Judgement By means of this revision petition revisionist Smt. Parwana Bano has challenged the order dated 13.08.2014 passed by learned Sessions Judge, Sharavasti wherein the revisionist Smt. Parwana Bano the prosecutrix of Criminal Case No. 665 of 2014, under Section 363, 366, 376 I.P.C. & Section 4 of Prevention of Children from Sexual Offences Act,2012 , P.S. Kotwali Bhinga, District Shravasti was given in the custody of her father opposite party no. 2 after holding her to be below 18 years of age. This revision petition has been preferred by Smt. Parwana Bano through her bother-in-law Sabit Ali with the prayer to set-aside the impugned order.
The order has been challenged on the ground that the prosecutrix Parwana Bano is a married lady. Her first husband was Ali Ahmad @ Baidhey with whom marriage was taken place on 06.07.2009. Thereafter, she married with Jakir Hussain. A Nikahnama was executed on 31.12.2013 at Delhi. Thereafter, an F.I.R. has been lodged under Section 364 I.P.C. against Jakir Hussain and five others for kidnapping of Parwana Bano with intent to commit her murder. It has been alleged in the F.I.R. that age of the prosecutrix was about 16 years and her date of birth is 21.08.1997. The said incident was occurred on 23.12.2013. Thereafter, police recovered the prosecutrix and she was medically examined wherein she was found aged about 17 years on the basis of ossification test. Her statement under Section 164 Cr.P.C. was recorded wherein she deposed her age as 20 years. Thereafter, charge sheet was submitted under Section 363, 366, 376 I.P.C. & Section 4 of Prevention of Children from Sexual Offences Act,2012. After recording the statement under section 164 Cr.P.C. the impugned order has been passed.
It has been submitted by the counsel for next friend of the revisionist that the age of the revisionist mentioned in Nikahnama is more than 18 years. It was further submitted that in view of the judgment of Apex Court in case of Jaya Mala Vs. Home Secretary Government of Jammu and Kahsmir, A.I.R. 1982 SC 1297, there shall be a variation of three years on both the sides in the age determent on the basis of ossification test. Therefore, her age shall not be less than 20 years. It was further submitted that the revisionist has given statement before Magistrate to go with her husband Jakir Hussain and as the prosecutrix is married and above 18 years of age, she should be set at liberty to go where she wants to go. The order of handing over Parwana Bano to her parents is not legally sustainable and is against the law. In support of her contention she has relied upon the judgement of Division Bench of this Court in case of Smt. Arti and Anr. Vs. State of U.P. And others, 2012 (3) JIC 189 Alld.
Learned A.G.A. opposed the arguments of Counsel for the revisionist's next friend and raised a preliminary objection that the present revision petition is not legally maintainable as the person, who filed this revision petition is major as per averments made in the memo of revision. If it is so, she could file this revision herself and nobody else is competent to file this revision on her behalf.
It was further submitted by learned AGA that the school certificate is available on record and has been considered by the learned Sessions Judge, Shravasti wherein the date of birth mentioned of the revisionist Parwana Bano is 21.08.1997. Accordingly, her age on the date of incident was less than 18 years of age. It is well settled proposition of law that while determining the age of juvenile the provision of Juvenile Justice (Care and Protection of children), 2007, (herein after referred to as 'JJ.Act' ) would apply. Moreover, the age determined on the basis of ossification test also supports the age mentioned in the school certificate. Therefore, the case of Jaya Mala (supra) is not applicable in this case and the order passed by learned Sessions Judge is absolutely in accordance with law.
Admittedly in this case as per school certificate, the age of revisionist Parwana Bano was less than 18 years even on the date when her statement under Section 164 Cr.P.C. has been recorded. In view of Rule 12 framed under JJ Act known as Juvenile Justice (Care and Protection of children) Rules 2007, (for short 'Rules') if school certificate is there the same shall exclude the medical evidence for determining the age of the juvenile, child or juvenile in conflict with law as held in Mahadeo Vs. State of Maharastra, (2013) 14 SCC 637. In this case of Apex Court held ; while determining the age of juvenile in conflict with law or of a child adherence of Rule 12 would be mandatory. In Mahadeo v. State of Maharashtra,(2013) 14 SCC 637, at page 640 observed as under:-
"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
"12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;"
Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.
13.In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same."
Moreover, at this stage when the question of custody is involved the prima facie evidence of school certificate can not be ignored. The statement given by the revisionist or age mentioned in the Nikahnama will not be decisive for the purpose of the determination of question of custody of child. The Court below has not committed any mistake in assessing the age of revisionist less than 18 years on the date of incident as well as on the date of recording the statement under section 164 Cr.P.C., therefore, her consent would be immaterial in the present case specially when the child has been given in interim custody to her parents. The judgment in Jay Mala's case (supra) would not be applicable in the present stage of the case.
So far as Smt Arti's case (supra) of Allahabad High Court is concerned the same would not be of any help to the petitioner as the same runs contrary to the ratio propounded by Apex Court in Mahadeo's case (Supra).
So far as the preliminary question regarding maintainability of this revision is concerned this is not a petition of habeas corpus where any person may file petition for release of illegal person claiming himself to be his next friend. For filing the revision petition under Cr.P.C. that analogy can not be applied. Moreover, in view of the fact that there is no authorization on record of Parwana Bano to file this revision petition in favour of Sabit Ali and also keeping in view that Sabit Ali is not the natural or de-facto guardian of revisionist and as such he has no locus to file the present revision on behalf of revisionist . Therefore, on this ground too, the revision petition is liable to be dismissed.
In view of above, the revision lacks merit and is accordingly dismissed.
Order Date :- 17.11.2014 R.K.P.