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2025 DIGILAW 1279 (ALL)

Sanny Kumar v. State of U. P.

2025-10-27

J.J.MUNIR, SANJIV KUMAR

body2025
JUDGMENT : J.J. MUNIR, J. 1. This Habeas Corpus Writ Petition has been instituted by Sanny Kumar and his wife ‘A’ through Sanny Kumar, praying that the detenue ‘A’ be ordered to be produced before the Court and set at liberty. 2. The petitioners assert that a First Information Report (for short ‘the FIR’) was registered against petitioner No.1 on 13.04.2024, giving rise to Case Crime No.158 of 2024, under Sections 363 , 366, 376, 504, 506 of the INDIAN PENAL CODE (for short ‘the IPC’) and Sections 5 (j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’), Police Station Gauri Bazar, District Deoria with allegations to the effect that the first petitioner has kidnapped the informant’s minor daughter by blandishment. The minor, said to have been kidnapped, that is to say, ‘A’ is reported in the FIR to be aged about 14 years. The occurrence took place on 12.04.2024 in the wee hours at 1 o’clock. It all happened in the parties’ native village Deogaon, Gauri Bazar, Deoria. According to the informant, the detenue was missing and untraceable since she went away with the first petitioner. 3. As it appears, the petitioners were apprehended in connection with the crime, where the first petitioner was challaned and sent to jail, and later released on bail by this Court vide order dated 11.03.2025. The detenue was produced before the Doctor for her medical-examination. She declined an internal examination, regarding which there is an endorsement by the Doctor in the medical report dated 03.09.2024. The detenue stated before the Doctor as follows: 4. A further medical examination was done in order to determine if she was in the family way. She was examined at the Maharishi Devraha Baba Autonomous State Medical College, Deoria (U.P.) on 04.09.2024. The Doctor reported as follows: “Single Intrauterine Live Pregnancy of Average Gestational Age 29 weeks.” 5. The Serological Report reported the pregnancy test to be positive. Another medical test, that was done to determine A’s age on 04.09.2024, led a Medical Board, comprising the Chief Medical Officer, Deoria and a Radiologist, to conclude that she was about 17 years. The said report was submitted on 12.09.2024. The Serological Report reported the pregnancy test to be positive. Another medical test, that was done to determine A’s age on 04.09.2024, led a Medical Board, comprising the Chief Medical Officer, Deoria and a Radiologist, to conclude that she was about 17 years. The said report was submitted on 12.09.2024. The detenue had passed her Class 8 th from the Chandra Shekhar Azad Inter College, Deogaon, Gauri Bazar, Deoria and her scholar’s register and transfer certificate dated 19.11.2024, a copy whereof is annexed to the affidavit of compliance filed on behalf of the Superintendent of Police, Deoria, shows her date of birth to be 14.03.2010. This would reckon her to be about 14 years old on the date of occurrence. The Police, during investigation, took down the statement of the Principal, Chandra Shekhar Azad Inter College, Deogaon, Gauri Bazar, Deoria, who affirmed the contents of the scholar’s register and the transfer certificate, relating to the detenue and her date of birth recorded therein as 14.03.2010. The relevant part of the Case Diary, SCD-03 dated 13.10.2024, is also annexed to the SP’s return. 6. In these circumstances, the detenue was produced before the Child Welfare Committee, Deoria, who remarked that the papers and the preliminary investigation showed that she was a student of the Chandra Shekhar Azad Inter College, Deogaon, Gauri Bazar, Deoria, who passed her Class-VIII, and according to the records there, her date of birth was 14.03.2010. It is then remarked that she is a child within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act of 2015'), but her guardians, present before the Committee, were not inclined to take her custody. The Committee has also remarked that they spoke to the detenue in accordance with the provisions of Section 19 (6) of the POCSO Act read with Rule 4 of the relevant Rules. During this inquiry, described by the Committee as a preliminary inquiry, the detenue told the members of the Committee that she did not trust her family members. In these circumstances, the Committee directed the detenue to be lodged in the Rajkiya Bal Grih (Balika), Nirdhariya, Ballia (for short ‘the Protection Home’) vide order dated 13.09.2024. A formal order in Form-18 was also issued on the said day, authorizing housing the detenue in the Protection Home. 7. In these circumstances, the Committee directed the detenue to be lodged in the Rajkiya Bal Grih (Balika), Nirdhariya, Ballia (for short ‘the Protection Home’) vide order dated 13.09.2024. A formal order in Form-18 was also issued on the said day, authorizing housing the detenue in the Protection Home. 7. It is this housing of the detenue in the Protection Home, pursuant to the Child Welfare Committee’s order, that the first petitioner regards as unlawful detention and has petitioned this Court, seeking her release by the issue of a Writ of Habeas Corpus. 8. Heard Mr. Akhil Tiwari, Advocate holding brief of Mr. Kumar Ashutosh Srivastava, learned Counsel for the petitioners and Mr. Shashi Shekhar Tiwari, learned Additional Government Advocate, appearing on behalf of the State. 