KRISHNA BALMIKI Vs. STATE

JUDGEMENT

(1.) HEARD learned counsel for the applicant Sri P.K Singh and Sri V.Singh for the complainant and the learned A.G.A. Learned counsel for the applicant contends that the applicant has been implicated and as a matter of fact a Habeas Corpus Writ Petition No. 61371 of 2008 was filed by the father of the victim in which an interim order was passed on 16.12.2008, copy whereof is Annexure 9 to the application. The matter proceeded and the applicant who was the respondent no.3 in the said writ petition was present in the court along with the victim Laxmi Devi. Whatever transpired in Court has been recorded in the aforesaid order and learned counsel for the applicant contends that the victim had disclosed her age as 22 years and that she had married the applicant Krishna Balmiki. Learned counsel for the complainant Sri V.Singh alleges that the applicant is a married person and that he has enticed away a minor daughter of the complainant which is a serious offence and, therefore, he does not deserve bail. It is contended that when the aforesaid writ petition was finally heard on 22.1.2009 this Court allowed the petition and handed over the custody of Laxmi Devi to the complainant after recording that the detenue Laxmi Devi is held to be a minor being under 17 years of age. On the strength of the said finding Sri V. Singh has vehemently urged that the bail should be rejected as the offence is clearly made out. A copy of the order dated 22.1.2009 is Annexure 10 to the application. Learned counsel for the applicant on the other hand contends that when the medical report indicates that the age of the girl is 19 years then in such view of the matter, prima facie, there was sufficient evidence to contradict the age of the victim as projected by the prosecution on the strength of the High School certificate. It is submitted by Sri P.K. Singh learned counsel for the applicant that such a finding which has been recorded in the Habeas Corpus petition violates the fundamental and statutory rights of the applicant inasmuch as the trial of the applicant would be jeopardized. He contends that the entire evidence pertaining to the age of the victim is yet to be assessed and, therefore, the aforesaid finding recorded in the order dated 22.1.2009 would be treated to be prima facie and not final, subject to evidence in the trial. He contends that in case that is not understood, then the entire trial of the applicant would be infructuous. It is further submitted that a variation with regard to the age is present, keeping in view the discloser of the age by the victim herself before this court as 22 years, and by the opinion of the Medical Officer to be 19 years. The question before this Court is as to whether the applicant should be granted or should not be granted bail at this stage. There is nothing on record to indicate that the applicant has attempted to tamper with the witnesses or influence them in any way. The criminal antecedents of the applicant have been explained in Paras 18 and 19 of the application. It has also been pointed out that the trial is yet to proceed and evidence assessed on the question of the age of the victim . An observation made by the Court while disposing of the Habeas Corpus petition in respect of the age of the victim would obviously be prima facie and cannot be taken to be a final opinion in view of the fact that the evidence with regard to the age of the victim is yet to be assessed. It is further relevant to point out that the victim had made a statement before this Court that she was 22 years of age as recorded in the order dated 16.12.2008 and that reflects her age of maturity. Even otherwise she will be presumed to have substantially understood the pros and cons of this litigation when she has travelled up to this court and thereafter she has been sent into the custody of her parents. The procedure to be followed in a Habeas Corpus petition is prescribed under Rule 10 of Chapter 21 of the Allahabad High Court Rules, 1952, which is as follows:- " Procedure- All question arising for determination under this Chapter shall be decided ordinarily upon affidavits, but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case may it follow such procedure and pass such orders as may appear to it to be just." The court has therefore been given wide powers to adopt a procedure as it may consider necessary but all questions arising are to be decided ordinarily on the strength of affidavits. In the instant case the order dated 22.1.2009 primarily rests on the conduct of the applicant who was not found fit to retain the custody of the detenue and she was handed over to her father. However while arising at this conclusion the court made observations on the basis of the High School certificate depicting the date of birth of the detenue. The question with regard to her age vis-a-vis medical reports are yet to be assessed by the trial court. Therefore, in my opinion, learned counsel for the applicant appears to be right in saying that the opinion expressed in the order dated 22.1.2009 would only be a prima facie observation for the purpose of disposal of the Habeas Corpus petition as this Court does not enjoy the jurisdiction of a trial court to record an evidence in a matter where the criminal trial is still pending before the appropriate court. In a recent decision of the apex court in the case of State of Punjab Vs. Paramjeet Kaur decided on 25.3.2009, the court had been approached by the State questioning the correctness of the directions of the High Court in a Habeas Corpus petition awarding compensation for a person missing from custody inspite of a criminal case pending trial and also indicted the police officials for the same. It was argued before the Supreme Court that the trial would be affected once the findings have been recorded by the High Court. The judgment of the High Court was reversed by observing as follows:- "We agree with learned counsel for the appellant and the respondent police officials that when the matter is pending adjudication in a trial before a criminal court, the High Court should not have made any observation which would have effect on the trial by the trial court.We, therefore, dispose of this appeal with the direction that even if payment has been made pursuant to the High Court's order by the State Government, that shall not be construed to be a concession to the allegations made. The trial before the criminal court shall be conducted in accordance with law, without being influenced by any observation made by the High Court about the remissness and neglect in duty is by the police officials. The appeal is accordingly disposed of." At best, a high school certificate has a presumptory value but the same is yet to be proved in trial and is subject to rebuttal. A presumption cannot take the shape of proof unless it is proved in a court of law during trial. This would be subject to examination and cross-examination as per the procedure of Chapter 18, 23 and 24 of the Cr.P.C. no such procedure appears to have been under taken in the Habeas Corpus petition. Witnesses are yet to be examined and cross-examined on the said document. Therefore this court cannot be presumed to have finally concluded something which is yet to be put during trial. The contention of the learned counsel for the complainant therefore cannot be accepted that the proof of the age of the victim stands finally accepted and recorded without anything more to be done during trial. The acceptance of the said argument would be defiance of law as expressed by the Apex Court extracted above. The learned Single Judge also cannot be presumed to have adopted such a course that would actually affected the trial. A writ petition of the nature of Habeas Corpus cannot partake the character of an alternative remedy of a regular criminal trial or as a substitute parallel proceeding for remedies under the statutory provisions of the Criminal Procedure Code. In the absence of any element or material to indicate that the applicant would misuse the bail and in view of the aforesaid position as discussed , let the applicant Krishna Balmiki involved in case crime No. 498 of 2008 under sections 363,366,323,504,506 & 376 IPC Police Station Mangalpur district Kanpur Dehat be enlarged on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the concerned Court.