Allahabad High Court
Shivani And Another vs State Of U.P. And 3 Others on 15 December, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:237559-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 19369 of 2023
Petitioner :- Shivani And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vijay Pratap Singh
Counsel for Respondent :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vinod Diwakar,J.
1. Heard Sri Vijay Pratap Singh, learned counsel for the petitioners and Sri Virendra Kumar Pal, learned A.G.A. for the State and Sri Hira Lal, learned counsel who has filed his vakalatnama on behalf of the informant, which is taken on record.
2. This writ petition has been filed praying to quash the first information report dated 28.11.2023, registered in Case Crime No. 485 of 2023, under Section 366 IPC, P.S. Khekda, District Baghpat and not arrest the petitioners pursuant to the said FIR.
3. It is submitted that in the first information report itself, the age of the victim Shivani, who is also petitioner no. 1 herein, is clearly shown as 20 years and the FIR has been lodged under Section 366 IPC only. Attention was drawn to certificate of registration of marriage wherein the date of birth of the victim is shown as 12.8.2003. It is thus submitted that no offence as alleged 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 Birth Certificate, date of birth of petitioner no. 1 is 12.8.2003 and as per High School certificate, the date of birth of petitioner no. 2 is 1.5.2001 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.
4. Learned counsel for the informant by producing High School (10th) Examination Result, 2022, submitted that her date of birth is 6.5.2006 and as such, she is minor.
5. At this stage, learned counsel for the petitioner states that in the FIR itself, the age of the victim is shown to be 20 years and therefore, it is very much clear that the petitioner no. 1 (victim) is major and has come forward to challenge the impugned FIR by filing joint affidavit. 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 submitted 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-Shivani 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 15.1.2024 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 :- 15.12.2023
Abhishek
