Smt. Priyanka Devi vs State Of U.P. And 4 Ors. on 21 November, 2017

[Cites 16, Cited by 11]

Allahabad High Court

Smt. Priyanka Devi vs State Of U.P. And 4 Ors. on 21 November, 2017

This is a habeas corpus petition preferred on behalf of Smt. Priyanka Devi through her husband Kuldeep with the allegation that Priyanka and Kuldeep are lawfully married, but in consequence of an FIR lodged as Case Crime No. 0146 of 2016, under Sections 363, 366 IPC, the detenue-petitioner Priyanka Devi and her husband were compelled to challenge the said FIR before this Court by means of Criminal Misc. Writ Petition No. 4497/2017. The prayer in that petition was to quash the aforesaid FIR lodged by the petitioner's father, Sukhlal.

The said writ petition came to be disposed of by this Court by a judgment and order dated 19.03.2017 with directions that in case Priyanka appears or is produced before the learned C.J.M. and makes an application for her medical examination (for the purposes of determination of age) and to record her statement under Section 164 Cr.P.C, the Magistrate concerned shall fix a date for the purpose. On the date fixed, the first informant, and, the officer-in-charge of police station concerned shall be summoned by the Magistrate who will ensure that the petitioner is produced before the Chief Medical officer by the police for medical examination. It was further ordered that thereafter the C.J.M. would record the statement of the petitioner-detenue Priyanka under Section 164 Cr.P.C. It was also ordered that during the period no coercive measure would be taken against the petitioner. This Court further ordered that in case the petitioner-detenue is found to be major and does not support the FIR version (in her statement under Section 164 Cr.P.C.), the petitioners of the Criminal Misc. Writ Petition under reference shall not be arrested till submission of a police report under Section 173(2) Cr.P.C. It was also provided that in case the petitioner-detenue Priyanka is found to be a minor, or a major but supports the prosecution version it shall be open to the police to arrest the petitioners of the writ petition under reference. The order made by this Court on 23.03.2017 in the criminal misc. writ petition above referred ordered that the issue of custody of the petitioner-detenue shall also be decided by the Chief Judicial Magistrate concerned in accordance with law. It appears that it is the last part of the direction of this Court in Criminal Misc. Writ Petition No. 4497/2017, that is to say, the one requiring the Chief Judicial Magistrate to decide the issue of custody of the petitioner-detenue Priyanka that has led to the cause of action giving rise to the present habeas corpus petition.

Before the Magistrate, the statement of the petitioner-detenue Priyanka was recorded on 24.07.2017 in compliance with the directions of this Court, wherein she exculpated the accused Kuldeep in Case Crime No. 207/2017 (supra) regarding whom she said that she has not married him but that she knows him for a long time and that she wants to go with him. She further stated that she does not want to go with her parents. She leveled very serious allegations against her parents to the extent of saying that her father ravished her and her mother when informed by the petitioner-detenue about this abhorable act of her father, did not respond the expected way, and, instead threatened the detenue that in case she revealed the incident to anyone she would be done to death. The relevant part of the statement of the petitioner Priyanka recorded under Section 164 Cr.P.C. before the C.J.M. Budaun is being quoted (in Hindi Vernacular):

**esjs ikik us esjs lkFk 6 ekpZ ls igys xyr dke fd;k Fkk eSaus viuh eka dks crk;k rks mUgksaus dgk fd fdlh ls dgk rks tku ls ekj nsaxsA** In addition she has also blamed her parents of ill treating her and beating her.

The day the statement of Priyanka was recorded befroe the Magistrate under Section 164 Cr.P.C. her father Sukhlal made an application bringing on record photostat copies of her matriculation certificate, the marksheet issued by the Board of High School and Secondary Education to show that date of birth of the petitioner-detenue Priyanka was 10.09.2000 and that, therefore, she was a minor; a-fortiori she was not free to go wherever she wished and with whomsoever she wanted. The father through the application under reference claimed that custody of Priyanka be given to him.

