Nahar Sultana @ Nahar Akhtar vs State Of Uttar Pradesh And Another

Rahul Chaturvedi, J

Heard Ms. Mary Punch Sheeb Jose, learned counsel for the applicant, assisted by Mr. Abrar Ahmad and Mohd. Kalim, Shri N.D. Rai, learned A.G.A for the State and perused the record.

On 08.05.2019, after hearing the arguments of contesting parties, the Court has given a soft signal that the present application U/s 482 Cr.P.C. deserves to be allowed and the impugned order could be quashed.

Now pursuant to above observation made, this Court is spelling out the reasons for quashing the order dated 02.12.2013 pased by Additional Chief Judicial Magitrate, Court No. -5, Varanasi passed in Case No. 930-A of 2013 (State v. Nahar Sultana) arising out of Case Crime No. 97 of 2011, under sections 3, 4, 5 and 8 of the Immoral Trafficking (Prevention) Act, P.S. Dashshwamegh, District Varanasi pending in the court of the Chief Judicial Magistrate, Court No. 5, Varanasi and allowing the instant application filed under section 482 Cr.P.C.

After hearing the arguments of learned Counsel, this Court has no hesitation to confess that this is one of those unfortunate cases which is not only disturbing but has pricked the inner conscious of the Court. Besides this, it has surfaced the pores and pits in our criminal judicial system whereby fate of the poor applicant is oscillating in the hands of one counsel to the other and has compelled the Court to exercise its extraordinary powers envisaged under section 482 Cr.P.C. in her favour.

The present case is a poignant tale of a woman, which is supposed to be worshiped in all the religions, next to God. According to Biblical version when a man enters a marriage relationship, he enters into the highest standard of love there is, as is said below:

"Husbands, love your wives, just as Christ also loved the church and gave Himself up for her (Eph. 5:25)."

In Holi Qur'an Sura 2:page 187 it has been qouted as under:

"They (your wives) are your garment and you are a garment for them."

Prophet Muhammed's Last Sermon reveals as under:

"Observe your duty to Allah in respect to the women and treat them well."

Here in this case, admittedly, the applicant is a citizen of neighbouring country, Bangladesh and she was betrayed, ditched and duped by none other than her husband alone, who after marrying, thrown her in the market of women trafficking in the year 2011 and since then this unfortunate lady under the compelling circumstances, spelled herein below, is in the boiling pan on the furnace of Rajkiya Paschatwarti Dekh-rekh Sangthan, Jaitpura, Varanasi in a precarious mental condition and feeling pity on her, way back in year 2014, one Mr. Rajendra Singh, Advocate moved instant Criminal Misc. Application on behalf of applicant Nahar Sultana @ Nahar Akhtar wife of Muneer Mirza of Village-Mohish Khola, Post Narail, District Narail (Bangladesh) with the prayer to stay further proceedings of Case No. 930A/2013 (State Vs. Nahar Sultana), arising out of Case Crime No. 97/2011 U/s 3,4,5 and 8 of Immoral Traffic Prevention Act, 1956, P.S. Dashshwamegh District Varanasi pending in the Court of V-Additional Chief Judicial Magistrate, Varanasi and to quash the charge sheet dated 20.11.2011 as well as order dated 02.12.2013 passed by learned Magistrate whereby the applicant's application for dropping Section 6 of the Immoral Traffic Prevention Act, 1956 Act was rejected and the learned Magistrate found that there is sufficient material to frame the charges under the aforementioned sections of the Act. Besides this, it was also prayed from the Court that applicant may be permitted to leave India and go to her native land i.e., Bangladesh.

The affidavit in support of prayer was sworn by one Arun Kumar, a public spirited person, running his non-government organization in the name of AKRITI [Society of Conservation and Restoration of Cultural Heritage, Koiran (Chamaon), Shivpur, Varanasi].

The brief genesis of the case, is enumerated herein below:

The police party raided house of one Gopal Jha situated at Ganesh Mahal, P.S. Dashshwamegh, Varanasi on 21.09.2011 and found that one Raj Kumari (45) on the door of the house soliciting the customers and when a search was conducted, a couple was found in an objectionable condition and in the adjacent room, the applicant was sitting all alone and thereafter, an FIR was got registered by Surendra Nath Tiwari, the then Circle Officer, Police Station- Dashshwamegh, Varanasi against as many as four persons namely; (1) Raj Kumari (2) Sanjay Kasera (3) Salu Seth and (applicant-Nahar Sultana) and case was registered under the aforesaid sections of the Immoral Traffic (Prevention) Act. After lodging of the FIR, as per practice, an exercise of investigation was carried out by the police, astoundingly, without recording statement of any independent or public witness.

It has been mentioned in paragraph no. 6 of the petition that on account of lunatic state of mind, the applicant was shifted to Government Nari Niketan, Varanasi. On the other hand, the police after performing the routine exercise of investigation, submitted charge sheet against all the four named accused persons under the aforementioned sections of Immoral Traffic (Prevention) Act. 10. The learned Magistrate on 22.10.13 took mechanical cognizance of the offence. Aggrieved by the aforesaid cognizance order, discharge application was moved before the Court below on the ground that the applicant is citizen of Bangladesh and was vended in the hands of Raj Kumari, by none other than her husband who thrown her in the hell of human flesh market.

