Allahabad High Court
Smt Kanchan Chaube And Another vs State Of U.P. And 3 Others on 14 July, 2023
Bench: Vivek Kumar Birla, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:140620-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 10114 of 2023
Petitioner :- Smt Kanchan Chaube And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Debee Shanker Pandey
Counsel for Respondent :- G.A.,Yogendra Kumar Tripathi
Hon'ble Vivek Kumar Birla,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri D.S. Pandey, learned counsel for the petitioners; Sri Yogendra Kumar Tripathi, learned counsel for the informant; Sri Vaibhav Ojha, learned A.G.A. for the State-respondents and perused the records.
2. This writ petition has been filed praying to quash the first information report dated 23.04.2023, registered in Case Crime No.109 of 2023, under Sections 363 IPC, Police Station Saraimeer, District Azamgarh and not arrest the petitioners pursuant to the said FIR.
3. Submission of learned counsel for the petitioners is that the petitioner no.1 is major as per educational certificate, annexed as annexure no.2 to the writ petition, and her date of birth is 13.06.2005. Both the petitioners are major and married to each other out of their own free will, as such no offence under Section 363 I.P.C. is made out.
4. Per contra, learned counsel for the informant submits that he does not want not press the criminal prosecution.
5. Learned AGA submits that there is no definite proof of age.
6. 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.
7. In view thereof, we direct that the petitioner no.1-Smt. Kanchan Chaube 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 :- 14.7.2023
I.A.Siddiqui
