Allahabad High Court
Smt. Ram Geeta And 2 Others vs State Of U.P. And 2 Others on 12 July, 2023
Bench: Vivek Kumar Birla, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:137977-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 9069 of 2023
Petitioner :- Smt. Ram Geeta And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Darwari Lal
Counsel for Respondent :- G.A.,Santosh Kumar Singh,Syed Wajid Ali
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rajendra Kumar-IV,J.
1. Counter affidavit filed today on behalf of State is taken on record. Learned counsel for the informant has not filed any affidavit.
2. At the very outset, learned AGA submits that during investigation Sections 120-B, 376(2)(N) IPC and 5(L), 6 & 16/17 POCSO Act have been added, therefore, learned counsel for the petitioners pray for and is permitted to amend the prayer clause during course of the day.
3. Heard Sri Darwari Lal, learned counsel for the petitioners; Sri Santosh Kumar, learned counsel for the respondent no.3; learned A.G.A. for the State and perused the record.
4. This writ petition has been filed praying to quash the first information report dated 26.05.2023, registered in Case Crime No.0078 of 2023, under Sections 363, 366, 504, 506, 120-B, 376(2)(N) IPC and 5(L), 6 & 16/17 POCSO Act, Police Station Shergarh, District Bareilly and not arrest the petitioners pursuant to the said FIR.
5. The contention of the learned counsel for the petitioners is that petitioner nos.1 and2 are major and married to each other out of their own free will, as such no offence is made out against the petitioners. This petition is supported by the affidavit of petitioner no.1.
6. Per contra, learned AGA opposed the prayer and submitted that as per counter affidavit, statement under Section 164 Cr.P.C. has not been recorded and the said counter affidavit was sworn on 30.06.2023. As per school leaving certificate petitioner no.1 is aged about 17 years and 10 months. Statement under Section 161 Cr.P.C. was recorded in favour of the petitioner no.2.
7. As per learned counsel for the petitioners and counsel for the informant, statement under Section 164 Cr.P.C. has also been recorded but learned AGA submits that he has no such instruction.
8. 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 submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.
9. In view thereof, we direct that the petitioner no.1-Ram Geeta 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 28.08.2023 or within six weeks from today.
10. 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.
11. The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.
12. 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.
13. With this observation, the writ petition stands disposed of.
Order Date :- 12.7.2023
I.A.Siddiqui
