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2018 DIGILAW 2358 (ALL)

Shahzad v. State of U. P.

2018-11-19

PRADEEP KUMAR SINGH BAGHEL, SALIL KUMAR RAI

body2018
JUDGMENT : 1. The Special Appeal emanates from a judgment in the matter of habeas corpus whereby the learned Single Judge has dismissed the petition filed by the appellant. 2. A few facts may be set out, which would be relevant for considering the issue which arise in the present case. 3. The appellant/petitioner preferred Habeas Corpus Writ Petition No. 32498 of 2017 for issuance of a direction upon the respondent No. 2, therein Surendra Kumar to produce the corpus of the respondent No. 3, Shama Parveen @ Varsha Saini. The appellant/petitioner Shahzad claims that he has solemnized marriage with the respondent No. 3 on 15.12.2016 in accordance with customs, rites and rituals under the Mohammedan Law. Since the family members of the respondent No. 3 were causing interference in their marital life they had to approach this Court for protection of their life and liberty by filing Writ-C No. 60466 of 2016. On 21.12.2016 this Court issued a direction to the authorities for safety and security of their life and liberty. Thereafter petitioners were leading peaceful marital life. Their marriage was also registered at the office of Sub-Registrar, Ghaziabad. 4. On 23.3.2017, the respondent No. 2, the father of the respondent No. 3 lodged a First Information Report which was registered as Case Crime No. 0079 of 2017, under Sections 363 and 366 IPC, P.S. Niwadi, District Ghaziabad. It was alleged by him that on 20.2.2017 at 11.00 hours the respondent No. 3 went to market for shopping but when she did not return the respondent No. 2 made a search of her whereabouts, failing which he lodged the above mentioned First Information Report. The appellant/petitioner was arrested and the respondent No. 3 was forced to go with her father despite her unwillingness/reluctance. 5. On 28.3.2017, the respondent No. 3 was medically examined for ascertaining her age. According to the opinion of Doctor she was shown to be about 17 years old. The appellant/petitioner states that the actual age of the respondent No. 3 is more than 19 years. The appellant/petitioner moved a Criminal Misc. Bail Application No. 16151 of 2017 before this Court in which he was enlarged on bail on 8.5.2017 in Crime Case No. 79 of 2017, under Sections 363, 366, 376 IPC and Sections 3 and 4 of POCSO Act, P.S. Nivadi, District Ghaziabad. The appellant/petitioner moved a Criminal Misc. Bail Application No. 16151 of 2017 before this Court in which he was enlarged on bail on 8.5.2017 in Crime Case No. 79 of 2017, under Sections 363, 366, 376 IPC and Sections 3 and 4 of POCSO Act, P.S. Nivadi, District Ghaziabad. It is stated that the Investigating Officer thereafter in collusion with the respondent No. 2 with oblique motive arbitrarily and illegally added Sections 376(2) (jha), 420, 467, 468 and 471 IPC and illegally detained the appellant/petitioner despite his enlargement on bail vide order dated 8.5.2017. It is stated that he was again enlarged on bail on 12.7.2017 by this Court. 6. He has preferred the Habeas Corpus Writ Petition alleging that the respondent No. 3 has been kept in illegal detention by the respondent No. 2 and she is being regularly tortured and beaten up by him and his kins threatening her to forget the appellant/petitioner else they would get her married with some other man. It is stated that her life is in perpetual danger. It was further stated that the respondent No. 3 was forcibly taken away by respondent No. 2 to some other place in Loni at Ghaziabad and detained in illegal custody which is a criminal act punishable under the provisions of I.P.C. especially Sections 342 to 346 IPC. 7. In Habeas Corpus Writ Petition this Court issued notice to the private respondents. 8. A counter-affidavit on behalf of respondent Nos. 2 and 3 was filed which was sworn by respondent No. 2. The stand taken by the respondent No. 2 is that the respondent No. 3 is a minor as her age is 15 years, hence, the Habeas Corpus Petition is not maintainable. Being a minor she is in natural guardianship of her parents. It is mentioned that the Special Judge, Protection of Children From Sexual Offences Act, 2012/Additional District and Sessions Judge, Ghaziabad in Case Crime No. 79 of 2017, under Sections 366, 376 I.P.C. and POCSO Act has handed over the custody of the corpus to the respondent No. 2, being father and natural guardian of respondent No. 3 after recording a finding that according to the educational certificate as well as statement recorded under Section 164 Cr.P.C. the victim's age is 15 years. It is stated that the appellant/petitioner has induced her to sexual exploitation. It is stated that the appellant/petitioner has induced her to sexual exploitation. It is pointed out that the appellant/petitioner has also filed a forged marks sheet purported to be issued from the Uttarakhand State Open School wherein the victim has been shown to passed her High School examination in the year 2016. In the said certificate her date of birth is shown 15.11.1996 to establish that she is major. It was also stated that in fact she has passed her High School examination from the Board of High School and Intermediate Examination U.P. and her date of birth recorded therein is 5.11.2001. Hence, she was minor at the time when she was kidnapped and subjected to the sexual exploitation in the year 2016. It was also stated in the counter-affidavit that the Investigating Officer got the marks sheet filed by the appellant/petitioner verified. The investigation revealed that no school in the name of Meenakshi Public School, Alok Nagar, Niwadi exists in the district Ghaziabad nor any school of such name is recognized by the Board. The respondent has brought on record the relevant Parcha of the Case Diary of Case Crime No. 79 of 2017. It is also stated that the respondent No. 3 herself has stated in her statement that her age is only 15 years. 