Kiran Through Her Next Friend ... vs State Of U.P.Through ...
2018 Latest Caselaw 767 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9                                                                        AFR
 

 
Case :- HABEAS CORPUS No. - 13725 of 2018
 

 
Petitioner :- Kiran Through Her Next Friend Rahul
 
Respondent :- State Of U.P.Through Prin.Secy.Deptt.Of Home Lko.And Ors.
 
Counsel for Petitioner :- Amit Kumar Singh,Raghvendra Pratap Singh
 
Counsel for Respondent :- Govt.Advocate
 
***
 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(Delivered by Hon'ble Rajnish Kumar,J.)

1. The detenue-Kiran housed in Women Protection Home (Balika Grah Gandhi Sewa Niketan) (hereinafter referred to as Women Protection Home), Garariyan Ka Purwa, District Raebareli has approached this Court through her next friend Rahul to release the detenue from the Women Protection Home and set her free to live with her own choice. Further it has been prayed that the impugned order dated 01.11.2017, passed by the Additional Chief Judicial Magistrate, Court No.17, District Sultanpur, in case Crime No.669 of 2017,under Section 363 and 366 of the Indian Penal Code, 1860, Police Station Jamo, District Amethi, under which the petitioner is housed in the Women Protection Home be quashed.

2. This case had come up before this Court on 14.05.2018. This Court had required the presence of detenue before this court today i.e. 22.05.2018. The following order was passed on 14.05.2018:-

"This petition has been filed with a prayer to issue a writ of habeas corpus directing the respondent no.4, where the detenue is presently housed, to release her forthwith and allow her to go according to her own wish.

In the statement recorded under Section 164 Cr.P.C., she has not supported the prosecution case. She was medically examined and was found aged about 19 years.

In these circumstances, we require the presence of detenue before this Court. Let the detenue be produced by respondent no.4 on the next date before this Court. Respondent no.5 shall also be present before this Court on that date.

List this case on 22.05.2018.

Learned A.G.A. shall communicate this order to the Station House Officer concerned as also to the respondent no.4 forthwith. Presence of respondent no.5 before this Court shall be ensured by the Station House Officer concerned."

3. The detenue-Kiran has been brought from the Women Protection Home-respondent No.4 by Ms.Poonam Singh, Superintendent and Ms.Pooja Yadav, Constable.

4. Shri Satyendra Nath Mishra, Advocate has put in appearance on behalf of opposite party No.5-Angad, the father of the detenue and the informant of the FIR dated 21.10.2017, vide Case Crime No.0699 of 2017, Police Station-Jamo, District-Amethi, under Sections 363 and 366 IPC. He has filed a photo copy of the High School Certificate-cum-Marks sheet issued by the Board of High School and Intermediate Education, U.P., which is taken on record.

5. The complainant-opposite party No.5-Angad and the next friend of detenue Rahul are also present.

6. The aforesaid First Information Report was lodged by the opposite party No.5 alleging therein that on 18.10.2017, at about 6 p.m., the informant was out of house with his wife and on coming back to house he came to know that his daughter Km.Kiran aged about 16 years, who was alone at home was missing from home. On inquiry, it came to light that Rahul Kumar, a resident of the adjacent village, has enticed away his daughter.

7. The age of the victim Kiran as per medical report dated 26.10.2017 issued by the Chief Medical Officer, Amethi is 19 years. In the statement recorded under Section 164 Cr.P.C. the petitioner/victim Kiran has not supported the prosecution case, rather she has stated that she had gone alone to his Mausi's house situated at Ahmadabad on 18.10.2017. She has further stated that her father wanted to marry her to someone of his choice while she loves somebody else. She remained there for two days, but on coming to know that the prosecution has been lodged against Rahul, she came back. She has further stated that Rahul has not enticed her away. She had went on her own. Lastly she stated that she is giving statement with her sweet will. Nobody has done any wrong to her. She loves Rahul.

8. On the application of the investigating office of case crime No.669 of 2017 (Supra), father of the victim and victim herself, regarding custody of the victim, it was directed by the Additional Chief Judicial Magistrate, Court No.17, Sultanpur, vide it's order dated 01.11.2017 to produce the detenue before the Child Welfare Committee on the ground that though her date of birth in the medical report is 19 years, but the the date of birth of the detenue recorded in the High School certificate is 21.10.2001. Under the orders passed by the Child Welfare Committee, the detenue is housed at Women Protection Home.

9. Heard learned counsel for the parties and perused the record.

10. The father of the detenue i.e. opposite party No.5 has produced a photo copy of the Certificate-cum-Mark Sheet of the High School Examination 2017, according to which the Date-of- Birth of the detenue is 21.10.2001. However, in the medical examination the age of the petitioner has been reported as 19 years, in the Certificate issued on 26.10.2017 by the Chief Medical Officer, Amethi, a copy of which has been annexed as Annexure No.3 to the writ petition. In the statement recorded under Section 164 Cr.P.C. before the Magistrate, the detenue has not supported the prosecution case and shown her willingness to go with her husband-Rahul. Today before this Court on being asked by us as to where does she want to go, the detenue has categorically and in unambiguous terms stated that she had married on her own volition with Rahul and she wants to go with him and she does not want to go with her father.

11. In view of above, learned counsel for petitioner submitted that the petitioner is major in age and she has not supported the prosecution case and final closure report has been filed in the case, accordingly she should be released and set free to go and live according to her sweet will.

12. On the other hand, learned counsel for the respondents submitted that the detenue is minor as per her age recorded in High School Certificate, accordingly she cannot be released and set free to go as per her will, rather she should be given in the custody of her father-opposite party No.5.

