Smt. Arti & Another vs State Of U.P. & 3 Others
2017 Latest Caselaw 6881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 51
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 51082 of 2017
 
Petitioner :- Smt. Arti & Another
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- Sanjive Kumar Gupta
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vipin Sinha,J.

Hon'ble J.J. Munir,J.

Heard Sri Sanjive Kumar Gupta, the learned counsel for the petitioners and Sri Rakesh Agrahari, learned AGA appearing for the State.

This is a habeas corpus writ petition seeking to question the continued detention of Smt. Arti at Nari Niketan, Bareilly under an order dated 25.2.2017 passed by Chief Judicial Magistrate in case crime no. 207 of 2017, U/s 363, 366 IPC, P.S. Civil Lines, District Budaun.

In this case on the date of motion, we issued a rule nisi directing that the detenue Smt. Arti detained at Nari Niketan, Bareilly be produced before us on 15.11.2017. The said order was made on 1.11.2017.

Rule nisi in this case was issued on 1.11.2017 on basis that the petitioners had come up with a medical report annexed as annexure no. 2 to the writ petition which shows the detenue to be aged about 19 years. In addition, on record is the statement of the detenue Smt. Arti recorded under Section 164 Cr.P.C. that she is aged 19 years and has married the second petitioner of her free will; that she is absolutely uneducated; and that she wants to stay with him for the fulfillment of her marriage vows.

Today, the detenue Smt. Arti has been produced before us in compliance of our order dated 1.11.2017. She has stuck to her statement made before the Magistrate under Section 164 Cr.P.C.

Learned counsel for the petitioners, as done on the date of motion, has fallen back on the medical report as to the detenue's age being 19 years and further on the statement under Section 164 Cr.P.C.

Learned AGA, on the other hand, has brought to our notice a school leaving certificate relating to the first petitioner issued by the Prathmik Vidyalaya, Bhojpur, District Bareilly dated 31.8.2017 which is on record as annexure no. 5 to the writ petition. The said certificate relates to the first petitioner Smt. Arti. It shows that she had studied in the said school until she passed her class V. The date of birth of the first petitioner in this school leaving certificate aforesaid is entered as 5.2.2001. Going by the said certificate, the first petitioner as of date is aged less than 17 years. Learned AGA has also invited our attention to the provisions of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, which reads 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.

Learned AGA has submitted that looking to the provisions of Section 94 of the Act, 2015, the date of birth shown in school certificate leaves no space for consideration of medico legal evidence. In his submission, it is only when there is no certificate from the school or the matriculation certificate from concerned examination board and further no birth certificate from the municipal corporation or municipal authority or a Panchayat that medico legal evidence as to age of the victim can be taken into consideration.

Learned counsel for the petitioners countered the aforesaid submissions of the learned AGA by saying that the provisions of Section 94 of the Act, 2015 are available for the purposes of determination of age of 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 school leaving certificate which shows the age of the petitioner to be less than 17 years, we cannot look into the medico legal evidence as the statute does not permit us to do so. The medical evidence, thus, relied upon by the learned counsel for the petitioners is of no help to him.

The first petitioner has indicated in her statement under Section 164 Cr.P.C. that she fears for her life from her parents and wishes to stay with second petitioner whom she has married; that cannot be done as the first petitioner is still a minor. 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 wishes 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 principle 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, the 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 first 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 25.2.2017 that has authorized the first 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 fails and is dismissed with the direction that first petitioner shall stay at the Nari Niketan, Bareilly until 5.2.2019 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 see to it 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, Bareilly 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, Bareilly by the Registrar General forthwith for compliance.

Order Date :- 15.11.2017

Kuldeep