Smt Muskan Malik And 3 Others vs State Of U.P. And 3 Others
2023 Latest Caselaw 25795 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183675-DB
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14493 of 2023
 

 
Petitioner :- Smt Muskan Malik And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Wahid Jamal
 
Counsel for Respondent :- G.A.,Amir Khan
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vinod Diwakar,J.

1. Heard Sri Wahid Jamal, learned counsel for the petitioners and Sri Amir Khan, learned counsel for the informant and learned A.G.A. for the State and perused the record.

2. This writ petition has been filed praying to quash the first information report dated 01.09.2023, registered in Case Crime No. 283 of 2023 under Section 363 IPC, P.S. Anoopshahr, District Bulandshahr and not arrest the petitioners pursuant to the said FIR.

3. The contention of the learned counsel for the petitioners is that as per FIR, the age of the petitioner no .1 is 17 years and as per Aadhar Card and Birth Certificate her date of birth is 01.01.2003 and as per Aadhar Card date of birth of petitioner no. 2 is 12.03.2000, both the petitioners are major and married to each other out of their own free will and they have applied for registration of their marriage.

4. Per contra, learned AGA on instructions submits that as per Head Master of Primary School her date of birth is 08.09.2005 and she is 14 days short for attaining the age of majority, as such, cognizable offence has been made out.

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. Muskan Malik 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 30.09.2023 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

Ujjawal