Patna High Court - Orders
Priyanka Kumari vs The State Of Bihar & Ors on 23 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.292 of 2014
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1. Priyanka Kumari Wife Of Avinash Kumar, D/O Ram Bali Mahto
Resident Of Village And P.S- Sonbarsa, District- Sitamarhi.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Superintendent Of Police, Sitamarhi, District- Sitamarhi.
3. The Officer Incharge, Sonbarsa Police Station, District- Sitamarhi.
4. Sri Dharmpal Kaithal Son Of Not Known The Investigating Officer,
Sonbarsa, P.S Case No. 19/14
5. Ram Bali Mahto Son Of Late Ram Bilash Sah Resident Of Village And
P.S- Sonbarsa, District- Sitamarhi.
6. Radha Shyam Kushwaha Son Of Ram Ashish Kushwaha
7. Poonam Devi Wife Of Radhe Shyam Kushwaha @ Radhe Shyam Singh
8. Avinash Kumar Son Of Radhe Shyam Kushwaha @ Radhe Shyam Singh
9. Ram Ashish Kushwaha Son Of Late Deonarayan Kushwaha Respondent
No. 6 To 9 Resident Of Village And P.S- Sonbarsa, District- Sitamarhi.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Kumar- Advocate
For the Respondent/s : Mr. Patanjali Rishi-AC to AAG-10
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR
TRIVEDI
ORAL ORDER
02 23-04-2014Heard learned counsel for the petitioner as well as AC to AAG-10.
Petitioner has prayed for following relief:-
1. For quashing the F.I.R. of Sonbarsa P. S. Case no.19 of 2014 dated 11.02.2014 registered U/S 366/34 of I.P.C. in which the petitioner has been made as victim and respondent no.6 to 9 has been made as accused, who are in-laws of the petitioner.
II. For direction to the respondent authority not to take any coercive steps either against the petitioner or against the 2 respondent no.6 to 9 in connection with impugned F.I.R.
III. For direction to the respondents authority to protect the life and property of Respondent no.6 to 9, which may be damaged by the respondent no.5.
IV. For direction to the respondent authority to take appropriate action against the respondent no.5 for giving false statement/information to the police regarding kidnapping of the petitioner by the hands of Respondent no.6 to 9 and for giving false statement regarding age of the petitioner.
V. And for any other appropriate writ/ writs, direction/ directions, order/ orders as this Hon'ble court thinks fit and proper in the facts and circumstances of the case.
In order to appreciate the submission raised on behalf of petitioner, it is apparent from the certified copy of F.I.R. of Sonbarsa P. S. Case no.19 of 2014 launched at the behest of father of petitioner namely Rambali Mahto, wherein he had alleged that on 11.02.2014 at about 5.30 p.m. wife of Radhe Shyam Kuswaha took away his daughter Prinyanka aged about 17 years on the pretext of some sort of domestic work. She did not return. His Bhabhi Rampati was instructed to call her, but could not as Prinyanka was not available at the house of Radhe Shyam Kuswaha and during course thereof, he came there from that 3 Abhinash, son of Radhe Shyam enticed her away. Subsequently thereof, all family members gone in search of Priyanka, but neither she nor the family members of Radhe Shyam were located.
Simple submission has been raised on behalf of petitioner that she happens to be major and on account thereof, the instant prosecution with regard to her kidnapping is found legally non-permissible. To support such plea, matriculation certificate, school leaving certificate, mark sheet have been annexed under Annexure-1 series wherefrom date of birth of petitioner is found incorporated as 13.03.1993. It has further been submitted that father of petitioner has purposely, intentionally and under ill- designed mentioned the age of the petitioner as 17 years.
It has further been submitted that as per consistent judicial pronouncement, the matriculation certificate is to be accepted as a genuine document with regard to ascertainment of age. To justify such plea, learned counsel for the petitioner relied upon decision reported in A.I.R. 2013 (SC) 553 as well as 2013 Cr.L.J.(4) page 4895. Then, referring the famous Lata Singh's case reported in 2006(3) P.L.J.R. 329 (SC), it has been submitted that two majors irrespective of their caste and creed, religion were free to tie under nuptial lock as well as on that very account, in case certain repercussion are perceived by them then, in that event, 4 the State machinery will provide adequate protection. Further, the learned counsel also referred a case reported in 2001 P.L.J.R. 821 and with the aid of aforesaid judicial pronouncement. It has been submitted as both the parties happen to be major one then in that event the instant prosecution is found to be unfair and on account thereof, is fit to be quashed.
Learned AC to AAG-10 opposed the prayer and submitted that writ court is not the court to decide the aforesaid complicated and hazy issue and on account thereof, instant petition is fit to be dismissed.
Now-a-days, on account of access of electronic media as well as on account of awakeness due to expansion of mental horizon as well as frequent intermingle pursuing educational carrier, made to a complicated social fabric on account of inter- caste marriage, inter-religion marriage raising an eyebrow over its acceptance and for that the Courts, the State machinery is found overburdened. Elders are apprehensive over insecurity, questioning over social recognition as well as more concerned over future of their siblings as they could be protected from ill- hands and on account thereof, legal prosecution are regularly being taken up. True, it is that an adult has got fundamental right to enter into such exercise attracting state machinery for their 5 proper protection sometime finds a situation when the aforesaid event is found full of allegation. In the aforesaid background when the cases with regard to kidnapping, abduction and rape on the score of elopement comes to floor for proper appreciation of event, age of subject become prime issue.
On this score, it is evident that neither under Criminal Procedure Code, nor under any Law, a mode has been prescribed for conduction an enquiry for ascertainment of age of victim nor any decision so referred by the learned counsel for the petitioner speak about. However, the Hon'ble Apex Court after taking notice thereof, in Jernail Singh v. Haryana 2013 Cr.L.J.3976 had identified presence of procedure under Juvenile Justice Act and held that the age of the victim/ prosecutix should also be determined under same method. For better appreciation para-20 thereof, is incorporated "20. 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 6 referred to hereinabove 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 7 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 8 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 7A, 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 off 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.
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 for a 9 child who is a victim of crime. For, in our view, there is hardly any difference in so far 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-PW6. 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 concerned child, 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 10 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 concerned child, on the basis of medical opinion.
The learned counsel for the petitioner has referred different annexures under Annexure-1, but those annexures are subject to consideration by the learned lower court while going through the enquiry for determination of age of the prosecutrix/ petitioner. This Court, as a writ Court, cannot confer it as Court of enquiry and will decide the issue. As such, directing the petitioner to approach before the learned lower Court in terms of direction given by the Hon'ble Apex Court as referred above, asking for determination of her age, the learned lower court will decide the issue. In case, petitioner is found major then in that event the law will take its own course contrary to it again the law will take its 11 own course.
With the aforesaid observation, instant petition is disposed of.
(Aditya Kumar Trivedi, J) Vikash/-