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SCR.A/2046/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2046 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHAVANBHAI
BABABHAI THAKOR - Applicant(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
=========================================================
Appearance
:
MS
BENAZIR M HAKIM for
Applicant(s) : 1,
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
2,
NOTICE UNSERVED for Respondent(s) : 3,
None for
Respondent(s) : 4 -
8.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 25/11/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Rule.
Mr. LB Dabhi, learned APP appears and waives service of notice of
Rule on behalf of State of Gujarat – respondent Nos.1 and 2.
Respondent No.3 is personally present before the court and therefore,
Rule need not be served to him. Respondent Nos.4 to 8 are not
necessary party and therefore, Rule is not also required to be served
upon them.
2. By
filing instant petition under Article 226 of the Constitution of
India, the petitioner has prayed to issue writ of Habeas Corpus or in
the nature of Habeas Corpus or any other appropriate writ, direction
and/or order directing respondents to produce her daughter –
corpus Rekha before this Court, who is in illegal detention of
respondent No.3 Nayak Ganapatbhai Gangarambhai and handover her
custody to him.
3. It
is averred in the petition by the petitioner that his daughter –
corpus Rekha was taken from his residential house by respondent Nos.3
to 8 on 10.8.2010. The petitioner therefore, has informed PI, Sanand
Police Station, however, no effective steps are taken nor whereabouts
of corpus Rekha are known to the petitioner. It is further averred
in the petition that corpus Rekha is illegally detained and confined
by respondent No.3 against her wish and desire. The petitioner has
therefore, filed the present petition and prayed for the relief to
which the reference is made in the earlier paragraph of the judgment.
4. This
Court vide order dated 14.10.2010 issued Notice to respondent Nos.1,2
and 3 only, which was made returnable on 28.10.2010 on condition that
the petitioner shall deposit Rs.10,000/- as a cost, to show his bona
fide, with the Registry of this Court on or before 18.10.2010. On
returnable date, the corpus could not be found out. Therefore, time
was sought for and the matter was adjourned to 25.11.2010 i.e. today.
5. Today
when the matter is called out, Mr. Dabhi, learned APP, upon
instructions received from Mr. Somabhai, ASI, Sanand Police Station
who is personally present in the Court, states that corpus Rekhaben
is found out from village Bhiapur, Tal & Dist: Nagpur,
Maharashtra, who was in illegal detention of respondent No.3 – Nayak
Ganapatbhai Gangarambhai, who is also present in the Court. He has
brought the corpus with the assistance of woman constable and seeks
permission to produce corpus Rekhaben before the Court. We have
permitted to produce corpus Rekha before us.
6. We
have ascertained the wish and willingness of the corpus Rekha and
also inquired whether she was in illegal detention of respondent No.3
Nayak Ganapatbhai Gangarambhai. She has unequivocally stated before
us that she was in illegal detention of respondent No.3 – Nayak
Ganapatbhai Gangarambhai, who had forcibly kidnapped her against her
will from her village Rasulpura, Tal: Sanand, Dist: Ahmedabad and
taken to Maharashtra and also forcibly married her in a temple and
the said marriage is also registered before the Sub Registrar of
Marriage, Chimur Gram Panchayat, Dist: Nagpur, Maharashtra after
obtaining her signature forcibly. She therefore, wants to go with
her father – petitioner.
7. So
far as her age is concerned, admittedly, on the date of incident, she
was minor less than 18 years, of course, today she is above 18 years.
Therefore, she is sui juris and no fetters can be placed upon her
choice of the person with whom she has to stay. As she has
categorically stated before us that respondent No.3 has not only
forcibly kidnapped her, but also married against her will and wish
and the said marriage is performed in temple and also is registered
before the Sub Registrar of Marriage forcibly and therefore, she
wants to go with the petitioner – her father. We have
therefore, permitted her to go with her father – petitioner.
8. For
the foregoing reasons, this petition succeeds and accordingly it is
allowed. Rule is made absolute. Corpus Rekhaben is permitted to go
with her father – petitioner.
9. At
the time issuance of Notice, this Court has directed the petitioner
to deposit Rs.10,000/- as a cost, to show his bona fide, with the
Registry of this Court on or before 18.10.2010. since the petition
succeeds and it being bona fide, Registry is directed to pay back the
amount of Rs.10,000/- to the petitioner deposited by him, upon due
verification forthwith.
10.
Since, the corpus is illegally detained by respondent No.3, the
Investigating Officer is at liberty to investigate the case and
during investigation, if incriminating evidence is found against
respondent No.3, action shall be taken against him in accordance with
law.
(A.M.KAPADIA, J.)
(BANKIM.N.MEHTA, J.)
shekhar/-
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