Jyoti Saroj Thru. Her Husband Sri ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 13084 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 364 of 2023
 

 
Revisionist :- Jyoti Saroj Thru. Her Husband Sri Pankaj Kumar @ Sawan
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And 4 Others
 
Counsel for Revisionist :- Sumit Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,Arvind Kumar
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard Mr Sumit Kumar Srivastava, learned counsel for revisionist, Mrs. Rachna Shukla, Advocate holding brief of Sri Arvind Kumar, learned counsel for opposite party no.5, Mrs. Mamta, learned AGA for the State and perused the material available on record.

2. By means of this criminal revision the revisionist has sought following relief:-

"Wherefore it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the impugned orders dated 11.10.2021 and 6.12.2021 passed by Chairman/Member, Child Welfare Committee, District- Pratapgarh, whereby the victim is detained in Rajkiya Bal Grah (Balika), Prayagraj in Case No. 194 of 2021 arising out of Case Crime No. 143 of 2021 under sections 363, 366, 376 IPC and 3/4 of Protection of Children from Sexual Offences Act, 2012, P.S. Hathigawan, District- Prayagraj."

3. By the impugned order dated 11.10.2021 the detenue victim has been sent to Rajkiya Bal Grah (Balika), Prayagraj against her wishes. By means of order dated 6.12.2021 the Juvenile Justice Committee determined the age of victim.

4. Juvenile Justice Board arrived at the conclusion that as per document of Pushpanjali Vidyamandir, Jahanabad, Kunda, Pratapgarh the date of birth of the revisionist was 20.5.2008 as per the said document; the age of the victim was 13 years 6 months and 16 days on 6.12.2021 as per abovementioned document. But Juvenile Justice Board arrived at the conclusion that this date of birth is doubtful. As per record of Purv Madhyamic Vidyalaya, Jahanabad, Kunda, Pratapgarh the date of birth of the victim mentioned as 14.9.2006 and the age of the victim on 6.12.2021 was 15 years 2 months and 22 days. Thus, at the time of alleged FIR dated 25.7.2021 the victim was minor. Since Juvenile Justice Board arrived at the conclusion that at the alleged date of incident she was minor.

5. Learned counsel for revisionist has submitted that one case was lodged by opposite party no.5 against accused Pankaj Kumar @ Sawan and his family members under sections 363, 366, 376 IPC and under section 3/4 of the Protection of Children from Sexual Offences Act. After recovery of the victim, statements of victim under sections 161 and 164 CrPC were recorded in which she clearly stated that she voluntarily entered into the relationship with accused Pankaj Kumar @ Sawan. She further clearly stated that she wanted to live with her husband Pankaj Kumar @ Sawan but against her wishes Child Welfare Committee sent the victim to Rajkiya Bal Grah (Balika), Prayagraj. The said committee determined the age of victim and found that the victim was minor, therefore, she was sent to Rajkiya Bal Grah (Balika), Prayagraj.

6. Learned counsel for revisionist has submitted that there is a dispute of age of the victim regarding which Investigating Officer got conducted the medical examination and X-ray of the victim. Radiological age of the victim was found about 18 years.

7. Learned counsel for revisionist submitted that if any dispute regarding the age of the victim in respect of document related to date of birth than the date of birth shall be determined as per provision under section 9 and 94 of Juvenile Justice Act.

8. Section 9 of Juvenile Justice Act reads as under:-

"(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.

(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety."

9. Section 94 of the Juvenile Justice Act reads as under:-

"S.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."

10. Learned counsel for revisionist further submitted that since the dispute regarding the age of victim is involved, in such condition medical evidence shall prevail and as per medical report the victim was major. But at present the victim is in Rajkiya Bal Grah (Balika), Prayagra. It is further submitted that the victim never stated that she wanted to reside with her parents. She clearly stated that she wanted to reside with her husband Pankaj Kumar @ Sawan.

11. Learned counsel for the revisionist submitted before the Court if the argument of opposite party no.2 is accepted in toto that the victim was minor even then she cannot be sent to Nari Niketan Rajkiya Bal Grah (Balika), Prayagraj against her wishes. Learned counsel for the revisionist rely on the judgement of this Court in (Smt. Priyanka Vs. State of U.P. through Principal Secretary Home and others) (Application under section 482 No. 4127 of 2022) which is decided on 30.6.2022, paragraph 7 of the abovementioned judgement is quoted hereunder:-

"In support of his submission learned counsel for the applicant relied upon the judgment of the Hon'ble Apex Court passed in the case of Smt. Parvati Devi Vs. State of U.P. reported in 1992 All Cri Cases 32, wherein it has been held that confinement of victim in Nari Niketan against her wishes cannot be authorized either under Section 97 or under Section 171 Cr.P.C. and the respondents failed to bring to the notice of the court any legal provision where under the Magistrate has been authorized to issue direction that a minor female shall against her wishes be kept in Nari Niketan. Identically in the case of Mrs. Kalyani Chaudhory Vs State of U.P. and others reported in 1978 Criminal Law Journal 103 a Division Bench of this Court held that no person can be kept in protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a Home. In such cases the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home."

12. On perusal of the impugned order she detained in Nari Niketan Rajkiya Bal Grah (Balika), Prayagraj aginst her wishes. If the prosecution case is admitted in toto she could not be detained against her wishes.

13. Considering the entire facts and circumstances, this revision deserves to be allowed and is hereby allowed. The trial court is hereby directed to immediately call the victim from Rajkiya Bal Grah (Balika), Prayagraj and again record her statement and appropriate orders may be passed within 7 days for her custody in accordance with law keeping in view the wishes of the victim.

Order Date :- 27.4.2023

Arpan