It was argued by the learned counsel for the applicant that this poor lady was not aware that a person, to whom she got married, is butchering her future and backstabbing her confidence and faith, posed upon him. Thereafter, sympathizing with precarious, pathetic and tormented condition of the applicant, the Superintendent, Nari Niketen referred her to Mental Asylum for treatment. Since then, she is suffering from loads of trauma and inhumane treatment from all quarters of life and for her, every day has deepened dark and every morning turned into gloomy night.

On the basis of all the aforesaid facts, mentioning legal submissions, the applicant filed the instant application under section 482 Cr.P.C. before Coordinate Bench of this Court, whereupon vide order dated 24.4.14, the Court stayed the operation and effect of the impugned order till the next date of listing.

But fact remains, that the aforesaid interim order, virtually added salt to the miseries of the poor lady, in disguise. The order-sheet reveals that after passing the order dated 24.4.14, the case was listed for the first time on 11.2.2019, after an elapse of five years. During the entire period, life of the applicant was turning hellish. In a casual manner, duty of filing counter affidavit was also fulfilled on behalf of Dinesh Prasad Shukla, Circle Officer, P.S. Dashashwamegh, Varanasi on 27.5.2014 by denying all the factual as well as legal submissions and ultimately, the case was entrusted to Sri N.D. Rai, Advocate.

On 27.03.2019, coordinate Bench of this Court passed a detailed order directing the Superintendent, Nariniketan, Jaitpur, Varanasi to file her personal affidavit, furnishing therein over all physical and mental state of the applicant. Pursuant to this, a detailed affidavit was filed by one Murti Devi, Superintendent, Rajkiya, Paschatwarti, Dekh-Rekh, Sangthan, Jaitpur, Varanasi, spelling out the sad-saga of the applicant.

This Court has carefully perused the affidavit of Murti Devi, Superintendent, Rajkiya, Paschatwarti, Dekh-Rekh, Sangthan, Jaitpur, Varanasi wherein certain startling revelations have been made. The City Magistrate, Varanasi vide order dated 7th August, 2012, relying upon the report given by District Probation Officer, Varanasi, referred the applicant to Rajkiya, Paschatwarti, Dekh-Rekh, Sangthan, Jaitpur, Varanasi and since then she is made to stick there. On further deterioration of her mental state, the applicant was being sent to Mental Hospital, Pandeypur, Varanasi quite often. Since the criminal prosecution against her in Case No. 930A/2013 was stayed by Coordinate Bench of this Court, way back in April, 2014 and thus she remain at Rajkiya, Paschatwarti, Dekh-Rekh, Sangthan, Jaitpur, Varanasi.

On the other hand, the High Commission of People's Republic of Bangladesh, New Delhi vide letter dated 12.12.2014 granted a travel permit to three detenues including the applicant but as the instant case was lingering against her, the said travel permit gone aborted. The lady applicant repeatedly in her own handwriting kept on sending various representations to the Registrar, High Court, Allahabad for early disposal of her case, but all in vain.

Pursuant to the order dated 27.03.2019, coordinate bench of this Court issued following directions which reads as under :-

(i) Chief Medical Officer, Varanasi was directed to constitute a medical board in accordance with law and after getting medical examination of the applicant conducted on 15.04.2019 submit a report before this Court in a sealed cover envelope through Registrar General of High Court of Allahabad.

(ii) Officer was directed to call a report from the Presiding Officer concerned about the present status of Case No. 930A of 2013 (State Vs. Nahar Sultana) arising out of Case Crime No. 97 of 2011, under Section 3,4,5 and 8 of Immoral Traffic (Prevention) Act, 1956, Police Station Dashshwamegh, District Varanasi pending in the Court of Chief Judicial Magistrate, Court No.5, Varanasi and to produce the same today at the time of hearing of this case.

(iii) Superintendent, Nari Niketan, Jaitpur, Varanasi was also directed to file an affidavit through Additional Government Advocate bringing on record the relevant fact about the applicant.

Pursuant to the above directions, after constituting a Board of three Psychiatrists, the Director, Chief Superintendent, Mental Hospital, Varanasi submitted its report on 15.04.2019 in a sealed cover, which reveals that the applicant was medically examined and it was concluded that the applicant is suffering from "UNSPECIFIED NONORGANIC PSYCHOSIS (F-29)".

The Psychosis is a severe mental illness that develops over period of time. A person suffering from Psychosis has impaired relationship with realty, a loss of motivation, the person suffers from Delusion and thus it is clear that the applicant is suffering from severe mental illness, as certified by the Board of Doctors. These are the factual backdrop of the case.