9. The learned Single Judge by the impugned judgment has dismissed the Habeas Corpus Petition and has recorded a finding that the corpus is minor and the appellant/petitioner had failed to show that she is in unlawful custody or in illegal detention of her parents. 10. Learned counsel for the appellant/petitioner has submitted that the respondent No. 3 is major which is evident from the radiological report dated 20.3.2017, wherein her age has been ascertained as 17 years. Learned counsel for the appellant/petitioner has relied upon the following judgments: Saroj vs. State of U.P. and Others, 2012 Law Suit (All) 2724, Smt. Ramsati @ Shyamsati through her husband Jitendra vs. State of U.P. and Others, Habeas Corpus No. 247 of 2015, Mohd. Kallo @ Mohd. Jubeel vs. State and Others, 2001 (42) ACC 79, Shalu Mishra vs. State of U.P. and Others, 2013 Law Suit (All) 1367, Asmat Jahan and Another vs. State of U.P. Crl. Kallo @ Mohd. Jubeel vs. State and Others, 2001 (42) ACC 79, Shalu Mishra vs. State of U.P. and Others, 2013 Law Suit (All) 1367, Asmat Jahan and Another vs. State of U.P. Crl. Revision No. 1719 of 2014, Lakshmi @ Kamini and Another vs. State of U.P. and Others, 2012 Law Suit (All) 669 and Furkan vs. State of U.P and Another, Crl. Revision No. 55 of 2015. 11. Learned counsel for the respondents submits that the respondent No. 3 is a minor, which is proved by her High School certificate and her statement under Section 164 Cr.P.C. 12. Learned counsel for the respondents submits that the victim was minor as her age was 15 years and radiological report is not conclusive. He has placed reliance on the judgment of the Supreme Court in State of Madhya Pradesh vs. Anoop Singh, (2015) 7 SCC 773 and Shah Nawaz vs. State of U.P. and Others. 13. We have heard the learned counsel for the parties and perused the record. 14. For determination of the age of a person whether in a criminal or civil proceedings the age has to be determined in the light of provision of Section 35 of the Evidence Act. Section 35 of the Evidence Act reads as under: "35. Relevancy of entry in public record, made in performance of duty.- An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact." 15. As can be seen from a bare reading of the said Section that it does not make any distinction between a criminal proceeding and a civil proceeding. It would depend upon the facts and circumstances of each case and it has to be determined on the basis of the materials on record. In a large number of the cases the Supreme Court has observed that it is difficult to lay down a law in respect of determination of age, therefore, each case depends upon its own facts. 16. In a large number of the cases the Supreme Court has observed that it is difficult to lay down a law in respect of determination of age, therefore, each case depends upon its own facts. 16. It is apt to note the determination of date of birth would depend upon the facts and circumstances of each case while determining the age of a child/person, the Court would depend upon the material brought on record. 17. A person is required to give some evidence in support of his age in different situation such as for obtaining admission in an educational institute; for seeking appointment; registration of marriage; for contesting election; in case a suit is filed for the benefit of minor child to declare a transaction void on the ground that it was made by a minor; accused seeking benefit of the Juvenile Justice (Care and Protection of Child) Act 2000 (for short Juvenile Act, 2000) etc. 18. First, we will deal with the matter in the criminal cases. Juvenile Act, 2000 does not provide any criterion for determining the age of the accused. Section 49 provides the presumption and determination of the age. It enjoins that where it appears to a competent authority that a person brought before it under any of the provisions of this Act is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or the child or not. 19. For determination of the age under the provisions of Juvenile Act, 2000, The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short Rules, 2007) has been framed. Rule 12 of the Rules lays down the procedure to be followed for determination of the age. Relevant part of Rule 12 is quoted hereunder: "12. Procedure to be followed in determination of Age: (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining:- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof. (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof. (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot, be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. While passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." 20. A perusal of Rule 12 shows that for the determination of age the matriculation or equivalent certificate; birth certificate from a school 1st attended; birth certificate issued by a corporation or a municipal authority or a panchayat shall be considered only in absence of those documents opinion of the Medical Board shall be relevant. It is worthwhile to mention that admissibility of a document does not prove its content. If a person files his school leaving certificate, under the law he is required to prove its content. The admissibility of the document and probative value are two different things. They cannot be mixed. The public documents such as school register, family register, voters list which are prepared under the Statute/Rules/Regulations/Government Orders, may be admissible under Section 35 of Evidence Act but Court can examine their probative value in the matter of school leaving certificate entries required to be proved by examining the person who has special knowledge. The best evidence is of his parents, who had accompanied the child at the time of his admission in his first attended school. The best evidence is of his parents, who had accompanied the child at the time of his admission in his first attended school. The Court can examine that on whose information the entry was recorded and what was his source of information. Fact examination may be necessary in a case where child was admitted by other than parents. If a relative or family friend accompanied the child then it has to be considered what was his source of information regarding age of the child. 