the view that the age given in the school certificate should prevail and dismissed the revision.

8.This is what brings  Petitioner  Abdul Hameed  and his brother Abdul Raheem  to this Court in this writ petition, and   their prayer  is that  order of the Chief Judicial Magistrate  and that of Sessions Judge, be  quashed,  and the girl be released from Nari Niketan.

9.I have heard Sri Shahroz  Khan, advocate for the petitioners and Sri R.K. Shukla, Addl. Government Advocate for the State.

10. In the first place, it needs to be mentioned in this case that in the Pariwar Register , her date of birth is given  as 10.11.1992 and in the School register,  it has been given as 5.4.1992, which means that  there is difference  of 7 months between them, and both the  documents do not, therefore, tally.

11.It is not unoften that date of birth at the time of admission in school is generally given on the lower side by the guardians, and this is a phenomenon which is very common, and the Courts should not ignore it. That is why, the medical evidence  must have preponderance.

12.As regards the two cases, referred to above, cited by the Sessions Judge in his judgment about the school certificate, having an upper hand, in the determination of age of the girl,as against the medical evidence, these, findings have to be deemed as being confined  to the facts of the particular case, and they cannot be applied  en-masse, to all cases  in all situations and all circumstances. In that particular case, the Court  came to the conclusion on the facts and circumstances of the case that the school certificate appeared more dependable but that does not mean that whenever, there is a conflict between the medical evidence and the school certificate, the school certificate must always prevail, irrespective of the facts and circumstances of the case.

13. That is not the way, the Supreme Court decisions are to be interpreted.  They are not Acts of parliament  but are observations.

14. In the case of State of Haryana and others Vs. AGM Management Services Ltd. ,  (2006) 5 Supreme Court Cases, 520 , the following observations were made, " The courts should not place reliance on decisions without discussing, as to how, the factual situation fits in with the facts situation of the decision on which reliance  is placed. Observations of the courts are neither to be read as Euclid's Theorems nor as provision of the statute  and that too taken out of their context. The observations must be read in the context in which they appear to have been stated.  Judgements of the courts  are not to be construed as statutes".

15.   In a very recent decision State of U.P. and  others Vs. Jeet S. Bisht and another, 2007 (4) (Supreme) 362, decided  on 18.5.2007, it was observed as follows in para -21:

" It is well settled that a mere direction  of the Supreme Court , without laying down any principle of law, is not a precedent . It is only where the Supreme Court lays down a principle of law that  it will amount to a Precedent."

16.  It is not the policy of law to disrupt Matrimonial Homes and the efforts should always be  promote peace and harmony  in married life. The decisions of the courts below are at variance with a dessideratum  and they must go.

17.  It is surprising that the Chief Judicial Magistrate as well as Sessions Judge, both refused to accept the report of the Chief Medical Officer and decided to rely on the Pariwar Register  and the school certificate respectively.

18.  The Medical Examination Report, is always something, much more dependable and reliable, and should not be rejected unless there is strong and authenticated documentary evidence of a reliable nature against the same. They both, therefore, went wrong  in side lining the Chief Medical Officer's report, about the age.

19.  The report is  to the effect that she is about 18 years of age. The accepted  judicial view is that there can be a variation of two years on either side. The benefit of variation must go to the accused and it must be held, that she is around 18 years of age. The findings of the Chief Judicial Magistrate and that of Sessions  Judge are, therefore, wholly erroneous.

20.  On the basis of these findings about her age, the Chief Judicial Magistrate had sent the girl to Nari Niketan, despite the fact that she was carrying a four months baby in her womb, consequent upon her marriage with Petitioner  no. 1.

21.  In view of the aforesaid findings and that  the girl has stated in her statement under Section 164 Cr.P.C. before the Magistrate that she went of her own free will, to live with the Petitioner  no. 1 Abdul  Hameed alias Babbu and since she was not a minor, she had a right to go whereever she wanted, and live whereever she liked.

22.  In view of what has been mentioned above, no offence has been committed by the accused-Petitioner No.1 Abdul Hameed  alias Babbu  and  Case Crime No. 426 of 2006 under Sections 363 and 366 I.P.C., Police Station  Jogiya Udaipur, District Siddharth Nagar, launched against him, deemed to have been closed, and the proceedings against him shall stand terminated.

23.   There are four other accused also in this case, and as a fall out of the closure of the case, the proceedings against the remaining four accused shall also stand terminated.

24.  The girl shall be released from Nari Niketan forthwith and shall be allowed to live with her husband  Petitioner  Abdul Hameed alias Babbu and the police will ensure,  that there is no unlawful interference in their married life, by the father of the girl , Opp. Party No. 3  or  his proteges.

25.  Petition  allowed.

22.6.2007

8172/ 2007 n.u.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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