Saddam And Another vs State Of U.P. Thru Secy. And 3 ...
2015 Latest Caselaw 1772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 
Court No. - 34
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 16322 of 2015
 

 
Petitioner :- Saddam And Another
 
Respondent :- State Of U.P. Thru Secy. And 3 Others
 
Counsel for Petitioner :- Meraj Ahmad Khan,Manoj Vashisth
 
Counsel for Respondent :- Govt.Advocate,Umesh Chanda Yadav
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Brijesh Kumar Srivastava-II,J.

1. Heard Sri Sunil Kumar, Advocate holding brief of Sri Manoj Vashisth appearing for the petitioners, learned A.G.A. for the respondents no. 1, 2 & 3 and Sri Mohit Kumar, Advocate appearing for the respondent no.4.

2. This writ petition under Article-226 has come up with a prayer of issuance of a writ of certiorari for quashing First Information Report (hereinafter referred to as the F.I.R.) dated 01.07.2015 registered as Case Crime No. 241 of 2015, under Sections-363, 366, 506 I.P.C., P.S.Dilari, District-Moradabad copy whereof has been filed as Annexure no.1 to the writ petition.

3. The allegations contained in F.I.R. are that Km. Gulista, a minor girl of 16 years was enticed and kidnapped by Saddam S/o Munajir, Village-Lalapur Pipal Sana, P.S.-Thakur Dwara, District-Moradabad on 26th May, 2015 whereagainst informant's husband Akram lodged F.I.R. dated 30th May, 2015 (Case Crime No. 191 of 2015) under Sections-363, 366 IPC at P.S.-Dilari, District-Moradabad. The police recovered the girl. Her statement under Section-164 Cr.P.C. was recorded before the Magistrate. After medical examination and also on the basis of her statement, she was given in custody of her father Sri Akram (husband of the informant). On 30th June, 2015 when informant's husband had gone to Kashipur to meet some relatives, in the night, around 10:00 p.m., Saddam alongwith 03 accompanies i.e. Ashraf, Irfan and Abrar entered the house of informant carrying "Tamancha" and extended threat to life of the informant. The girl was again taken away by them. The informant is apprehensive of murder of her daughter.

4. This writ petition has been filed assailing the aforesaid F.I.R. apparently by accused as well as on behalf of the girl Gulista Jahan, alleging that the girl is major being 19 years of age and has married petitioner no. 1 vide "Nikahnama"/marriage certificate dated 26.05.2015 at Masjid Inayat Ullah, Islam Colony, Mehrauli, New Delhi and thereafter they are free to live their own life without any intervention by respondents and no crime under Section- 363 IPC etc. has either been committed or made out. In support of age of the girl, a copy of voter identity card issued by Election Commission of India, bearing No. YNB 1890086 has been placed on record. It is said that the year of birth is shown as 1996, meaning thereby presently the girl is above 19 years of age. Another document placed on record is a photocopy of a medical certificate dated 10.06.2015, in which the age of the girl has been estimated as 19 years.

5. The informant, i.e. mother of girl, is impleaded as respondent no.4 and she has put in appearance through Sri Mohit Kumar, Advocate. A short counter affidavit sworn by husband of the informant i.e. Sri Akram has been filed. It is stated therein that voter identity card alleged to be that of petitioner no.2 is a forged and fabricated document. The girl i.e. petitioner no.2 is minor and about 16 years of age. Her date of birth is 02.03.1999. In support thereof, High School (Class-X) Result Verification for Year 2014, issued by the Board of High School and Intermediate Education, Uttar Pradesh, Allahabad as well as High School Examination Entry Pass has been filed, showing date of birth of the girl as 02.03.1999. The girl having failed in the High School has been struck off from the role of school i.e. Bharat Singh Memorial Inter College, Adalpur, Moradabad and in transfer certificate dated 25.05.2015, (placed on record at page-15) the date of birth of girl i.e. petitioner no.2 has been mentioned as 02.03.1999. It is also said that pursuant to F.I.R. dated 30.05.2015 (Case Crime No. 191 of 2015) the girl was recovered and produced before Magistrate i.e. Additional Chief Judicial Magistrate-Vth, Moradabad. The application for custody of girl submitted by her father was considered by court and an order was passed on 12th June, 2015 in which question of age of girl was considered. The court recorded a finding that she is minor having date of birth as 02.03.1999. She also stated before the court that she want to go with her father Sri Akram and looking to all these facts, Magistrate passed order dated 12.06.2015 giving custody of girl to her father. Copy of the said order has been placed on record as Annexure no.6 to the short counter affidavit filed on behalf of respondent no.4.

