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2013 DIGILAW 476 (ORI)

Sasmita Malik v. State of Orissa

2013-11-25

S.C.PARIJA

body2013
ORDER 25.11.2013Heard the learned counsel for the parties. This application under Section 482 Cr.P.C. for quashing of the order dated 20.05.2013, passed by the learned J.M.F.C., Pattamundai, in G.R. Case No.60 of 2013, rejecting the petitioner’s application for her medical examination for ascertaining her actual age. The brief facts of the case is that the mother of the present petitioner lodge a written report before the I.I.C., Pattamundai Police Station, alleging therein that the accused Pajan Mallick and his family members have kidnapped the minor daughter (petitioner), who was aged about 13 years, in order to get her married to Pajan Mallick. The said written report was registered as Pattamundai P.S. Case No.35, dated 26.06.2013, under Sections 363/506/34, I.P.C. During investigation, the petitioner was recovered from the house of the accused persons and produced before the learned Magistrate, for recording of her statement under Section 164 Cr.P.C. In her statement, recorded by the learned Magistrate under Section 164 Cr.P.C., the victim girl (petitioner) categorically deposed that she was aged about 19 years and that she left her parents house out of her own free will and volition and had gone with the accused Pajan Mallick to Rourkela, where they have got married. She further stated that Pajan Mallick is her husband and he has not kidnapped her. As the school documents revealed that the petitioner was a minor and on being asked, she was not willing to go with her parents, apprehending torture and physical injury, learned Magistrate remanded her to a short stay home “Reswa”, in Kendrapara. The petitioner filed an application before the learned Magistrate for her medical examination, in order to ascertain her actual age, as she is a major and aged about 19 years and the age recorded in the school register is not correct, as her parents have reduced her age at the time of her admission in the school. The said application having been rejected by the learned Magistrate, the present application has been filed under Section 482 Cr.P.C., assailing the said order of rejection. Learned counsel for the petitioner submits that in the statement recorded by the Magistrate under Section 164 Cr.P.C., the victim girl (petitioner) has categorically deposed to be aged about 19 years. The said application having been rejected by the learned Magistrate, the present application has been filed under Section 482 Cr.P.C., assailing the said order of rejection. Learned counsel for the petitioner submits that in the statement recorded by the Magistrate under Section 164 Cr.P.C., the victim girl (petitioner) has categorically deposed to be aged about 19 years. However, the parents of the petitioner have reduced her age in the school register at the time of her admission in the school and therefore, the date of birth entered in the school register is not correct. It is submitted that during investigation, as the offence under Section 376 I.P.C. has been added on the request of the I.O., the victim girl (petitioner) should have been sent for medical examination, as provided under Section 164-A Cr.P.C., which requires the registered medical practitioner to prepare a medical report indicating the details of his examination, including the age of victim women. Accordingly, it is submitted that the rejection of the petitioner’s application for her medical examination was not proper and justified. It is prayed that appropriate direction be issued for medical examination of the petitioner by a registered medical practitioner of a Government Hospital, for ascertaining her actual age. Learned counsel for the State submits that as the date of birth of the petitioner has been entered into the school register as 10.02.2000 and she was aged about 13 years on the date of the occurrence, there is no justification for the petitioner uks claiming for her medical examination now in proof of her age. It is submitted that even otherwise, the age entered the school register will be relevant for consideration and not the age determined in the medical examination, which is always subject to some variations. It is not uncommon in our country that parents while admitting their child to a school, invariably reduce the age. The petitioner in her statement recorded under Section 164 Cr.P.C. claims that she is a major girl, aged about 19 years. She has been remanded to a short stay home against her wishes by the learned Magistrate, as she was found to be a minor, as per the school records. Moreover, it is alleged that the petitioner is a victim of rape. She has been remanded to a short stay home against her wishes by the learned Magistrate, as she was found to be a minor, as per the school records. Moreover, it is alleged that the petitioner is a victim of rape. Therefore, I feel it expedient in the interest of justice that she be examined by a competent medical practitioner of a Government Hospital to ascertain her age. Accordingly, the I.O. is directed to produce the petitioner before the Superintendent of S.C.B. Medical College and Hospital, Cuttack, on 04.12.2013, who shall get her examined by medical experts and hand-over the report with regard to her age in a sealed cover the I.O., who shall submit the same before the learned J.M.F.C., Pattamundai, in G.R. Case No.60 of 2013, for his consideration. CRLMC is accordingly disposed of. Issue urgent certified copy as per rules. CRLMC disposed of.