Judgment : One Selvaraj Gounder is a resident of Poondi Kuchipalayam, Panrutti Taluk. He has a daughter by name Sumathi. 2. On 29. 1991, it is said, his daughter nad been kidnapped from his lawful custody by one Mani alias Thangamani, Valli and Jayamoorthy. Consequently, he laid an information before the Station House Officer, Pudupettai, which was in turn registered as Crime No.432 of 1991 for an alleged offence under Sec.366, I.P.C. and investigation had been taken up. .3. During the course of investigation, it appears that Mani alias Thangamani, Valli and the victim-girl Sumathi had been taken into custody on 110. 1991 and produced before the Judicial Magistrate, Panrutti. Learned Magistrate sent accused Valli to Judicial custody. He, however, directed accused Mani alias Thangamani to be produced before the Government Headquarters Hospital, Cuddalore for ascertainment of his age and accordingly, it was doneand thereafter, he had been sent to judicial custody. 4. Likewise, the victim-girl Sumathi had been sent to the Government Headquarters Hospital, Cuddalore for medical examination for the purpose of ascertaining her age. The medical opinion reflected that the girl was of the age between 19 and 21 while the accused Mani alias Thangamani was of the age between 22 and 24. The victim-girl was thereafter ordered to be kept in the custody of the Women’s Rescue Home, Mylapore, Madras. 5. The father of the girl, namely, Selvaraj Gounder thereafter filed Crl.M.P.No. 141 of 1992 before the Judicial Magistrate, Panrutti for interim custody of his daughter, the victim-girl Sumathi. 6. Learned Magistrate conducted an enquiry and during the course of enquiry, theprima facie found that the girl was below 18years of age. Duringsuch enquiry, he also ascertained the wishes of the victim-girl as respect her custody and the victim-girl appeared to have expressed her intention not to go along with her father. Taking that aspect into consideration and the fact that the age of the victim-girl was, prima facie, found to be below 18, he ordered the girl to be kept in the Rescue Home, Mylapore, Madras till such time she attains the age of majority, so that she could make her own choice as respects her going and joining with her parents or going along with accused Mani alias Thangamani, with whom the happens to have contracted a marriage, subsequent to the elopment. Aggrieved by the order, the accused Mani alias Thangamani knocked at the doors of this Court on 12. 1992, under the inherent jurisdiction praying for an order for the interim custody of the victim-girl to be given to him, by setting aside the order of the Judicial Magistrate, Panrutti directing her to be kept in the Rescue Home, Mylapore, Madras, by impletading the Sub-Inspector of Police, Pudupettai, father of the victim-girl Selvaraj and the other accused Valli respectively as respondents 1 to 3. 7. Notice of motion had been ordered returnable by a week on 12. 1992 and in fact, this petition was admitted on 3. 1992 calling for the records to reach this Court on or before 13. 1992. Records from the court below had accordingly been received. 8. The first respondent-Sub-Insp’ector of Police, Pudupettai had been represented by learned Government Advocate while the second respondent Selvaraj had been represented by his learned counsel Mr.K. V.Sridharan. The third respondent also entered appearance through a Counsel of her choice, namely, Miss D.Nagasila. 9. Learned counsel appearing for the petitioner would submit that perverse appreciation of the materials available on record by learned Magistrate, who conducted the enquiry, led to the passing of the impugned order directing her to be kept in the Rescue Home, Mylapore, Madras. He would further submit that the Rescue Home, in the victim-girl is ordered to be kept till upto her attaining majority, is intended for detention of in favour persons, such as women charged with alleged commission of offences under the Immoral Traffic Act and other allied offeices and therefore it is that it is not desirable for this victim-girl to have been kept in such a Rescue Home. 10. Learned Government Advocate appearing for the first respondent would submit that since the victim-girl is a minor and if the interim custody of that girl is ordered to be given to the petitioner Mani alias Thangamani-accused, it would tantamount to prejudging the matter, when especially the investigation as to the age of the victim-girl is pending investigation. He would further submit that it any detailed discussion is made as to determination of the age of the girl at this stage, it is likely to produce a profound impact affecting the case of either of the parties. 11. He would further submit that it any detailed discussion is made as to determination of the age of the girl at this stage, it is likely to produce a profound impact affecting the case of either of the parties. 11. Learned counsel appearing for the second respondent would have Submit that since the age of the girl had been prima facie found to be below 18 on the date of the alleged offence, it is but proper for the Court to have ordered for the custody of the victim-girl to the second respondent, who is none-else than the father, in view of the fact that the court cannot be oblivious of the rights of the father over his minor daughter, the victim-girl as respects her custody and therefore he would say that the keeping of the minor girl in the Rescue Home, as ordered by learned Magistrate, is not proper, in the circumstances of the case. 12. Though the third respondent was represented by a Counsel of her choice, no submission has been made on her behalf and the matter was left to the discretion of the court. 