21. An entry in school register can be accepted if it is corroborated by unimpeachable documents like date of birth register of local bodies/municipalities, Government hospitals/ nursing home. 22. Reference may, with advantage, be made to the following observation of the Supreme Court in Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584 , the Supreme Court held as under: "35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon. 38. The age of a person as recorded in the school register or otherwise may be used for various purposes; namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a Court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A Court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. A Court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted. 39. We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the Court must strike a balance. In case of a dispute, the Court may appreciate the evidence having regard to the facts and circumstance of the case. It would be a duty of the Court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure." 23. The principle laid down in Ravinder Singh Gorkhi (Supra) has been followed in Madan Mohan Singh and Others vs. Rajni Kant and Another, (2010) 9 SCC 209 , the Supreme Court held as under: "21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by un-impeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded. Brij Mohan Singh vs. Priya Brat Narain Sinha and Others, AIR 1965 SC 282 , Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 , Vishnu vs. State of Maharashtra, (2006) 1 SCC 283 and Satpal Singh vs. State of Haryana, JT 2010 (7) SC 500. 22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61 etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time etc. mentioned therein. Updesh Kumar and Others vs. Prithvi Singh and Others, (2001) 2 SCC 524 and State of Punjab vs. Mohinder Singh, AIR 2005 SC 1868 ." 24. In Shah Nawaz vs. State of U.P. AIR 2013 SC 3107, the accused claimed that he was born on 18.6.1989 hence on the date of occurrence of incident i.e. 4.6.2007 he was juvenile. He was accused under Section 302 and 307 IPC. In support of his claim he had filed his school leaving certificate of the first school he attended and subsequent school also. The Juvenile Board declared him juvenile. The wife of victim preferred an appeal under Section 52 of the Act before the District Judge, who set aside the order of Board and held that accused was not juvenile. The Criminal Revision filed in this Court was also dismissed. The matter was carried to Supreme Court. While allowing the appeal, the Supreme Court observed thus: "20. We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. While allowing the appeal, the Supreme Court observed thus: "20. We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the School Leaving Certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-O-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18.6.1989 in School Leaving Certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said school at S. No. 1382 which have been proved by the statement of the Principal of that school recorded before the Board. Apart from the clerk and the Principal of the school, the mother of the appellant has categorically stated on oath that the appellant was born on 18.6.1989 and his date of birth in his academic records from preparatory to Class X is the same, namely, 18.6.1989, hence her statement corroborated his academic records which clearly depose his date of birth as 18.6.1989. Accordingly, the appellant was a juvenile on the date of occurrence that is 4.6.2007 as alleged in the FIR dated 4.6.2007." 25. In Ram Suresh Singh vs. Prabhat Singh, (2009) 6 SCC 681 , the Supreme Court held that an entry in a school register may not be public document, therefore, it must be proved in accordance with law. In that case original school register maintained in Government school was produced and father of the accused was also examined hence the Court held that entry in school register was proved. The Court further observed that opinion of Medical Board can be relied only when date of birth certificate is not available. It was also observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. (Reference may be made to Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Others, (1982) 2 SCC 538 ). It was also observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. (Reference may be made to Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Others, (1982) 2 SCC 538 ). 26. At this juncture it would be advantageous to refer a judgment of Supreme Court. In Brij Mohan Singh vs. Priya Brat Narain Sinha, AIR 1965 SC 282 , has taken judicial notice of the fact that people sometimes "make a false statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happen not infrequently." The Court ignored the entry in school certificate and even the matriculation certificate. It was observed that in Matriculation certificate on the ground that wrong entry made in admission register carried forward to Matriculation certificate. 