Naveen Goshwami vs State Of U.P. And 2 Others
2018 Latest Caselaw 1613 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								 A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 683 of 2018
 

 
Revisionist :- Naveen Goshwami
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Mithilesh Kumar Shukla,Avanish Kumar Shukla
 
Counsel for Opposite Party :- G.A.,Hitesh Pachori
 

 
Hon'ble J.J. Munir,J.

1. This revision calls into question the validity of an order dated 07.02.2018 passed by Ms. Kavita Mishra, the learned Chief Judicial Magistrate, Agra in Case Crime no.439 of 2017, State vs. Navin and others, under Sections 363, 352, 504, 506, 120B IPC and Section 7/8 of the POCSO Act, Police Station Bah, District Agra, whereby acting on the directions of this Court issued in Criminal Misc. Writ Petition no.28295 of 2017, Smt. Kajal Goshwami vs. State of U.P. and 5 others, decided on 10.01.2018, the learned Magistrate has proceeded to decide the issue of custody of Kajal, who is hereinafter referred to as the ''prosecutrix'. By the said order dated 07.02.2018 that is hereinafter referred to as the ''impugned order', the learned Chief Judicial Magistrate has ordered that the prosecutrix shall remain in the safe custody of Nari Niketan, Mathura, until she attains the age of majority.

2. This revision was initially filed by Navin Goswami alone, but later on, by permission of this Court, the prosecutrix also joined her as revisionist no.2. Opposite party no.3 to this revision is Sanjeev Kumar Goswami, who is the father of the prosecutrix and the second revisionist. He is the informant of the case that was registered as Case Crime no.439 2017 (supra) in connection whereof the impugned order has been passed.

3. The facts giving rise to the case crime under reference and the impugned order lie in a narrow compass. Revisionists no.1 & 2 claiming themselves to be of the age of majority and competent to marry under the law, married according to the Hindu rites at the Arya Samaj Mandir, Greater Noida, Gautam Budh Nagar on 07.12.2017 in the presence of two witnesses, Mukesh and Jakir Ali. The Secretary of the Arya Samaj Mandir issued a certificate of marriage to the revisionists on 07.12.2017. Revisionist no.1 asserts his date of birth to be 10.08.1995, and, that of the prosecutrix to be 01.01.1998. The marriage was not taken kindly by the family of the prosecutrix, and her father, opposite party no.3 here, lodged an FIR on 06.12.2017 at 4.00 p.m. with Police Station Bah, District Agra alleging that revisionist no.1 by blandishment had enticed away the prosecutrix. It was said that his other daughter, Jyoti witnessed the said occurrence and objected, whereupon revisionist no.1 extended threat of injury to life and limb and intimidated her. Jyoti informed third opposite party at his shop, whereupon he proceeded to the home of the first revisionist to complain in the matter. There he found a certain Bhurey, another Jai Kishore, Praveen and Nagendra; all of them repelled him aggressively by threat of assault and flourish of abuses. There are some not so material allegations in the FIR about those believed to be abbettors and conspirators. The revisionists which includes the prosecutrix threatened with arrest in connection with the FIR lodged by her father on completely misplaced and false allegations approached this Court together with the other co-accused in the crime that was registered on the basis of the FIR, last mentioned, seeking to have the same quashed.

4. This Court by an order dated 10.01.2018 looking to the allegations in the FIR refused to quash the same, but proceeded to direct that the prosecutrix shall be produced before the Chief Judicial Magistrate within 20 days from the date of the order by the other accused/ petitioners and an application for her medical examination besides recording her statements under Section 161 Cr.P.C. and 164 Cr.P.C. shall be made. It was further directed that the Magistrate shall fix a date for proceeding in the matter and on the date fixed, the first informant and Officer In-charge of the Police Station concerned shall be summoned. The prosecutrix shall be produced before the Chief Medical Officer concerned by the police for her medical examination, whereafter she shall be produced before the Chief Judicial Magistrate, who will record her statement under Section 164 Cr.P.C. on an application further to be made for the purpose by the Investigating Officer/ Officer In-charge of the Police Station. It was ordered that till the aforesaid proceedings are taken, no coercive action shall be taken against the petitioners of Criminal Misc. Writ Petition no.28295 of 2017. It was ordered that in default of these steps being taken by the petitioners, last mentioned, it shall be open to the police to arrest them. Further, if the prosecutrix was found to be a major and does not support the FIR version, the petitioners of the writ petition last mentioned, shall not be arrested till submission of a Police Report under Section 173(2) Cr.P.C., but the petitioners shall cooperate with the investigation. In case, however, the prosecutrix appears to be a minor or if she is found to be major but supports the prosecution version, it would be open to the police to arrest the petitioners. Also, it was ordered that in case the petitioners approached the Senior Superintendent of Police seeking provision of security through the aforesaid steps, the same shall be provided to them. In the last it was ordered by the Division Bench of this Court that the issue of custody of the prosecutrix shall be decided by the Chief Judicial Magistrate in accordance with law. It is the last part of the direction in the order dated 10.01.2018 passed by the Division Bench in Writ Petition no.28295 of 2017 that has placed the matter on Board of the leaned Chief Judicial Magistrate for a decision about the custody of the prosecutrix leading to the impugned order.