This Country venerates and believes on the verdicts of Ramayana, Vedas, Geeta as well as Upnishads, which speaks about a woman, which is as under:-

यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवताः।

यत्रैतास्तु न पूज्यन्ते सर्वास्तत्राफलाः क्रियाः।।

(भावार्थ)- जहां स्त्रीजाति का आदर-सम्मान होता है, उनकी आवश्यकताओ-अपेक्षाओं की पूर्ति होती है, उस स्थान, समाज, तथा परिवार पर देवतागण प्रसन्न रहते है। जहां ऐसा नहीं होता और उनके प्रति तिरस्कारमय व्यवहार किया जाता है, वहां देवकृपा नहीं रहती है और वहां सम्पन्न किये गये कार्य सफल नहीं होते है; (मनुःस्मृति)। (English Translation) Where women worshiped, there lives the Gods. Where they are not worshipped, all action results in failure.

शोचन्ति जामयो यत्र विनश्यत्याशु तत्कुलम।

न शोचन्ति तु यत्रैता वर्धते तद्धि सर्वदा।।

(भावार्थ)- जिस कुल में पारिवारिक स्त्रियां दुव्र्यवहार के कारण शोक-संतप्त रहती है उस कुल का शीघ्र ही विनाश हो जाता है, उसकी अवनति होने लगती है। इसके विपरीत जहां ऐसा नहीं होता है और स्त्रियां प्रसन्नचित्त रहती है, वह कुल प्रगति करता है। (परिवार की पुत्रियों, वधुओं, नवविवाहिताओं आदि जैसे निकट सम्बन्धियों को जामि कहा गया है)।

जामयो यानि गेहानि शपन्त्यप्रतिपूजिताः।

तानि कृत्याहतानीव विनश्यन्ति समन्ततः।।

(भावार्थ)- जिन घरों में पारिवारिक स्त्रियां निरादर-तिरस्कार के कारण असंतुष्ट रहते हुए शाप देती है, यानि परिवार की अवनति के भाव उनके मन में उपजते है, वे घर कृत्याओं के द्वारा भी सभी प्रकार से बरबाद किये गये से हो जाते है। (कृत्या उस अदृश्य शक्ति की घोतक है जो जादूू-टोने जैसी क्रियाओं के लिए जाने पर लक्षित व्यक्ति या परिवार को हानि पहुंचाती है)।

Now coming to the legal aspect of the issue; vide impugned order dated 02.12.2013, the learned Additional Chief Judicial Magistrate, Varanasi declined to discharge the applicant and while rejecting the same, it was held that the prosecution against the applicant can be initiated under sections 3,4,5,6 and 8 of the I.T.P. Act. Thus, the interim order granted in the month of April, 2014 is still effective and operational. Practically speaking that for the offence allegedly committed by her in the year 2011, till date she is languishing in jail/Nari Niketan in a tormented mental state. The applicant had been put to trial, which is triable by Magistrate and maximum punishment prescribed under sections 3 is 2 years with fine of Rs. 2000/-, under section 5, the punishment prescribed, is 3 to 7 years and for Section 8 of the Act, the punishment prescribed is upto 6 months.

Assuming for the sake of argument, even if she is ought to have committed the offence under all the four aforementioned sections, even then, it is the eighth year of her incarceration in jail and the trial is yet to commence. It would be mockery of justice, whereby a secluded lady is confined in the four walls of Nari Niketan, in a pathetic ailing mental state.

Chapter XXV of Code of Criminal Procedure prescribes the provisions as to the accused persons of unsound mind and Section 330 (3) Cr.P.C. states that:-

(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered.

Thus a lady, who is admittedly a citizen of Bangladesh, having no acquaintance or relative in India, was ditched by none other than her own husband, sold out in the flesh market, recovered by the police while sitting idly and in seclusion in a room for the incident said to have taken place in year 2011 for the pity offences, which are triable by Magistrate and is yet to commence. The records of the case were untraceable, it is just because Ms. Mary Punch Sheeb Josh, Advocate who has taken this onerous job and trying to get released a poor, distressed and ailing lady from this judicial web world.

This court fails in its duty while recording the word of appreciation by Ms. Mary Punch Sheeb Josh, her associates and Shri N.D. Rai, Advocate, who in no uncertain terms conceded that the applicant has suffered enough agony, therefore, under the aforesaid precarious mental condition and in the fitness of the circumstances, she should be released forthwith in exercise of powers under section 330(3) of Cr.P.C.

Accordingly, in exercise of this Court's extraordinary powers U/s 482 Cr.P.C. the instant application is, hereby, allowed and while exercising the powers U/s 330(3) Cr.P.C. this Court directs that the applicant Nahar Sultana @ Nahar Akhtar be released forthwith.

The City Magistrate, Varanasi District Probation Officer, Varanasi and the competent court is directed to pave path for her smooth resile to the Embassy of Bangladesh and request by passing appropriate speaking orders in this regard within a month from today, so that she may be handed over to the High Commission of People's Republic of Bangladesh, New Delhi so that she may be sent to her native place at the earliest. It is further directed that in this regard, the poor and ailing applicant Nahar Sultana @ Nahar Akhtar shall not be taxed with a single penny and the entire monetary expenses for her travelling etc., upto the office of Commission of People's Republic of Bangladesh, New Delhi shall be borne by the State machinery.