Court No. - 47
Case :- CRIMINAL MISC. WRIT PETITION No. - 24227 of 2019 Petitioner :- Asha Arya @ Asiya And 6 Others Respondent :- State Of U.P. And 03 Others Counsel for Petitioner :- Bharat Garg Counsel for Respondent :- G.A.,Shahabuddin,Syed Mohammad Nawaz
Hon'ble Manoj Misra,J. Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1, 2 and 3; Sri Shahabuddin for respondent no.4 and perused the record.
The instant petition seeks quashing of the first information report dated 28.09.2019 registered as Case Crime No.254 of 2019, under Sections 363 and 366 I.P.C., P.S. Kunderki, District Moradabad.
The allegation in the first information report, which has been lodged by the father of the victim Asha Arya @ Asiya (the petitioner no.1) is to the effect that his daughter, who is minor, has been enticed away by the accused persons.
The petitioners have prayed for quashing of the first information report by claiming that the victim Asha Arya @ Asiya is adult and that she has voluntarily married Akash Singh (petitioner no.2). However, there is no satisfactory documentary evidence on record to show that the victim is an adult though reliance has been placed on Adhaar Card of the victim, which discloses her date of birth as 01.01.1996.
The learned A.G.A. has submitted that the date of birth entered in an Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed off by requiring the investigating agency to determine the age of the victim and record the statement of the victim and, thereafter, take appropriate action as per law.
Having perused the record, we do not find any other documentary evidence on the basis of which we could hold the victim to be an adult. As it is not provided by law that the date of birth entered in an Adhaar Card would be conclusive, and we find no document on the basis of which such entry had been made, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Asha Arya @ Asiya) before the court of Chief Judicial Magistrate, Moradabad by or before 17th December, 2019. Upon her production, the Chief Judicial Magistrate, Moradabad shall proceed to record the statement of Asha Arya to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.2 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. On the date so fixed, the learned Magistrate shall proceed to determine the age of the victim as per law, keeping in mind the provisions that are applicable for determination of the age of a victim and may, if necessary, direct for ossification test/medical examination of the victim from a District Government Hospital. If the victim is found to be a minor, the learned Magistrate shall proceed to pass appropriate orders in respect of custody of the victim, as per law. However, in case the victim is found to be an adult, he shall proceed to record the statement of the victim under Section 164 Cr.P.C.
On the basis of the statement of the victim and the age of the victim as determined above, the police shall submit report under Section 173(2) Cr.P.C.
The aforesaid exercise shall be completed preferably within a period of three weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 17th December, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim. Though, in the event the victim is found to be minor, the police would be free to take the investigation to its logical conclusion and may effect arrest of the accused.
It is further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigation agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
At this stage, learned counsel for the petitioners submitted that since the relationship of the petitioner no.1 and petitioner no.2 is an inter-religion relationship, there is a serious threat to the life and security of the petitioners and accordingly some security be provided to the petitioners 1 and 2 for their transit to their hometown.
In view of the above, we deem it appropriate to require the Senior Superintendent of Police, Prayagraj to provide armed constable to the petitioners 1 and 2 for their transit to their hometown. After reaching the hometown in case threat persists, it shall be open to the petitioners to approach Senior Superintendent of Police, Moradabad for safety and security, if so required.
With the aforesaid observations/directions, the petition is
disposed off.
Copy of this order be supplied to the learned AGA for compliance during the course of the day.
Order Date :- 28.11.2019. Rks.