Allahabad High Court
Ram Asrey Alias Ramsare vs State Of U.P. And 2 Others on 1 August, 2023
Bench: Anjani Kumar Mishra, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:153547-DB
Reserved on 10.07.2023
Delivered on 01.08.2023
Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 6719 of 2023
Petitioner :- Ram Asrey Alias Ramsare
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Amrish Sahai,Sahat Bahadur
Counsel for Respondent :- G.A.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
The instant writ petition seeks quashing of the FIR dated 25.05.2022 giving rise to Case Crime No.0499 of 2022, under Sections 363, 366 I.P.C., Police Station- Baradari, District- Bareilly.
The prosecution case as per the First Information Report is that the petitioner enticed away the sister of the informant, aged about 16 years, on 22.05.2022 at around 1:00 a.m. along with cash and jewellery etc, which had been kept for her marriage.
The contention of learned counsel for the petitioner is that the victim is major and the petitioners have solemnized their marriage out of their own free-will, and therefore no offence under Section 363 or 366 I.P.C.. is made out against the petitioner.
To rebut the allegations in the FIR that the victim was minor, reliance has been placed on her PAN card and Aadhaar Card. Both these documents or not valid for determination of the age of the person.
At the time of hearing, a supplementary affidavit was filed annexing thereto, the report of the Chief Medical Officer, Bareilly, which, after an ossification test has opined that the age of the victim is about 19 years. Additionally, relying upon it learned counsel for the petitioner reiterates that no offence under Section 363, 366 is made out against the petitioner. Reliance has also been placed upon three judgements of the Apex Court namely:-
1. Manoj @ Monu @ Vishal Chaudhary Versus State of Haryana & Another, 2022 9 Supreme (SC) 141.
2. XYZ Versus Abhsheik & Another, 2022 0 Supreme (SC) 1610.
3. Vinod Katara Versus State of Uttar Pradesh, 2022 0 Supreme (SC) 905.
Learned AGA has opposed the writ petition and has submitted that the FIR discloses a cognizable offence and the writ petition therefore is liable to be dismissed.
We have considered the submissions made by learned counsel for the parties and perused the record as also the judgements cited.
As already noticed in the earlier part of this order a PAN or an Aadhaar Card are not valid documents for determining the age of a person. Reliance upon them, therefore, does not benefit the petitioner in any manner.
It emerges from the record of the writ petition that upon recovery of the victim and since her age as per her educational records was found to be 17 years 6 months on 03.04.2023, the Child Welfare Committee has sent the victim to the Rajkiya Mahila Saranalaya, Bareilly, as refused to go with her parents.
From the above, it clearly emerges that the petitioner has obtained education. Therefore, an ossification test cannot be made basis for determination of her age, in view of the provisions contained in Section 94(2) of the Juvenile Justice Act. An ossification test is to be conducted and relied upon only in cases where no other evidence regarding the age of a person is available. Such is not the situation in the case at hand as her educational records are definitely available. Even otherwise an ossification test is considered to be highly inaccurate of determination of the age of a person and the opinion has necessarily a variance which can be plus or minus year.
Moreover, in view of Section 94(3) of the Act, the age of the victim recorded by the Child Welfare Committee is final for the purposes of the Juvenile Justice Act.
Under the circumstances and since there is no cogent or admissible offence available on record to show that the victim was major, as is the case of the petitioners, the allegations in the First Information Report constitute an offence under section 363 and 366 I.P.C.
For the same reason, in our considered opinion, the First Information Report cannot be quashed.
Insofar as the judgements cited by learned counsel for the petitioner are concerned, the two judgements in the case of Manoj @ Monu @ Vishal Chaudhary (supra) and XYZ Versus Abhsheik & Another (supra) were judgements rendered by the Apex Court in cases which arose from proceedings in the High Court, where question of juvenility had been decided. The said judgements, therefore, have no application in the instant writ petition, which is one seeking quashing of the FIR. The third case cited is a judgement rendered by the Supreme Court on an application filed by a convict seeking determination of his age at the time of the occurrence. This judgment also therefore was in a matter directed against orders passed in a case determining juvenility of a person.
In the instant case, the question of juvenility has not been considered by any court till date has been considered only by the Juvenile Justice Board, which order is not under challenge before us. Under the circumstances, no benefit can be granted to the petitioner on the basis of the judgements cited.
In view of the foregoing and since the submissions of learned counsel for the petitioner do not find favour with this court, the writ petition is dismissed as the First Information Report contains ingredients of a cognizable offence.
Order Date :- 1.8.2023
Mayank
