Allahabad High Court
Ashu vs State Of U.P. And 2 Others on 26 September, 2023
Bench: Vivek Kumar Birla, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:186110-DB
Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 11803 of 2023
Petitioner :- Ashu
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Premnendra Singh
Counsel for Respondent :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Vinod Diwakar,J.
1. Heard Sri Premendra Singh, learned counsel for the petitioner and Sri Virendra Kumar Pal, learned A.G.A. appearing for the State and perused the record.
2. This writ petition has been filed praying to quash the first information report dated 29.6.2023 registered as Case Crime No. 191 of 2023, under Sections 366 IPC, P.S. Rampur Maniharan, District Saharanpur and not to arrest the petitioners pursuant to the said FIR.
3. Submission of learned counsel for the petitioner is that in the first information report itself the age of the victim is shown to be 21 years and the first information report has been lodged by one Rohit Kumar, who claims to be husband of the victim Soniya, whereas Soniya and Ashu have executed notary affidavit dated 31.3.2023 that they have married and second marriage of Soniya was done with the informant herein-Rohit Kumar on 3.5.2023, which cannot said to be valid marriage. It is next submitted that under such circumstances the present criminal prosecution is absolutely mala fide. It is next submitted that as per AADHAR card, the date of birth of the victim is 20.7.2006 and as such she is aged about 17 years, however, there is no educational certificate, therefore, request is that ossification test of the victim may also be done.
4. Per contra, learned AGA submits that no authentic proof of age is appended with the writ petition.
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 judgment dated 18.7.2023 passed in Criminal Appeal No. 1898 of 2023 (P. Yuvaprakash vs. State Rep. By Inspector of Police) and 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 victim-Soniya 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 10.10.2023 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 petitioner 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, then the petitioner 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. At this stage, learned counsel for the petitioner is expressing apprehension about arrest of the petitioner or some other method may be adopted by the informant.
11. In such view of the matter, it is provided that the police protection be provided to the petitioner for the aforesaid purpose.
12. With this observation, the writ petition stands disposed of.
Order Date :- 26.9.2023
Lalit Shukla
