Allahabad High Court
Smt. Geeta And 4 Others vs State Of U.P. And 3 Others on 9 July, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:111853-DB A.F.R. Court No. - 42 Case :- CRIMINAL MISC. WRIT PETITION No. - 9135 of 2024 Petitioner :- Smt. Geeta And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Raj Kamal Counsel for Respondent :- G.A.,Prem Chandra Dwivedi Hon'ble Vivek Kumar Birla,J.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Raj Kamal, learned counsel for the petitioners, Sri Prem Chandra Dwivedi, learned counsel for the respondents and Sri Ratan Singh, learned AGA for the State-respondents.
2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 14.05.2024 registered as Case Crime No.118 of 2024, under Section-363, 366 I.P.C., Police Station-Araon, District-Firozabad, and for a direction to the respondents not to arrest the petitioners in pursuance of the impugned first information report.
3. Learned counsel for the petitioners submitted that petitioner nos.1 and 2 are major and out of their own free will, they got married on 15.05.2024, therefore, no offence is made out against the petitioners. Reliance has been placed by the petitioners on the judgement and order dated 05.12.2022 passed by this court in Criminal Misc. Writ Petition No. 17046 of 2022 (Smt. Juli Kumari and another vs. State of UP and 2 others).
4. In support of the above contention, petitioner nos.1 and 2 had filed joint affidavit in the present writ petition. Learned counsel for the petitioners further submitted that after getting married, they have also applied for online registration of their marriage, which has been annexed as annexure no.5 to the writ petition.
5. After hearing the aforesaid submission and on perusal of record on finding that there is no reliable evidence regarding the age of the petitioner no.1, this court directed by order dated 06.06.2024 to petitioner no.2 to produce the petitioner no.1 before the CJM, Firozabad with further direction that the CJM, Firozabad shall ensure the ossification test of petitioner no.1 for determination of her age and also directed the CJM, Firozabad to record the statement of petitioner no.1, u/s 164 Cr.P.C. in presence of Investigating Officer of the present case with further direction that after recording the statement of petitioner no.1, CJM, Firozabad will forward the copy of the same in a sealed cover along with the report of ossification test. Copy of the order dated 06.06.2024 passed by this court is being quoted as under:
"The petitioner does not appear to be educated and there is no proof of her age. The investigation so far has led the Police to a surreptitious certificate being issued by the In-charge Headmaster of Composite Vidyalaya Saifpur, District Firozabad who has certified the petitioner's date of birth to be 10.10.2007. The certificate does not inspire confidence. It is written on a plain paper by the In-Charge Headmaster/ Headmistress with a rubber stamp seal. It is not that a scholar's transfer register maintained in ordinary course of business issued by the said school, showing the victim's date of birth. The certificate too has been issued on 16.05.2024, that is to say, after the FIR was registered and appears to be a self-serving document. This shows that there is no better proof about the victim's age available with the 4th respondent as well; else it would have been provided to the Police.
In the circumstances, it is directed that the second petitioner, Rohit s/o Bhoore Singh, who claims to have married the victim on 15.05.2024 at the Arya Samaj Mandir, Tundla, Firozabad shall produce her before the Chief Judicial Magistrate, Firozabad on 10.06.2024 and the Chief Judicial Magistrate shall cause the victim to be produced in turn before the Chief Medical Officer, Firozabad, who will forthwith constitute a Medical Board comprising three doctors, one of whom will be an Orthopaedician. The Medical Board shall submit a report to this Court through the Chief Judicial Magistrate in a sealed cover based on a scientific test evaluating the victim's age. This course of action is necessary because no better evidence envisaged under Section 94 of the Juvenile Justice Act, 2015 is forthcoming.
It is further provided that when the victim appears before the Chief Judicial Magistrate on 10.06.2024, the Investigating Officer will also remain present and get the statement of the victim under Section 164 Cr.P.C. recorded before the Chief Judicial Magistrate. A certified copy of the statement of the victim shall also be forwarded to this Court in a sealed cover along with the report of the Medical Board by the date fixed.
Lay this petition as fresh again on 14.06.2024.
Until the next date of listing, the Police are restrained from arresting the petitioners in Case Crime No. 118 of 2024 under Section 363, 366 I.P.C., Police Station Araon, District Firozabad.
It is further provided that on the next date of listing, the victim and petitioner no. 2 shall remain personally present before this Court.
