Allahabad High Court
Asmat Jahan And Anr. vs State Of U.P. on 19 June, 2014
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Order in Chamber.
Case :- CRIMINAL REVISION No. - 1719 of 2014
Revisionist :- Asmat Jahan And Anr.
Opposite Party :- State Of U.P.
Counsel for Revisionist :- Ram Shiromani Shukla,Anubhav Shukla
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Vijay Lakshmi,J.
Heard learned counsel for the revisionists and learned AGA for the State and perused the record.
The instant revision has been preferred by the revisionists challenging the order dated 22.05.2014 passed by by Chief Judicial Magistrate, Bareilly in case Crime No. 491 of 2013, State vs. Ansar Ahmad and another, under sections 363, 366 IPC, P.S. Bahedi, District Bareilly, whereby the prosecutrix (revisionist no. 1) was sent to Nari Niketan.
Learned counsel for the revisionists has argued that the prosecutrix, who is major, has been detained in Nari Niketan against her will. It has been further argued that in her both the statements recorded under sections 161 and 164 Cr.P.C., the revisionist/prosecutrix has categorically stated that she, with her own free will, has performed marriage with revisionist no. 2 Ansar Ahmad and she intends to live with him in her matrimonial home.It is next contended that the radiological age of the girl has been found to be 19 years but the learned Magistrate, wrongly relying on the School Leaving Certificate and admission register of prosecutrix, has held her to be a minor, without paying any attention to the material discrepancies in the statements of witnesses produced by the prosecution in support of her minority. It is further contended that the learned Magistrate has ignored the Medical Examination Report of the prosecutrix in illegal and arbitrary manner so it has been prayed that the impugned order be set aside and the revision be allowed.
Learned AGA has opposed the above submissions by arguing that the learned Magistrate has committed no illegality while holding the prosecutrix as minor on the basis of her School Leaving Certificates and the order impugned does not require any interference by this Court.
After giving my thoughtful consideration to the rival submissions advanced by the learned counsel for the parties, I am of the considered view that the instant revision deserves to be allowed and the impugned order dated 22.05.2014 is liable to be set aside. The reasons are as follows:-
1.According to the Medical Examination Report of the prosecutrix, the radiological age of the victim has been found to be 19 years. A copy of Medical Examination Report is annexed as annexure-1 to the Revision.
2.The statement of prosecutrix recorded under section 164 Cr.P.C. which is annexed as annexure-3 on the record, shows that she has categorically stated on oath that her date of birth is 02.02.1995. She, out of her own free will, has performed marriage with Ansar Ahmad and she intends to live with him.
3.The impugned order shows that the learned Magistrate has nowhere considered the statement of prosecutrix recorded under section 164 Cr.P.C. The learned Magistrate has not considered the radiological report for determining the age of girl and blindly believing the School Leaving Certificates only has held that the girl is minor and has sent her to Nari Niketan. Learned Magistrate has not kept in mind the situation that he was not determining the age of a juvenile in conflict with law but was determining the age of prosecutrix who admittedly had eloped with her lover and had married him.
4.A Division Bench of this Court in a case reported in 1997 ALL LJ 2197 (Raj Kumari vs. Superintendent, Women Protection House), relying on following two earlier Division Bench judgements (i) Smt. Parvati Devi (1982 ALL.LJ 115) and (ii) Smt. Kalyani Chowdhary vs. State of U.P. Reported in 1978 Cri LJ 1003, has held as under:-
".....no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home....In such case, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home".
In the case of Smt. Parvati Devi (supra) the Division Bench of this Court has held that:-
"....confinement of an accuse in Nari Niketan against her wishes could not be authorised either under Section 97 or under Section 171 Cr.P.C. and the respondents have failed to bring to the notice of the Court, any legal provision where under the Magistrate has been authorised to issue direction that a minor female witness shall against her wishes, be kept in Nari Niketan.".
Hon'ble Apex Court too, in the case of Juhi Devi vs. State of Bihar 2005 (13) SCC 376, where the facts were almost the same as according to the medical report the prosecutrix was major, whereas the father of the prosecutrix had produced some school certificates contrary to that of medical certificate in proof of her minority. Hon'ble Supreme Court discarded the school certificates and believing on medical report ordered that the prosecutrix be released from remand home and permitted her to go with her husband.
A Division Bench of this Court in two cases, Smt. Reena vs. State of U.P. H.C. Writ Petition No. 10180 of 2012 and Smt. Saroj vs. State of U.P. H.C. W.P. No. 19037 of 2011 has upheld the view that in case of conflict between medical and educational evidence, medical evidence should prevail. In Smt. Reena's case (supra) the Division Bench has held as under:-
"In our considered view, in case there being a conflict between the age recorded in any school document and that assessed by the doctor, then only for the present purposes, the court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific test to assess the age of a victim. This is necessary as liberty of a person has to be protected. No person could be deprived of his liberty unless reasonable procedure has been adopted.....Personal liberty of a person should be paramount consideration in such cases and a lady ought not to have been confined in the Nari Niketan against her wishes. There is no age, as regards the personal liberty of a person is concerned. Any order which curtails or encroaches upon the liberties of such a person, has always to be held falling short of the constitutional requirements and safeguards and is liable to be struck down."
It is common mistake committed by the Magistrates while deciding the custody application, that they apply the same principles, applicable for determination of the age of a juvenile in conflict with law, without paying any attention to the fact that Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007 providing that the school leaving certificate should be given preference over the medical evidence, is meant for determination of age of juvenile in conflict with law and not for determination of age of the prosecutrix, who has willingly performed love marriage against the wishes of her parents and who intends to live with her husband.
Considering the aforesaid facts of the case, the revision deserves to be allowed and is hereby allowed. The impugned order dated 22.05.2014 is hereby set aside.
The revisionist no. 1 Asmat Jahan be immediately released from Nari Niketan so that she may enjoy her life and go wherever she likes.
Order Date :-19.6.2014
v.k.updh.
