Court No. - 53
Case :- CRIMINAL REVISION No. - 1523 of 2018 Revisionist :- Haidar Ali Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Mohd. Irfan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
1. Heard Sri Mohd. Irfan, learned counsel for the revisionist, Sri Devendra Kumar Tiwari, learned counsel appearing for opposite party no.4 and Sri Indrajeet Singh Yadav, learned A.G.A. along with Sri Abhinav Tripathi appearing for the State.
2. This revision is directed against an order of Sri Ram Babu Yadav, Chief Judicial Magistrate, Bareilly, dated 03.04.2018 directing the custody of the prosecutrix in Case Crime no.1063 of 2017, under Sections 363 & 366 IPC, Police Station Bahedi, District Bareilly to be handed over to her father Sukhey Khan holding her to be a minor with a direction that she would so remain in his custody until she attains the age of majority subject to condition and undertaking being furnished by the father.
3. It appears that later on, opposite party no.3 refused to stay with her father and in that view of the matter by a further order passed on 03.04.2018, she was sent to the Nari Niketan, where she is currently lodged.
4. The submission of the learned counsel for the revisionist is that the revisionist and opposite party no.3, the prosecutrix Smt. Nazmeen alias Nazma, are both major and competent under law to marry. The revisionist and opposite party no.3 have married by their free will on 10.12.2017 according to Muslim rites. It is alleged by the revisionist that marriage between the applicant and opposite party no.3 did not have the approval of her brother Kasim Khan son of Sukhey Khan, opposite party no.4, who proceeded to lodge an FIR against the revisionist and two others on 21.12.2017 registered as Case Crime no.1063 of 2017, under Sections 363, 366 IPC, Police Station Bahedi, District Bareilly. The revisionist’s wife, that is to say, opposite party no.3, the revisionist as well as the other co- accused joined together in a writ petition being Criminal Misc. Writ Petition no.558 of 2018, Smt. Najmeen @ Najma and 3 others Vs. State of U.P. and 2 others) challenging the First Information Report, last mentioned, which was disposed of vide an order dated 10.01.2018 staying the arrest of the writ petitioners with a direction that opposite party no.3 may be produced for recording of her statement under Section 164 Cr.P.C. and amongst other directions with a stipulation that the issue of custody of opposite party no.3 shall be decided by the learned Chief Judicial Magistrate. It is this part of the order dated 10.01.2018 that has placed the matter before the Chief Judicial Magistrate and has led to the order impugned being passed holding opposite party no.3 to be a minor and her custody being made over to her father as already said.
5. Aggrieved by the order passed by the Chief Judicial Magistrate, dated 03.04.2018, the present revision has been filed.
6. The learned counsel for the revisionist has invited the attention of the Court to the statement of opposite party no.3 made before the Judicial Magistrate on 15.02.2018, wherein she has said that she is aged about 24 years and has solemnized marriage (Nikah) with the revisionist of her free will and that she wants to go with her husband, the revisionist. Statement of opposite party no.3 under Section 164 Cr.P.C. reads (in Hindi vernacular):
“eS gSnj vyh dks 2 lky ls tkurh gwWA eS gSnj ls I;kj djrh gwWA eSus gSnj dks Qksu djds jEiqjk cqyk;k eS Hkh ogh pyh x;h FkhA mlds lkFk mlds ?kj pyh x;h FkhA eS viuh ethZ ls x;h Fkh esjs lkFk fdlh us tksj tcjnLrh ugh dh u tcjnLrh Hkxk;k u cgyk;k Qqlyk;kA eSus viuh ethZ ls gSnj ds lkFk 'kknh dj yh gSA eS gSnj ds lkFk gh jguk pkgrh gwWA vkt eSa viuk c;ku viuh ethZ ls fcuk fdlh tksj ncko ds ns jgh gwWA”
7. The third opposite party was also sent for her medical examination in order to ascertain her age. There is a certificate from the Chief Medical Officer, District Medical Board, Bareilly signed by a board of three doctors which includes the Deputy Chief Medical Officer, Bareilly, the Orthopedic Surgeon and the Chief Medical Officer himself, who have opined the third opposite party to be 19 years of age. A copy of the said certificate dated 07.02.2018 is on record as Annexure 4 to the affidavit filed in support of this revision.
8. What appears to have weighed with the Magistrate in granting custody of the third opposite party to the father is the record of her age produced by her parents from the Sharda Vidya Mandir, Jasanpur, Bahedi, District Bareilly, where she is claimed to have read. The documents produced from the said school was a transfer certificate that was proved by the Manager of the School, one Badri Prasad Gangwar. At this juncture, this Court considers necessary to say that though now not much turns upon it, but school records as to age or for that matter any school record relating to a scholar are generally to be proved by the Principal of the school or a responsible ministerial staff member like the Head Clerk or Clerk who has custody of that record. The Manager of school is not the custodian of records nor is he supposed to be acquainted with them. Proof of such records by the Manager of a School does not appear to be good proof of that record by a person competent to prove it. However, the said question is left open to be decided in some appropriate case.