27. In so far the medical opinion is concerned there are unbroken line of authority to the effect that medical opinion is not of conclusive nature. Recently Supreme Court took note of its earlier decisions and Modi's Textbook of Medical Jurisprudence and Toxicology in the case of Mukarrab vs. State of U.P. (2017) 2 SCC 210 . The Court opined thus: "Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At page 31 of Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edn. The Court opined thus: "Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At page 31 of Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edn. it has been stated as follows: "In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development." Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered alongwith other circumstances." 28. Principle of the law emanates from the above judgments are: (i) Both in civil and criminal proceedings same standard is required to be applied in terms of Section 35 of Evidence Act (Ram Suresh Singh) (ii) To render a document admissible under Section 35, three conditions must be satisfied (a) entry is relied on must be one in a public or other official book, register or record (b) it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty especially required by law (c) entry must be stating a fact in issue or relevant fact. (iii) Entries made in any public document i.e. school register or family register or voters' list prepared under the Rules and Regulation etc. in form may be admissible under Section 35 of Evidence Act. Such entry may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether such entry has been exhibited and proved. in form may be admissible under Section 35 of Evidence Act. Such entry may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether such entry has been exhibited and proved. This requirement is applicable in both civil and criminal cases Ram Prasad Sharma vs. State of Bihar, (1983) 3 SCC 118 , Ram Murti vs. State of Haryana, (1970) 3 SCC 21 , Babbo Pasi vs. State of Jharkhand, (2008) 13 SCC 133 and Ram Suresh Singh (Supra). (iv) If a public school maintains a register in the ordinary course of business, the same would be admissible in Umesh Chandra vs. State of Rajasthan, (1972) 2 SCC 202. (v) Medical evidence as to age of a person is not conclusive, it has to be considered alongwith other circumstances. There would always be a possibility that the age of person determined by medical examination may vary plus or minus two years. 29. Keeping in view the above principle, we may now advent to the issue involved in this case. Learned counsel for the appellant/petitioner has laid emphasis on the medical report and her educational testimonial. 30. Insofar as medical report is concerned, the Chief Medical Officer has conducted 1- X-ray Elbow-AP 2. X-ray wrist-AP 3. X-ray clavicle AP (1) sternal end of clavicle epiphysis. 31. On the basis of above observation and X-ray report her appearing may be taken as about seventeen (17) years. 32. It is trite that the age mentioned in the medical opinion may vary two years plus or minus. In the present case the appellant/petitioner has filed a certificate issued by the Board of High School and Intermediate Education Uttarakhand wherein her age is shown 15.11.1996. In the investigation it has been found that the said certificate is a fabricated document. In this regard the police has registered a criminal case which is pending. The respondents have filed the High School Certificate/Marks Sheet of the petitioner No. 2 as Annexure-CA-2, which shows that the corpus passed her High School examination from Chameli Devi Kanya Inter College, Sonda Ghaziabad. In the said certificate her date of birth is recorded 5.11.2001. The learned Single Judge has noticed that the certificate allegedly issued from Uttarakhand State Open School is a fabricated document. In the said certificate her date of birth is recorded 5.11.2001. The learned Single Judge has noticed that the certificate allegedly issued from Uttarakhand State Open School is a fabricated document. It was found that no school in the name of Meenakshi Public School, Alok Nagar, Tehari is in existence. The police after investigation lodged a First Information Report against the appellant/petitioner and Case Crime No. 79 of 2017 was registered. A charge-sheet has also been filed against him and is being prosecuted for the offence under Sections under Sections 363, 366, 376 (2) (jha) I.P.C. and 3/4 POCSO Act as well as Sections 420, 467, 468 and 471 I.P.C. for fabricating forged marks sheet. 33. We do not want to make any comment on the said allegation of forgery as it may cause prejudice to the appellant/petitioner in the pending trial. In addition to above, the statement of the corpus was recorded on 27.3.2017 under Section 164 Cr.P.C. In her statement she has very clearly stated that she is 15 years old and passed her High School examination from Chameli Devi Kanya Inter College, Sonda Ghaziabad. She has also stated that on 4.12.2016 after school, the petitioner No. 1 fetched her on his motorbike. He made her to drink some cold drink on the way and brought her to Allahabad and solemnized Nikah on 15.12.2016. 34. The materials on record also indicate that the Special Judge (POCSO) Act, Ghaziabad vide his order dated 27.3.2017 has handed over the custody of the corpus to her father and since then she is living with her parents. It is recorded by the learned Single Judge that she is living with her parents with her sweet will and she was never tortured by her parents. 35. We have carefully perused the judgments cited by the learned counsel for the appellant/ petitioner. Those judgments are distinguishable on the facts of those cases. We are not referring those judgments as it would unnecessarily burden the judgment. 36. For all the reasons mentioned above, we find that the findings recorded by the learned Single Judge do not warrant any interference in the Special Appeal. Accordingly, the appeal is dismissed. No order as to costs.