The medical examination report which is not on record of the writ petition but the contents whereof are reflected in the order of the Chief Judicial Magistrate dated 05.05.2017 on the basis of which the petitioner is in detention shows that she was medically determined to be a major, that is to say, above the age of 18 years. Before the learned Chief Judicial Magistrate a date of birth certificate issued by the Principal of the primary school where the petitioner had read was also filed in order to win her freedom. The said birth certificate shows the date of birth of the petitioner to be 01.02.1999. The date of birth certificate from the primary school relied upon by the petitioner would reckon her to be a major but her date of birth mentioned in the High School Certificate shows her to be a minor. The matter came up before the Chief Judicial Magistrate for determination on 05.05.2017 for the purpose of determining the issue of custody of the petitioner-detenue as per directions of this Court made in the judgment and order dated 29.03.2017 (supra).

The learned Chief Judicial Magistrate discarded the medical evidence as also date of birth certificate relied upon by the petitioner issued by the Principal of the primary school which shows her to be a major. He accorded preference to the High School Certificate over all other evidence and held the petitioner to be a minor. The learned Magistrate having found the petitioner-detenue Priyanka to be a minor did not accept her father's application for her custody considering the fact that the petitioner had expressed apprehension to her life from her parents as also to her honour. He accordingly through the order dated 05.05.2017 directed that the petitioner be interned interred at the Nari Niketan, Bareilly. It is by virtue of the said order passed by the Chief Judicial Magistrate that the petitioner-detenue has come to be detained at Nari Niketan, Bareilly. The petitioner has termed her detention at Nari Niketan, Bareilly illegal and has preferred the instant habeas corpus petition claiming the following reliefs:

" A. Issue a writ order of Habeas Corpus commanding the Respondent No.2 and 3 to produce the petitioner-detenue before this Hon'ble Court and she may be set at her liberty from the illegal confinment of the respondent no.2 and 3 may be mandated to ensure the production of the petitioner - detenue from the unlawful confinement made by the respondents.

B. Issue a writ order or direction in the nature of certiorari quashing the order dated 05.05.2017 passed by the Chief Judicial Magistrate, Budaun (content as Annexure No.5) to this writ petition."

We have held in re: Pankaj Singh vs. State of U.P. and others, Habeas Corpus Writ Petition No. 6366 of 2017 decided on 15.11.2017 that on 15.11.2017 in a habeas corpus petition no relief by way of writ, order or direction in the nature of certiorari or any other kind of writ, order or direction regulated by Chapter-XXII of the Rules of the Court can be clubbed with a relief for a writ, order or direction in the nature of habeas corpus. A habeas corpus petition is wholesome and complete in itself, where no other relief can be asked for. As such, we proceed to ignore the relief 'B' sought by the petitioner-detenue and confine ourselves to relief 'A'.

Heard Sri A.P. Tiwari and Sri R.S. Tiwari, learned counsel for the petitioner and learned Additional Government Advocate for the State.

Learned counsel for the petitioners in order to persuade us to hold the detention illegal, have fallen back on the determination of her age in the medical report and in her date of birth certificate issued by the Principal of the primary school where she did early schooling. He has contended that the date of birth recorded in the primary school certificate is to be preferred over that mentioned in the High School certificate as the former is a more dependable record of the correct age being based on information entered more proximate in point of time (reckoned from the date of birth) to that recorded in the High School certificate. The learned counsel has argued that accuracy of the date of birth in any record is dependent upon the point of time when it is recorded; the earlier record in a more dependable and accurate information as to the date of birth. Learned counsel for the petitioner has further submitted that medico legal evidence in the case of conflicting record as to date of birth mentioned in the certification of age from the records of the primary school and that in the High School certificate requires to be considered and would be decisive as the same is based on a scientific estimation of age. He has also submitted that the medico legal evidence and date of birth certification from the primary school of the petitioner being consistent, the High School certificate is to be ignored.

In order to evaluate the rival contentions the foremost to be borne in mind are the provisions of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 which read as under:

94. Presumption and determination of age.

1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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.

