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2018 DIGILAW 1841 (RAJ)

Shaif Ali v. State of Rajasthan

2018-09-05

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT Kanwaljit Singh Ahluwalia, J. - The present petition has been filed under Section 482 Cr.P.C., 1973 seeking quashing of FIR No.311/2018 registered at Police Station Amer, District Jaipur City North for the offences punishable under Sections 363 and 366A IPC. 2. The present petition has been filed by victim Rijwana alongwith Shaif Ali. 3. This Court on 6.8.2018 had passed the following order:- The present petition has been filed by newly married couple seeking quashing of FIR No. 311/2018 registered at Police Station Amer, District Jaipur City North (Raj.) for the offences punishable under Sections 363 and 366A IPC. It is further prayed that protection be granted to the petitioner no.2 newly wedded wife of petitioner no.1, as she apprehends danger to her life and liberty. This Court on 2.8.2018 had passed the following order:- "Petitioner No.2 - Rijwana is present in person before this Court. Let at the first instance, statement of petitioner No.2 - Rijwana be recorded by Deputy Registrar (Judicial) of this Court today itself, upon identification of the petitioner No.2, by her Counsel. List on 06.08.2018. On the said date, Investigating Officer shall remain present in person along with the record of the case." In pursuance of the aforesaid order, Dy. Registrar (Judicial) has recorded the statement of petitioner no.2 and the said statement is taken on record. For ready reference, the statement of petitioner no.2 is reproduced, as under:- The learned Public Prosecutor on instructions from Inspector, Narendra Kumar, SHO P.S. Amer, Jaipur has submitted that as per the school certificate, the date of birth of the petitioner no.2 is 20.6.2001 and hence, she is about 17 years old. The learned counsel for the petitioners has controverted this fact by stating that the petitioner no.2 and his family members are illiterate and they have kept no record with regard to date of birth, rather in Bhamashah Card, issued by the Government, the date of birth of other members of family is recorded as 1st of July of different years. In view of the doubt caused, I direct the petitioner no.2 to appear before Medical Superintendent, SMS Medical College, Jaipur. The Medical Superintendent, SMS Medical College, Jaipur shall constitute a Board of three Doctors who shall conduct necessary test including ossification test to determine the age of the petitioner no.2. In view of the doubt caused, I direct the petitioner no.2 to appear before Medical Superintendent, SMS Medical College, Jaipur. The Medical Superintendent, SMS Medical College, Jaipur shall constitute a Board of three Doctors who shall conduct necessary test including ossification test to determine the age of the petitioner no.2. To await report from the Board of Doctors, regarding age of the petitioner no.2, list his case on 27.8.2018. Till then, further proceedings arising out of the impugned FIR shall remain stayed. A further direction is issued to the investigating officer to ensure necessary vigil that that no harm is caused to the life and liberty to the petitioner no.2. The learned counsel for the petitioners also undertakes that the petitioner no.2 shall appear before the Medical Superintendent, SMS Medical College, Jaipur on 10.8.2018 at 10:00 AM. 4. In pursuance of the aforesaid order, Board of doctors constituted by Medical Superintendent, SMS Medical College, Jaipur has conducted ossification test for determination of age of petitioner no. 2 Rijwana. 5. Mr. Prakash Thakuriya, learned Public Prosecutor has submitted that the report of ossification test is part of the police file and as per report, Rijwana petitioner no.2 is aged above 18 years but below 20 years. 6. Learned counsel for the petitioners has submitted that as per judicial pronouncement, margin of one year is to be extended for determination of age in favour of accused. Learned counsel for the petitioner has further relied upon the order passed by the Supreme Court recently in the case of Suhani & Anr v. State of U.P. (Ors.), Civil Appeal No. 4532/2018, decided on 26.4.2018. 7. Supreme Court in Suhani's case (supra) relied by the learned counsel for the petitioners, has held as under:- "Leave granted. The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3. It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3. It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under section 164 of the Code of Criminal Procedure, 1973 wherein she had stated that she had entered into wedlock with the petitioner no. 2. On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nan Niketan, Allahabad. When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh. We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:- "Radiological Examination X-Rays advised for age estimation:- X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine-Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department. Report of Radiological Examination- All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years. Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years. Medial end of clavicle not fused, suggestive of age 22-27 years. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department. Report of Radiological Examination- All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years. Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years. Medial end of clavicle not fused, suggestive of age 22-27 years. S1 of sacrum not fused with S2, suggestive of age 17-24 years. Imp.:-Estimated Bone age is between 19-24 years. Final Report/opinion : Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 1924 years." In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband. In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice. The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of." 8. In view of the submissions advanced by the learned counsel for the petitioners and the reliance placed upon the judgement given by the Supreme Court in Suhani's case (supra), the impugned FIR No.311/2018 registered at Police Station Amer, District Jaipur City North for the offences punishable under Sections 363 and 366A IPC is quashed alongwith all subsequent proceeding. Consequently, the present petition is accepted. 9. A further direction is issued to the SHO, Police Station Amer, Jaipur to ensure necessary vigil that no harm is caused to the life and liberty of the petitioners.