Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 5083 of 2019 Petitioner :- Jyoti And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashok Kumar Yadav Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioners, learned A.G.A. for the State- respondents and perused the record.
The instant petition seeks quashing of the first information report dated 31.1.2019, registered as Case Crime No. 51 of 2019, under Sections 363, 366 IPC at P.S. Sarai Mamrej, District Prayagraj.
The allegation in the first information report, which has been lodged by father of the victim-Jyoti is that the victim, who is aged about 16 years, has been enticed away by the accused (petitioner no. 2).
The petitioners (including the victim-petitioner no.1 and her alleged husband-petitioner no. 2) have approached this Court by claiming that victim (petitioner no. 1) and petitioner no. 2 being adults have voluntarily married each other. The victim is relying on her Aadhar Card so as to claim that her date of birth is 06.08.1994.
Learned A.G.A. has submitted that entry of date of birth in an Adhaar Card is not conclusive as the agencies do not insist for age proof. It has thus been submitted that much reliance should not be placed on the date of birth shown in the Adhaar Card, particularly, when there is allegation in the first information report that the informant's daughter is minor.
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 (Smt. Jyoti) before the court of Chief Judicial Magistrate, Prayagraj (Allahabad) by or before 6th March, 2019. Upon her production, the Chief Judicial Magistrate, Allahabad shall proceed to record the statement of Smt. Jyoti 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 6th 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