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2018 DIGILAW 813 (ALL)

AJEET v. STATE OF Uttar Pradesh

2018-04-05

J.J.MUNIR

body2018
JUDGMENT Hon’ble J.J. Munir, J.—Heard Sri Janmed Kumar, learned counsel for the revisionist and Sri Vishvajyoti Sahai, learned AGA for the State. 2. This is a criminal revision from an order of the Judicial Magistrate, Shikohabad passed in Misc. Case No. 19/17 relating to Case Crime No. 342 of 2016, under Sections 363, 366 IPC, P.S. Makkhanpur, Firozabad whereby pursuant to a direction of this Court dated 11.11.2016 passed in Writ Petition No. 53117 of 2016, the learned Magistrate has directed the revisionist’s wife Smt. Sapna to be detained in the Nari Niketan holding her to be 16 years of age. 3. The submission of Sri Janmed Kumar, learned counsel for the revisionist is that the learned Chief Judicial Magistrate in carrying out the direction of this Court, amongst others, to decide upon the appropriate custody of the alleged minor, the prosecutrix till she attains the age of majority took into consideration an application made on behalf of her mother dated 24.10.2016, whereby mother asked for her custody and another application made on behalf of the revisionist Ajeet, her husband who has lawfully married the prosecutrix according to Hindu rites. The revisionist contended in support of his application that the prosecutrix who is his wife, a major, and, has married him according to her freewill should be allowed to go with him. Learned counsel for the revisionist has pointed out that the Magistrate has mentioned while passing the impugned order that the mother of the victim who has reported him to the police vide case crime No. 342 of 2016, under Section 366, 363 IPC has said that a transfer certificate filed on behalf of the revisionist in these proceedings is absolutely fake and forged and that the prosecutrix is illiterate. Learned counsel for the revisionist has pointed out that going by the school leaving certificate from the Primary Vidyalaya Sandalpur that was filed by the revisionist before the Magistrate the age of prosecutrix is now more than 18 years, her date of birth recorded there being 10.7.1998. He points out, however, that the Magistrate has not bestowed any consideration to the said certificate; the Magistrate has not even held the school leaving certificate aforesaid to be forged which was on record before him. 4. He points out, however, that the Magistrate has not bestowed any consideration to the said certificate; the Magistrate has not even held the school leaving certificate aforesaid to be forged which was on record before him. 4. The learned counsel for the revisionist submits that once there is a school leaving certificate on record and there is no finding that the said certificate is a forged document, the Magistrate was bound to act on it and set the detenue free who is the revisionist’s wife to go wherever and with whomsoever she wants to go as she is a major. He points out that instead the Magistrate has relied upon a medical examination report dated 9.1.2017 where the age of the applicant is opined to be 16 years and further taking into account the statement of the victim’s mother that her age was 14 years held her to be a minor. 5. The Magistrate has, however, recorded in his order that the prosecutrix when asked as to where she would like to go, she said that she wished to go with her husband (Ajeet), the revisionist and further said that she apprehended danger to her life from her parents, and, in no event would go with them. The Magistrate has also noticed that the prosecutrix in her statement under Section 164 Cr.P.C. has said that she had married the revisionist of her freewill and wanted to stay with him of her own accord. It is the submission of the learned counsel for the revisionist however, that the Magistrate recording a sketchy finding and relying on certain decisions of this Court reported on Furkhan v. State of Uttar Pradesh and others, 2015 (3) JIC 543 and a Division Bench decision in Smt. Himani v. State of U.P., 2013 (82) ACC 864, has held that until the prosecutrix/detenue attains the age of majority looking to the interest of her security she has to stay at Nari Niketan, Mathura. 6. The submission of the learned counsel for the applicant is that the aforesaid order is manifestly illegal inasmuch as the school leaving certificate dated 30.7.2009 which is on record issued by the Primary School, Sandalpur and the FIR clearly indicates the date of birth of the prosecutrix to be 10.7.1998; reckoning the age of the detenue going by the said date of birth, she is clearly above 18 years of age by now. He points out that so far as the veracity of the said certificate is concerned, he has brought on record a copy of the extract from the case diary annexed as Annexure RA-2 to the rejoinder-affidavit which shows that the Investigating Officer visited the Primary School, Sandalpur and met the Head Master of the school Sri Gurdayal Singh s/o Virendra Singh. He enquired about the detenue Sapna d/o Ram Prasad. As per the record of investigation made by the I.O. from the Principal of the said school where he also looked into the relevant SR Register which shows that the school leaving certificate filed before the Magistrate has been issued by the said school and that in the said school the detenue had read as a student; the name of her parents also are in accord and her date of birth recorded there is 10.7.1998. The I.O. concluded on the basis of investigation made at the school that on the date of occurrence the age of the detenue was 14 years three months but now she is 18 years of age. He has made the said school leaving certificate a part of the case diary. 7. This Court finds from the aforesaid records shown to the Court, and, also brought to the notice of the learned AGA, who has been heard in opposition that there is no manner of doubt about the veracity of the school leaving certificate, filed on behalf of the revisionist before the Magistrate to seek emancipation for Sapna from the Nari Niketan, Mathura. 