Let this order be communicated to the Chief Judicial Magistrate, Firozabad, the Superintendent of Police, Firozabad through the Chief Judicial Magistrate, Firozabad, the Chief Medical Officer, Firozabad through the Chief Judicial Magistrate, Firozabad, the Station House Officer, Police Station Araon, District Firozabad through the Superintendent of Police, Firozabad by the Registrar (Compliance) within 24 hours."
6. In pursuance of the order dated 06.06.2024, ossification test report of petitioner no.1 along with the statement of petitioner no.1 recorded u/s 164 Cr.P.C. was sent to this court in a sealed cover. As per the ossification test report, age of the girl was determined about 17 years. It is settled law as per the judgement of State of M.P. Vs. Anoop Singh reported in 2015 (7) SCC 773 that there are always chances of difference of two years either plus or minus in the age determined by the ossification test report and such presumption is always given to the accused, therefore, age of petitioner no.1 can be presumed to be above 18 years. Paragraph no.17 of Anoop Singh' case (supra) is being quoted as under:
"17. The High Court also relied on the statement of PW 11 Dr A.K. Saraf who took the x-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more than 18 years of age at the time of the incident. With respect to this finding of the High Court, we are of the opinion that the High Court should have relied firstly on the documents as stipulated under Rule 12(3)(b) and only in the absence, the medical opinion should have been sought. We find that the trial court has also dealt with this aspect of the ossification test. The trial court noted that the respondent had cited Lakhanlal v. State of M.P. [2004 SCC OnLine MP 16 : 2004 Cri LJ 3962] , wherein the High Court of Madhya Pradesh said that where the doctor having examined the prosecutrix and found her to be below 18½ years, then keeping in mind the variation of two years, the accused should be given the benefit of doubt. Thereafter, the trial court rightly held that in the present case the ossification test is not the sole criterion for determination of the date of birth of the prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed."
7. From perusal of the statement of petitioner no.1, it is clear that she specifically stated that she herself left her house along with petitioner no.2 from her own free will and, thereafter, she got married with petitioner no.2 and now she wanted to live with petitioner no.2.
8. Hon'ble Supreme Court in the cases of Suhani Vs. State of U.P. reported in 2018 0 Supreme (SC) 1430 and P. Yuvaprakash Vs. State Rep. By Inspector of Police reported in 2023 SCC OnLine SC 846, determine the age of victim on the basis of ossification test where there is no reliable document regarding the age. Paragraph nos.14, 16 and 19 of P. Yuvaprakash case (supra) are being quoted as under:
"14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh4 that:
"Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
19. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous. As held earlier, the documents produced, i.e., a transfer certificate and extracts of the admission register, are not what Section 94(2)(i) mandates; nor are they in accord with Section 94(2)(ii) because DW-1 clearly deposed that there were no records relating to the birth of the victim, M. In these circumstances, the only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim, and on the basis of which PW-9 made her statement. She explained the details regarding examination of the victim's bones, stage of their development and opined that she was between 18-20 years; in cross-examination she said that the age might be 19 years. Given all these circumstances, this court is of the opinion that the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9."
9. In the present case, neither the birth certificate of school nor high school certificate nor birth certificate issued by competent authority as required by Section-94 of the Juvenile Justice (Care And Protection of Children) Act, 2015 (in short 'Juvenile Justice Act') is available, therefore, only option as per Section-94 of the Juvenile Justice Act is relying upon the ossification test report.
10. Therefore, considering the age of petitioner no.1 determined by the ossification test as well as statement of petitioner no.1 recorded u/s 164 Cr.P.C., it is clear that petitioner no.1 is of marriageable age and she willingly got married with petitioner no.2 as she had clearly stated in her statement that she had left her home with petitioner no.2 willingly and both of them have been living as husband and wife. Therefore no case u/s 363, 366 IPC is made out.
11. In view of the above, writ petition succeeds and is allowed.
12. The first information report dated 14.05.2024 registered as case crime no.118 of 2024, u/s 363, 366 IPC, Police Station-Araon, District-Firozabad as well as all consequential proceedings are hereby quashed.
13. Photocopies of the ossification test report as well as statement of petitioner no.1 recorded u/s 164 Cr.P.C. be kept on record. The original shall be returned in a sealed cover, at the earliest as per rule/procedure.
14. We, however, clarify that while deciding the present petition, we have not looked into the validity of marriage of the petitioners.
Order Date :- 9.7.2024 S.Chaurasia