Allahabad High Court
Smt Priya Devi And Another vs State Of U.P. And 3 Others on 16 August, 2023
Bench: Vivek Kumar Birla, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:164646-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 12270 of 2023
Petitioner :- Smt Priya Devi And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Yashwant Pratap Singh,Dinesh Kumar Patel
Counsel for Respondent :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rajendra Kumar-IV,J.
1. Supplementary affidavit filed today on behalf of petitioners is taken on record.
2. Heard Sri Yashwant Pratap Singh, learned counsel for the petitioners; Sri G.P. Singh, learned A.G.A. for the State-respondents and perused the record.
3. This writ petition has been filed praying to quash the FIR dated 09.07.2023, registered as Case Crime No.202 of 2023, under Section 363 IPC, Police Station Mungra Badshahpur, District Jaunpur and not arrest the petitioners pursuant to the said FIR.
4. Submission of learned counsel for the petitioners is that the victim (Priya Devi) has come forward and filed the present writ petition, in the petition she is petitioner no.1 and her husband Ashish Kumar Gautam is petitioner no.2. It is next submitted that no offence under the alleged section is made out as the petitioner no.1 is a major girl and the entire criminal case lodged by the informant is nothing but an abuse of the process of the law. It is further submitted that as per Aadhar Card, date of birth of petitioner no.1-Priya Devi is 28.08.2004 and as per Aadhar Card, date of birth of petitioner no.2-Ashish Kumar Gautam is 15.01.2001 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will and no offence has been committed. By drawing attention to Annexure-5 to the petition, it is submitted that they have applied for registration of their marriage.
5. Per contra, learned AGA on instructions submits that the date of birth of the victim girl- petitioner no.1 is 10.04.2007, therefore, her age is about 16 years and as such she is a minor on the date of incident.
6. At this stage, learned counsel for the petitioners has placed reliance upon judgments of Hon'ble Supreme Court in the case of Suhani vs. State of U.P. reported in 2018 0 Supreme (SC) 1430 and P. Yuvaprakash vs. State Rep. By Inspector of Police, decided on 18.07.2023 in Criminal Appeal No.1898 of 2023 and submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.
7. In view thereof, we direct that the petitioner no.1-Priya Devi be produced before the Magistrate concerned, for recording her statement under section 164(1) and (5) of Cr.P.C. and thereafter, she shall be brought before the Chief Medical Officer concerned by the I.O. of the case who shall constitute a panel of three doctors, for her age determination test (ossification test). Both these exercises must conclude within six weeks from today.
8. It is incumbent upon the petitioners to provide all necessary assistance to the Investigation Officer during investigation, however, the petitioners shall not be arrested during this period.
9. The arrest of the petitioners shall be subject to 164 Cr.P.C. statement of the girl and her age.
10. In the event, if it is found that she had attained the age of majority and her 164 Cr.P.C. statement favours the petitioner no.2, then the petitioners shall not be arrested till the submission of report by the police under section 173(2) Cr.P.C. OTHERWISE, the procedure of law would follow against the petitioners and the protection given to the petitioners would automatically stands vacated.
11. With this observation, the writ petition stands disposed of.
Order Date :- 16.8.2023
I.A.Siddiqui
