Hon'ble Ramesh Sinha,J.
No one appears on repeated calls either on behalf of the petitioners or on behalf of the respondents though the name of counsel for the parties appear in the cause list.
We have heard learned AGA and have perused the record and thereafter proceeded to pass the order.
Case Crime No.529 of 2008 was registered by police of Police Station Shamshabad District Farrukhabad which was under Sections 363 and 366 I.P.C. The allegation was that Lakshmi @ Kamini had been kidnapped by the accused persons. It appears that the accused persons filed a Criminal Misc. Writ Petition bearing No. 18846 of 2010 and an interim order was passed in that writ petition, by which the arrest of the accused persons was stayed. The victim was taken into custody by the police and she was produced for her medical examination. It appears that she was assessed aged about 18 years. In her statement under Section 164 Cr.P.C. she stated that, out of her own free will, she went out of her parents' house to get married to the accused Manoj Kumar.
A petition was filed by the police after completion of the formalities of the medical examination of the victim for the recording of her statement under Section 164 Cr.P.C.. The A.C.J.M.,Court No.9, Farrukhabad passed an order for the custody of the girl. The learned A.C.J.M. perused the above facts, but held that when there was a medical report assessing the age of the victim and simultaneously there was a record indicating the date of birth of the victim as mentioned in the school records, then preference had always to be given to school record and not to the medical report. Learned A.C.J.M. has observed that it was to be done as a matter of principle of law.
We want to point out that there was no such law which could justify the above observation of the A.C.J.M, that in a case of present nature the assessed age of the victim in an offence of the present nature has to be discarded in the light of the entries made in the school records. Probably, the A.C.J.M., Farrukhabad having in his mind the provisions of Juvenile Justice (Care and Protection of Children) Rules, 2007, by virtue of Rule 12, had granted credence to the age of a victim of such an offence which is mentioned in the school leaving certificate over the medically assessed age of such a victim.
We find that it was not only the A.C.J.M. who was falling in error as just noticed, the learned Sessions Judge was also repeating the same error when he was holding that ' It is well settled that, the date of birth, as mentioned in the School Certificate, shall be given preference to the medical opinion regarding age.' In our opinion, this misreading of law appears leading the A.C.J.M. Farrukhabad as also the Sessions Judge, Farrukhabad to pass erroneous respective orders and thereby confirming the order of confining the lady petitioner in Nari Niketan, Etawah.
We have repeatedly been pointing out that the victim of an offence under Sections 363, 363A or 366 I.P.C. may not be confused as an accused. She may also not be treated, if she is below 18 years of age as a juvenile in conflict with law, and the law applicable to juvenile may not be applicable to such a victim of the offence. We have also noted at some earlier occasions that even a child had its rights internationally recognized which as per cultural heritage and constitutional provisions inherently assumed the character of fundamental rights of a child and no Court could have the authority to encroach upon those rights of a child. If at all any offence is constituted by facts, no law could justify the dentention of such a victim if there is a dispute of custody of the victim.
We simply could not understand as to how the Courts are treating it a judicial dispute that a lady should either be with a particular person or the other, even she is 18 years of age. On account of being a citizen of India, she could have enjoyed the fundamental rights and move in whatever direction she desired if that movement was not detrimental to the Constitutional provision and national security.
In the present case, there was no dispute that the age of the lady was above 18 years and as such she was a major and she was not an accused. She was not a juvenile in conflict with law. As such, she could not be subjected to wrong interpretation of law by exercise of completely erroneous jurisdiction. We find that the order dated 24.2.2011 passed by A.C.J.M., Court No.9, Farrukhabad and that dated 11.4.2011 passed by Sessions Judge, Farrukhabad are, out and out, orders which are not only erroneous but appear to have been passed without jurisdiction and in contravention of Constitutional provisions.
In the result, in exercise of our powers under Article 226 of the Constitution of India, we quash both the above noted orders.
We need not pass any order directing the release of the lady petitioner as she already appears released by order dated 7.6.2011 passed by this Court.
In view of the above, the writ petition is allowed.
Order Date :- 15.5.2012 NS