Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 5062 of 2019 Petitioner :- Muskan @ Radha And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Om Prakash 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 respondents 1, 2 & 3; and perused the record.
The instant petition seeks quashing of the first information report dated 08.02.2019 registered as Case Crime No.0087 of 2019, under Sections 363, 366 IPC, P.S. Nawabad, District Jhansi.
The allegation in the first information report is that Muskan (petitioner no.1), aged about 17 years 6 months, the minor daughter of the informant, has been enticed away by the accused-Arjun (the petitioner no.2).
The petitioners have approached this Court by claiming that Muskan (the victim) is an adult with her date of birth, recorded in school record, as 10.05.1999 and that she has voluntarily entered into relationship with the petitioner no.2 (accused) and, therefore, no offence has been committed.
Learned A.G.A. has pointed out that date of birth entered in the progress report, which has been relied upon by the petitioners, is of doubtful character, inasmuch as, the date of birth has been entered therein by hand. He has further submitted that the date of birth entered in the Adhaar Card is not of much relevance as it is not being provided primacy over date of birth entered in educational certificate. Therefore, it would be appropriate that the victim be produced before the Chief Judicial Magistrate concerned, who may record her statement after determining her age.
Having considered rival submissions, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Muskan @ Radha) before the court of Chief Judicial Magistrate, Jhansi by or before 12th March, 2019. Upon her production, the Chief Judicial Magistrate, Jhansi shall proceed to record the statement of Muskan @ Radha 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 12th 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 Ajeet