Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 2347 of 2019 Petitioner :- Rizwana And 6 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Tripurari Pal 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 19.01.2019 registered as Case Crime No.07 of 2019, under Sections 363, 366 IPC, P.S. Kudh Fatehgarh, District Sambhal.
The allegation in the first information report is that the minor daughter of the informant, namely, Rizwana, aged about 16 years, has been enticed away by the accused-Shahid.
The petitioners have approached this Court by claiming that Rizwana is an adult and that she has voluntarily entered into relationship with the petitioner no.2 (accused). Reliance has been placed on Adhaar Card of Rizwana, which depicts date of birth of Rizwana as 05.01.2000.
Learned A.G.A. has submitted that entry of date of birth in an Adhaar Card is not conclusive as the agencies do not insist for age proof. It has thus been submitted that much reliance should not be placed on the date of birth shown in the Adhaar Card, particularly, when there is allegation in the first information report that the informant's daughter is minor.
Having perused the record. We do not find any other documentary evidence on the basis of which we could hold the victim to be an adult. As it is not provided by law that the date of birth entered in an Adhaar Card would be conclusive, and we find no document on the basis of which such entry had been made, we deem it appropriate to dispose off this petition by providing as follows:-
The petitioner no.2 shall produce the petitioner no.1 (Rizwana) before the court of Chief Judicial Magistrate, Sambhal by or before 18th February, 2019. Upon her production, the Chief Judicial Magistrate, Sambhal shall proceed to record the statement of Rizwana 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 18th February, 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.
With the aforesaid observations/directions, the petition is disposed off.
Order Date :- 31.1.2019 Ajeet