3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

Taking up first the second of the two submissions, of the learned counsel for the petitioner that medico legal evidence is to be considered as the best guide in case of conflict in the date of birth between certification of the said date by the primary school authorities and the High School Board, we are of opinion that the provisions of Section 94 Juvenile Justice Act, 2015 do not permit the Court to look into medico legal evidence of any kind in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board. It is only if the aforesaid documents are not available, that a birth certificate given by a corporation or a municipal authority or a Panchayat can be looked into for the purpose of determination of age. It is in a situation where the said two categories of documents in their relative priority are not available that medico legal evidence as to the age may be considered.

Here there is in hand certification of age from the primary school attended by the petitioner which shows her date of birth to be 01.02.1999 and also her High School certificate that shows her date of birth to be 10.09.2000. Both documents fall in a coordinate category of weightage for determination of a minor's age under Section 94 (2) of the Juvenile Justice Act, 2015. Thus, this is a case where there is a conflict between two certifications of age that are on parity of weightage under the statute leaving the issue to be determined whether the date of birth certification from the primary school that conflicts with that mentioned in the High School Certificate would prevail. By now through consistent judicial authority in different contextual situations under the law embodied in different statutes a general principle appears to have been evolved that the date of birth mentioned in the High School is to prevail over other evidence shown in records from lower rungs of school education and other authorities. High School certificates that are issued by statutory Boards have come to be accepted as a declaration of a person's age in rem that binds the holder of the certificate and all others dealing with him in different transactions. The learned C.J.M. in the opinion of this Court was, therefore, not in error at all in preferring the High School certificate over the primary school certificate while determining the question of the petitioner's minority.

Learned counsel for the petitioner lastly urged that provisions of Section 94 of the Juvenile Justice Act, 2015 do not apply to the case in hand as the same are available for the purposes of determination of age for a juvenile or a child in conflict with the law but would not apply to the determination of age in the case of a victim.

We are afraid that the aforesaid submission is not correct. The issue was examined by the Supreme Court in the case of Mahadeo S/o Kerba Maske v. State of Maharashtra and Another; (2013) 14 SCC 637 where in paragraph no. 12 of the report it was held as under:

"Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied) This issue has also been considered in an earlier judgment of the Supreme Court in Jarnail Singh v. State of Haryana; 2013 (7) SCC 263, where too it has been held that rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 must apply both to a child in conflict with law as well as to a victim of a crime. Paragraph 23 of the said report reads thus:

"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 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 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."

Thus, principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well. It may be pointed out that at the point of time when Mahadeo (supra) was decided by their lordships of the Supreme Court, the Juvenile Justice Act, 2000 was in force and their lordships were interpreting the provision of Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007. The said Act of 2000 has since been repealed and has been replaced by the Juvenile Justice Act, 2015. The rules framed under the Act of 2000 are thus no longer on the statute book. However, the provisions that found place in Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007 framed under the Juvenile Justice Act, 2000 are now, with certain modifications engrafted into the the Principal Act vide section 94 of the Juvenile Justice Act, 2015. The inter se priority of criteria to determine age under Rule 12(3) of the Rules, 2007 (supra) and section 94 of the Act, 2015 remains the same albeit with certain modifications which are of no consequences to the facts in hand. In short, provisions of Rule 12(3) of the Rules, 2007 framed under the Juvenile Justice Act, 2000 are para meteria to the provision of Section 94 of the Juvenile Justice Act, 2015. This being the comparative position, the principles of law laid down by their lordships in the case of Mahadeo (supra) would apply with equal force to the provisions of section 94(2) of the Juvenile Justice Act, 2015 while determining the age of a victim of an offence under Sections 363 and 366 IPC. Thus, the submission of the learned counsel for the petitioners, on this score, is not tenable.

Looking to the fact that there is on record the petitioner's High School certificate which shows her age to be 10.09.2000 that reckons her to be less than 18 years as on date, we cannot look into the medico-legal evidence as the statute does not permit us to do so. Also, no weightage can be given to the date of birth certificate from the primary school over the certification of age for the petitioner by her High School Certificate.

