Court No. - 65
Case :- APPLICATION U/S 482 No. - 31983 of 2019 Applicant :- Harish Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satish Chandra Dubey,Jay Singh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Jay Singh Yadav, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
2. This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 10.04.2019 including the further proceeding of Special Session Trial No. 34 of 2018 (State Vs. Harish Kumar @ Babbu) arising out of Case Crime No. 730 of 2017 under Sections 363, 366, 376 I.P.C. and Section 3/4 The Protection of Children From Sexual Offences Act, Police Station – Barkheda, District Pilibhit pending in the Court of Additional Sessions Judge, Court No. 1, Pilibhit. It has been further prayed that this Hon'ble Court may be pleased to stay the impugned order dated 10.04.2019 including the further proceeding of aforesaid trial pending in the Court of Additional Sessions Judge, Court No. 1, Pilibhit till the disposal of this application.
3. It is argued by the learned counsel for the applicant that the victim in this case is a major girl because in the medical examination report her age is found to be 18 years and reliance has been placed by him on the law laid down in the case of Suhani and another Vs. State of U.P. and two others, 2018 SCC 2547. Further it is argued that in her statement under Section 164 Cr.P.C. the victim has stated that she had gone with the accused applicant of her own free will and was staying together with the accused as husband and wife.
4. Learned A.G.A. has vehemently opposed the prayer for quashing of the impugned order stating that on the basis of evidence on record the charges under above mentioned Sections were made out. The impugned order does not suffer from any infirmity and deserves to be upheld.
5. I have gone through the First Information Report as well as the impugned order and other material available on record. As per the First Information Report the opposite party No. 2 has stated in it that his daughter (victim) aged about 15 years 06 months was enticed away by the accused applicant on 09.12.2017. The victim was seen talking on mobile phone by her mother with the accused and the said mobile phone was broken by the victim's mother. Thereafter, a second mobile phone was seen in possession of the victim and the same was given to her by the accused. After lodging of this First Information Report, investigation was made and statements of as many as five witnesses were recorded. The veracity of the statements of the said witnesses cannot be tested under Section 482 Cr.P.C. The same would require trial. Moreover, with respect to the determination of the age of victim in Criminal Misc. Writ Petition No. 20816 of 2018: Nisha Naaz @ Anuradha and another Vs. State of U.P. and two others a Division Bench of this Court has distinguished the finding given in Suhani's case (supra) and has held as follows:-
“On enactment of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 2015, Act), the procedure for determination of age of a juvenile in conflict with law, which was provided in the 2007 Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 2000, Act), as noticed in Jarnail Singh's case (supra), has been incorporated in section 94 of the 2015, Act, which is extracted below:
94. Presumption and determination of age.-- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."
A plain reading of Section 94 of the 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. A Division Bench of this court in the case of Smt. Priyanka Devi Vs. State of U.P. and others in Habeas Corpus Petition No.55317 of 2017, decided on 21st November, 2017, after noticing the provisions of the 2015, Act and the earlier 2000, Act and the rules framed thereunder, came to the conclusion that as there is no significant change brought about in the 2015, Act in the principles governing determination of age of a juvenile in conflict with law, in so far as weightage to medico legal evidence is concerned, the law laid down in respect of applicability of those provisions for determination of a child victim would continue to apply notwithstanding the new enactment. The Division Bench in Priyanka Devi's case (supra) specifically held that as there is on record the High School Certificate, the medico legal evidence cannot be looked into as the statute does not permit.
The judgment of the apex court in Suhani's case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani's case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani's case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined.”
6. In view of the above, it is apparent that the age of victim can be determined only on the basis of the provisions laid down in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and not on the basis of medical examination report solely. In the present case charge sheet has been submitted by the police on the basis of the evidence gathered during the investigation for holding the victim to be minor. It is a matter of trial as to whether on the date of occurrence the victim was minor or a major girl.
7. I do not see that the evidence on record, prima facie, is not sufficient for framing the charge against the accused application under above mentioned Sections, particularly in view of the fact that the entire evidence which prosecution has gathered has not been annexed with the application.
8. Accordingly, the application under Section 482 Cr.P.C. is dismissed.
9. No order as to costs.
Order Date :- 22.8.2019 LBY