JUDGMENT 1. - The instant petition has been filed under Section 482, Criminal Procedure Code by the petitioner with the prayer that impugned FIR dated 25.05.2009 filed at Police Station Bagora may be quashed and order dated 24.06.2009 passed by Judl. Magistrate (First Class), Jalore in CR No.76 dated 25.05.2009 may be set aside and custody of Pankhu, daughter of Smt. Hariya may be ordered to be handed over to the petitioner because the petitioner is legally wedded husband of Pankhu. 2. Brief facts of the case are that a written report was filed at Police Station Bagora (District Jalore) by respondent No.2, in which, it was stated that petitioner along with some other persons forcibly took away her daughter in a jeep. When her husband's elder brother made search, then, it was informed by wife of Poonmaji that marriage of his niece has been celebrated with the petitioner Mesa Ram, therefore, it appears that accused persons forcibly carried away her minor daughter with the intention to arrange her marriage with the petitioner. Therefore, it is prayed that action may be taken against Mesa Ram, petitioner and her daughter may be recovered. 3. On the basis of the aforesaid report, an FIR was registered against the petitioner under Sections 366 and 367, Indian Penal Code by Police Station Bagora and, in the investigation Smt. Pankhu @ Pinki was recovered and she was produced before the Judl. Magistrate. Learned Magistrate recorded statement of Smt. Pankhu, in which, she stated that she is 18 years 10 months old and she admits that her engagement was made by her grandfather Hakmaji before 10 years. After her father's death, her uncle broke down the engagement made with Mesaram and, thereafter, she heard whispers which took place between her elder father, elder mother and other family members that now they will sell her to another person. Upon hearing such whispers, as per statement of Smt. Pankhu, she informed the petitioner on telephone that she is ready to marry him, therefore, she requested the petitioner to come and take her with him. Upon her said request, on 06.05.2009, petitioner Mesaram reached at about 12 clock in the night at the house of prosecutrix Smt. Pankhu and took her in a car. Upon her said request, on 06.05.2009, petitioner Mesaram reached at about 12 clock in the night at the house of prosecutrix Smt. Pankhu and took her in a car. Thereafter, as per statement of Smt. Pankhu, as per her will, she went with the petitioner to Gujarat where her marriage with the petitioner took place. In her statement recorded by the Magistrate, it is specifically stated by Smt. Pankhu that nobody has abducted her and she went with her own will and got married with the petitioner Mesaram of her own free will. Above statement was recorded by Judl. Magistrate, Jalore on 10.06.2009. 4. After recording statement of Smt. Pankhu, learned Magistrate passed order for the purpose of medical examination to ascertain correct age of Smt. Pankhu. Said order was made on 11.06.2009 and, in pursuance of the said order, prosecutrix was medically examined and in the examination report it is found that she is at about 18 years of age. 5. On 17.06.2009, after receiving the medical board's report, counsel for the complainant Smt. Hariya, mother of the prosecutrix Pankhu, took time to argue the matter for taking custody of Pankhu while saying that she is minor. Learned Magistrate granted time but, simultaneously, passed order that as per investigation of the investigating officer and documents on record, I at this stage, while treating the prosecutrix Smt. Pankhu major, she is released on personal bond with further direction that she shall remain present before the Court on the next date of hearing. 6. On the next date of hearing, on 19.06.2009 , for the reasons known to the prosecutrix Smt. Pankhu, she did not appear before the concerned Magistrate; but, later on, 22.06.2009, when on that date also, she did not appear, the Magistrate passed order at the time of hearing arguments upon the application of Smt. Hariya that S.H.O., Bagora shall produce prosecutrix Smt. Pankhu in the Court. 7. On 24.06.2009, prosecutrix Pankhu appeared with her counsel before 1 the Court and, thereafter, arguments were heard upon application filed by Smt. Hariya, mother of the prosecutrix for her custody. It is also worthwhile to observe that on 19.06.2009, another application was filed by counsel of Smt. Hariya, mother of Smt. Pankhu for calling medical report from expert. That application filed on 19.06.2009 was rejected by the Judl. It is also worthwhile to observe that on 19.06.2009, another application was filed by counsel of Smt. Hariya, mother of Smt. Pankhu for calling medical report from expert. That application filed on 19.06.2009 was rejected by the Judl. Magistrate but, I after hearing both the parties and taking consent of prosecutrix Pankhu, learned Magistrate passed order whereby it was concluded by the Magistrate that prosecutrix is minor and she does not want to go with her mother, I therefore, she was ordered to be sent to Nari Niketan, Jodhpur with certain directions. In this petition, the petitioner is challenging the validity of order dated 24.06.2009 and FIR No.76 dated 25.05.2009 filed against him 8. Learned counsel for the petitioner, first of all, raised the ground with regard to conduct of the concerned Magistrate and submitted that with open eyes the concerned Judl. Magistrate passed order after taking into consideration statement of prosecutrix Smt. Pankhu recorded by him on 10.06.2009 and medical report given by the concerned Medical Officer upon order passed by the Magistrate that at this stage he finds that prosecutrix Smt. Pankhu is major and while giving the said finding an order was made to release her on personal bond vide order. It is very strange that on the one hand the prosecutrix was released while taking into consideration the medical report as well as other documents but, on the other hand, upon application filed by complainant Smt. Hariya for custody of Smt. Pankhu on the ground that she is minor, said application was kept pending and after releasing the prosecutrix Pankhu, again, order was passed on 22.06.2009 whereby S.H.O. Bagora Police Station was directed to produce prosecutrix Pankhu at the time of hearing the said application. 