Madhya Pradesh High Court
Smt.Mahadevi Kushwah vs The State Of Madhya Pradesh on 25 April, 2019
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 3998/2019
Smt. Mahadevi Kushwah Vs. State of M.P. and another
Gwalior, Dated:-25/04/2019
Petitioner in person (produced from Nari Niketan) along with
her counsel - Shri B.P. Sharma.
Shri Vinay Kumar, learned Panel Lawyer for the
respondents/State.
Petitioner seeks release from Nari Niketan where she is presently lodged by virtue of memo order passed by the Special Judge, Protection of Children from Sexual Offences Act, 2012, Datia. The order speaks thus:-
^^U;k;ky;&fgrsUnz f}osnh fo'ks"k U;k;k/kh'k] ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 nfr;k e-iz-
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dkWp fey ds ikl gthjk
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fo"k;%& Fkkuk flfoy ykbZu nfr;k ds vijk/k Øekad
84@16 /kkjk 363] 366] 376 Hkk-n-fo- rFkk /kkjk 4 iksDlks ,DV dh vfHk;ksD=h egknsoh dks nkf[ky fd;s tkus ckorA mijksDr fo"k;kUrxZr ys[k gS fd Fkkuk flfoy ykbZu ds vijk/k Øekad 84@ 16 /kkjk 363] 366] 376 Hkk-n-fo- rFkk /kkjk 4 iksDlks ,DV dh vfHk;ksD=h egknsoh iq=h jkenkl dq'kokg mez 16 lky fuoklh lqnjkuh isVªksy iai ds ikl nfr;k ftyk nfr;k dks mDr vijk/k esa iqfyl Fkkuk flfoy ykbZu }kjk is'k fd;k x;k gS mDr vfHk;ksD=h vius ekrk&firk ds ?kj ugha tkuk pkgrh gSA vr% mDr vfHk;ksD=h egknsoh dks 'kkafr fudsru esa nkf[ky fd;k tk;s ,oa U;k;ky; }kjk lwpuk i= tkjh gksus ij mls fu;r frfFk ij mifLFkr j[kk tk;sA ¼fgrsUnz f}osnh½ fo'ks"k U;k;k/kh'k] iksDlks ,DV nfr;k e-iz-^^ 2 THE HIGH COURT OF MADHYA PRADESH W.P. No. 3998/2019 Smt. Mahadevi Kushwah Vs. State of M.P. and another Evidently, the petitioner, a minor was recovered from the custody of the accused against whom an offence under Sections 363, 366, 376 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012, is registered vide Crime No. 84/2016. The petitioner since refused to go to her parents house, led the trial Court direct for lodging her in Nari Niketan.
Mandamus for releasing her is being sought on the anvil of the contention that the petitioner is major. To substantiate the contention, petitioner has filed the marksheet of Class IX of a private school - Shri Swami Ji Maharaj Public School, Datia, X-Ray report dated 01/08/2018 issued by the Resident Medical Officer, J.A. Group of Hospital, Gwalior, xerox copy of statement under Section 164 of Code of Criminal Procedure, 1973 dated 06/09/2017. On these documents, the petitioner claims to be a major and seeks direction to be released from Nari Niketan.
The marksheet filed by the petitioner records her date of birth as 05/10/1997 and is of Class IX. It is issued by a private school of the academic year 2009-10. Meaning thereby that when she was 13 years, she completed her Class IX; whereas, it is however not her contention that she was 03 years old when admitted in primary school where the minimum age of admission is 05 years. In that event, it is not possible for a child to appear in Class IX in the year 2009-10. 3
THE HIGH COURT OF MADHYA PRADESH W.P. No. 3998/2019 Smt. Mahadevi Kushwah Vs. State of M.P. and another Moreover, the marksheet is not admissible under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 wherein under Section 94 (2)(i) & (ii) it is stipulated:-
"94. Presumption and determination of age.- (2) .....
(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."
In view whereof, the petitioner is not benefited by the said marksheet.
As regard to X-Ray report. Evidently, it is not issued by Medical Board nor as per provisions contained in Section 94(2)(iii) of the Act of 2015, which stipulates that:-
"(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."
Furthermore, the report is by a Resident Medical Doctor. The report thus is not admissible.
It is further noticed that in the statement under Section 164 of Code of Criminal Procedure, 1973, recorded on 06/09/2017, the age of petitioner is recorded as 16 years. Evidently, as on today she is not 4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 3998/2019 Smt. Mahadevi Kushwah Vs. State of M.P. and another 18 years.
It is also noticed from the cause title that the petitioner has given her age as 19 years whereas, in the petition in paragraph No. 6.1, she states that she is 21 years. Even the petition is not supported by an affidavit by the petitioner. The affidavit is filed by an Advocate, meaning thereby that, the petitioner being minor represented to the Advocate.
Taking any view of the matter, the petitioner being a minor and has refused to go along with her parents, cannot be directed to be released from Nari Niketan.
Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) Judge Shubhankar* SHUBHANKAR MISHRA 2019.04.26 17:29:23 +05'30'