Court No. - 4
Case :- CRIMINAL MISC. WRIT PETITION No. - 18247 of 2018 Petitioner :- Nisha And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gaurav Gupta Counsel for Respondent :- G.A.,Karunesh Narayan Tripathi
Hon'ble Bala Krishna Narayana,J. Hon'ble Ravindra Nath Kakkar,J.
Heard learned counsel for the petitioners, learned A.G.A. for the respondent nos. 1 and 2 and Sri Anil Kumar Srivastava, learned counsel for the respondent no. 3.
This writ petition has been filed by the petitioners with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 03.07.2018 in Case Crime No. 303 of 2018 u/s 363 I.P.C. and 7/8 of Protection of Children from Sexual Offences Act, P.S.- Sindhauli, District- Shahjahanpur.
Following order was passed by this Court on 24.08.2018 :-
"Counter affidavit filed on behalf of respondent no. 3 in the Court today is kept on record.
Heard learned counsel for the petitioner, learned A.G.A. and Sri Anil Kumar Srivastava, learned counsel for the respondent no. 3.
Following order was passed in this case by another coordinate Bench of this Court by order dated 02.08.2018 :-
"Learned counsel for the petitioners states that the respondent No. 3 and his associates have not permitted the petitioner No.1 to go for her ossification test before the CMO, Shahjahanpur, therefore, same could not be conducted and he prays that the petitioner No.1 may be permitted to present herself before the CMO, Allahabad for her ossification test.
It is directed that the victim-petitioner no.1 shall present herself before the Chief Medical Officer, Allahabad, for ossification test for verification of her age within ten days from today and Chief Medical Officer, Allahabad, shall send her medical report to this Court under sealed cover by the next date of listing.
Put up/list on 24th August, 2018.
Till the next date of listing or till the submission of police report under Section 173(2) whichever is earlier, the petitioners shall not be arrested pursuant to the impugned FIR lodged in the aforesaid case crime."
In compliance of the aforesaid order dated 02.08.2018, learned A.G.A. for the State produced the ossification test report. After perusing the ossification test report of the petitioner no. 1, Nisha, her age comes to about 19 years.
Learned counsel for the petitioners submitted that since and there was no direction to the petitioners to appear before this Court today in person, they have not appeared in the Court today.
List on 27.08.2018.
On that date, the petitioners shall positively appear before this Court in person."
When this matter was taken up today, both the petitioners namely petitioner no. 1, Nisha and petitioner no. 2, Mohd. Kashif alias Shera appeared before this Court today. They were identified by their counsel, Sri Gaurav Gupta.
On being quizzed by the Court, petitioner no. 1, Nisha stated that she is 19 years old and had left her parental home on her own accord. She further stated that she wants to live with her husband petitioner no. 2, Mohd. Kashif alias Shera and has no intention of returning to her parental home. Her statement has been recorded on a separate sheet of paper which has been signed by her.
Learned counsel for the petitioners submitted that as per the ossification test report of petitioner no. 1, Nisha, she is major and since she had left her parental home on her own accord and solemnized marriage with the petitioner no. 2, Mohd. Kashif voluntarily, therefore, it cannot be said that the petitioner no. 2, Mohd. Kashif alias Shera has committed any cognizable offence. Hence, the impugned F.I.R. is liable to be quashed qua the petitioners.
Per contra Sri Anil Kumar Srivastava, learned counsel for the respondent no. 3 contended that as per the date of birth of the petitioner no. 1, Nisha recorded in her 8th class certificate, she is minor and hence, the impugned F.I.R. is not liable to be quashed.
In reply, learned counsel for the petitioners submitted that as per the latest judgement rendered by the Apex Court in the case of Suhani & Anr. Versus State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018, the age of petitioner no. 1, Nisha ascertained by ossification test shall prevail over the date of birth recorded in her 8th class certificate especially in the absence of any evidence on record indicating that the date of birth certificate of petitioner no. 1, Nisha was issued by the Headmaster of the school first attended by her.
After having heard learned counsel for the parties present and perused the material brought on record as well as the statement given by the petitioner no. 1, Nisha before this Court today, we are of the view that the petitioner no. 2, Mohd. Kashif alias Shera has not committed any cognizable offence. The ingredients of the offences u/s 363 I.P.C. and 7/8 of Protection of Children from Sexual Offences Act are not made out.
Accordingly, the writ petition succeeds and is allowed.
The impugned F.I.R. and all the subsequent proceedings taken thereto are hereby quashed.
Order Date :- 27.8.2018/KS