Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 5454 of 2019 Petitioner :- Shafak Aala And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Firdos Ahmad Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
At the outset, learned counsel for the petitioners prays to correct the name of petitioner no.2 so that in place of Harish it be read as Mohd. Haris.
The prayer made is allowed. The said correction may be carried out during the course of the day.
Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1 and 2; and perused the record.
The instant petition seeks quashing of the First Information Report dated 14th February, 2019 registered as Case Crime No.0043 of 2019, under Sections 363 and 366 I.P.C. at police station Mubarakpur, District Azamgarh.
The allegation in the impugned First Information Report, which has been lodged by the father of the victim Shafak Aala is that his daughter, who is minor and is student of Class-X, had gone to give her 10th board examination from where she has been enticed away by the accused persons.
The learned counsel for the petitioners submitted that the victim is an adult aged about 19 years and she has voluntarily entered into relationship with petitioner no.2. (Mohd. Haris). It has been submitted that under the circumstances, no offence has been committed.
Learned counsel for the petitioners has not produced any documentary evidence which may suggest that the victim is an adult and since the victim is a student of Class-X and appearing in her board examination and it is stated to be a minor, no case for quashing of the First Information Report is made out.
However, looking to the facts and circumstances of the case, we deem it appropriate to dispose of this petition by providing that the petitioner no.2 shall produce the petitioner no.1 (Shafak Aala) before the court of Chief Judicial Magistrate, Azamgarh by or before 12th March, 2019. Upon her production, the Chief Judicial Magistrate, Azamgarh shall proceed to record the statement of Shafak Aala 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 further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigation 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 :- 28.2.2019. Rks.