Smt.Pushpa And 5 Othetrs vs State Of U.P. And 3 Others
2023 Latest Caselaw 13577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5889 of 2023
 

 
Petitioner :- Smt.Pushpa And 5 Othetrs
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shailesh Kumar Mishra
 
Counsel for Respondent :- G.A.,Rohit Sharan Tomar
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Surendra Singh-I,J.

Heard Sri Shailesh Kumar Mishra, learned counsel for the petitioners, Sri R.S. Tomar, learned counsel appearing for the informant and Sri Sushil Jaiswal, learned State Law Officer appearing for the State.

This writ petition has been filed praying to quash the first information report dated 4.4.2023 registered as Case Crime No. 120 of 2023, under Sections 366, 504, 506 IPC, P.S. Subhash Nagar, District Bareilly and not to arrest the petitioners pursuant to the said FIR.

The contention of learned counsel for the petitioners is that as per AADHAR card, the date of birth of petitioner no. 1 is 1.1.2001 and petitioner no. 2 is 25.6.1999 and both are major and have married with each other out of their own free will and as such no offence under Sections 363 and 366 IPC is made out.

Per contra, learned AGA submits that no authentic proof of age is appended with the writ petition.

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-Pushpa 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 10.06.2023 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 :- 1.5.2023

Lalit Shukla