Allahabad High Court
Firoz @ Firoz Khan And Another vs State Of U.P. And 3 Others on 1 May, 2023
Bench: Vivek Kumar Birla, Surendra Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 5955 of 2023
Petitioner :- Firoz @ Firoz Khan And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shamim Uddin Khan,Ainul Haq
Counsel for Respondent :- G.A.,Kanchan Chaudhary,Pradeep Kumar Yadav
Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
Heard Ainul Haq, learned counsel for the petitioners, Sri Laxmi Shanker holding brief of Sri Pradeep Kumar Yadav, learned counsel for the informant, Sri Sushil Jaiswal, learned State Law Officer for the State and perused the records.
This writ petition has been filed praying to quash the first information report dated 21.03.2023, registered in Case Crime No.0057 of 2023, under Sections 363, 366 IPC and Section 7/8 POCSO Act, Police Station Sujanganj, District Jaunpur and not arrest the petitioners pursuant to the said FIR.
The contention of the learned counsel for the petitioners is that as per birth certificate, date of birth of the petitioner no.2 is 01.01.2002 and therefore she is major and both the petitioners are living together out of their own sweet will as such no offence under Sections 363, 366 IPC is made made out.
Per contra, learned AGA as well as learned counsel for the informant dispute the aforesaid fact and submits that at the time of incident the petitioner no.2- victim is minor.
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.2- Bindu daughter of Rajendra 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.
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.1, 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 :- 1.5.2023
Nitendra
