Allahabad High Court
Km. Shobha Thakur vs State Of U.P. And 2 Others on 16 July, 2019
Bench: Manoj Misra, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 533 of 2019 Petitioner :- Km. Shobha Thakur Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Singh Counsel for Respondent :- G.A.,Vikrant Gupta Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri Sanjay Singh, learned counsel for petitioner, Sri Deepak Mishra, learned AGA for respondents 1, 2 & 3 and Sri Vikrant Gupta, for respondent no. 4.
This petition has been filed for a writ of habeas corpus commanding the respondents 2 and 3 to produce the corpus- Sobha Thakur before the Court and set her at liberty.
A perusal of the record reveals that first information report was lodged by Monu Singh against as many as six persons including Vikram which was registered as Case Crime No. 582 of 2018 at P.S. Milak, District Rampur under Section 366 IPC. The allegation in the first information report is that the informant's sister has been enticed away by the accused persons.
In connection with that case, the victim's medical examination was conducted and she was found to be aged about 18 years. It appears that the victim was produced before the Court and the Court upon perusal of the matriculation certificate and other documents, came to conclusion that her date of birth is 30.8.2002 and therefore, she happens to be a minor. Upon finding that she was unwilling to go with her parents she was sent to Nari Niketan.
This petition has been filed by claiming that corpus is an adult and she cannot be sent to Nari Niketan against her wishes.
On 21.5.2019 an order was passed requiring production of the corpus.
On 13.6.2019 the corpus was produced before the Court. After recording the statement of the corpus, on 13.6.2019 following order was passed:-
"Heard Sri Sanjay Singh, learned counsel for the petitioner and Sri Pranav Ganguly, learned A.G.A for the State.
The Corpus has been produced before this court in the police custody and she states that she wants to go with her husband Vikram @ Vishnu. But as per the office report dated 12.06.2019 learned counsel did not take steps to serve notice upon respondent no. 4.
Learned counsel for the petitioner is directed to take steps to serve notice upon respondent no. 4 within a week.
List this matter before appropriate Bench on 16th July 2019.
The presence of the corpus-petitioner no. 1 is hereby dispensed with unless otherwise directed by this Court. She shall be taken back to Nari Niketan from where she was brought and she shall be kept there till the pendency of the present petition. "
Learned AGA has pointed out that a short counter affidavit has been filed annexing therewith the High School certificate cum mark sheet of the corpus of the year 2017 which indicates her date of birth as 30.8.2002.
There is no challenge in the petition with regard to educational certificate depicting that the corpus has passed High School examination in the year 2017.
It is well settled legal principle of law that the age of juvenile/child in conflict with law and a child victim is to be determined by applying the same principles as are applicable for determining the age of a juvenile/child in conflict with law (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).
Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short J. J. Act, 2015) provides for presumption and determination of age. Sub-section (2) of section 94 of the J. J. Act, 2015, which is relevant, is extracted below:
(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.
From above, it is clear that primacy is to be accorded to the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, and in the absence thereof to the birth certificate given by a corporation or municipality or panchayat. Only in the absence of the above evidence medical evidence is to be taken for determining the age.
Section 37 (1) (c) of the J. J. Act, 2015 empowers the Child Welfare Committee to place a child in need of care and protection in a Children's Home or fit facility for temporary care.
Section 2 (14) of the J. J. Act, 2015 defines a child in need of care and protection. Clauses (iii), (viii) (xii) of sub-section (14) of Section 2 of the J. J. Act, 2015 are relevant for the purpose of deciding this case. The said clauses along with the opening part of sub-section (14) of section 2 of the J. J. Act, 2015 are extracted below:
Section 2(14) "child in need of care and protection" means a child--
(i) to (ii)...................................
(iii) who resides with a person (whether a guardian of the child or not) and such person--
(a) has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or
(b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or
(iv) to (vii)............................................
(viii) who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or
(ix) to (xi)..........................; or
(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage;
In Independent Thought v. Union of India, (2017) 10 SCC 800, the apex court after taking a conspectus of the provisions contained in the Constitution of India, the Indian Penal Code, the Prevention of Children from Sexual Offences Act, 2012 (Pocso Act) and the J. J. Act, 2015, held as follows:
107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is -- this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus.
We find that the victim/ corpus had given her High School Examination and in her High School Examination the date of birth of corpus has been found to be 30.08.2002. Hence, as on date, the victim is minor. Under the circumstances, her medical examination is not required.
Once we find that the corpus is a child and victim of a crime (i.e. Case Crime No. 582 of 2018 at P.S. Milak, District Rampur), she falls in the category of a child in need of care and protection.
The next friend of the corpus is none other than the paramour of the corpus who is accused of enticing her away. If the corpus is released, the possibility of her coming in contact with the accused cannot be ruled out. Her sexual exploitation at his instance can not be ruled out. When we see the matter in the light of the decision of the apex court in Independent Thought's case (supra), she may become victim of crime at the instance of her own alleged husband. Under the circumstances, setting her free and at the mercy of her next friend would not be justified.
In view of the above, the habeas corpus petition is dismissed. The corpus shall be taken back to the Women Protection Home, Moradabad from where she has been produced. However, dismissal of this petition shall be without prejudice to the right of her parents / guardians to seek for her custody by moving appropriate application, at an appropriate stage, before the court concerned. If any such application is moved, it shall be considered and decided on merits in accordance with law, without being prejudiced by any observation made in this order. It is also clarified that the corpus in no circumstance shall be detained in the protection home against her wishes, once she attains the age of majority as per her date of birth recorded in High School Certificate.
Order Date :- 16.7.2019 Vandana