Court No. - 43
Case :- HABEAS CORPUS WRIT PETITION No. - 1195 of 2019 Petitioner :- Smt. Pooja And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arvind Prabodh Dubey,Ashok Kumar Giri Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Samit Gopal,J.
Heard Sri Arvind Prabodh Dubey, learned counsel for the petitioners and the learned A.G.A.
This habeas corpus petition under Article 226 of the Constitution of India has been filed by petitioner no.2 (husband), directing respondent no. 3 to produce and hand over the corpus / petitioner no.1 to her.
An FIR as Case Crime No.74/2019, under Sections 363/366/504/120-B IPC, P.S.Khajani, Gorakhpur was registered at the instance of the father of the corpus / petitioner no. 1, alleging that petitioner no.1, aged about 17 years, as per her High School Certificate, has been enticed / kidnapped by petitioner no. 2.
It is submitted by learned counsel for petitioner no. 2 that the corpus (petitioner no.1) is aged about 25 years as per medical examination, her custody be given to petitioner no.2/husband forthwith.
The learned A.G.A opposed the submission on the ground that corpus is a juvenile as per High School Certificate (30.12.2002) which is to be accorded primacy over medical opinion.
Section 94 of the Juvenile Justice Act, 2015 provides that primacy is to be given to the date of birth certificate from the school or matriculation or equivalent certificate from the Examination Board concerned, if available and in absence thereof, the Birth Certificate given by specified local authorities and in the absence of above two options, age shall be determined by ossification test or any other latest medical age determination test, conducted under the orders of the Committee or Board. Thus, it is crystal clear that for the purposes of ascertaining the date of birth of a juvenile, the first and the foremost document are his / her educational documents, in absence thereof, a Birth Certificate from specified authority, would be acceptable and only when educational documents and the certificate of local authorities are wanting, recourse is to be had to the medical examination of the juvenile based on ossification test or any other latest technique.
The case of the prosecution is that as per High School Certificate, the date of birth of the corpus is 30.12.2002, which is not disputed by learned counsel for the petitioner. Once an educational document is available in respect of the corpus to assess her date of birth, authenticity of which is not under challenge, no reliance could be placed on the medical opinion in view of the provisions of Section - 94 of the Juvenile Justice Act, 2015.
The corpus is presently in a shelter home under the order of the learned C.J.M. dated 18.11.2019 which is a judicial order. The detention of the corpus cannot be said to be illegal.
The Habeas Corpus Writ Petition is dismissed.
Order Date :- 18.12.2019 Chandra