Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 75 of 2019 Petitioner :- Mamta Sharma And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satyendra Pandey 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 and perused the record.
Instant writ petition seeks quashing of the FIR dated 22.12.2018, registered as Case Crime No. 489 of 2018, under Sections 363, 366 IPC at P.S. Kaptanganj, District Kushi Nagar.
Impugned FIR, which has been lodged by the father of the victim-Mamta alleges that victim is aged about 17 years and she has been enticed away on 7.12.2018 by Akhilesh Sahani (petitioner no. 2).
Petitioners have approached this Court by claiming that victim (petitioner no. 1) is an adult and that her date of birth entered in Aadhar Card is 25.2.1998. It is stated that she had voluntarily entered into relationship with the petitioner no. 2 and, therefore, no offence has been committed.
Entry of date of birth in Aadhar Card is not conclusive and, therefore, the age of the victim would have to be determined as per provisions applicable for determination of age of juvenile in conflict with law, keeping in mind the law laid down by Apex Court in 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) which has been followed and applied by a Division Bench of this Court in Smt Priyanka Devi Vs State of UP and others (Habeas Corpus Writ Petition No. 55317 of 2017, decided on 22.11.2017.
In view of above, and in absence of any conclusive evidence to suggest that the victim is an adult, while refusing the prayer to quash the FIR, as it is alleged in the FIR that the victim is aged about 17 years, we deem it appropriate to dispose off this writ petition by providing as follows:-
The petitioner no. 2 shall produce the petitioner no. 1 (Smt Mamta) before the court of Chief Judicial Magistrate, Kushi Nagar by or before 15th March, 2019. Upon her production, the Chief Judicial Magistrate, Kushi Nagar shall proceed to record the statement of Smt Mamta (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 15th 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 :- 26.2.2019 RavindraKSingh