Allahabad High Court
Shivam Kumar And Another vs State Of U.P. And 5 Others on 9 July, 2019
Bench: Manoj Misra, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 392 of 2019
Petitioner :- Shivam Kumar And Another
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Ved Prakash Mishra
Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Ali Zamin,J.
Heard Sri V.P. Mishra for the petitioners, the learned A.G.A. for the respondents 1 to 5 and Sri Vijay Kumar Tiwari for respondent no.6.
This habeas corpus petition has been filed questioning the detention of the corpus (Sharda Devi), who has been impleaded as petitioner no.2, at Bal Grah Balika, Hatauda, Bujurg, Shahjahanpur pursuant to the order dated 15.01.2019 passed by Child Welfare Committee, Shahjahanpur.
A perusal of the record reveals that the petitioner no.1 (Shivam Kumar) was made an accused in Case Crime No.634 of 2018, police station Nigohi, District Shahjahanpur for offences punishable under Sections 363, 376 (2) I.P.C. and 3/4 POCSO Act. In the first information report, which has been lodged by father of the corpus, namely, Balak Ram, the allegation is that his minor daughter Km. Sharda, whose age is 15 years 7 months, has been enticed away by the accused. The child welfare committee vide its order dated 15.01.2019, upon finding the corpus to be a minor, and in view of her statement that she does not wish to go with her parents, sent her to Child Protection Home.
The present petition has been filed on the ground that in the medical examination report, the use of force upon the corpus was not found and the age of the corpus was determined about 17 years and she, in her statement recorded under Section 164 Cr.P.C., had disclosed that she was aged between 17-18 years.
The learned counsel for the petitioner has pointed out that under order of this Court, dated 06.05.2019, the corpus was produced on 11.06.2019 before the Court. It has been submitted that the Court had recorded the statement of the corpus on that date and from the order dated 11.06.2019, it appears that the corpus had expressed her desire to go with Shivam Kumar i.e. petitioner no.1. The order dated 11.06.2019 is extracted below:
"Affidavit of compliance has been filed today which is taken on record.
Heard Sri Ved Prakash Mishra, learned counsel for the petitioners and Sri G.P. Singh, learned A.G.A for the State.
As per the Office report dated 10.06.2019, compliance report of the notice issued to respondent no. 6 is still awaited.
In compliance of this Court's order dated 6.5.2019, the corpus-petitioner no.2-Sharda Devi has been produced by respondent no. 4 today in the Court and on query being made, she has expressed her desire to go with Shivam Kumr-petitioner no. 1.
List the matter on 9.07.2019 before appropriate Bench.
In the meanwhile, learned A.G.A. shall ensure that respondent no. 6 may be informed about the pendency of the present petition.
The presence of the corpus-petitioner no.2 is hereby dispensed with unless otherwise directed by the Court. She shall be taken back to Bal Kalyan Samiti, Shahjahanpur from where she was brought and kept there till the pendency of the present petition."
It has been submitted that since the corpus has married the petitioner no.1, the corpus should be set free or given in the custody of the petitioner no.1.
Learned A.G.A. has submitted that the corpus falls in the category of a child in need of care and protection in view of definition of child in need of care and protection as provided by Section 2(14) of the Juvenile Justice Care and Protection Act, 2015. It has been submitted that it is well settled legal principle that the age of a child victim is to be determined by applying the same principles which are applicable to determine the age of juvenile in conflict with law and therefore, once it has been found that the victim is minor, she requires care and protection. Hence, the child welfare committee was well within its jurisdiction to place the corpus in the Care and Protection of a Child Protection Home.
We have perused the record and have considered the rival submissions.
In the writ petition, the petitioner himself has produced scholar register and transfer certificate depicting the date of birth of the corpus as 02.05.2003. The admit card of the victim for High School Examination, 2018 issued by U.P. Board is also there on record disclosing her date of birth as 02.05.2003. Further, the statement of the victim recorded under Section 164 Cr.P.C. does not disclose her to be aged above 18 years as she claims to be aged between 17-18 years. Further, there is no determination as regards the age of the victim as above 18 years in the medical examination report.
Under the circumstances, placement of the victim in Child Care and Protection Home cannot be said to be illegal. The petition is therefore, dismissed with liberty to the petitioners to challenge the order of the Child Welfare Committee by taking recourse to the remedy provided under Section 101 of the Juvenile Justice (Care and Protection of Child) Act, 2015.
Order Date :- 9.7.2019
Jitendra