9. Learned counsel for the petitioner while inviting attention towards order dated 24.06.2009 submits that learned Magistrate ignored the medical report, education certificate filed by the prosecutrix Pankhu, so also, the marriage certificate issued by the competent Court and medical report which was obtained by the Court itself and passed order that as per birth certificate filed by Smt. Hariya the prosecutrix is minor. Learned counsel for the petitioner vehemently argued that, in the first instance, it. was not open to the Court to review its own order which is passed on 17.06.2009. Learned counsel for the petitioner vehemently argued that, in the first instance, it. was not open to the Court to review its own order which is passed on 17.06.2009. Secondly, learned Magistrate was under obligation to consider the medical report which is said to be given by the doctor for determination of the age of Smt. Pankhu under orders of the Court itself and, further, statement which is given by the prosecutrix before him, in which, she admits that she is major and, after death of her father and her grand-father, other members of her family are forcibly trying to sell her; but, the Judl. Magistrate ignored all these documents and contrary to order passed by the Magistrate by which she was released on personal bond while treating her major, the Magistrate passed order that prosecutrix Pankhu is minor. While giving such finding learned Judl. Magistrate sent Smt. Pankhu to Nari Niketan, Jodhpur where she is in custody because she refused to go with her mother and gave reasons for not going with her mother, therefore, the finding given by the learned Magistrate in the order dated 24.06.2009 is totally contrary to the record, so also, medical opinion obtained by the Court itself. Learned counsel for the petitioner vehemently argued that a major married woman is in illegal custody and she is lodged the Nari Niketan against her will, therefore, the impugned order deserves to be quashed and set aside. 10. Learned counsel for the petitioner submits that prosecutrix Pankhu was major and as per her will she married with petitioner, therefore, she is legally wedded wife of the petitioner and, as per the documents on record, the petitioner is entitled for custody of his wife, therefore, order impugned dated 24.06.2009 and FIR No.76 dated 25.05.2009 deserve to be quashed. In support of his contention, learned counsel for the petitioner has invited my attention towards judgment of the apex Court, reported in 1998 Cr.L.R. 658, Smt. Rajkumari v. Superintendent , Women Protection House. 11. Per contra, learned counsel appearing on behalf of respondent No.2 submits that prosecutrix Pankhu is daughter of respondent No.2 and she herself being mother, she is able to say that day on which the petitioner took Pankhu forcibly away she was minor. 11. Per contra, learned counsel appearing on behalf of respondent No.2 submits that prosecutrix Pankhu is daughter of respondent No.2 and she herself being mother, she is able to say that day on which the petitioner took Pankhu forcibly away she was minor. Further, it is submitted that as per the certificate issued by the Gram Panchayat Santhu, the date of birth of her daughter Pankhu is 20.02.1995, therefore, obviously the day on which she was forcibly abducted by the petitioner she was minor, therefore, at the time of deciding application for her custody, the learned Judl. Magistrate rightly considered the birth certificate issued by the competent authority of Gram Panchayat Santhu, Panchayat Samiti Jalore. In this view of the matter, order impugned does not require any interference because it is order based upon birth certified issued by the competent authority as per Birth & Death Registration Act, 1969, therefore, order dated 24.06.2009 is perfectly in consonance with law. 12. It is further argued by learned counsel for the respondent that there is no substance in the argument of learned counsel for the petitioner that learned Magistrate has committed mistake while reviewing his earlier order. In fact, for temporary arrangement the prosecutrix Pankhu was released upon her personal bond on 17.06.2009; but, later on, when application of Smt. Hariya, mother of prosecutrix Pankhu was decided, then, final conclusion was arrived at by the learned Judl. Magistrate and it is held that day on which the prosecutrix Pankhu was abducted she was minor. Therefore, the finding arrived at by learned Magistrate does not require any interference. 13. Learned counsel for respondent No.2 vehemently argued that the documents filed by the petitioner for determination of the age of prosecutrix Pankhu cannot be treated to be proved unless it is proved by the competent authority. It is therefore prayed by him that this petition deserves to be dismissed and the same may be dismissed. 