13. As on to-day, as acceded to by all, the investigation in this case is still pending, in the sense that a final report under Sec.173(2), Crl.P.C. is yet to be filed. In a case of this nature, the ascertainment of the age of the victim-girl is the pre-requisite for the filing of a positive final report and if the age of the girl is above 18 years as on the date of the alleged commission of the offences of Kidnapping, it goes without saying that the police with have to file a negative report, in the sense of referring the case as ‘mistake of fact’. Once a case is registered, as respects an alleged commission of a cognizance offence, it is rather the prerogative of the police to investigate into such a matter and collect materials for forming of their opinion. Nobody, inclusive of the court, can direct the police to form an opinion one way or the other and it is their exclusive prerogative to form any opinion. Nobody, inclusive of the court, can direct the police to form an opinion one way or the other and it is their exclusive prerogative to form any opinion. Once the opinion is formed and the same is getting reflected in the filing of a final report, the jurisdiction of the court commences, in the sense of considering the positive report into a negative one and a negative report into a positive one. .14. Of course, the investigating police machinery collected prima facie materials as to the age of the victim-girl, in the shape of school certificates and medical report based on physical as well as radiological examinations. As already indicated, true it is, that the medical report does indicate the age of the victim-girl as on the date of her examination between 19 and 21 years. The school records, in the shape of the application for admission and the record-sheet, which had been marked in this case, do indicate that the, the girl was born on 23rd September, 1974. During the course of enquiry, it appears, on the side of the present petitioner, an application for admission in respect of a girl, going by the very same name ‘Sumathi’ with her father’s name as ‘Selvaraj’ as akin to the case of the victim-girl here, had been marked and that application refers to the date of birth of that girl as ‘25. 1971’. An attempt had been made to connect that application as relatable to the victim girl. However, during the course of the enquiry, it has been made clear through the evidence of the Headmaster of the school that that implication form was relatable to a different girl, in the sense of not having any sort of a connection with the victim-girl. In such state of affairs, the records of the school, in which the victim-girl was stated to have studied, can in one direction point out the date of birth of the girl was 23. 1974. No doubt true it is, the birth certificate, as available from the municipal reasons has not been produced before court. As already indicated made medical opinion available on record does indicate the available on record does indicate the age of the victim-girl between 19 and 21 years. 15. 1974. No doubt true it is, the birth certificate, as available from the municipal reasons has not been produced before court. As already indicated made medical opinion available on record does indicate the available on record does indicate the age of the victim-girl between 19 and 21 years. 15. It is rather well-settled that in the absence of birth certificate available from the municipal records, the date of birth, as given in the school records shall constitute a good proof of age. It is also equally well-settled that if there is a conflict created in the records of the school, as respects the age, then in such an event, the medical opinion has to be preferred as respects the age. It is not a case of conflict, as traceable to school records as respects the age of the girl so that the medical opinion has to be taken into account in prima facie determining the age of the victim-girl. Even otherwise, the medical opinion on either side of the age, as such, cannot at all be taken as the correct age of the girl as on the date of examination. Preponderance of authorities emerging from the apex of the judicial administration of this countrv point out that the age of the girl, on either side, as reflected by medical opinion, has to be reduced or increased this way or the other way on either side by two years. In this view of the matter, the age of the victim-girl cannot at all be stated to be above 18 years on the date when the alleged commission of the offence of kidnapping took place. All these aspects had been duly taken into account by the Enquiry Magistrate victim-girl on the date when the alleged offence had taken place was prima facie below 18 years. .16. Having come to such a conclusion, the enquiry Magistrate also enquired the wishes of the victim-girl. The victim-girl definitely expressed her intention of not joining the company of her parents. Learned Magistrate, in such circumstances, cannot order for the