Allahabad High Court
Nanhe @ Mohd. Haseen And Another vs State Of U.P. And 3 Others on 19 August, 2019
Bench: Manoj Misra, Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 463 of 2019 Petitioner :- Nanhe @ Mohd. Haseen And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajay Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
The case has been called out in the revised list. No-one has appeared to press this petition on behalf of petitioners.
We have perused the records.
This habeas corpus petition has been filed by Nanhe (petitioner no.1) for production of the corpus Najiya (petitioner no.2) and to set her free as also for her custody.
A perusal of the record would go to show that a first information report was lodged by Sageer (father of the corpus) at Police Station Amroha Dehat, District Jyotiba Phule Nagar. The said first information report was registered as Case Crime No.146 of 2018 under Section 364 I.P.C. against as many as six persons including Nanhe (petitioner no.1).
It appears that in connection with the said case, the victim (the corpus) was produced before the Court of Ist Additional Sessions Judge, Amroha. Upon finding that in the case diary the date of birth of the corpus was 05.10.2004 she was directed to be placed before the Child Welfare Committee. Although the order of Child Welfare Committee is not on record but it appears that the corpus has been placed in a protection home at Moradabad.
This petition has been filed by alleging that the corpus has attained the age of puberty and she has married the petitioner no.1.
On the last occasion, when the matter was heard, as the court could not find from the record as to on what basis the date of birth of the corpus was determined as 05.10.2004 by the Ist Additional Session Judge, Amroha, we required the learned A.G.A. to obtain instructions from the police station concerned and also a report of the Chief Medical Officer, Moradabad as regards the age of the corpus. We had specifically required the Chief Medical Officer to estimate the upper and lower age limits of the corpus on the basis of her physical appearance and radiological tests with the aid of a three members Medical Board.
Learned A.G.A. has produced in sealed cover report of the Chief Medical Officer, Amroha which does not disclose the upper and lower age limits of the corpus. It simply states that she is aged about 18 years.
Learned A.G.A. has obtained instructions from the Investigating Officer of the case and has informed the Court that the corpus has studied in a Primary School at Dhanaura and as per the school records her date of birth is 05.10.2004.
We had inquired from the corpus, who has been produced before us, as to whether she has studied in that school. She admits that she has studied in that school up to Class-I. As there is no specific challenge in this petition with regard to the authenticity of the date of birth entered therein and no other date of birth certificate has been brought to our notice, keeping in mind that the corpus is a child victim and her age would have to be determined by applying the same principles as contained in Section 94 of the Juvenile Justice Act, 2015 wherein primacy is to be accorded to date of birth entered in educational certificates over medical evidence (vide Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263 ; State of M.P. Vs. Anoop Singh, (2015) 7 SCC 773; and Mahadeo Vs. State of Maharashtra, (2013) 14 SCC 637), we do not find any legal justification to set the corpus at the mercy of her alleged husband, who himself is an accused, particularly, in view of the decision of the apex court in Independent Thought Vs. Union of India, (2017) 10 SCC 800, para 107. Moreover, no-one has appeared before us either from her alleged husband side or from her parents side. Further, we find that she is carrying a child who is suffering from some ailment and requires medical attention.
Under such circumstances, the detention of corpus in a protection home is justified. This habeas corpus petition is, therefore, disposed of by providing that the corpus shall be kept in a protection home until she attains the age of majority or till such time her natural guardian seeks for her custody and she is agreeable to that. It is further provided that the protection home shall ensure proper medical attention to her child.
Order Date :- 19.8.2019 Anand Sri./-