Rajasthan High Court - Jaipur
Ajay Kumar Yadav And Anr vs State Of Raj And Anr on 9 May, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2197/2018
1. Ajay Kumar Yadav S/o Shri Lal Chand B/c Yadav, Aged
About 24 Years, R/o Mukundpura Simla, District
Jhunjhunu.
2. Smt. Poonam Kumari D/o Shri Ram Prasad, Aged About
19 Years, R/o Shiv Colony Takaheri Road Kishangarh Bas,
District Alwar.
----Petitioners
Versus
1. State Of Rajasthan Through Pp.
2. Ram Prasad S/o Shri Mangal Ram Prajapat, Aged About
19 Years, R/o Shiv Colony Kishangarh Bas, District Alwar.
----Respondents
For Petitioner(s) : Mr. Vinay Pal Yadav
For Respondent(s) : Mr. Aladeen Khan, PP for State
Mr. Tapeshwar Pal Singh
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 09/05/2018 Present petition has been filed under Section 482 Cr.P.C.
seeking quashing of FIR No.90/2018, registered at Police Station Kishangarhbas, District Alwar, for offence under Section 363 IPC.
A further prayer has been made that petitioner No.2 who performed marriage with petitioner No.1 according to her own free will, be granted protection so that no harm is caused to the newly married couple.
This court on 25.04.2018 had passed the following order:-
(2 of 6) [CRLMP-2197/2018] "Issue notice to the respondents for 27.04.2018. Mr. Aladeen Khan, ld. PP, is directed to instruct the Investigating Officer to serve a notice upon respondent No.2 regarding pendency of the present petition and the next date fixed before this court.
Mr. Aladeen Khan, ld. PP, is further directed to produce Poonam Kumari, who is stated to be in custody of her father in this court on 27.04.2018.
List the present petition on 27.04.2018. Copy of this order be handed over to Mr. Aladeen Khan, PP, under the seal and signature of Court Master for onward transmission and necessary compliance."
In pursuance of the above said order, petitioner No.2 Poonam Kumari was produced before this court on 27.04.2018.
Since there was dispute regarding age of petitioner No.2 Poonam Kumari whether she has attained the age of majority or not, this court on 27.04.2018 had passed the following order:-
"In pursuance of the order dated 25.04.2018 Smt. Poonam Kumar petitioner No.2 has been produced in this court by her father.
Smt. Poonam Kumari has stated in categoric terms that she has performed marriage with Ajay Kumar petitioner No.1 and she wants to stay with him.
Counsel for the petitioners has relied upon a judgment rendered by Division bench of Andhra Pradesh High Court, Makemalla Sailoo vs Superintendent of Police & Ors, to contend that even if the wife is minor, husband is lawful guardian and therefore, wife has to stay with her husband.
Mr. T.S. Parmar appearing for respondent No.2 prays for an adjournment to argue the matter.
List the present petition on 02.05.2018, as prayed. Meanwhile, Smt. Poonam Kumari petitioner No.2, be kept at Nari Niketan, Gandhi Nagar, Jaipur.
Copy of this order be handed over to Mr. Aladeen Khan, PP, under the seal and signature of Court Master for onward transmission and necessary compliance."
Again the matter was listed before this court on 02.05.2018 and this court had passed the following order:-
"Mr. Tapeshawar Pal Singh to distinguish the judgments relied by counsel for the petitioners has cited Full Bench of (3 of 6) [CRLMP-2197/2018] Madars High Court T. Sivakumar vs Inspector of Police, AIR 2012, Madras 62 and a Division Bench of Gujarat High Court Veljibhai Bhanabhai Prajapati vs State of Gujarat & Ors., AIR 2016 Gujarat 170.
Counsel for the petitioners, meanwhile has relied upon the judgment Full Bench of Delhi High Court Lajja Devi vs State, 2013 CRI. L. J. 3458.
Counsel for the petitioners prays for an adjournment to distinguish the judgments relied by counsel for the complainant.
List the present petition on 05.05.2018. Meanwhile, Smt. Poonam Kumari, petitioner No.2, shall be kept at Nari Niketan, Gandhi Nagar, Jaipur.
Copy of this order be handed over to Mr. R.S. Shekhawat, PP, under the seal and signature of Court Master for onward transmission and necessary compliance."
Learned counsel for the petitioners has relied upon the recent order passed by three Judge Bench of the Supreme Court in Suhani & Anr. v. State of U.P. & Ors., Civil Appeal No.4532/2018, decided on April 26, 2018. The order passed by the Supreme Court reads as under:-
"Leave granted.
The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no.
2 and has been kept in illegal detention by the respondent no. 3.
It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no. 2.
On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nari Niketan, Allahabad.
(4 of 6) [CRLMP-2197/2018] When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh.
We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-
"Radiological Examination X-Rays advised for age estimation:- X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine
-Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department. Report of Radiological Examination.
All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years.
Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years.
Medial end of clavicle not fused, suggestive of age 22-27 years.
S1 of sacrum not fused with S2, suggestive of age 17-24 years.
Imp.:-Estimated Bone age is between 19-24 years. FINAL REPORT/OPINION:
Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years."
In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.
In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.
The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."
(5 of 6) [CRLMP-2197/2018] Therefore, this court on 5.5.2018 ordered that age of petitioner No.1 be determined after her ossification test is conducted by SMS Medical College and Hospital, Jaipur. The order passed by this court on 5.5.2018 reads as under:-
"Learned counsel for the petitioners has relied upon a recent order passed by the Supreme Court in Suhani & Anr. v. State of U.P. & Ors., Civil Appeal No.4532/2018, decided on 26.04.2018.
After hearing learned counsel for the parties, a direction is issued to the Investigating Officer to produce Smt. Poonam Kumari, petitioner No.2, before the Medical Superintendent, SMS Hospital, Jaipur. The Medical Superintendent, SMS Hospital, Jaipur, shall constitute a medical board for conducting ossification test of Smt. Poonam Kumari, petitioner No.2, for determination of her age. Report of ossification test alongwith opinion of the Medical Board be produced before this court on the next date of hearing.
List on 09.05.2018.
A copy of this order, under the seal and signature of Court Master, be handed over to Shri Aladeen Khan, learned Public Prosecutor, for onward transmission and compliance."
In pursuance of the above said order, Medical Superintendent, SMS Hospital, Jaipur has submitted report of the medical board. As per said report, Poonam Kumari, petitioner No.2, is aged above 18 years but less than 20 years. The report of the medical board is taken on record and is made part of the paper book.
Following the judgment rendered by the Supreme Court in Suhani & Anr. (supra), taking into consideration the report submitted by the Board of Doctors of SMS Medical College and Hospital, Jaipur, present petition is accepted. The impugned FIR is quashed alonwith all subsequent proceedings.
Since Poonam Kumari, petitioner No.2, has attained the age of majority, she be set free and she may reside wherever she so wishes. A further direction is issued to the Superintendent of (6 of 6) [CRLMP-2197/2018] Police, Jhunjhunu to ensure necessary vigil that no harm is caused to the petitioners.
(KANWALJIT SINGH AHLUWALIA),J Govind/