13. Thus, the primary question which falls for consideration before this Court for adjudication of the present controversy is as to which age of the petitioner is to be taken correct; one recorded in the High School Certificate or the other as recorded by the experts on the basis of the medical examination. As per Educational Certificate the petitioner is minor while as per the medical certificate she is major.

14. The Supreme Court has considered in several judgments including in the case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp) Supreme court Cases 604 the question of probative value of an entry regarding the date of birth made in the Scholar's register and in School Certificate in election cases and has consistently held that the date of birth mentioned in the Scholar's Register or Secondary School Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined.

15. The Hon'ble Apex Court considered the aforesaid issue in Alamelu and another versus State and other connected matters, reported in (2011) 2 SCC 385 and held that the expert's evidence does not rule out the possibility of the girl being major though the medical evidence can only fix the age approximately which would be with the variance of two years. It has further been held that the certificate issued by a Government School duly signed by the Head Master would be of not much evidentiary value to prove the age of the girl in absence of the material on the basis of which the age was recorded.

16. In a recent Division Bench judgment passed by this Court, in Habeas Corpus Writ Petition No.52290 of 2017:Suhani & Another versus The State of U.P.& 3 others, after considering the provisions of Section 94 of the Juvenile Justice Care and Protection of Children Act, 2015 held that the date of birth certificate from school or matriculation certificate from the concerned examination board shall be given precedence to the medical opinion as to age. The relevant portion of which, on reproduction, reads as:-

"According to Section 94 of the Juvenile Justice Care and Protection of Children Act, 2015, the date of birth certificate from school or matriculation certificate from the concerned examination board shall be given precedence to the medical opinion as to age.

Admittedly, petitioner No.1 according to the C.B.S.E. Certificate, she is around 13 years 8 months old on the date of occurrence, as such she was minor.

Considering the facts and circumstances of the case and keeping in view the age of the petitioner No.1, we do not see any illegality or irregularity in the order passed by the C.J.M., Allahabad. The Court below was fully justified in sending the petitioner No.1 to Nari Niketan, Allahabad, as she was found minor and had refused to accompany her parents."

17. The aforesaid order was put to challenge before the Hon'ble Apex Court in Civil Appeal No.4532/2018 arising out of SLP(C) No.8001/2018:Suhani & Anr. versus State of U.P.& Ors. The Hon'ble Apex Court in the said case got the medical examination conducted of the detenue from All India Institute of Medical Sciences, New Delhi. The All India Institute of Medical Sciences, New Delhi submitted a report of radiological examination and the final report/opinion and as per the above report/opinion of the All India Institute of Medical Sciences, New Delhi the age of the detenue was reported to be between 19-24 years. Considering the conclusion arrived at by the All India Institute of Medical Sciences, New Delhi the Hon'ble Apex Court held that the detenue is major and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. Since the factum of marriage was admitted by the detenue, therefore, she is entitled to accompany her husband. Accordingly the Apex Court recorded a finding that the detenue is an adult and since she had gone voluntarily with her husband and entered into wedlock, the Hon'ble Apex Court has been pleased to quash the criminal proceedings and set aside the order passed by the High Court. The relevant portion of which is extracted here-under:-

"In view of the conclusion arrived at by the All Indian 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.

In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no.2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no.2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.

The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."

18. Coming back to the facts of the present case, we find that the date of birth of the petitioner has been recorded as 21.10.2001 in the High School Certificate while the age of the petitioner has come 19 years in the medical examination. Accordingly, in view of above, we find that the petitioner is major. Further, on the basis of the statement of the detenue recorded under Section 161Cr.P.C. and 164 Cr.P.C., the final report has been submitted by the police in Case Crime No.0669 of 2017, under Section 363 and 366 of the Indian Penal Code, 1860, Police Station Jamo, District Amethi vide FR-44/17, dated 03.11.2017, which goes to indicate that in the investigation also the prosecution story has not been found favour. Accordingly the contention of the respondents, stands rejected.

19. The Supreme Court in somewhat similar facts in the case of Juhi Devi Vs. State of Bihar and Others reported in (2005) 13 SCC 376, while dealing with the confinement of the girl in the remand home in para 2 opined as under:-

"The petitioner herein is alleged to have married another person of her age and the 5th respondent herein, the father of the petitioner, objected to the said marriage. It seems that the petitioner had eloped with that person and the father of the petitioner, the 5th respondent, has filed a complaint and the petitioner was produced before the CJM, Patna. The petitioner claims that she was a major and voluntarily left with her husband. The father of the petitioner alleged that the petitioner was a minor and the question of age was referred to a Medical Board. The Medical Board opined that as on 17-5-2003, the petitioner must have been aged between 16 and 17 years. However, the father of the petitioner produced two certificates before the Revisional Court and contended that her date of birth is 12-10-1985 and she has not attained majority. However, the medical report shows that she must have been aged more than 16 years, even on 17-5-2003. Having regard to these facts, we are of the view that she must have attained majority and her stay at the remand home would not be in the interest of justice and we think that her continued stay at the remand home would be detrimental and she would be in a better environment by living with the person whom she had allegedly married."

20. Accordingly, we are of the considered opinion that the petitioner is major by age. Since she has married to her next friend Rahul on her own volition and she has categorically and in unambiguous terms stated before this Court also, on being produced today, that she wants to go with her husband-Rahul and she does not want to go with her father, opposite party No.5, therefore, we are of the considered opinion that the petitioner is entitled to be released from the Women Protection Home and go where ever she wants to go at her sweet will.

21. Accordingly, the writ petition is allowed and a writ of habeas corpus is issued. The opposite party No.4 is directed to set the detenue free forthwith, to go as per her own sweet will.

22. No order as to costs.

 
Order Date :- 22.05.2018 
 
Banswar
 
(Rajnish Kumar,J.)       (Devendra Kumar Upadhyaya,J.)