Allahabad High Court
Smt. Shivani And 2 Others vs State Of U.P. And 3 Others on 21 September, 2023
Bench: Vivek Kumar Birla, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:182805-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 14013 of 2023
Petitioner :- Smt. Shivani And 2 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ravindra Kumar
Counsel for Respondent :- G.A.,Shailesh Kumar Tiwari
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vinod Diwakar,J.
1. Heard Sri Ravindra Kumar, learned counsel for the petitioners and Sri Virendra Kumar Pal, learned A.G.A. for the State and Sri Shailesh Kumar Tiwari, learned counsel for the informant.
2. This writ petition has been filed praying to quash the first information report dated 9.8.2023 registered in Case Crime No. 0156 of 2023, under Sections 363, 366, 120B IPC, P.S. Barhan, District Agra and not arrest the petitioners pursuant to the said FIR.
3. Learned counsel for the petitioners submitted that no offence as alleged is made out as the petitioner no.1 is a major girl and the entire criminal case lodged by the informant is nothing but an abuse of the process of the law. It is further submitted that as per Aadhar Card, date of birth of petitioner no.1 is 1.1.2004 and the date of birth of petitioner no. 2 is 1.1.2001 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will and no offence has been committed. By drawing attention to Annexure-5 to the petition, it is submitted that they have applied online for registration of their marriage.
4. Per contra, learned AGA on instructions submits that as per the record the educational certificate of Saraswati Shishu Mandir reflects that her date of birth is 2.7.2006, however, certificate has not been annexed with the instructions.
5. 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 judgement dated 18.7.2023 passed in Criminal Appeal No. 1898 of 2023 (P. Yuvaprakash vs. State Rep. by Inspector of Police) submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.
6. In view thereof, we direct that the petitioner no.1-Smt. Shivani 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 19.10.2023 or within six weeks from today.
7. 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.
8. The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.
9. 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.
10. With this observation, the writ petition stands disposed of.
Order Date :- 21.9.2023
Abhishek
