Back
2020 Supreme(Guj) 839
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sonia Gokani, Nirzar S. Desai, JJ.
Laxmanbhai @ Lakhubhai Khimabhai Khara – Applicant
Versus
State Of Gujarat – Respondent
R/Special Criminal Application No. 4578 of 2020
Decided On : 22-10-2020
Advocate Appeared:
For the Applicant : Nabil O Bloch
For the Respondent: Mr. Manan Mehta, Addl. Public Prosecutor
Point of Law: Theory of best interest test to hold that the Court is required to ascertain the course of action which would serve the best interests of the person in question. The Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim
Headnote:
Constitution of India-Article 226 – Corpus – Custody of - Father filed a complaint of missing of his daughter whose birth which eventually was converted into FIR with for the offences punishable under Sections 363, 366 etc. of the Indian Penal Code - No fruitful results have been achieved and therefore, this Court issued notice where the Superintendent of Police, Jamnagar has been asked to oversee the inquiry and he himself was required to submit a report
Finding of the Court:
The corpus is ready to join her parents after her termination of pregnancy willingly and therefore, her custody shall be handed over by the Kasturba Vikas Gruh to the parents - parents of the corpus and she, herself, also has made a request to direct termination of the pregnancy. Although, her consent has no bearing in the eyes of law when parents themselves desire this, more particularly, considering criminal antecedent of the respondent accused. We are of the opinion that a senior expert doctor shall take a DECISION in that regard, bearing in mind all the possibilities as required medically in the best interest of the corpus. The outcome of the procedure of MTP and wellbeing of the corpus shall be reported to this Court within the period of ONE WEEK, from today. It is NEEDLESS to say that all other parameters and necessary tests, which are required to be done before the procedure of MTP is undertaken, shall be done. Thereafter, she shall continue to receive the treatment, for the duration, as may be directed by the concerned expert doctor
Result: Disposed of
ORDER :
SONIA GOKANI, J.
1. This is a petition preferred under Article 226 of the Constitution of India seeking writ of habeas corpus or any other appropriate writ preferred by the petitioner – father being aggrieved by his young daughter aged 16 years having been abducted by the convict by luring her with an intent to commit the offence of rape etc.
2. The aggrieved petitioner – father filed a complaint of missing of his daughter whose birth date is 09.04.2003, which eventually was converted into FIR with Panchkoshi B-Division Police Station, Jamnagar for the offences punishable under Sections 363, 366 etc. of the Indian Penal Code. No fruitful results have been achieved and therefore, on 18.09.2020, this Court issued notice where the Superintendent of Police, Jamnagar has been asked to oversee the inquiry and he himself was required to submit a report.
3. On 01.10.2020 the Superintendent of Police, Jamnagar tendered a report providing a chronological detail as to how the steps were made to trace the corpus. He sought ten days’ time to find her out.
4. Accordingly, the corpus was brought before this Court on 12.10.2020 and on realizing that she was already carrying advanced stage of pregnancy, to find out the feasibility of termination, the matter was posted on 14.10.2020. The following order came to be passed on 14.10.2020: -
“1. Pursuant to the issuance of notice, this Court passed following order on 12.10.2020:
“1. Today the corpus is brought before this Court who is presented through video conference arranged from the District and Sessions Court, Jamnagar in presence of learned Principal District Judge Mr. Tyagi.
2. The Court noticed that the corpus is unwilling to join the parents and therefore, she is presently housed at Kasturba Vikas Gruh, Women Protection, Shelter and Development Center at the City of Jamnagar. In our conversation, she insisted on her continuing at Kasturba Vikas Gruh. She also had attempted to justify the action of the respondent accused. Noticing her young impressionable age coupled with the fact that the respondent accused, against whom, the FIR has already been lodged by the parents being I-CR No. 74 of 2019 on 21.12.2019 for the offences punishable under Sections 363 and 366 of the Indian Penal Code and the accused respondent is convicted in other Sessions Case for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code in which he has preferred Criminal Appeal No. 209 of 2019 before this Court where this Court (Coram: Mr. S.H.Vora, J.) in Criminal Misc. Application No. 01 of 2019 in Criminal Appeal No. 209 of 2019 on 01.02.2019 while admitting the appeal, has granted him regular bail on the same terms and conditions as imposed while granting regular bail pending trial in his case.
3. Noticing that he once again while on bail on suspension of sentence has indulged into the very crime of luring the corpus who is below 18 years of age. The State shall do the needful on urgent basis for cancellation of his regular bail granted by this Court bringing on record all these aspects before the appropriate Bench.
4. We also converse with the parents who are present and are in miserable state noticing the character of the accused respondent, more particularly, because the girl is too young and appears to be tutored. While permitting the parents to meet the corpus on a regular basis at Kasturba Vikas Gruh, we also request learned Principal District Judge Mr. Tyagi to persuade the girl to join the parents.
5. She also shall be once again taken for her medical examination, Noticing the fact that she is pregnant, the Court shall need to have the clear opinion of the gynecologist as to whether with the advanced stage of pregnancy, termination is feasible without in any manner jeopardizing her health and life both. Opinion should be given to this Court on urgent basis, if possible, by 14.10.2020.
6. Her statement under Section 164 (5A) of the Code of Criminal Procedure also shall be recorded and all