5. The medical examination report as would appear from the impugned order opined the prosecutrix to be 17 years. There is, going by the settled law, variation of two years on either side of the medically estimated age, and, therefore, the prosecutrix could be considered a major. The impugned order also shows that in the statement of the prosecutrix recorded under Section 164 Cr.P.C., she took a categorical stand that she had married revisionist no.1 of her free will; that she wants to live with him; and, that she does not want to live with her parents. Thus, the learned Chief Judicial Magistrate before whom the issue of custody under orders of the Division Bench of this Court came up, there was this medical opinion indicating the prosecutrix to be aged about 17 years, and, her stand under Section 164 Cr.P.C. unmistakably in favour of the integrity of her marriage to revisionist no.1.

6. In these proceedings before the learned Chief Judicial Magistrate, an application appears to have been made by the Investigating Officer for appropriate orders of Supurdagi for the prosecutrix. By what is meant as Supurdagi for a person is not very clear but to all seeming it appears that the Investigating Officer wanted her to be handed over to a guardian other than revisionist no.1.

7. Another application was made on behalf of revisionist no.1, where he said that the prosecutrix had married him without any threat, undue influence or coercion according to Hindu rites on 07.12.2017 at the venue last mentioned; that the prosecutrix had been subjected to medical examination; that she wanted to live with him; and, that, therefore, it would be in the interest of justice that she may be given into the Supurdagi of revisionist no.1. Here, it would be that Supurdagi meant to the best understanding of this Court that the prayer on behalf of revisionist no.1 was to permit his wife, the prosecutrix, to accompany him.

8. A third application was made on behalf of opposite party no.2, the father of the prosecutrix. He asserted that the date of birth of the prosecutrix was 10.08.2003; she was, therefore, a minor and should be given into his Supurdagi. Again, to all seeming, here Supurdari would mean being handed over the custody of his daughter as her natural guardian. This application was supported by an alleged discharge slip from the Hospital, where the prosecutrix was born, with the date of admission of his wife shown as 10.08.2003 and discharge as 12.08.2003. Also, brought on record was a school leaving certificate for Kajal from the Purva Madhyamik Vidyalaya, Bateshwar Bah, District Agra, wherein her date of birth was indicated to be 10.08.2003. Further, a photostat copy of the Pariwar Register was also filed, where the date of birth of the prosecutrix was shown to be 10.08.2003.

9. The learned Chief Judicial Magistrate taking note of all the three applications and evidence in support thereof, the proceedings before the Division Bench of this Court in the writ petition under reference, the directions made there, the medico-legal report of examination about the age of the prosecutrix, and her statement under Section 164 Cr.P.C, came to the conclusion that the prosecutrix was a minor, but since she does not want to go along with her parents, opined that at that stage the only course of action open that was just, fair and according to the law, was to send the prosecutrix to the safe custody of the Nari Niketan, Mathura to stay there till she turned a major. It was accordingly ordered by the Magistrate.

10. It appears that when the present revision was filed, an application was made on behalf of the prosecutrix to be impleaded as revisionist no.2 in the array of parties. This application came to be allowed vide order dated 08.03.2018. By the same order taking note of the stand of the prosecutrix in her statement referred to in that order as one under Section 161 Cr.P.C., which possibly refers to her statement under Section 164 Cr.P.C., that she does not want to go with her parents and yet she has been sent to the Nari Niketan against her wish, directed production of the prosecutrix before the Court on 09.04.2018. By the same order dated 08.03.2018, notice was also issued to opposite party no.3, the father of the prosecutrix returnable on the date fixed.

11. On 09.04.2018, the prosecutrix was produced before the Court, but since no time was left, an order was passed to house her at the Nari Niketan, Khuldabad, Allahabad until the day following with a direction for her to be produced again.

12. On 10.04.2018, this Court after hearing parties was of opinion that the original records from the school, that is to say, Purva Madhyamik Vidyalaya, Bateshwar Bah, District Agra were required to be produced and the Headmaster/ Principal of the institution was required to be present with original school records; this being specified as the school leaving certificate, scholar register, admission register and other relevant records relating to the prosecutrix. The Headmaster was also required to file an affidavit stating clearly whether the prosecutrix had been a student at his institution at any point of time, annexing with the said affidavit the relevant records, the originals of which would be shown to the Court. Notice in this regard was issued to the Headmaster/ Principal, last mentioned.

