Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 17829 of 2018 Petitioner :- Archana And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pusp Raj Singh Counsel for Respondent :- G.A.,Bhupendra Kumar Tripathi
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioners; learned AGA for State- respondents no. 1, 2 and 3; and Sri Bhupendra Kumar Tripathi, learned counsel for the respondent no. 4 and perused the record.
Instant writ petition seeks quashing of the FIR dated 29.6.2108 registered as Case Crime No. 115 of 2018, under Sections 363, 366 IPC and Section 8 of the Protection of Children From Sexual Offences Act, 2012 at P.S. Atarra, District Banda.
Allegation in the FIR is that the informant's daughter Km Archana, aged about 15 years, has been enticed away by the son of the informant's neighbour, namely, Shiv Bilas Raidas (petitioner no. 2).
The victim as well as petitioner no. 2 (Shiv Bilas Raidas) have jointly petitioned this Court by claiming that the date of birth of the victim (petitioner no. 1), according to Adhar Card is 10.1.2000, and that she being an adult has voluntarily entered into relationship with petitioner no. 2 and, therefore, no offence has been committed.
On 4.7.2018, the following order was passed by this Court:-
"Heard learned counsel for the petitioners and learned A.G.A. for the State.
This writ petition has been filed for quashing the F.I.R. dated 30.6.2018 which has been registered as Case Crime No.115 of 2018 under Section 363, 366 IPC and Section 8 POCSO Act, police station Atarra, district Banda, so far it relates to the petitioners.
Learned counsel for the petitioners contends that the petitioner No. 1 who is major, as per her Adhar Card, copy of which has been filed as annexure-2, had married the petitioner No.2 out of love and affection and as the respondent No.4 was not happy with the said marriage, present criminal prosecution has been initiated against the petitioners, which is bad in law as has been held by the Hon'ble Supreme Court in the case of Sachin Pawar versus State of U.P. in Criminal Appeal No. 1142 of 2013 decided on 02.8.2013. He further submitted that apart from the bald allegations made in the F. I. R., which is a bundle of lies and product of malice, no credible evidence is forthcoming, even prima facie, indicating that any such incident had taken place, hence the impugned F. I. R. is liable to be quashed.
Issue notice to the respondent No.4 returnable within four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks time to file counter affidavit. Respondent No. 4 may also file counter affidavit within the said period. As prayed by the learned counsel for the petitioners two week thereafter is granted for filing rejoinder affidavit.
List after expiry of the aforesaid period before appropriate Court.
Till the next date of listing or till the filing of police report under Section 173(2) Cr.P.C., whichever is earlier, the petitioner shall not be arrested in the the aforesaid case. "
On 6.2.2019, the following order was passed by this Court:-
"In the short counter affidavit it has been stated that as soon that the statement of the victim is recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., the investigation will be completed and police report would be submitted.
The learned counsel for the petitioners has stated that according to his instructions, the statement of the victim has been recorded under Section 164 Cr.P.C.
In view of the above, we deem it appropriate to grant two weeks' time to the learned A.G.A. to file a counter affidavit disclosing whether statement of the victim has been recorded or not as also whether a police report under Section 173(2) Cr.P.C. has been submitted or not in reference to Case Crime No. 115 of 2018.
List this matter again on 27.2.2019. "
A short counter affidavit has been filed by the Investigating Officer disclosing that according to the Class -V mark sheet of the victim, her date of birth is 21.3.2003 and, therefore, she is minor, aged about 15 years.
Respondent no. 4 has also filed counter affidavit claiming that the victim is minor, and has disputed the date of birth entered in her Adhar Card.
It is now well settled that the age of a child victim is to be determined on same principles that are to be adopted for determination of the age of juvenile in conflict with law. (See: Mahadeo vs. State of Maharashtra, (2013) 14 SCC 637; Jarnail Singh vs. State of Haryana, (2013) 7 SCC 623; State of M.P. vs. Anoop Singh, (2015) 7 SCC 773).
Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides a complete mechanism and raises presumption of age as well as lays down the procedure to be applied for determination of age.
It has been brought to our notice that the date of birth of the victim recorded in her educational certificate is 21.3.2003. Hence, we cannot quash the FIR at the threshold by placing reliance on the date of birth entered in the Adhar Card, in as much as entry of date of birth in an Adhaar Card has not been provided primacy over educational certificates.
Under the circumstances, we deem it appropriate to dispose off this writ petition by providing as follows:-
The petitioner no. 2 shall produce the victim-petitioner no.1 (Archana) before the court of Chief Judicial Magistrate, Banda by or before 14th March, 2019. Upon her production, the Chief Judicial Magistrate, Banda shall proceed to record the statement of victim 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 14th 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.
It is further made clear that this court has not expressed any opinion on the correctness/genuineness/authenticity of the educational certificate.
With the aforesaid observations/directions, the petition is disposed off.
Order Date :- 27.2.2019 RavindraKSingh