MADHUKAR KISHANRAO CHOUDHARI Vs. SURYAKANT JOG

JUDGEMENT

(1.) THIS matter has come before us since the earlier Division Bench on May 3 and 5, 1986 directed that the matter should not be treated as part -heard before that Bench. In a matter which is concluded, there is no occasion to give such a direction. Apart from that, it appears from the order dated May 3, 1986 which is the core of the controversy before us, that the Bench had reversed its earlier orders of April 9 and 15, 1986 and given two directions. By one direction the parties were given the liberty to apply,. which meant, that the parties had a right to apply to the Court for modification, verification or annulment of the order or orders passed by the Bench. The second direction was that the matter should stand over to June 17, 1986 for further orders. Such a direction was also a part of the order dated April 9, 1986. But this fresh direction meant that the matter was kept open for orders arising also from the order dated May 3, 1986. These directions coupled with the direction not to treat the matter as part -heard make it abundantly clear that according to the Bench the proceedings are still alive and at large, and are to be gone into afresh. Were it not for these directions, it was possible to hold, on the basis of the order passed on April 9, 1986, that the habeas corpus petition filed by the petitioner Choudhari had come to an end and nothing more remained to be done except the compliance by the respondent Jamge with the directions given to him, namely, to transfer the land and the house, and to deposit Rs. 35,000/ - in favour of the girl Rajashree and her child. In any case, it is crystal clear that at least the matters arising out of the impugned order dated May 3, 1986 were kept open for consideration by the succeeding Bench and we are at present mainly concerned with Criminal Application No. 649 of 1986 which is filed by Rajashree to challenge the said order. It is for this reason that we cannot countenance the preliminary objection raised by Shri Bhandare on behalf of the petitioner that since the earlier orders were passed by another Bench, this Bench should not hear the said application made by Rajashree and/or pass further orders in the matter.

(2.) IN order to appreciate the real controversy involved in the present application filed by Rajashree, it is essential to have a bird's eye view of the relevant events till date. The allegation of the petitioner father in the main habeas corpus petition is that his daughter Rajashree who was at the relevant time minor and staying with his brother in Delhi, was kidnapped by respondent No. 2 Jamge (hereinafter referred to as Jamge) on or about April 2, 1984. Inspite of his diligent search, and complaints made in that behalf to the police, she was not traced. He had several grievances in that behalf against the respondent -Police Officers of the State Government. He therefore filed the present petition on March 3, 1986 for a writ of habeas corpus directing respondent No. 1 -D.G.I. of the State Government to recover the custody of Rajashree from Jamge and to produce her in Court. The writ was also directed against Jamge to produce the girl in Court. Among the other directions sought in the petition were the directions to hand over the girl to the petitioner and also to require respondent No. 1 to investigate the matter and arrest and prosecute Jamge. In this prayer, by mistake, respondent No. 2 is described as respondent No. 1.

(3.) IN the meanwhile, the proceedings were on board, and on March 24, 1986 the Court interviewed Rajashree in chamber. In the interview, she told the Court that she was married to Jamge on February 12, 1982 at Nanded, and had delivered a male child on February 17, 1986. She showed ignorance of whether Jamge had a first wife or children. She was not prepared to say anything about how she left Delhi and went to Nanded or to other places. She did not know her date of birth. (It appears that Jamge had already filed an affidavit stating therein that he was married to Rajashree on February 12, 1982 and the child delivered by her, was his). After the interview by the Court, Shri Bhandare, the learned advocate for the petitioner, was also directed by the Court to ascertain Rajashree's wishes and Shri Bhandare after interviewing her, reported to the Court that she wanted to go and stay with Jamge. It further appears that on or about April 1, 1986, the petitioner had filed an application requesting the Court to get Rajashree examined both with regard to her physical as well as mental health by a competent doctor, because according to the petitioner, his experience as a medical practitioner (the petitioner is a R.M.P.) showed that she had received severe mental shock and that she was under great nervous state and required 15 days' complete rest. She was therefore directed to be examined and was examined on April 4, 1986 by one Dr. (Miss) Nabar with regard to her physical condition and she was certified to be physically fit and not having any complaints regarding her health. On April 3, 1986 she was examined by Dr. (Mrs.) R. Kakkar, a Psychiatrist and was certified to be normal with nothing unusual in her behaviour and talk. On April 9, 1986, before deciding the petition, the Court also took in writing from her, her wishes in the matter and she stated in writing that she was of her own will ready to go to her husband, meaning thereby, Jamge. She also gave an undertaking by the same writing that she would assist the police whenever needed, in giving her statement, and would also inform the police if she left her village Gangakhed. The Court thereafter passed its order dated April 9, 1986, by which the Court recorded (i) that the girl had become major on March 25, 1986, even according to the petitioner; (ii) that on ascertaining the wishes of the girl, the girl had in so many words expressed her desire to go and stay with Jamge; and (iii) hence the Court had no alternative but to accept her wishes since she had become major. The Court also recorded that the girl was not interested in going and staying with her father, and hence, the father should accept the said unfortunate position. The Court further observed that in the habeas corpus petition, the Court could not compel the girl to go to her father against her wishes. However, according to the Court, that did not preclude the investigating machinery and the competent Court of law from taking any suitable steps 'in that behalf in accordance with law'. The Court then gave the following directions: (a) Jamge should transfer a house and agricultural land to the extent of 6 Acres and 27 Gunthas in the name of Rajashree and her minor child, within six weeks, (b) he should also deposit a sum of Rs. 35,000/ -in the names of Rajashree and her child, and that Rajashree alone should be appointed the guardian of the child for the purpose. The office of this Court was directed to make necessary arrangements, through the Civil Judge, Junior Division and Judicial Magistrate, First Class, Gangakhed, to invest the deposited amount in a nationalised bank at Gangakhed as a cumulative fixed deposit for a period of 18 years, and the interest accruing therefrom was to be capitalised (c) the police should register forthwith offences against Jamge and any other person found guilty with him, and should record Rajashree's statement in 'Bapnu Ghar' itself on or before April 14, 1986. It may be stated here that although the police officers were directed to register the offences and to carry out the investigations, they were not required to submit any compliance report to the Court in that connection. However, Jamge was required to submit his compliance report with regard to the transfer of the property and to produce the relevant documents on June 17, 1986. The order was thereafter concluded by paragraph 12 in the following words: Hence Rule is made absolute to the extent indicated above. Having regard to the facts and circumstances of the case and the predicament in which the petitioner was placed, in our view this is a fit case wherein the petitioner should be awarded costs of these proceedings which are quantified at Rs. 2,000/ - to be paid by respondent No. 2 Jamge. The amount of costs be paid on or before April 14, 1986 to the counsel of the Petitioner, Shri Bhandare.