Allahabad High Court
Smt. Shahzad Bano vs State Of U P And 3 Others on 6 August, 2020
Bench: Manoj Misra, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 48 Case :- HABEAS CORPUS WRIT PETITION No. - 285 of 2020 Petitioner :- Smt. Shahzad Bano Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Noor Saba Begum,Nabi Ullah Counsel for Respondent :- G.A.,Mohammad Farooque Ansari Hon'ble Manoj Misra,J.
Hon'ble Deepak Verma,J.
Heard learned counsel for the petitioner; Sri Deepak Mishra, learned A.G.A., for the respondents 1 and 2; and perused the record.
This habeas corpus petition has been filed by one Shahrukh Khan for production and release of Shahzad Bano by claiming that Shahzad Bano is adult as per medical examination and has been confined in a Protection Home against her wishes.
It appears that earlier seeking the same relief, another Habeas Corpus Petition No.207 of 2020 was filed which was got dismissed as withdrawn under order dated 28.02.2020. The earlier habeas corpus petition was withdrawn without liberty to file a fresh petition.
Considering that continued detention would provide a continuous cause of action, we proceed to consider the matter on merits.
A perusal of the record would indicate that on 21.08.2019 an FIR was lodged by respondent no.4 against the petitioner (Shahrukh) for enticing away informant's minor daughter Shahzad (corpus), aged 16 years. In connection with that case, the corpus was recovered and produced before the Court. On 31.08.2019, the court of Additional Chief Judicial Magistrate, Court No.8, Aligarh passed a judicial order directing the victim Shahzad Bano to be placed before the Child Welfare Committee as her recorded date of birth is 08.07.2003. Pursuant to the judicial order dated 31.08.2019, the Child Welfare Committee by its order placed the victim in a Protection Home.
The learned counsel for the petitioner has submitted that as per medical examination the victim is an adult and, therefore, she should not be confined in a Protection Home against her wishes.
The learned A.G.A. opposed the prayer and submitted that since the corpus is a child victim, the order directing her placement in a protection home is legally valid.
Having noticed the rival submissions, before we proceed to address the issue, it would be apposite to observe that the Apex Court had consistently been of the view that the principles applicable for determining the age of juvenile in conflict with law are to be applied for determining the age of child victim (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 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 absence of the above evidence, medical evidence is to be taken into consideration.
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 of 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."
Once the corpus is found a child within the meaning of child as defined by Section 2 (12) of the J.J. Act, 2015 and, allegedly, a victim of a crime, she would fall in the category of child in need of care and protection in view of clauses (iii), (viii) and (xii) of sub-section (14) of section 2 of the J.J. Act, 2015. Hence, the order passed by the Child Welfare Committee placing the corpus in a protection home would be within its powers conferred by section 37 of the J.J. Act, 2015.
As the judicial order accepts the date of birth of the victim as 08.07.2003, till date, the victim has not attained the age of majority therefore her confinement in a Protection Home cannot be said to be illegal though it is always open to the petitioner or the aggrieved person to challenge the correctness of the determination of her age in appropriate legal proceedings by laying a challenge to the judicial/placement order. But so long the order stands the placement of the corpus in a protection home cannot be said to be illegal warranting issuance of a writ of habeas corpus.
This petition is therefore disposed off by leaving it open to the petitioner to challenge the judicial/placement order by taking recourse to appropriate legal remedy, as may be advised.
Order Date :- 6.8.2020 AKShukla/-