Allahabad High Court
Nisha Naaz Alias Anuradha And Another vs State Of U.P. And 2 Others on 6 February, 2019
Bench: Manoj Misra, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 AFR Case :- CRIMINAL MISC. WRIT PETITION No. - 20816 of 2018 Petitioner :- Nisha Naaz Alias Anuradha And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Syed Shahnawaz Shah Counsel for Respondent :- G.A.,Irshad Saleem,Sajiya Parveen Hon'ble Manoj Misra,J.
Hon'ble Vivek Varma,J.
The instant petition seeks quashing of the first information report (for short FIR) dated 01.06.2018 registered as Case Crime No.182 of 2018, under Sections 363, 366 IPC, P.S. Nagina, District Bijnor.
The allegation in the impugned FIR, which has been lodged by the respondent no.3 (the informant), is that his minor daughter Anuradha (the victim), who is aged 17 years and is a student of M.M. Inter College Nagina, according to his information, has been enticed away by one Jai Prakash Gupta, a conductor in Roadways, and she is missing since 04.05.2018.
The victim and Danish (petitioner no.2) have jointly filed this petition by claiming that both of them are adult and they have voluntarily married each other and that no force or fraud has been used / played upon the victim, therefore no offence has been committed. To disclose that victim is an adult, her date of birth (i.e. 01.01.1999) entered in Adhar Card of the victim has been relied upon.
On 01.08.2018, after consideration of submissions, the following order was passed:-
"Heard learned counsel for the petitioners, Ms. Sajiya Parveen learned counsel for the respondent No. 3 and learned A.G.A. for the State-respondents.
This writ petition has been filed by the petitioners with the prayer to quash the F.I.R. dated 01.6.2018, lodged in Case Crime No. 182 of 2018, under Sections 363, 366 I.P.C., Police Station- Nagina, district Bijnor, so far it relates to the petitioners.
It is contended by learned counsel for the petitioners that the petitioner no.1- Nisha Naaz alias Anuradha is major as per her Adhar card, which was got prepared by her father, copy of which has been filed as annexure-4 and she had married the petitioner no.2 out of her own free will due to love and affection and as the respondent no.3 was not happy with the marriage, present criminal proceedings has been initiated against the petitioners.
Ms. Sajiya Parveen learned counsel for the respondent No.3 states that the petitioner No.1 is minor as per her educational documents.
It is directed that the victim-petitioner no.1 shall present herself before the Chief Medical Officer, concerned, for ossification test for verification of her age within ten days from today and Chief Medical Officer, concerned, shall send her medical report to this Court under sealed cover by the next date of listing.
Put up/list on 23rd August, 2018.
Till the next date of listing or till the submission of police report under Section 173(2) whichever is earlier, the petitioners shall not be arrested pursuant to the impugned FIR lodged in the aforesaid case crime."
The above interim order was continued from time to time and, in the meantime, the Chief Medical Officer, Bijnor submitted a report dated dated 04.10.2018, thereby expressing his opinion about the age of the victim as 20 years.
On 23.01.2019, after noticing that there exists a matriculation certificate (High School Certificate) of the victim disclosing her date of birth as 09.06.2001, which suggested that she is minor, we directed the petitioner no.2 to produce the petitioner no.1 before the Court.
The petitioner no.1, Nisha @ Anuradha (the victim), has been produced before us by Sri S. Shahnawaz Shah, learned counsel for the petitioners, in the presence of Miss Sajiya Parveen, counsel for the respondent no.3. The petitioner no.1 has stated before us that no force has been used upon her and she is voluntarily in the company of the petitioner no.2 (Danish Hussain - the accused).
The learned counsel for the petitioners has stated that the date of birth entered in the high school certificate is not reliable in view of the medical examination report of the Chief Medical Officer, Bijnor, which discloses the victim to be aged about 20 years therefore, in view of the statement of the victim, the first information report is liable to be quashed. Reliance has been placed on a decision of the apex court in Suhani Vs. State of U.P. : 2018 SCC OnLine SC 781 wherein report of All India Institute of Medical Sciences (for short AIIMS) giving the lower age limit of the victim as 19 years and upper age limit of 24 years was relied upon by the court to declare the victim adult though there appeared a CBSE certificate on record indicating that the victim was minor.
Learned A.G.A. as well as learned counsel for the respondent no.3 has submitted that it is well settled legal principle that the age of child victim is to be determined on same principles as are applicable while determining the age of a juvenile in conflict with law and, therefore, primacy would have to be attached to the date of birth recorded in High School Certificate. In support of the above contention, decisions of the apex court in Mahadeo v. State of Maharashtra, (2013) 14 SCC 637; Jarnail Singh v. State of Haryana, (2013) 7 SCC 263; and State of M.P. v. Anoop Singh, (2015) 7 SCC 773 have been relied upon. It has been contended that as the date of birth recorded in the High School Certificate discloses that the victim was a minor on the date of her enticement it would not be appropriate for this Court to quash the first information report at the threshold. It has been contended that decision in Suhani's case is on the facts of that case. It neither overrules the previous decisions nor it lays down legal principles to be followed for ascertaining the age of child victim.
We have considered the rival submissions and have perused the record.