9. The law relating to determination of age for a victim is mostly governed by the provisions of Section 94 (2) of the Act of 2015. Section 94 of the said Act reads: “ 94. Presumption and determination of age. — (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 10. The learned Counsel for the petitioners made a rather feeble attempt to say that the provisions of Section 94 (2) of the Act of 2015 may not govern the question of determination of the detenue's age because she is not a juvenile. The issue is long settled against the petitioners on the point and the authority is consistent that principles applicable for determination of a juvenile's age under the Act of 2015 would apply equally to the determination of a victim's age. This question was considered by a Division Bench of this Court in Smt. Priyanka Devi v. State of U.P. and others , 2018 (1) ACR 1061 , a decision to which one of us (J.J. Munir, J.) was party. In Smt. Priyanka Devi (supra), it was held: “ 13. Learned counsel for the petitioner lastly urged that provisions of Section 94 of the Juvenile Justice Act, 2015 do not apply to the case in hand as the same are available for the purposes of determination of age for a juvenile or a child in conflict with the law but would not apply to the determination of age in the case of a victim. 14. We are afraid that the aforesaid submission is not correct. 14. We are afraid that the aforesaid submission is not correct. The issue was examined by the Supreme Court in the case of Mahadeo S/o Kerba Maske v. State of Maharashtra and Another, (2013) 14 SCC 637 where in paragraph no. 12 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." (Emphasis supplied) 15. This issue has also been considered in an earlier judgment of the Supreme Court in Jarnail Singh v. State of Haryana, 2013 (7) SCC 263 , where too it has been held that rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 must apply both to a child in conflict with law as well as to a victim of a crime. Paragraph 23 of the said report reads thus: "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. 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. 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." 16. 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. 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. 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.” 11. Now, turning to the certification of the detenue's age in this case, we have on record a copy of the scholar's register and transfer certificate dated 19.11.2024 issued by the Principal of the Chandra Shekhar Azad Inter College, Deogaon, Gauri Bazar, Deoria. A perusal of the said transfer certificate reveals that the detenue passed her Class-VIII from the said institution on 30.03.2024. The transfer certificate shows the detenue's date of birth as 14.03.2010. This certificate has been affirmed during investigation by the Principal of the said institution. The perusal of a copy of the said certificate shows it to be flawless record. On its own terms, there is no reason to doubt its veracity. The only matter of doubt, that could have been about this certificate, was if indeed the detenue was a scholar of this institution, or the certificate produced related to some other person or was bogus. 12. During the hearing of the matter, we have noted down the detenue's statement on 16.10.2025. It forms part of record. In answer to a specific question as to what is the detenue's age, she said, “sixteen”. By this figure, she obviously meant that she was sixteen years old. 12. During the hearing of the matter, we have noted down the detenue's statement on 16.10.2025. It forms part of record. In answer to a specific question as to what is the detenue's age, she said, “sixteen”. By this figure, she obviously meant that she was sixteen years old. In answer to the last question, where the Court asked her the name of her school, the detenue said, Chandra Shekhar Azad Inter College, Deogaon, Gauri Bazar, Deoria. This puts to end all cavil that may be about the veracity of the transfer certificate dated 19.11.2024 and also the detenue's age. By the stand taken before the Court, the detenue does not say that she is a major; instead, she acknowledges that she is 16 years old. This would clearly make her a minor. 13. So far as the detenue's precise date of birth is concerned, once we have found her school record to be impeccable, the date of birth entered there has to be accepted by dint of Section 94 (2) (i) of the Act of 2015. There being a flawless record of her age in the school certificate, there is no authority with this Court to rely on medical evidence that comes last in the order of preference as to evidence of age under Section 94 (2) of the Act of 2015. Therefore, whatever be the opinion of the Doctor, it cannot be looked into, considering that there is a rule of priority prescribed by the statute regarding the class of evidence that can be considered for the determination of a victim's age. It is only in the eventualities, if there is no school certificate regarding a victim's age, or one from the Board of Education, if the victim is a matriculate, and, further, if there is no birth certificate given by a Corporation or a Municipal Authority or a Panchayat relating to the victim, that Authorities under the Act of 2015 or the Court may order determination of the victim's age, medically by an ossification test or any other latest medical age determination test. In the presence of the first two categories of evidence, medical opinion cannot be looked into about the victim's age. This is precisely the case here, considering that there is flawless record regarding the detenue's age forthcoming from her school. 