Patna High Court - Orders
Rashmi Aman vs The State Of Bihar, Through The Director ... on 1 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.675 of 2013
======================================================
RASHMI AMAN, WIFE OF MANOJ KUMAR RAI, RESIDENT OF
VILLAGE - KURAIYA, P.S.- DIGHWARA, DISTRICT- SARAN.
.... .... PETITIONER/S
VERSUS
1. THE STATE OF BIHAR, THROUGH THE DIRECTOR GENERAL
OF POLICE, BIHAR, PATNA
2. THE INSPECTOR GENERAL OF POLICE, TIRHUT DIVISION,
MUZAFFAPUR
3. THE DEPUTY INSPECTOR GENERAL OF POLICE,
MUZAFFARPUR
4. THE SUPERINTENDENT OF POLICE, VAISHALI AT HAJIPUR
5. THE OFFICER-IN-CHARGE, POLICE STATION- HAJIPUR
SADAR, DISTRICT- VAISHALI
6. VIJAY KUMAR SINGH, SON OF LATE PARASNATH SINGH,
RESIDENT OF VILLAGE - LALPOKHAR/DIGHI, P.S.- SADAR,
DISTRICT - VAISHALI.
.... .... RESPONDENT/S
======================================================
Appearance:
For the Petitioner/s : Mr. Ram Shankar Das, Adv.
For the State : Mr. S.K. Mandal, SC-24
Mr. Arjun Prasad, AC to SC-24
For the Informant : Mr. M.N. Parvat, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
8. 1-04-20141. Petitioner, Rashmi Aman has prayed for following relief:-
A. A writ in the nature of mandamus or any appropriate writ/s, order/s, direction/s, commanding the respondents with the following effects:
i. To direct the Respondents to prevent any harassment by the relatives of the Petitioner in any manner to the couples who en tered in 2. to marriage of their freewill where the family members can not legally stop her for getting marriage & bringing dishonour to family also be prevented.
ii. To direct the S.P. Vaishali to issue instruction who in turn would communicate to Sadar P.S. Hajipur with the stern warning against those who harassing the petitioner & her husband & his family where the parents of couple putting pressure by filing false case against them. ii. To direct the respondents not to involved the inlaws of the petitioner in false case where on case was also filed vide Hajipur Sadar PS case 195/2012 for offences u/s 366(A) IPC instituted on the basis of written report of one Vijay Kumar Singh the father of the petitioner in which her statement was recorded u/s 164 Cr.P.C. in which the petitioner did not state any word against Manoj Kumar Rai and other accused.
iii. To direct the respondents not to disturb the petitioner who is leading peacefully life with 3. one Manoj Kumar as husband and wife after performing maturity as opined by the Medical Board that her age was in between 19 -20 years old.
iv. To direct the respondents not to interfere in the familiar matter of the petitioner and to provide all securities and to protect her fundamental rights for which after filing of previous case of kidnapping in which police finalized the case in Hajipur Sadar P.S. Case No.195/12 in which her statement was recorded on 21.07.12 u/s 164 Cr.PC. After her statement and after some time the respondent no.7 filed complaint case against her in laws which later on registered as Hajipur Sadar PS case 40/13 lodged on the basis of complaint case for the same.
B. Any other relief or relief's as your lordships may deem fit and proper in the facts and circumstances of the case.
2. Counter affidavit has been filed on behalf of State as well as on behalf of private respondent.
4.Rejoinder to counter affidavit has also been filed on behalf of petitioner.
3. Respondent no.7, Vijay Kumar Singh who happens to be father of petitioner, Rashmi Aman had filed Hajipur Sadar P.S. Case No.195 of 2012 under Section 366(A) of the IPC along with other allied sections on account of kidnapping of petitioner, Rashmi Aman by the accused so named therein. In the written report itself the age of the petitioner has been shown as 15 years being a student of Inter and further was some sort of mentally retarded. Petitioner / victim was intercepted and her statement under Section 164 was recorded wherein she had stated that she on her own left the place and returned back. Victim was medically examined also and her age has been estimated in between 19 to 20 years.
4. From the counter affidavit filed on behalf of respondent no.7, it is evident tha t her date of birth happens to be 20.01.1997 as per certificate issued by Bihar School Examination Board . It has further been stated that she has again been kidnapped by the accused persons for which Hajipur P.S. Case No. 40 of 2013 has 5. been instituted.
5. By way of filing of rejoinder to counter affidavit filed by respondent no.7 it has been pleaded emphatically on behalf of petitioner that her date of birth in the matriculation certificate has wrongly been incorporated. She has further made much stress over the medical examination whereunder her age has been estimated in between 19 to 20 years and being major on that very score she has pleaded and as well as asserted her right to ask for the relief as enumerated in the petition.
6. Methodology for ascertainment of age of victim has been prescribed by the Hon'ble Apex Court in a case of Jarnail Singh v. State of Haryana reported in 2013 Cr.L.J. 3976.
"19. In order to support his contention, that the prosecutrix was not a minor at the time of occurrence, learned counsel for the appellant placed reliance on the judgment rendered in Sunil vs. State of Haryana, AIR 2010 SC 392. Ordinarily, we would have extracted the observations on which reliance was placed, but for reasons that would emerge from our conclusion, we consider it inappropriate to do so.
6.
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 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 -
7.
(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
8. 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 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 subrule (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 child who is a
9. 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 conclusive, and 10. 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."
7. Accordingly, instant petition is disposed of directing the petitioner to appear before the learned lower court with such prayer whereupon the learned lower court will decide the issue and in case petitioner is found major, then in that event, her plea will get priority whereupon the ultimate proceeding will lie.
(Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 1st day of April, 2014 PRAKASH NARAYAN __ |__| U |__| T