6. Sri Sunil Kumar, Advocate vehemently contended that the girl is major. He urged that voter identity card as well as medical examination report show that she is major and considering the fact that she is married with petitioner no.1, it cannot be said that any offence under Section-363, 366 IPC has been made out and, therefore, F.I.R. is liable to be quashed and petitioners be left free to live their own life without any intervention by respondents. He urged that whenever there is any dispute regarding age, medical report should be given preference. He also pleaded that the Court should also examine the matter in a different context when parties have married. He has placed reliance on the decisions of this Court in Smt. Nausheeda & Ors. Vs. State of U.P. Secretary, Home, Govt. of U.P., Lucknow & Ors. 2007(1) JIC 714; Nitin Agnihotri Vs. State of U.P. and others 2006 (54) ACC 235; Maharban Ali @ Toni and others (supra) 2009 (66) ACC 810 as well as Apex Court's decision in Lata Singh Vs. State of U.P. & Anr. 2006(3) JIC 267 (SC)

7. The first question which has to be examined by this Court, whether even prima-facie the petitioners have placed on record any creditworthy evidence to show that there is a genuine dispute regarding age of girl or that girl is not minor but major.

8. We propose to consider first of all the documents which have been placed on record alongwith the writ petition in support of contention that girl is major. She is educated i.e. High School failed. Still her exact date of birth has not been mentioned in the entire writ petition though this writ petition claims to have been filed on behalf of the girl also. The first document is the alleged voter identity card belonging to petitioner no. 2. We may notice at this stage that voter identity card of petitioner no.1 has also been placed on record at page-20. In every voter identity card, a silver hologram is affixed and its impression is clear in voter identity card of petitioner no.1 but apparently missing from voter identity card allegedly belonging to petitioner no. 2. Both the cards of petitioner no.1 and petitioner no.2 have same series i.e. "YNB", yet one is issued on 27.12.2011 while that of petitioner no.2 has been issued on 24.02.2014. The date of birth column is on the front page of voter identity card of petitioner no.1 though in case of petitioner no.2, it has come on the back side. The alleged voter identity card therefore of petitioner no.2 is apparently doubtful and cannot be said to be a creditworthy evidence.

9. Moreover, there is a note in the aforesaid voter identity card and note no.2 read as under:-

 
"2. इस कार्ड में उल्लिखित जन्मतिथि को निर्वाचक नामावली में पंजीकरण के अलावा अन्य किसी भी स्तिथि में आयु के प्रमाण के रूप में नहीं माना जायेगा |
 
"Date of Birth mentioned in this card shall not be treated as a proof of age / D.O.B. for any purpose other than registration in electoral roll." (emphasis added) 		       (English translation by Court)
 

10. Similarly, the medical report by itself is not conclusive for showing date of birth. Alongwith the rejoinder affidavit, a copy of Parivaar Register maintained at Gram Panchayat, Adalpur, Nayay Panchayat-Karanpur, District-Moradabad has also been placed on record to show that in the aforesaid Parivaar Register, year of birth of petitioner has been shown as 1996. It is interesting to see that in the aforesaid copy of Parivaar Register filed as Annexure RA-1 to the rejoinder affidavit, year of birth of father of girl is mentioned as 1979 and mother's year of birth is 1982, meaning thereby if what is being urged by learned counsel for the petitioner is accepted, the mother of girl was of 14 years of age whenOn the contrary, the father alongwith his affidavit has placed on record his photocopy of PAN card wherein his date of birth is shown as 01.01.1980. petitioner no.2 was born and father was about 17 years of age.

11. When this discrepancy was pointed out, counsel for the petitioner sought to explain that petitioner no.2 was born from the first wife of Akram (father of petitioner no.2) and the present informant is second wife. However, he could not explain that age of Akram itself was 17 years, if what is being claimed by counsel for the petitioners is treated to be correct. Further, no such explanation has been given either in writ petition or rejoinder affidavit to which he could not give any reply.