13. The matter was directed to come up on 13.04.2018 at 2.00 p.m. The prosecutrix was, in the meanwhile, housed at the Nari Niketan, Allahabad with a direction to the Superintendent that during her stay at Nari Niketan, none of her relatives would be allowed to meet her. During her stay there, the Superintendent was directed ensure her physical and psychological well being.

14. The hearing on 13.04.2018 was quite eventful. The prosecutrix reiterated her stand that was taken before the Magistrate in her statement under Section 164 Cr.P.C. and asserted that she was a major aged 19 years. The father had on the other hand relied upon the school certificates. This Court went through the copy of the school leaving certificate that was produced in original before the Court. The school leaving certificate was found ex facie not one that would inspire confidence for more than one reason. Certain important columns, like, the date on which the scholar left school was left blank; further, the column relating to the last date of admission in the school also had been left blank; the serial no. of the last admission in the school was also found blank. In all atleast five columns of other essential information were all found crossed and left blank. In the face of such a suspect record from the school, the prosecutrix was ordered to be produced before the Chief Medical Officer, Allahabad for the purposes of constituting a Medical Board and to ascertain her approximate age in accordance with the established methodology of medical science. The report of Board was directed to be submitted to the Court on 18.04.2018 through the learned Additional Government Advocate, High Court, Allahabad. The Senior Superintendent of Police, Allahabad was directed to take necessary steps in coordination with the Chief Medical Officer, Allahabad.

15. Surprisingly, the Principal of the School where the prosecutrix allegedly read, despite service of notice did not appear, and, therefore, bailable warrant had to be issued to secure his attendance on the next date fixed, that is to say, 23.04.2018.

16. On 21.04.2018, opposite party no.3 put in appearance through Sri Murtuza Ali and Sri Imtiyaj Ali, Advocates, who filed a joint Vakalatnama and counter affidavit on behalf of the said opposite party in the office. The Officiating Headmaster/ Principal of the School one Ram Prakash also appeared along with the relevant school records.

17. Before proceeding with the matter further, this Court may notice that an explanation from the Chief Judicial Magistrate, Agra had been sought vide order dated 13.04.2018 about the fact as to how he did not apprise the Principal what he was required to do in compliance of the order dated 10.04.2018 in explicit terms, in particular, about the requirement of his personal attendance before the Court. The Chief Judicial Magistrate has submitted an explanation dated 21.04.2018, that has been submitted through an office report dated 21.04.2018. The explanation has been perused and the same is accepted.

18. The Court has been taken through the original file of the transfer certificates produced by the officiating Principal of the School, which shows that the prosecutrix was admitted to the Purva Madhyamik Vidyalaya, Bateshwar, Bah, District Agra in Class - VI on the request of her grandfather, Chandrasen through a written application, which is an undated document and shows her date of birth to be 10.08.2003 on the reverse of the application, where some particulars are scripted in tabular form. The application was received on 16.08.2014 and entered at serial no.7130 of some kind of receipt register.

19. The aforesaid document was shown to the Court by the officiating Principal of the School, who also filed an affidavit dated 23.04.2018 styled as a supplementary affidavit, annexing therewith amongst other documents, a photostat copy of application for admission made by grandfather of the prosecutrix for her admission, a photostat copy of the school leaving certificate that was produced before the Chief Judicial Magistrate, and, a photostat copy of the relevant page of the admission register of the school annexed as Annexures nos.1, 3 & 2 respectively. A perusal of the admission register also indicates the date of birth of the prosecutrix as 10.08.2003, but it shows, like other documents that she joined the school in Class - VI and left in Class - VIII. There is no previous record about her date of birth from a school earlier attended. It cannot be said that the school record apart from carrying discrepancies in the columns in the school leaving certificate, are one that indicate the earliest record about the date of birth of the prosecutrix. There is also a counter affidavit filed on behalf of opposite party no.3, which is on record. There are photostat copies of the Pariwar Register and the discharge tickets from G.R. Medical College and J.A. Group relating to the wife of opposite party no.3, that has been referred to hereinbefore, annexed which allegedly relate to the date of delivery of the prosecutrix. It is difficult for the Court to express any definite opinion whether the documents annexed to the counter affidavit about the birth of the prosecutrix from the Hospital in fact relate to her or the other documents annexed are dependable account of her age, but that need not detain this Court for long as the report submitted by the Chief Medical Officer about the medical estimation of the age of the prosecutrix determined by the Medical Board dated 04.04.2018, under a covering memo dated 14.04.2018 shows that the prosecutrix has been opined to be 18 years of age by the Medical Board compromising three doctors, that is to say, the Chief Medical Officer, a Deputy Chief Medical Officer and a Medical Officer attached to the office of the Chief Medical Officer, Allahabad. The said report of the Medical Board is based on a radiological examination done at the department of Radiology, T.B. Sapru Hospital, a copy of which is annexed with the report of Medical Board dated 14.04.2018. According to the said report as noted above, the prosecutrix is aged about 18 years, and, on the date of marriage with the revisionist i.e. 07.12.2017, the age, would, therefore, not be much different giving allowance for the usual variation of two years on either side that is to be construed in favour of the person claiming such liberty and here too the same principle would apply as the question is one of liberty. It was argued by the learned A.G.A. and learned counsel appearing for opposite party no.3 that the variation of two years is for the purpose of judging criminal liability and not for the determining the right of a person to marry or to stay with a person of her choice.