14. After hearing learned counsel for the parties, I have perused the entire record of the case. In this case following facts are not in dispute: (i) An FIR was filed by complainant Smt. Hariya, respondent No.2 at Police Station Bagora on 25.05.2009 and said FIR was registered as FIR No.76. (ii) In pursuance of the said FIR, prosecutrix Pankhu was recovered and produced before the Judl. Magistrate. In this case following facts are not in dispute: (i) An FIR was filed by complainant Smt. Hariya, respondent No.2 at Police Station Bagora on 25.05.2009 and said FIR was registered as FIR No.76. (ii) In pursuance of the said FIR, prosecutrix Pankhu was recovered and produced before the Judl. Magistrate. (iii) Prosecutrix Smt. Pankhu in her statement said that she is 18 years and 10 months old and she admits that she got married with the petitioner being major girl of her own free will. It is also stated by her in her statement that after the death of her father, her grandfather Hakmaji arranged her engagement with the petitioner Mesa Ram; but, after death of her grand-father, her elder father and uncle Jetaji and other family members broke down the engagement and they were trying to sell her to another person. It is stated by her that after getting the said knowledge she called, the petitioner Mesa Ram on phone and asked him for marriage and upon, her request Mesa Ram reached the house of the prosecutrix in the night of 06.05.2009; and, thereafter, as per her free will, she went to Gujarat where her marriage with the petitioner Mesa Ram was solemnized. Smt. Pankhu admits that she, is major and legally wedded wife of the petitioner. The marriage certificate was also placed before the Judl. Magistrate. (iv) Admittedly, an order was made by the Judl. Magistrate for medical examination of the prosecturix Pankhu on 11.06.2009 and, in pursuance of the said order, Pankhu was medically examined for the purpose of ascertaining her age and, as per report of the Medical Officer, she was found to be around 18 years of age. (v) On 17.06.2009, after perusing the Medical Board's report and other investigation made by the police, prosecutrix Pankhu was released while treating her, at the stage, major on personal bond; meaning thereby, on 17.06.2009, learned Magistrate satisfied himself about the age of the prosecutrix and opined that as per statement of the prosecutrix Pankhu, medical report and investigation of the police, Smt. Pankhu was major.. (vi) The application filed by respondent No.2 was kept pending on 17.06.2009 and, later on, learned Magistrate secured presence of the prosecutrix Pankhu again and, on 24.06.2009, gave finding that prosecutrix Pankhu is minor, therefore, passed order for sending her to Nari Niketan, Jodhpur because prosecutrix refused to go with her mother on the ground that she is having apprehension that her mother and other family members will forcibly re-marry her with another person or they will sell her. Therefore, learned Judl. Magistrate sent her to Nari Niketan. 15. In this petition, a pointed query was made to the counsel appearing for the respondent when husband of respondent No.2 Smt. Hariya and father of prosecutrix Pankhu died but, no documentary evidence with regard to date of death of Jamtaji (husband of Smt. Hariya and father of Pankhu) was filed by counsel for respondent No.2. Further, the Public Prosecutor was also directed to produce the original document of school where Smt. Pankhu was initially admitted for study and the original record of birth certificate issued by the Gram Panchayat Santhu. In pursuance of order passed by this Court in this petition on 18.02.2011, although no specific date of death of father of the prosecutrix was furnished but original record of school as well as Gram Panchayat Santhu was produced before the Court for perusal. 16. First of all, after perusing the case, diary, It is revealed that in the investigation, the investigating officer obtained certified copy of form under which prosecutrix Pankhu was admitted in Government Primary Sanskrit School, Santhu. In the form, which is said to be filled in by uncle of the prosecutrix, the date of birth was mentioned as 22.07.1990. In the transfer certificate issued on 10.07.2004, which is at page No.120 in the case diary, the date of birth of the prosecutrix has been shown as 22.07.1990. Another document is on record which is attendance register, in which, name of prosecutrix Pankhu is appearing; meaning thereby, in the years 1998 to 2004, prosecutrix Pankhu was student of Government Primary Sanskrit School, Santhu. The concerned Head Master also issued a certificate to verify the date of birth on 01.07.2009, in which, it is specifically stated that date of birth of Miss Pinki Kumari, daughter of Jamtaji is 22.07.1990. The original enrolment register of the school is also produced before this Court for perusal which is maintained since 27.09.1991. The concerned Head Master also issued a certificate to verify the date of birth on 01.07.2009, in which, it is specifically stated that date of birth of Miss Pinki Kumari, daughter of Jamtaji is 22.07.1990. The original enrolment register of the school is also produced before this Court for perusal which is maintained since 27.09.1991. In that register also, name of Pankhu Kumari is appearing at S.No.778 and, in front of that, date of birth is shown as 15.07.1992. All the original documents of the school and documents, produced at investigation loudly speak that at the time of admission in the school, the date of birth of prosecutrix as 22.07.1990 and, second time, when she was admitted in the school, her date of birth was shown by her uncle to be 15.07.1992; but, it is very strange that in the year 1996, on the basis of affidavit of uncle, birth registration of Smt. Pankhu was made, in which, date of birth of Pankhu was mentioned 20.02.1995 and, on that basis, learned Magistrate gave the finding that prosecutrix Pankhu was minor. 