12. On the contrary, the father alongwith his affidavit has placed on record his photocopy of PAN card wherein his date of birth is shown as 01.01.1980.

13. It is also worthy to notice that neither the documents of educational institution filed on behalf of informant have been disputed nor the entry of date of birth given therein has been disputed in the rejoinder affidavit but what has been sought to be explained is that parents of petitioner no.2 got enrolled different date of birth than actual with an intention of showing her young than the actual age. It is claimed that it is a general phenomena in society where parents got a wrong date of birth registered in school. Sri Sunil Kumar, learned counsel for the petitioners drew our attention to this explanation given in para-8 of rejoinder affidavti and said that petitioner no.2 is major and, therefore, no offence is made out.

14. We find no force in the submission. The documents of educational institutions clearly show date of birth of petitioner no.2 as 02.03.1999. Even the order dated 12.06.2015 passed by Additional Chief Judicial Magistrate shows that in statement under Section-164 Cr.P.C., the girl herself verified her date of birth as 02.03.1999. She also expressed her desire to go with her father which clearly belies the story of voluntary marriage set-up by petitioner no.1.

15. None of the judgments cited by the counsel for petitioners, has any application to the facts of the present case. In Smt. Nausheeda & Ors. Vs. State of U.P. (supra) two questions came up for consideration before Full Bench, which are as under:

"12. The following questions are formulated by the Bench after hearing the matter on 15th December, 2006:

(a) What would be the wisdom of the writ Court under this jurisdiction?

(b) What relief could be granted by the writ Court?"

16. The issue regarding age of girl, as a matter of fact, was not disputed therein between the parties and the informant-respondents. On the record of writ court, the only document placed was the medical report, giving opinion regarding age of girl whether she was educated or not? In fact, the dispute raised by rival parties about age was not at a dispute in the Full Bench judgment. The Court observed that if girl and boy are major, they are at liberty and choice to live freely. The Court observed that question of crime arises when one is underage, that too, eloped by any one by force for the purpose of marriage or for some other reason. In the absence of any other evidence, if a document filed on record shows that girl is major, in that event Court can exercise its discretionary jurisdiction and pass appropriate order to maintain fundamental right of life and liberty of citizen. This judgment does not lay down any authority that in case of dispute of age, medical certificate will/shall be given preference. Similarly, in Nitin Agnihotri Vs. State of U.P. (supra) the girl was admittedly major, being 25 years of age and well qualified. She was working as a Teacher. Therefore, this judgment also lends no help with regard to the dispute of age.

17. In Maharban Ali @ Toni and others (supra) medical report was sought to be relied. This judgment has also no application with regard to the dispute of age, and is apparently misconceived.

18. So far as Apex Court's decision in Lata Singh Vs. State of U.P (supra) is concerned, we do not find that any principle of law with regard to determination of dispute of age has been laid down therein. It does not lay down any law that if the girl is minor and defence is taken that she has married voluntarily with the boy, still no offence under Sections 363, 366 IPC would be made out.

19. None of the aforesaid judgments therefore, helps the petitioners in this matter.

20. Petitioner no.2 prima facie was/is minor on the date of committing offence, and even today. It thus, cannot be said that no cognizable offence has been made out if allegations contained in impugned F.I.R. are taken to be true. That be so, no relief as prayed for in the writ petition can be granted.

21. In view of what has been said above, writ petition lacks merit and deserves to be dismissed.

22. However, before parting, we clarify that whatever observations we have made hereinabove are only for the purpose of considering the question of quashing of F.I.R., impugned in the writ petition, and shall not be construed as expression of opinion by this Court on those aspects. The court below shall proceed in the matter independently and examine evidence without being influenced by observations made above.

23. Further looking to the fact that a manipulated voter card of petitioner no.2 has been filed and sought to be relied which amounts to a conduct lacking bona-fide and shows lack of clean hands approach on the part of petitioner no.1, in our view, this petition deserves to be dismissed with costs.

24. We, accordingly dismiss it with cost of Rs. 5,000/- against petitioner no.1 who shall pay the same to respondent no.4 within four months.

Order Date :- 12.8.2015

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