20. This Court does not think so. The reason is that in case allowance of two years in medical estimation of age for the purpose determining the right of a person to marry or to stay with a person of her choice, and, more particularly, in this case to be forced to live in a Nari Niketan were to be construed on the other side, it would be construing the variation in a manner that curtails personal liberty that is otherwise one of the most sacrosanct constitutional guarantees under Article 21 of the Constitution. Thus, where the issue is whether a person medically estimated to be aged about 18 years is to be put in incarceration because she has married a person of her choice or be left free to go and stay with him, in the opinion of this Court the medical estimated age of about 17 or 18 years ought to be construed in favour of liberty, and, fortiori in favour of the person seeking restoration of her liberty. Here it is the prosecutrix.

21. The issue about whether medical estimation of age could be the basis of construing the age of a person choosing to marry a person of her choice alleged to be a minor and victim of a crime or her age is to be determined strictly with reference to school record is best answered in the facts of the present case by the decision of the Hon'ble Supreme Court in Suhani & anr. vs. State of U.P. and others in Civil Appeal No.4532 of 2018 decided on 26.04.2018, wherein in a matter where this Court in a Habeas Corpus Writ Petition filed by a person claiming to have married the detenue whose date of birth in High School Certificate was recorded as 13 years and 8 months, had held her not entitled to go with the man of her choice/ her husband and dismissed the Habeas Corpus Writ Petition, their Lordships of the Supreme Court reversed the said judgment after seeking opinion of a Medical Board constituted by their Lordships, where her age was medically opined to 19 to 24 years. She was allowed to go with her husband on her assertion affirming the marriage. In this connection the relevant part of the decision in re Suhani (supra) may be quoted with profit:

"It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no. 2.

On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nari Niketan, Allahabad.

When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh.

We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-

"Radiological Examination

X-Rays advised for age estimation:-

X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine -Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department.

Report of Radiological Examination-

All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years.

Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years.

Medial end of clavicle not fused, suggestive of age 22-27 years.

S1 of sacrum not fused with S2, suggestive of age 17-24 years.

Imp.:-Estimated Bone age is between 19-24 years.

FINAL REPORT/OPINION:

Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years."

In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband."

22. Looking to the aforesaid guidance of their Lordships of the Hon'ble Supreme Court in Suhani (supra), there remains little doubt that the prosecutrix who is consistent in her stand of having voluntarily married revisionist no.1 and her wish to stay with him, cannot be forced to stay in a Nari Niketan on the objection of her father or anyone else, particularly so, after she has been medically opined to be about 18 years of age by a Medical Board constituted under orders of this Court vide their report dated 14.04.2018.

23. In view of the aforesaid facts and circumstances, this revision succeeds and is allowed. The impugned order dated 07.02.2018 passed by the Chief Judicial Magistrate, Agra is set aside and reversed. The prosecutrix/ revisionist no.2, who is in custody of the Superintendent, Nari Niketan, Mathura shall be released forthwith from custody and permitted to go wherever she likes and with whom she wants. Since she has indicated her desire to go along with revisionist no.1, Navin Goswami, her husband, she is free to do so.

24. The Chief Judicial Magistrate, Agra shall ensure compliance of this order forthwith. Let copy of this order be communicated to the Chief Judicial Magistrate, Agra by the office.

25. Detag Criminal Revision no.63 of 2017 connected vide order dated 10.04.2018. Let the same be listed before the appropriate Bench.

26. Office is directed to send back the original records of the school being the admission register and original file containing applications and original Transfer Certificates of Purva Madhyamik Vidyalaya, Bateshwar, Bah, District Agra in a sealed cover securing acknowledgment of the same from the school authorities through the Chief Judicial Magistrate, Agra.

Order Date :- 20.7.2018

Anoop