Anjali Thru. Her Father Santosh ... vs State Of U.P. Thru. Secy. Home, Lko ...
2023 Latest Caselaw 21749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?AFR 
 
Neutral Citation No. - 2023:AHC-LKO:53745
 
Court No. - 13
 
Case :- HABEAS CORPUS WRIT PETITION No. - 167 of 2023
 
Petitioner :- Anjali Thru. Her Father Santosh Kumar
 
Respondent :- State Of U.P. Thru. Secy. Home, Lko And 4 Others
 
Counsel for Petitioner :- Pradeep Kumar Tripathi
 
Counsel for Respondent :- G.A.,Vikas Sharma
 

 
Hon'ble Karunesh Singh Pawar,J.

1. The present petition has been filed for issuance of a writ in the nature of HABEAS CORPUS with the prayer to direct the opposite parties to produce the petitioner/detenue before this Court and may be set at liberty under the care and custody of their father.

2. Heard Shri Pradeep Kumar Tripathi, learned counsel for the petitioner and Shri Alok Tewari, learned A.G.A. for the State and the detenue Anjali, who has been produced by Mr. Ram Vishal Singh Sub-Inspector and Manisha Sharma Constable before this Court, as well as perused the record.

3. Learned Counsel for the respondent nos. 4 and 5 are not present although respondent no.4 Sher Singh @ Sera is present before this Court, who has been identified by the detenue.

4. This Court vide order dated 8.8.2023 has passed the following orders:-

"1.In compliance of order dated 24.7.2023, the detenue Anjali has been produced by S.I. Ram Vishal Singh and lady Constable Manisha Sharma.

2.On a query being made, the detenue Anjali has stated that her date of birth is 18.8.2004 and she is presently 20 years old. She further states that the date of birth recorded in her High School mark sheet varies from her date of birth in the Aadhar Card and no reliance can be placed thereon. She has further stated that she does not want to go with her father, deponent; rather she wants to reside with respondent No.4 with whom she is married.

Respondent No.4 Sera and the detenue both have submitted that they have been brought from Punjab today before this court. They were living together in Punjab and earning their livelihood there.

Shera has further submitted that he along with the detenue is residing with his uncle at police station Madiyaon and both of them will reside there for some time.

3.Learned A.G.A. submits that considering the fact that the detenue asserts that she is major and she is disputing the date of birth in High School mark sheet, it would be appropriate if the ossification test of the detenue is conducted by the Chief Medical Officer, Sitapur to find out the age of the detenue.

Learned A.G.A. has further submitted that the deponent has given an application dated 9.5.2023 before the concerned police station in the form of Tahrir where he himself has shown the date of birth of the detenue to be 20 years.

4.Learned counsel for the petitioner on being confronted with the submission advanced by learned A.G.A. has submitted that the deponent is illiterate and he is not even aware as to what has been written in the application exactly.

On a query being put to the learned counsel for deponent as to on what basis the date of birth of the detenue in the High School mark sheet has been recorded as 8.6.2006 and how it varies from the date of birth recorded in the Aadhar Card as stated by the detenue, he submits that he has no proof and in this context, he has not taken any instruction by his client.

5.The deponent is directed to file a supplementary affidavit bringing on record the initial school(s) certificates of the detenue where she has studied.

6.Considering the fact that mere recording of date of birth of the detenue in the High School mark sheet cannot be said to be exclusive proof of age, it would be appropriate that the ossification test of the detenue is conducted by the Chief Medical Officer.

7.It is provided that the police personnel present in Court shall take the detenue before the Child Welfare Committee, Sitapur today where the detenue will be kept, till further orders of the court. They shall take the detenue tomorrow before the Chief Medical Officer, Sitapur who shall conduct ossification test of the detenue within 24 hours and submit the report to the concerned police officer.

8.Learned A.G.A. shall file counter affidavit within three days.

9.List on 11.8.2023. On that date, the detenue shall again be produced."