17. In my opinion, after examining the entire record of the case and documents as well as medical report given by the Medical Board, which is obtained by the Court for determination of the age, I am of the opinion that learned Magistrate has committed serious illegality while arriving at the finding that Smt. Pankhu is minor and wrongly reviewed his earlier order observing that Pankhu was minor on the day on which she was allegedly abducted by the petitioner. In fact, there are number of documents speaking aloud that prosecutrix was major on the day on which she got married with the petitioner. In the statement of Pankhu, recorded by the Magistrate, it is admitted by the prosecutrix Pankhu that.she was more then 18 years of age and got married with the petitioner on her own free will. In her statement, she has also disclosed reasons for getting married with the petitioner in this manner. 18. In the certificates issued by the school and record of the school, it is admitted that twice forms were filled in by Jamtaji, uncle of Pnakhu. In her statement, she has also disclosed reasons for getting married with the petitioner in this manner. 18. In the certificates issued by the school and record of the school, it is admitted that twice forms were filled in by Jamtaji, uncle of Pnakhu. In the year 1998 her date of birth was shown as 22.07.1990; but, after taking transfer certificate, when re-admission was made, then, Jamatji mentioned her date of birth as 15.07.1992; meaning thereby, Jamta Ram, uncle of the prosecutrix filled in her date of birth as 22.07.1990 and 15.02.1992, and at the time of obtaining her birth certificate, he filed his affidavit, in which, it is shown that her date of birth is 20.02.1995. In my opinion, the subsequent birth certificate which is obtained by Jamta Ram is obtained by mentioning wrong date of birth of Smt. Pankhu while he was knowing that he had mentioned 22.07.1990 and 15.02.1992 earlier when the prosecutrix was admitted and readmitted in the school. 19. It is also very relevant to observe here that respondents are hiding the date of death of father of prosecutrix Pankhu inspite of the fact that respondents were directed to produce documentary evidence with regard to the date of death of the father of Pankhu but no documentary evidence was produced on record to show when the father of Pankhu died. Therefore, presumption can be drawn that for taking custody of the girl all efforts were made by respondent No. 2 and her family members. However, prosecutrix Pankhu consistently refused to go with them under the apprehension that they will either kill her or forcibly re-marry her with other person, therefore, she chose to go to Nari Niketan where she is residing for last near about two years. In this case, learned Magistrate has acted contrary to law. Once he passed order that at this stage on the basis of medical report and investigation of the police, he finds that Mst. Pankhu is majore and while observing the above facts on 17.06.2009, released her on personal bond while treating her major to go anywhere as per her will; but, subsequently passed order for securing her presence before the Court and without giving reasons for disbelieving relied upon the certified copy of the birth certificate filed by respondent which is said to be issued in "the month of July 2009. The learned Magistrate gave finding that prosecutrix Pankhu was minor on the day on which she was taken away by the petitioner. In my opinion, such type of order is not sustainable in law. It emerges from the record that the day on which prosecutrix is alleged to have been abducted she was major and this fact is corroborated by the report of the Medical Board which is relied upon by the Magistrate himself while passing order dated 17.06.2009. Further, the original record of Government Primary Sanskrit School, Santhu which is produced before this Court for perusal only testifies that learned judl. Magistrate wrongly disbelieved the statement of prosecutrix Pankhu, in which, she has categorically stated that she is legally wedded wife of petitioner Mesa Ram. 20. In view of the aforesaid discussion, this petition filed under Section 482, Criminal Procedure Code is allowed. Order impugned dated 24.06.2009 is hereby quashed and set aside. Haying examined and considered statement of prosecutrix Smt. Pankhu @ Pinki recorded before the Magistrate, medical report obtained by the Court and, so also record of Government Primary Sanskrit School, Santhu, produced before this Court for perusal and upon admitted fact of solemnization of marriage of Mst. Pankhu @ Pinki with petitioner Mesa Ram, impugned Flic No. 76 dated 25.05.2009 of Police Station Bagora also stands quashed. 21. The Superintendent, Nari Niketan, Jodhpur is directed to release, Smt. forthwith. Superintendent Nari Niketan, Jodhpur is further directed to obtain will of Smt. Pankhu as to where she wants to go and police authorities are directed to make all arrangement for escorting Smt. Pankhu under police protection where she wants to go. Smt. Pankhu will be at liberty to go with the petitioner or as per her will.Petition allowed. *******