Kajal Bharti And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 23171 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:171059-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 11945 of 2023
 

 
Petitioner :- Kajal Bharti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Chandra Shekhar Kushwaha
 
Counsel for Respondent :- G.A.,Shailendra Kumar Verma
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vinod Diwakar,J.

1. Heard Shri Chandra Shekhar Kushwaha, learned counsel for the petitioners, Shri Vivek Shukla, learned State Law Officer, for the State and perused the record.

2. This writ petition has been filed praying to quash the first information report dated 12.5.2023, registered in Case Crime No.190 of 2023 under Section 363 IPC, P.S. Rasara, District Ballia, and further not to arrest the petitioners pursuant to the said FIR.

3. The contention of the learned counsel for the petitioners is that as per Aadhar Card, the date of birth of petitioner no.1 is 5.4.2005 and of petitioner no.2 is 1.1.2001, as such the petitioners are major and married to each other out of their own free will, and they have applied for registration of their marriage, and therefore, no offence under Section 363 I.P.C. is made out.

4. Per contra, learned AGA on instructions submits that as per Aadhar Card, the date of birth of the girl- petitioner no.1 is 5.4.2005. He further submits that Aadhar Card is not an authentic proof of the age and the age of the girl was short of 8 days in attaining the age of 18 years, and as such she was a minor on the date of incident.

5. At this stage, learned counsel for the petitioners submits that the age of the petitioner no.1 was found 8 days short, and although she has not attained sufficient majority but she understand her welfare and even otherwise marriage had taken place after she had attained 18 years of age. He 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- Kajal Bharti 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 on or before 26.10.2023 or 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 :- 24.8.2023

Anil K. Sharma