9. The learned Chief Judicial Magistrate has nevertheless accepted the certificate produced by the parents relating to the age of opposite party no.3 from the Sharda Vidya Mandir, Jasanpur, Bahedi, District Bareilly and proved by its Manager falling back by the law laid down by the Hon’ble Supreme Court in Muraggan alias Settu Vs. State of Tamil Nadu, 2011(3) JIC 144 (SC) (AIR 2011 SC 1961) and the decision of this Court in Parvana Bano Vs. State of U.P. and others, 2015 Dand Nirnay Sangrah 584 holding that the date of birth recorded in the educational record took primacy over medical evidence. The date of birth recorded in the school record is 10.06.2000.
10. By an order dated 09.05.2018, opposite party no.4, Kasim Khan as well as his father, Sukhey Khan were summoned to appear before the Court on 24.05.2018. Both of them appeared before the Court on 24.05.2018 and the matter was adjourned to 30.05.2018 again ordering them to be present in the Court. It was directed by this Court on 24.05.2018 that the prosecutrix, opposite party no.3 shall be produced before the Court from the Nari Niketan. This matter was, therefore, finally heard on 30.05.2018 in the presence of the revisionist, opposite party no.3, Smt. Nazmeen, opposite party no.4 the first informant, her brother Kasim Khan and Sukhey Khan, the father of opposite party no.3.
11. The legal perspective in the backdrop of which the learned Chief Judicial Magistrate in the first instance ordered opposite party no.3, going by her recorded date of birth in the school records, to be given into the custody of her father, and, upon her refusal sending her to the Nari Niketan is in keeping with the view and trend of authority that has until very recently held field that evidence of date of birth of an alleged victim of a crime is also to be determined in accordance with the provisions of Section 94 of the Juvenile Justice Act, 2015. Section 94 aforesaid says that the date of birth as recorded in the school certificate or that recorded in the record of Board wherefrom the High School Examination or its equivalent has been passed shall first be looked into. If that is not available the recorded date of birth in the Corporation or Municipality or Gram Panchayat records would then be the second order of choice. It is only in the absence of first two, that medical evidence can be looked into for the determination of age. But all the said authorities appear to have lost their force in view of a very recent decision of their Lordships of the Supreme Court in Suhani and another Vs. State of U.P., Civil Appeal No.4532 of 2018 decided on 26.04.2018, which was a case of a girl who was recorded to be a minor aged 13 years and 8 months in her High School certificate issued by the C.B.S.E. and claiming herself to be a major aged about 19 years, she had married a man of her choice. An FIR was lodged on the one hand and she was detained in connection with that case and ordered to be interned in the Nari Niketan. A Habeas Corpus Writ Petition filed before this Court being Habeas Corpus Petition No.52290 of 2017 requiring her to be produced and released from the Nari Niketan, filed by the second petitioner, her husband, before this Court was dismissed on the ground of her recorded date of birth in her High School certificate. On an appeal by Special Leave, their Lordships sent the girl for a medical assessment of age by the All India Institute of Medical Sciences, who opined her to be between 19 - 24 years. Their Lordships going by the conclusions arrived at regarding age based on her medical examination held her to be a major and reversed the decision of this Court. Their Lordships noticing the fact that parties (the husband and wife) had admitted the factum of marriage before the Hon'ble Supreme Court also, allowed the girl to accompany her husband.
12. On 30.05.2018, therefore, when opposite party no.3, Smt. Nazmeen appeared before the Court brought from the Nari Niketan, she stood firm by her resolve to accompany her husband, the revisionist and refused to go back to her parents. Now, the medical examination certificate about her age indicates her to be 19 years. The certificate is by a board of three doctors comprising the Chief Medical Officer, Deputy Chief Medical Officer and Orthopaedic Surgeon from the District Hospital, Bareilly, which categorically opines opposite party no.3 to be 19 years. Even according to her School certificate, her date of birth is 10.06.2000 and now she has but a few days to complete 18 years, even going by that certificate which in any case looking to the view of their Lordships in Suhani (supra) would not have much relevance. Opposite party no.3 is apparently as medically determined, aged about 19 years, and, therefore, she cannot be held against her wish in any custody of whatever kind or forced to stay with a particular person against her wish be it her parents or anybody else. She has right to live with whomsoever she wants.
13. In the result, this revision succeeds and is allowed. The impugned order dated 03.04.2018 passed by the learned Chief Judicial Magistrate, Bareilly in Case Crime no.1063 of 2017, under Sections 363, 366 IPC, Police Station Bahedi, District Bareilly is hereby set aside and reversed.
14. Smt. Nazmeen, opposite party no.3 is present in the Court. She is free to go wherever she likes and with whom she wants. Since she has indicated her preference to accompany her husband, the revisionist, she may do so. The opposite party no.4, her brother or father, Sukhey Khan or for that matter any authority of the State will not interfere in the exercise of her freedom to stay with whomsoever she wants and wherever she wishes.
Order Date :- 30.5.2018 Anoop