Smt. Santoshi And 5 Others vs State Of U.P. And 3 Others
2023 Latest Caselaw 22581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:167536-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12567 of 2023
 

 
Petitioner :- Smt. Santoshi And 5 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Nirbhay Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

1. Heard Sri Nirbhay Singh, learned counsel for the petitioners and Sri Virendra Kumar Pal, learned A.G.A. for the State and perused the record.

2. This writ petition has been filed praying to quash the first information report dated 03.12.2022,, registered in Case Crime No.423 of 2022, under Section 363, 120B IPC, P.S. Jaithra, District Etah and not arrest the petitioners pursuant to the said FIR.

3. Submission of the learned counsel for the petitioners is that as per Aadhar Card date of birth of the petitioner no.1-girl is 01.01.2005 and date of birth of the petitioner no.2-boy is 01.0.1991, therefore, both the petitioners are major and married to each other out of their own sweet free will as such no offence under Section 363 IPC is made out. It is submitted that the petitioner nos.1 and 2 have also applied online for registration of their marriage. It is next submitted that the present petition is supported by a joint affidavit of the petitioner nos.1 and 2.

4. Per contra, learned AGA on instructions submits that proof of age is Aadhar Card only which cannot be treated as an authentic age of proof.

5. At this stage, learned counsel for the petitioners has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Suhani vs. State of U.P. reported in 2018 0 Supreme (SC) 1430 and judgement dated 18.7.2023 passed in Criminal Appeal No. 1898 of 2023 (P. Yuvaprakash vs. State Rep. by Inspector of Police) submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.

6. In view thereof, we direct that the petitioner no.1-Santoshi 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.

7. 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.

8. The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.

9. 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.

10. With this observation, the writ petition stands disposed of.

Order Date :- 21.8.2023

Nitendra