Smt. Divya And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 25399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:180881-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 13309 of 2023
 

 
Petitioner :- Smt. Divya And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Nanhe Lal Tripathi,Shivam Kumar Pandey
 
Counsel for Respondent :- G.A.,Rakesh Kumar,Subroto Mukherjee
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Anish Kumar Gupta,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Sri Nanhe Lal Tripathi, learned counsel for the petitioners, Sri Rakesh Kumar, learned counsel for the informant, Sri G.P. Singh, learned A.G.A. for the State and perused the record.

3. This writ petition has been filed praying to quash the first information report dated 07.08.2023, registered in Case Crime No.0257 of of 2023, under Section 363 IPC, P.S. Jaitipur, District Shahjahanpur and not arrest the petitioners pursuant to the said FIR.

4. Submission of the learned counsel for the petitioners is that the petitioner no.1-girl is just short of about three months in attaining the age of 18 years and as such she has attained full maturity to understand her own welfare. Further submission is that the petitioner no.1 has also come forward to file present writ petition by filing joint affidavit. It is alleged that petitioner no.1 and 2 have married with each other in the Temple.

5. Per contra, learned AGA on instructions submits that the petitioner no.1 -girl is a minor on the date of incident.

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-Divya 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 the 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 :- 19.9.2023

Nitendra