JUDGMENT Amitava Lala and Shiv Shankar, JJ.
1. Sri J.N. Misra, Sub-Inspector and Sri Brijesh Diwedi, Chetganj, Varanasi are present before this Court.
2. Petitioner No. 2, the girl, is produced before this Court by the police. Dispute arose previously in connection with her age. this Court was pleased to direct to go for ossification test by an order dated 24.1.2006. Thereafter, other problem arose in connection with the appropriate ossification test by the Chief Medical Officer, Varanasi when the Court was pleased to direct that the same is to be done by the Chief Medical Officer, Allahabad. A controversy arose about her arrest by the police officer during the interregnum period in view of non-validity certified copy of the order. The learned Govt. Advocate explained that formally she has not been arrested. There was a communication gap. However, in view of earlier direction, the Police Officer is present before this Court along with the girl.
3. From the ossification test, as placed before this Court, we find that the age of the girl is 18 years. It has been contended by the learned Counsel appearing for the complainant that as because the girl crossed only a few days of 18 years before the date of marriage, that does not unnecessarily mean that she has become major and she will be able to take decision in respect of her life. We are sorry to say that we cannot go beyond the scope of law under Section 98 Cr.P.C. which describes about power to compel restoration of adducted females. Section is as follows:
Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful-purpose, a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.
4. learned Counsel appearing for the petitioner cited three judgments before this Court. One after another which are quoted accordingly:-1997, ACC 35, 1, Smt. Raj Kumari v. Superintendent, Women Protection House, Meerut and Ors. 1999 ACC 422, Smt. Shakeela Begum and Ors. v. Senior Superintendent of Police, Moradabad and Ors. and 2006 (54) ACC 235, Nitin Agnihotri v. State of U.P. and Ors.
5. In all the cases one point has been categorically stated that once the girl become major she has her own right to stay as per her will and she cannot be protected even by sending her to any home i.e. Nari Niketan etc. The guardians, as prayed by learned Counsel appearing on behalf of the complainant, cannot be allowed, to keep her. Since Mr. A.N. Mulla, who is not appearing in the present case for either of the panics, is directed by the Court to act as friend of Court in asking question to the girl- where she wants to go? She categorically said that she wants to go with her husband. learned Counsel appearing for the complainant also contended that document of marriage is not valid document. At this stage, we do not want to go in to such controversy. The controversy should be resolved in the following manner.
6. The Investigating Officer will complete the investigation of Case Crime No. 234 of 2005, under Sections 363 and 366 I.P.C., P.S. Chetganj District Varanasi, within a period of three months from the date, on which a certified copy of this order is presented before him. The petitioner/s is/are directed to co-operate with the Investigating Officer in all possible manner. If the Investigating Officer or informant found himself aggrieved due to falsification, misstatement, fraud, non-cooperation with the Investigating Officer or any other reasons whatsoever relevant for the purpose, they are at liberty to apply for recalling/variation/vacating/modification of the order.
7. However, the petitioner/s will not be arrested in the aforesaid case crime number till the submission of chargesheet/final report, if any.
8. Accordingly, the writ petition stands disposed of.
9. However, no order is passed as to costs.