5. Today, learned A.G.A. has produced the original copy of the ossification test conducted by the Medical Board, Sitapur and according to radiological and general physical appearance the age of the detenue has been assessed to be about 18 years by the Medical Board and certificate to that extent has been issued by the office of Chief Medical Officer, Sitapur. The photo-copy of the certificate provided by learned A.G.A. is taken on record.

6. In paragaraph 2 of the order dated 8.8.2023 (quoted above) the statement of the detenue Anjali was recorded by this Court. Today again, upon query being made, the detenue Anjali has stated that she has married to Sher Singh @ Sera and in support of her statement/contention she has produced the marriage certificate issued by Arya Samaj Mandir Lucknow with registration no.1867, which shows that the detenue Anjali has married with Sher Singh on 15.6.2023. The photocopy of the marriage certificate is taken on record. She further stated that the marriage took place three months back in Lucknow. After the marriage she was residing with Sera in State of Punjab. She wants to live with her husband Sher Singh @ Sera. A copy of the Aadhar card of Anjali has been provided by Sera, who is present in the court. A perusal of the same shows that the date of birth of the detenue is 1.1.2004 which corroborates the statement given by the detenue on the last date that her date of birth in Aadhar card varies from her date of birth recorded in the High School mark sheet.

7. Learned Counsel for the petitioner has submitted that the actual date of birth of the detenue is 8.6.2007 and the date of birth written in the High School mark-sheet is incorrect.

8. In support of his contention, he has given the Scholar's Register and Transfer Certificate form dated 8.12.2022 of Class 10th issued by Arunodaya Inter College, Sitapur and also the mark-sheet of class 8th, which also shows date of birth of the detenue as 8.6.2007 and the High School mark-sheet which again shows date of birth as 8.6.2006.

9. A perusal of the educational certificates produced on behalf of the petitioner relating to the age of the detenue it is clear that there is conflict relating to exact date of birth.

10. Learned counsel for the deponent, while giving statement before this court on the last date, has not been able to inform as to on what basis date of birth of the detenue was recorded in the various school certificates. It is also in variance with the Aadhar card.

11. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short hereinafter referred to as Act) provides the manner and mode of the presumption and determination of age of a juvenile. Section 94 of the Act is extracted below:-

"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."

12. Thus, as per provisions of Section 94(2) of the Act, the Child Welfare Committee or the Board in case of reasonable grounds for doubt as to 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, firstly, the date of birth certificate from school, or matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; secondly, the birth certificate given by a corporation or a municipal authority or a panchayat; and thirdly, in absence of educational certificate or birth certificate as aforementioned, the 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.

13. So far as the first contingency under Section 94 (2)(i) i.e. the matriculation or equivalent certificate or date of birth certificates from the school are concerned, the High School mark-sheet as well as intermediate mark-sheet and the other certificates submitted on behalf of the petitioner and the statement of the learned counsel for the petitioner that the date of birth written in the high school mark-sheet is incorrect and the actual date of birth becomes doubtful.

14. Admittedly, there are conflicting date of births in the educational certificates submitted on behalf of the petitioner which show the detenue is minor, thus, it will not be safe to rely on the date of birth of the detenue mentioned in the high school certificate given by the deponent coupled with the fact that the deponent (father) while giving application before the police in the form of tahrir dated 9.5.2023 has mentioned that the detenue is 20 years old, which has not been disputed by the deponent. The statement given by learned A.G.A. on 8.8.2023 is extracted below:-

"Learned A.G.A. has further submitted that the deponent has given an application dated 9.5.2023 before the concerned police station in the form of Tahrir where he himself has shown the date of birth of the detenue to be 20 years."