The petitioner has indicated in her statement under Section 164 Cr.P.C. that she fears for her life from her parents and also finds her honour in peril on account of her father's misdeeds in the past. She expressed her wish to stay with Kuldeep, whom she has alleged to be her husband. The petitioner cannot be permitted to live with or go away with Kuldeep as she is still a minor. At the same time she cannnot be left to the mercy of her parents regarding whose conduct, we do not consider it fit to comment in these proceedings. In cases, such as the one in hand the only course open to the Court is to place the minor in a protective home or a Nari Niketan though the said course has been frowned upon by this Court in a series of decisions.

One of the early authorities that eschew such a course for a minor is to be found in Ms. Kalyani Chowdhari v. State of U.P. and others; 1978 Crlj 1003. This view has found echo in Smt. Raj Kumar v. Superintendent of Women Protection House, Meerut and another; 1997 (2) AWC 720 and Smt. Saroj v. State of U.P. and others 2012 (3) ACR 2710.

No doubt these authorities say that a minor cannot be detained against her wish in a Nari Niketan but in a situation like the one in hand there is no better course open. This was precisely the situation which the division Bench of this Court in the case of Ali Mohammad v. State of U.P. and 7 others; Special Appeal No. 559 of 2015 decided on 25.8.2015 were confronted with. Their lordship found the detenue to be a minor in accordance with the principles of the Juvenile Justice law and dealt with this issue in the following words:

"The learned Single Judge was constrained to issue a direction for the lodging of the girl with Nari Niketan at Varanasi having due regard to the fact that she specifically stated that she was not desirous of residing with her father. At this stage, having come to the conclusion that Naziya Bano is a minor, the only option available was to place her at the Nari Niketan. This order was passed having due regard to the welfare of the child since, in any event, the appellant was not entitled to her production or custody."

We have also given our thoughtful consideration to the matter as to where a minor detenue is to be placed till she attains the age of majority. No doubt, earlier authority of this Court has disapproved detention of a minor in a Nari Niketan and it seems to be good law in principle but in face of facts where there is no option to house a minor until she attains the age of majority, the course adopted by their lordships in Ali Mohammad (supra) appears to be the only one available.

Thus, having found the petitioner - detenue a minor and no alternate place to house the minor during the period of her minority, we think that she should stay in the Nari Niketan until she attains the age of majority; thereafter she would be free to go where she wishes. Thus, we do not find the order passed by the Chief Judicial Magistrate dated 05.05.2017 that has authorized the petitioner's detention at Nari Niketan to be illegal in any manner. We, however, think that the minor needs utmost care and protection during her stay at the said Nari Niketan. She should not, in our opinion, be exposed to any of the ills that are reputed to be rife in such protective homes. We would, therefore, issue directions to ensure a healthy environment during her stay at the Nari Niketan.

In the result, the habeas corpus writ petition is disposed of with directions that first petitioner shall stay at the Nari Niketan, Bareilly until 10.09.2018 i.e. the date when she attains the age of majority and would be set at liberty on that date. It is further ordered that during the period for her stay at the Nari Niketan it would be primarily the duty of the Superintendent of the Nari Niketan concerned to ensure that she stays in good health, is properly nourished and dealt with kindly. The Superintendent of the Nari Niketan will ensure that the first petitioner does not undergo any physical, mental or psychological oppression in any manner during her stay. In addition, it is provided that the learned District Judge, Budaun shall ensure that a lady judicial officer posted at his Judgeship will visit the first petitioner fortnightly at the Nari Niketan and ensure her welfare. In case, she finds anything objectionable to the welfare, good health or well being of the first petitioner, she will report the matter to the learned District Judge, who will take immediate steps to remedy the situation. In case of any violation of theses directions, the Superintendent of the concerned Nari Niketan would be answerable to this Court.

Let a copy of the judgment be forwarded to the Superintendent, Nari Niketan, Bareilly and the learned District Judge, Budaun by the Registrar General forthwith for compliance.

Order Date :- 21.11.2017 Imroz

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Allahabad High Court