Court No. - 40
Case :- CRIMINAL MISC. WRIT PETITION No. - 2529 of 2021 Petitioner :- Smt. Ritu Shakya And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Nand Kishor Mishra,Shilpa Ahuja Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1, 2 and 3; and perused the record.
The instant petition seeks quashing of the First Information Report dated 15.08.2020 registered as Case Crime No. 0557 of 2020, under Sections 363, 366 IPC; Sections 7/8 of Protection of Children from Sexual Offence Act; and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Kotwali Orai, District Jalaun.
The allegation in the impugned First Information Report, which has been lodged by the father of the victim Ritu Kumari (the petitioner no.1) is that Ritu Kumari is a minor whose date of birth is 20th July, 2003 and she has been enticed away by the accused (petitioner no.2) on 16.7.2020. The First Information Report was lodged on 15.8.2020.
Learned counsel for the petitioners submits that as per the entry in her Aadhar Card, the victim was born on 20th July, 2002 and therefore, she is an adult.
It is well settled that the age of the victim is to be determined on the same principles that are applicable for determining the age of a juvenile in conflict with law. Under the circumstances, the date of birth entered in an Aadhar Card is not conclusive and therefore the age of the victim would have to be determined.
Learned A.G.A. has suggested that this petition may be disposed off requiring the investigating agency to determine the age of the victim and after recording her statement, take action as per law.
Having heard 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 (Ritu Kumari) before the court of Chief Judicial Magistrate/concerned Magistrate, Jalaun by or before 30th April, 2021. Upon her production, the Chief Judicial Magistrate/concerned Magistrate, Jalaun shall proceed to record the statement of Ritu Kumari 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/concerned Magistrate that force has been used on her, the Chief Judicial Magistrate/concerned 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 or within such reasonable time as may be required, 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 four weeks from the date of production of the victim before the Chief Judicial Magistrate/concerned Magistrate. Till 30th April, 2021, or the date on which the victim is produced before the Chief Judicial Magistrate/concerned 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/concerned 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 further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigating agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.
With the aforesaid observations/directions, the petition is disposed off.
Order Date :- 8.4.2021 Kushal