15. It is relevant to note that in this case the detenue herself has disputed the date of birth mentioned in the matriculation certificate and according to her statement given before this court her exact date of birth is 8.8.2004, thus, in backdrop of this inconsistency regarding the exact date of birth of the detenue and in absence of any other certificate/documents as mentioned under Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 this court has no other option but to rely on the ossification test report, which has already been done in this case and according to which the detenue is major and 18 years of age.

16. Hon'ble Supreme Court in the case of Alamelu and Another Vs. State represented by Inspector of Police reported in (2011) 2 Supreme Court Cases 385, the following has been held in Paragraphs 39, 40 and 42 to 49 (relevant portion):

"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ext.P4 and Ext.P5.

40. Undoubtedly, the transfer certificate, Ext.P16 indicates that the girl?s date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

42.Considering the manner in which the facts recorded in a document may be proved, this Court in case of Birad Mal Singhvi Vs. Anand Purohit 1 , observed as follows: (SCC pp. 618-19, para 14).

"14....The date of birth mentioned in the scholars? register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined???.Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."

43. The same proposition of law is reiterated by this Court in Narbada Devi Gupta Vs. B irendra Kumar Jaiswal where this Court observed as follows: (SCC p.75, para 16)

"16...The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue."

44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.

45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the Court, PW8, the X-ray Expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.

46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala Vs. Government of Jammu & Kashmir. In the aforesaid judgment, it is observed as follows: (SCC p. 541, para 9)

"9...However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

47.We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.

48.We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows: (SCC p. 595, para 38)

"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

49. In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor."

17. On consideration of the aforesaid judgement it is evident that age of the person recorded in school register or certificate issued by the school can be used for so many purposes such as for obtaining admission, appointment, contesting the election, registration of marriage or for any other purposes. Mere production and making of a document as exhibit by the court cannot be held to be a due proof of its contents, more so in the given facts of this case when there is apparent inconsistency in recording the date of birth in the various educational certificates of the detenue coupled with fact that the detenue herself is disputing her date of birth recorded in the matriculation certificate and also considering the fact that learned counsel for the deponent on the last date has submitted that he could not disclose the source as to on what basis of date of birth of the detenue have been recorded in her school certificates.

18. Thus second option available under Section 94 (2)(ii) of the Act is the birth certificate given by Corporation or Municipal authority or Panchayat i.e. also absent in this case. No such certificate has been filed by either of the parties except Aadhar card of the detenue in which the date of birth is 1.1.2004, therefore, no reliance can be placed on the aadhar card either since both the options i.e. Section 94(2)(i) and 94(2)(ii) of the Act are of no use in the given peculiar facts and circumstance of this case, therefore, the only course available to ascertain the correct date of birth of the detenue is ossification test as per Section 94(2)(iii) of the Act, which was conducted and according to which the detenue is major.

19. The right of the detenue vested under Article 21 of the Constitution of India cannot be ignored by the Court. The detenue is not an accused before this Court. The right guaranteed under Article 21 of the Constitution of India cannot be denied on hyper-technicalities while saying that the detenue is few months less than the age of majority.

20. Considering the fact that in the radiological examination conducted by the medical board the detenue is major; the detenue has refused to go with the company of natural guardian; she is married and wants to live with her husband; the marriage certificate has also been produced before this Court and it is not the case of the any party that she has been abducted or kidnapped, the detenue cannot be ordered to be kept in Nari Niketan or can be asked to live against her wishes with her parents.

21. As discussed above, I have no hesitation in holding that it is not the case of illegal detention and that the detenue is major.

22. At this stage, learned counsel for the petitioner submits that being father of the detenue it is not his intention to bother her daughter any further. Only anxiety is that she should be legally married. Since, the marriage certificate has been produced by the detenue before this Court, therefore, he does not want to press this petition any further.

23. On due consideration to the statement given by learned counsel for the petitioner; so also the statement of the detenue; ossification test report; and the record given otherwise; on merit, the petition fails and is accordingly dismissed. The detenue is set at liberty to go as per her own wish.

Order Date :- 11.8.2023

Madhu