Allahabad High Court
Roshan Giri And Another vs State Of U.P. And 2 Others on 28 January, 2020
Bench: Manoj Misra, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 881 of 2020 Petitioner :- Roshan Giri And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Syed Fahim Ahmed, Ramji Singh Patel Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Deepak Verma,J.
Heard learned counsel for the petitioners; learned AGA for the respondents 1 and 2; and Sri Mayank Maurya for the respondent no.3.
The instant petition seeks quashing of the First Information Report dated 29.11.2018 registered as Case Crime No.366 of 2018 at Police Station Kerakat, District Jaunpur, under sections 363, 366, 504 I.P.C. and Sections 7 & 8 POCSO Act.
The impugned first information report has been lodged by the father of the victim (Mahima Yadav) alleging that his daughter (the victim) is a student of Class-XI, having date of birth 15.05.2003, and has been enticed away by accused Roshan Giri with the help of another unknown person.
A joint affidavit has been filed today by the petitioner Roshan Giri; the victim Mahima Yadav; and the informant Shiv Prasad Yadav stating that parties have entered into a compromise, the victim and accused have married each other and now they are settled therefore the FIR be quashed.
Before proceeding further we may notice that the victim and the accused had earlier also filed a petition, namely, Criminal Misc. Writ Petition No.22646 of 2019 which was disposed off vide order dated 19.10.2019 by directing that the statement of the victim would be recorded under section 164 CrPC and a medical examination would be done to ascertain her age.
It is the case of the petitioner that pursuant to the order, medical examination was done and she was found aged about 18 years and as parties have now entered into a compromise, the impugned FIR should be quashed.
Per Contra, the learned AGA has submitted that the age of the victim on the date of lodging the FIR as per recorded date of birth was about 15 years and six months and therefore by virtue of subsequent compromise, keeping in mind the law laid down by the apex court in the case of Independent Thought V. Union of India, (2017) 10 SCC 800 as per which even an offence of rape of a wife below 18 years in age would be made out, quashing of the FIR is not warranted. He has also placed reliance on the provisions of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 to contend that primacy is to be accorded to date of birth recorded in educational certificate over medical evidence.
In reply to the above submission, the learned counsel for the petitioners has placed reliance on a decision of the apex court in Suhani Vs. State of U.P. : 2018 SCC OnLine Sc 781 to contend that medical evidence can be taken into consideration to quash the FIR, particularly, when it is required to do substantial justice between the parties.
We have considered the rival submissions. In Nisha Naaz Alias Anuradha & Another V. State of UP, Criminal Misc. Writ Petition No.20816 of 2018, decided on 6.2.2019, after considering the entire law laid down by the Apex Court in the context of determination of age of child victim as also the decision of the apex court in the case of Suhani (supra), it was held that the age of the child victim would have to be determined by applying the same principles as are applicable to determine the age of juvenile in conflict with law as per which primacy is to be accorded to the date of birth entered in specified educational certificates or date of birth certificate except where the authenticity or genuineness of the documents relied upon is challenged and, in the enquiry, the Court or the Board, as the case may be, comes to the conclusion that those entries are not reliable.
In the instant case, the FIR alleges that the victim is a student of class XI and her recorded date of birth is 15.05.2003. There is no statement that the victim is not a student of Class XI and has not done her matriculation. Further, if she is a student of Class XI then she must have done her matriculation. The High School Certificate has been withheld and a date of birth certificate dated 21.10.2019 showing victim's date of birth as 15.05.2000 has been filed, which, apparently, has been obtained after lodging of the FIR to avoid the consequences.
It further appears that during course of investigation of the above case, the victim was produced and her statement was recorded under section 164 Cr.P.C. In between, an application in respect of her custody was also dealt with by the Chief Judicial Magistrate, Court No.1, Jaunpur, vide order dated 15.11.2019. The learned Magistrate found that as per the recorded date of birth of the victim in her educational certificate, the victim was minor aged 16 years six months, as her date of birth was 15.05.2003 and, therefore, had proceeded to declare the victim a child and in need of care and protection. Accordingly, her custody was provided to one Guddi Devi against which an Application Under Section 482 CrPC No. 47412 of 2019 has been filed, the record of which was called for perusal.
In Independent Thought's case (supra), the apex court in its conclusion 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.
In view of the law noticed above, keeping in mind that the victim has been found minor, the prayer to quash the FIR on the basis of subsequent compromise cannot be accepted.
The petition is dismissed. A copy of this order shall be placed on the record of Application Under Section 482 CrPC No. 47412 of 2019.
Order Date :- 28.1.2020 SKD