Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 5090 of 2019 Petitioner :- Afsa And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailesh Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioners; learned AGA for the State- respondents; Mr Awdhesh Singh, Advocate, who has appeared on behalf of respondent no. 3; and perused the record.
Instant writ petition seeks quashing of the FIR dated 16.2.2019, registered as Case Crime No. 0169 of 2019, under Sections 363, 507 IPC at P.S. Kotwali Nagar, District Muzaffar Nagar.
Allegation in the FIR is that the victim-Afsa, aged about 13 years, who is student of M.F. Taleme Edara School, has been enticed away by the accused Soyed.
The victim as well as accused have filed this writ petition by claiming that the victim is an adult and that she has voluntarily entered into relationship with accused Soyed (petitioner no. 2).
Learned counsel for the respondent no. 3 has produced documents to demonstrate that the victim is not adult and that her date of birth recorded in the Educational Certificate is 1.1.2005. Infact, learned counsel for the respondent no. 3 has produced before the Court multiple certificates; one is report card of Session 2017-18 obtained from M.F. Taleme Edara School, wherein the date of birth of the victim is stated as 01.01.2005; and another is a certificate obtained from Basic Shiksha Parishad, UP from Primary Vidyalaya Patel Kanya Nagar Kshetra, Muzaffar Nagar, wherein her date of birth is shown as 8.11.2007. Aadhar Card has also been produced, which discloses her date of birth as 1.1.2005.
In view of multiple certificates produced by the respondent no. 3, showing that victim is minor, though with different dates of births, it would not be appropriate for us to act on the statement of the victim without a proper determination of her age.
Accordingly, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no. 2 shall produce the petitioner no.1 (Smt. Afsa) before the court of Chief Judicial Magistrate, Muzaffar Nagar by or before 11th March, 2019. Upon her production, the Chief Judicial Magistrate, Muzaffar Nagar shall proceed to record the statement of Smt. Afsa 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 11th March, 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 made clear that if the victim is not produced on the date fixed as above, the interim protection shall stand discharged and the investigating officer would be free to take steps to bring the investigation to its logical conclusion including arrest of the accused, if required.
With the aforesaid observations/directions, the petition is disposed off.
Order Date :- 25.2.2019 RavindraKSingh