Before we proceed to discuss whether Suhani's case (supra) effects a change in the law applicable for determination of the age of a child victim, it would be apposite to notice the legal principles that were to apply for determining the age of child victim. In Jarnail Singh's case (supra), the apex court, after noticing the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder, in paragraphs 22 and 23 of its decision, as reported, held as follows:
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to herein above reads as under:
12. Procedure to be followed in determination of age. --(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(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, 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;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."
(Emphasis Supplied) The above view has been reiterated in Mahadeo's case (supra) and in State of M.P. v. Anoop Singh (supra). Following the law laid down in Jarnail Singh's case (supra), a Division Bench of this court in Special Appeal No.559 of 2015 (Ali Mohammad v. State of U.P. And 7 others, decided on 25.08.2015) while upholding the order of learned single judge observed that where there is no pleading to question the authenticity or genuineness of the High School Certificate, reliance placed on such certificate to determine the age of the victim was proper. It was observed that where the documentary material was of doubtful authenticity then the court may rely upon medical report.
On enactment of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 2015, Act), the procedure for determination of age of a juvenile in conflict with law, which was provided in the 2007 Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 2000, Act), as noticed in Jarnail Singh's case (supra), has been incorporated in section 94 of the 2015, Act, which is extracted below:
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."
A plain reading of Section 94 of the 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. A Division Bench of this court in the case of Smt. Priyanka Devi Vs. State of U.P. and others in Habeas Corpus Petition No.55317 of 2017, decided on 21st November, 2017, after noticing the provisions of the 2015, Act and the earlier 2000, Act and the rules framed thereunder, came to the conclusion that as there is no significant change brought about in the 2015, Act in the principles governing determination of age of a juvenile in conflict with law, in so far as weightage to medico legal evidence is concerned, the law laid down in respect of applicability of those provisions for determination of a child victim would continue to apply notwithstanding the new enactment. The Division Bench in Priyanka Devi's case (supra) specifically held that as there is on record the High School Certificate, the medico legal evidence cannot be looked into as the statute does not permit.
The judgment of the apex court in Suhani's case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani's case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani's case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined.
In Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72, apex court observed as follows:
"26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may."
(Emphasis Supplied) Likewise, in Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381, a question arose before a bench comprising of two Hon'ble Judges of the apex court whether to follow the direction given by a three judges bench in the facts of that case, by treating it to be a precedent. In paragraph 23 of the judgment, as reported, the apex court observed as under:
"23. The appellant next submitted that this Court, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd. We extract below the entire judgment: (SCC p. 651, paras 1-2) "1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Limited whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations.
2. The writ petition is disposed of accordingly. There is no order as to costs."
The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu cannot be the basis for claiming relief similar to what was granted in that case."
(Emphasis Supplied) Similarly in Common Cause V. Union of India, (2004) 5 SCC 222 it was observed that observations, or simply what was done in a case, without laying down the law, cannot be taken as a precedent. Likewise, in Executive Engineer, Dehenkanal Minor Irrigation Division v. N. C. Budharaj, (2001) 2 SCC 721, it was observed that the ratio or the basis of reasons and principles underlying a decision is distinct from the ultimate relief granted or the manner of disposal adopted in a given case.
In view of the decisions noticed above, the law laid down by the apex court in Jarnail Singh's case (supra) that has been followed consistently continues to remain binding and in no way has been diluted or altered by subsequent decision in Suhani's case (supra). The legal position therefore is: (a) that for determination of age of a child victim the same parameters are required to be applied as are applicable to a juvenile in conflict with law; and (b) that while determining the age of child victim primacy is to be attached to the documentary evidence specified in the 2015, Act over medico legal evidence, except where the authenticity or genuineness of the documents relied upon is challenged and, in the enquiry, the Court or the Board, as the case may be, comes to the conclusion that those entries are not reliable.
Reverting to the facts of the instant case, we find that there is no higher or lower age limit estimated by the doctor. The doctor has simply stated that the age of the victim is about 20 years. That apart, it is not stated in the report that the victim was produced by the police or any of the State Agency before the doctor. Under the circumstances, keeping in mind that there exist a matriculation certificate (High School) disclosing the date of birth of the petitioner no.1 as 09.06.2001, the prayer to quash the FIR cannot be accepted and is, accordingly, rejected. In so far as entry of date of birth in an Aadhar Card is concerned, it may be observed that in a recent decision, a Division Bench of this Court at Lucknow in the case of Smt. Parvati Kumari and Ors. Vs. State of U.P. and Ors. (Misc. Bench No.13419 of 2018, dated 09.01.2019) has held that the entry of date of birth in Aadhar is not conclusive.
However, looking to the facts and circumstances of the case as also that, earlier, on 01.08.2018, interim protection was granted till submission of police report under Section 173(2) CrPC, we deem it appropriate to dispose off this petition by providing that the investigation shall continue and be brought to its logical conclusion, expeditiously, preferably, within six weeks from communication of the order, but, subject to petitioners' cooperation in the investigation, the petitioner no.2 (Danish Hussain) shall not be arrested in the aforesaid case till submission of police report under Section 173(2) Cr.P.C. It is clarified that the above direction would not come in the way of a court of competent jurisdiction in dealing with and deciding an issue as regards the custody of the victim. There is no order as to costs.
Let a copy of this order be supplied to the learned AGA for communication.
Order Date :- 6.2.2019/AKShukla/-