interim custody of the victim-girl to the petitioner Manialias Thangamani-accused, with whom the so called marriage ceremony had been gone through, subsequent to her elopement, inasmuch as a case of kidnapping as against him had been pending investigation. Learned Magistrate, in such circumstances, cannot order for the interim custody of the victim-girl to the petitioner Manialias Thangamani-accused, with whom the so called marriage ceremony had been gone through, subsequent to her elopement, inasmuch as a case of kidnapping as against him had been pending investigation. Of course, true it is that notwithstanding the fact of the victim-girl not expressing a desire to go and join the company of her parents, it does not mean that the parents of the victim-girl are not entitled to the custody of the victim-girl, till upto her attaining the age of majority. The courts very often expressed in such a ticklish situation that it is a very delicate matter for the Court to decide. The courts in India uniformly expressed that it is of paramount importance that it is the welfare of the victim-minor-girl that should be taken into consideration in deciding her custody. The courts have also ruled incase of such victims being produced before court, not being either accused or convicted, they cannot at all be ordered to be detained in Prison, to be mixed with criminals. 117. In the case on hand, learned Magistratedid not order for such custody in prison. But what all he hasdone was to order for custody of the victim-girl in the Rescue Home. There is no other institution that could be thought of by learned Magistrate for the interim custody of the girl, in the circumstances of the case. It is equally possible that learned Magistrate could have thought that if the victim-girl is ordered to be placed for the custody of her parents, in the circumstances of the case, there is every likelihood of perilous consequences endangering the life of the victim-girl. In the facts and circumstances of the case, the best that could be done had been done by learned Magistrate, in the sense of ordering for the custody of the victim-girl in the Rescue Home, Mylapore, Madras. 118. When arguments were proceeding, this Court ascertained the wishes of the parties for the custody of the girl to be kept in a voluntary organisation by transferring her from the Rescue Home, in the best interests of the victim-girl. 118. When arguments were proceeding, this Court ascertained the wishes of the parties for the custody of the girl to be kept in a voluntary organisation by transferring her from the Rescue Home, in the best interests of the victim-girl. Learned counsel representing the second respondent-father did not at all evince any interest for transferring her custody from the Rescue He me to that of a voluntary organisation and even if a voluntary organisation offered to have the custody of the victim-girl with them, the father of the victim-girl was not even prepared to pay the maintenance claim as respects the victim-girl in the institution. Learned counsel for the petitioner, though initially, was willing to find a voluntary institution for her custody till upto her attaining the age of majority, laterly expressed that it was not possible for him to find such an institution for her custody till upto her attaining majority. 119. In such a situation, the impugned order of learned Magistrate in the facts and circumstances of the case, cannot at all be stated to be suffering from any serious infirmity of mal-or-mis-appre-ciation of the materials available on record, calling for interference. 120. When the dictation of the order had reached the fag end, learned coursel for the petitioner made a fervent appeal that it is but desirable that the relations of the victim-girl as well as the petitioner, could be given the facility of making a visits on her, in the Rescue Home, during her custody there, so as to remove from her mind any sort of a possible mental depression or frustration in her life, to which course, learned counsel appearing for the second respondent expressed strong disapproval by stating that in view of the pendency of the criminal case, she should not be allowed to be visited by the petitioner, if not, others. 121. Rival submissions on this aspect of the matter had been weighed on the golden scales of pragmatism taking into account the realities of life. The victim-girl is more or less on the verge of attaining majority, and she admittedly had studied in the school and she has now been in a position to come to a conclusion as to her future plans. The victim-girl is more or less on the verge of attaining majority, and she admittedly had studied in the school and she has now been in a position to come to a conclusion as to her future plans. It is permissible for the victim-girl on her attaining majority to choose to be the wife of the petitioner, notwithstanding the fact that by that time he had been convicted of an offence of kidnapping, on the proof of such an offence and nobody can prevent her from choosing so. In such state of affairs, it is but desirable that, the parents of the girl as well as the petitioner and the parents of the petitioners be given liberty of visiting the girl in the Rescue Home, if any one of them, desires to do so. 122. With the above observation, the petition is dismissed.