Court No. - 67
Case :- CRIMINAL REVISION No. - 803 of 2019 Revisionist :- Vajib @ Vajid Opposite Party :- State Of U.P. And 4 Others Counsel for Revisionist :- Jaysingh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Sri SM Yadav filed Vakalatananma on behalf of respondent no. 5 today, which is taken on record.
Heard learned counsel for the revisionist, private respondent and learned AGA.
By means of the instant revision, the revisionist Vajib @ Vajid is assailing the validity of the order dated 12.02.2019 passed by Chief Judicial Magistrate, Muzaffarnagar in Case Crime No. 16 of 2019, under sections 363, 366, 368 and 506 IPC, P.S. Kakrauli, District Muzaffar Nagar whereby custody of his wife namely; Shabnoor has been given to her natural father- Nasir, who is herein respondent no. 4.
Learned counsel for the revisionist submitted that way back on 19.01.2019 one Danish lodged an FIR against the revisionist as well as his father under sections 363, 368 and 506 for enticement of his cousin (sister). During the course of investigation, the victim was recovered and prior to this, both of them appeared before coordinate Bench of this Court by means of Criminal Misc. Writ Petition No. 2062 of 2019, which was disposed of vide order dated 24.01.2019, operative portion of the aforesaid order is extracted herein below for ready reference:
"...........the kidnapped girl may be directed to be produced before the court concerned to ensure fair investigation, it is directed that in case the allegedly kidnapped girl Smt. Shabnoor appears or is produced before the court of learned C.J.M. Muzaffar Nagar within 20 days from today and moves an application for her medical examination and recording her statement under section 161 Cr.P.C. and 164 Cr.P.C, the learned Magistrate concerned shall fix a date for the same purpose. On that date, the first informant & Officer-in-charge of the police station concerned shall be summoned. Thereafter such girl shall be produced before C.M.O. concerned by the concerned police officer for her medical examination as early as possible, preferably not later than within further twenty days. Her statement under Section 161 Cr.P.C. shall also be recorded. Thereafter, she shall be produced before C.J.M concerned for recording her statement under section 164 Cr.P.C. on the application filed by the I.O./Officer-in-charge of the police station concerned. Till two months from today or till recording of her statement under Section 164 Cr.P.C., whichever is earlier, no coercive step like arrest shall be taken against the accused and in case of default and non compliance of the Court's direction by the petitioners, it shall be open to the police authority concerned to arrest the accused. In case in view of the radiological report and the other educational certificates or birth certificates if any, which the I.O. may collect during investigation regarding the proof of age, the girl is found to be major and if her statements are found favourable to the accused-petitioners, the accused shall not be arrested till submission of police report under Section 173(2) Cr.P.C., provided that the accused shall co-operate with the investigation. In case the alleged kidnapped girl is found to be minor or if she is found major but supports the prosecution version, it shall be open to the police authority to arrest the accused and proceed further in accordance with law. In case the petitioners approach the S.S.P. concerned to provide the security for the aforementioned purpose of complying with Court's direction, the same shall be provided to them.
It is further directed that issue of custody of the alleged kidnapped girl may also be decided by the C.J.M. concerned in accordance with law "
It is next submitted that pursuant to the aforesaid order, statements of the victim were recorded under section 161 and 164 Cr.P.C., and in both the statements, she candidly refuted the charge of elopement, fairly conceding therein that she has married with the victim and is desirous to live with the applicant. Her ossification test report dated 09.02.2019 opines that the victim is aged about 22-24 years and thus major. Thereafter, Nasir, father of the victim moved an application on 12.02.2019 mentioning therein that the real date of birth of the victim i.e., Shabnoor alias Summaiya is 02.06.2001 and she has received education in a Madarsa. Her aforesaid date of birth has been mentioned in the School Leaving Certificate of the Madarsa. Through the aforesaid application, the respondent no. 4 Nasir has sought custody of the victim on the ground of her being minor from the court of the Chief Judicial Magistrate, Muzaffarnagar.
Learned counsel for the revisionist next submitted that in the custody of respondent no. 4-Nasir, the wife of the revisionist would be suffering immense torture in the hands of Nasir. Moreover, the victim is in her family way, and is having pregnancy of three months, therefore, her sufferings would be doubled in the custody of her father. He further fortified his arguments by submitting that it can be well visualized that a mother (victim) is being vendalized only due to the arbitrary impugned order, which is miscarriage of natural justice.
Perused the record, specially the order impugned. The learned Magistrate passed his aforesaid order, relying upon school leaving certificate in the name Shabnoor, issued by a Madarsa, wherein it has been categorically mentioned that at the relevant point of time she was only class V pass out, gave custody to the father of the victim against her desire, is not sustainable under law. The said school leaving certificate, where the victim is shown to be a pass out student of Class V cannot be taken into cognizance because it is not a certificate given by any Board or Committee and thus cannot be construed to be an evidence.
The order dated 12.02.2019 passed by Chief Judicial Magistrate, Muzaffarnagar seems to be hoarse and in violation of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is extracted herein below for ready reference:
94. Presumption and determination of age.
1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -
i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
ii. the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
The learned Magistrate while passing the order impugned, did not even bother to peruse the aforesaid Act thoroughly and did not take pains to follow the same in letter and spirit.
Let the Chief Judicial Magistrate, Muzaffarnagar file a personal affidavit explaining therein the order dated 12.02.2019 and its rationale for passing such an order. Not only this, respondent no. 4-Nasir is directed to appear in person along with the victim Shabnoor alias Summaiya, who is respondent no. 5 herein before this Court on 25th March, 2019.
Learned Chief Judicial Magistrate, Muzaffarnagar is directed further to ensure the presence of respondent no. 4- Nasir along with his daughter Shabnoor alias Summaiya.
Put up the matter once again on 25th March, 2019.
Let a copy of this order be furnished to the learned AGA as well as to the District Judge, Muzaffarnagar, for strict compliance at their respective ends.
Order Date :- 25.2.2019 shailesh