14. In the presence of the first two categories of evidence, medical opinion cannot be looked into about the victim's age. This is precisely the case here, considering that there is flawless record regarding the detenue's age forthcoming from her school. 14. In addition, it has also to be remembered that a medical determination of age, is after all opinion evidence. According to first principles of the law of the evidence as well, it has to give way to authentic and well proven documentary and oral evidence, which is forthcoming in this case. In the circumstances, we are of opinion that the detenue being a minor, now aged 15 years 7 months and 13 days, she cannot be set at liberty forthwith as the petitioners seek. The reason is that if we were to set the detenue at liberty now, she being a minor, she would have to be entrusted to the custody of a guardian. She cannot be left to herself like a major. 15. The detenue has clearly expressed her mind that she does not wish to go back to her parents and also said that she wants to join the company of her husband, the first petitioner. If we set the detenue at liberty now and permit her to go along with her husband or she goes to him herself, it would expose her to carnal relations, which, apart from being detrimental to her health, would render the husband liable for offences under the POCSO Act and Section 64 BNS on fresh counts. After all, in choosing that course, we cannot ourselves permit parties to inevitably commit acts that are offences under the law. 16. Before parting with the matter, there is another aspect of the cause, of which we must take due note. A child was born to the detenue in the Protection Home on 09.11.2024. It is said that the Superintendent of the Protection Home did not extend proper care to the child and he died due to negligence on 17.01.2025. It is pleaded in the petition that the child had fallen sick and there was no proper treatment at hand to save him. After the first petitioner was released from prison, he appears to have gone and met the detenue at the Protection Home and came to know about the death of his son due to the callousness of the Protection Home employees. After the first petitioner was released from prison, he appears to have gone and met the detenue at the Protection Home and came to know about the death of his son due to the callousness of the Protection Home employees. In circumstances, such as these, while the child cannot be brought back to life, the detenue, who is said to be in a state of depression, on account of her child's demise in infancy, requires utmost care and caution about her health and well being, both psychological and emotional. 17. We, accordingly, allow this Habeas Corpus Writ Petition in part and issue the following directions: 1. The detenue will be housed in the Protection Home until 13.03.2028 and no further. On the said date, she will be released unconditionally with liberty to go wherever she likes and stay with whomsoever she wants, including her husband, the first petitioner, Sanny Kumar. 2. The Chief Medical Officer, Deoria is directed to nominate a competent doctor, who would visit the detenue in the Protection Home at least once a month and check on her health. He/ she would also be available on call, whenever the detenue requires the doctor's presence to attend on her. The nominated doctor shall be duty bound under this order of ours to attend to the detenue on schedule and on call, without fail. 3. The learned District Judge, Deoria will nominate a senior lady Judicial Officer to visit the detenue, also once a month, and ascertain her well being, including her emotional well being. Should need arise, the lady Judicial Officer will be free to take the assistance of a counsellor in the concerned field or a psychiatrist. 4. If the Judicial Officer notices any lapse on the part of the Protection Home Administration, she will take necessary steps to remedy it. If for some reason, she finds herself unable to remedy a wrong to the detenue that she notices, or a lapse that is not made good despite her directions, she can make a report to this Court in that regard, upon which this matter will be listed for orders on the report. 5. If for some reason, she finds herself unable to remedy a wrong to the detenue that she notices, or a lapse that is not made good despite her directions, she can make a report to this Court in that regard, upon which this matter will be listed for orders on the report. 5. The administration of the Protection Home, where the detenue is housed, shall be bound by all directions that the Judicial Officer makes regarding the detenue, which shall be carried out by the Superintendent of the Protection Home, ignoring any directions to the contrary made by the local civil and police administration. 18. Any lapse to comply with these directions on part of the Superintendent of the Protection Home, will render liable the Superintendent personally answerable to this Court. 19. Let a copy of this judgment be communicated to the learned District Judge, Deoria, the Collector, Deoria, the Superintendent of Police, Deoria, the Chief Medical Officer, Deoria and the Superintendent, Rajkiya Bal Grih (Balika), Nirdhariya, Ballia, by the Registrar (Compliance).