Smt. Shalu Pandey And Another vs State Of U.P. And 2 Others
2023 Latest Caselaw 8200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 3115 of 2023
 

 
Petitioner :- Smt. Shalu Pandey And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dinesh Kumar Yadav,Atmaram Nadiwal
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

Heard Sri Dinesh Kumar Yadav, learned counsel for the petitioners and learned A.G.A. for the State and perused the record.

This writ petition has been filed praying to quash the first information report dated 01.02.2023, registered in Case Crime No.45 of 2023, under Sections 366 IPC, P.S. Kotwali, District Azamgarh and not arrest the petitioners pursuant to the said FIR.

The contention of the learned counsel for the petitioners is that both the petitioners are major and married to each other out of their own free will, as such no offence under Section 366 I.P.C. is made out.

Per contra, learned AGA on instructions submits that the date of birth of the girl- petitioner no.1 is 05.03.2006 and as such she is a minor on the date of incident.

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.

In view thereof, we direct that the petitioner no.1-Shalu Pandey 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 01.05.2023 or within six weeks from today.

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.

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

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.

With this observation, the writ petition stands disposed of.

Order Date :- 21.3.2023

Nitendra