8. It may be noticed that once there is a school leaving certificate that is genuine and valid, there is no scope for the Court to look into a medical report regarding determination of age. The principles regarding determination of age of a juvenile provided under Section 94 of the Juvenile Justice Act, 2015 apply to the case of a victim also has the approval of by the Hon’ble Supreme Court in Mahadeo s/o Kerba Maske v. State of Maharashtra and another, (2013) 14 SCC 637, where in paragraph No. 10 of the report it was held as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of the ascertaining the age of a victim as well.” This issue has also been considered in an earlier judgment of Hon’ble Supreme Court in Jarnail Singh v. State of Haryana, 2013 (7) SCC 263 , Paragraph 11 of the said report reads thus: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” Both these high authorities lay down in clear terms that the Courts have to follow the same yardstick for determination of age of a victim as the one that is applied to determine the age of a juvenile under the Juvenile Justice Act. The aforesaid question fell for determination of a Division Bench of this Court in Smt. Aarti v. State of U.P., 2018(3) ADJ 592 (DB), where, in paragraph 12 of the report on this issue it was held thus: Thus, principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well. It may be pointed out that at the point of time when Mahadeo (supra) was decided by their lordships of the Supreme Court, the Juvenile Justice Act, 2000 was in force and their lordships were interpreting the provision of Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007. The said Act of 2000 has since been repealed and has been replaced by the Juvenile Justice Act, 2015. The rules framed under the Act of 2000 are thus no longer on the statute book. However, the provisions that found place in Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007 framed under the Juvenile Justice Act, 2000 are now, with certain modifications engrafted into the the Principal Act vide Section 94 of the Juvenile Justice Act, 2015. The inter se priority of criteria to determine age under Rule 12(3) of the Rules, 2007 (supra) and Section 94 of the Act, 2015 remains the same albeit with certain modifications which are of no consequences to the facts in hand. The inter se priority of criteria to determine age under Rule 12(3) of the Rules, 2007 (supra) and Section 94 of the Act, 2015 remains the same albeit with certain modifications which are of no consequences to the facts in hand. In short, provisions of Rule 12(3) of the Rules, 2007 framed under the Juvenile Justice Act, 2000 are para meteria to the provision of Section 94 of the Juvenile Justice Act, 2015. This being the comparative position, the principles of law laid down by their lordships in the case of Mahadeo (supra) would apply with equal force to the provisions of Section 94(2) of the Juvenile Justice Act, 2015 while determining the age of a victim of an offence under Sections 363 and 366 IPC. Thus, the submission of the learned counsel for the petitioners, on this score, is not tenable. 9. It thus brooks no manner of doubt that the date of birth of the detenue Sapna stands determined with reference to her school leaving certificate, the genuineness of which has been verified by the State authorities, in particular, the police on investigation done in the crime by contacting the school authority. Any other evidence about her age, be it a medical report of her age or the assertion made by her mother are of no consequence. The age recorded in the school leaving certificate of the detenue Smt. Sapna is 10.7.98 and for the present she is a major aged above 18 years. 10. The learned AGA has submitted that going by the same record it is well proven that on the date of occurrence Smt. Sapna was a minor and therefore, the revisionist is liable for the offences charged. 11. In the opinion of this Court the aforesaid submission though true on its own terms is not relevant for the purpose of the issue involved in this revision. Here this Court is not concerned with the guilt or otherwise of the revisionist but about the liberty of a citizen that is to say, the detenue, Sapna. It is trite law that an adult cannot be detained against his/her wish except in accordance with law. May be, when the Magistrate passed the order impugned the detenue might not have attained the age of majority but for the present she has certainly become a major reckoning her age by the school leaving certificate. It is trite law that an adult cannot be detained against his/her wish except in accordance with law. May be, when the Magistrate passed the order impugned the detenue might not have attained the age of majority but for the present she has certainly become a major reckoning her age by the school leaving certificate. The order impugned passed by the Magistrate dated 28.1.2017 by dint of which she is being held against her wish at the Nari Niketan, Mathura described as the Rajkiya Mahila Sampreshan Grih, Mathura is required to be set aside in order to restore the detenue Sapna to her liberty as a free citizen of this country, to go wherever she likes, and, with whomsoever she wants. 12. In the result, this revision succeeds and is allowed. The impugned order dated 28.1.2017 passed by the Judicial Magistrate, Shikohabad, District Firozabad in Case No. 19/17 arising out of Case Crime No. 342/2016, under Sections 363, 366 IPC, P.S. Makkhanpur, District Firozabad is hereby set aside. 13. It is directed that the detenue Smt. Sapna shall be forthwith released from the aforesaid Nari Niketan/Rajkiya Mahila Sampreshan Grih, Mathura and be allowed to go wherever she likes and with whomsoever she wants. The Superintendent of Rajkiya Mahila Sampreshan Grih, Mathura as well as Judicial Magistrate, Shikohabad, Firozabad shall ensure immediate compliance of this order. 14. Let a copy of this order be forwarded to Judicial Magistrate, Shikohabad, District Firozabad and the concerned Superintendent Rajkiya Mahila Sampreshan Grih, Mathura by the office forthwith for compliance.