Smt. Neha and 4 Others v. State of U.P. and 2 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 13939 of 2023 Petitioner :- Smt. Neha And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Karunesh Narayan Tripathi Counsel for Respondent :- G.A.,Arvind Kumar Sahu Hon'ble Vivek Kumar Birla,J. Hon'ble Vinod Diwakar,J.

¶1Heard Sri Karunesh Narayan Tripathi, learned counsel for the petitioners and Sri Pushkar Srivastava, learned A.G.A. for the State and Sri Arvind Kumar Sahu, learned counsel for the informant and perused the record.

¶2This writ petition has been filed praying to quash the first information report dated 4.8.2023, registered in Case Crime No. 276 of 2023, under Sections 363 IPC, P.S. Ushait, District Budaun and not arrest the petitioners pursuant to the said FIR.

¶3Learned counsel for the petitioners submitted that no offence as alleged is made out as the petitioner no. 1 is a major girl and the entire criminal case lodged by the informant is nothing but an abuse of the process of the law. It is further submitted that as per Aadhar Card, date of birth of petitioner no. 1 is

2.2.2000 and the date of birth of petitioner no. 2 is 1.1.1998 and as such, the petitioners no. 1 and 2 are major on the date of incident and they have married on their sweet will and no offence has been committed. By drawing attention to page 33 of the paper book, it is submitted that they have applied online for registration of their marriage. It is additionally submitted that the victim herself has come forward to file present writ petition by filing a joint affidavit and that as per personal law the petitioner no. 1 and petitioner no. 2 are entitled to get married.

¶4Learned counsel for the informant submits that as per transfer certificate of Class VIII the date of birth of the victim is 9.7.2007 and as such, she is minor.

¶5On instructions, learned AGA has also supported the aforesaid fact.

¶6At this stage, learned counsel for the petitioners has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Suhani vs. State of U.P. reported in 2018 0 Supreme (SC) 1430 and judgement dated 18.7.2023 passed in Criminal Appeal No. 1898 of 2023 (P. Yuvaprakash vs. State Rep. by Inspector of Polic) submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.

¶7In view thereof, we direct that the petitioner no.1-Smt. Neha be produced before the Magistrate concerned, for recording her statement under section 164(1) and (5) of Cr.P.C. and thereafter, she shall be brought before the Chief Medical Officer concerned by the I.O. of the case who shall constitute a panel of three doctors, for her age determination test (ossification test). Both these exercises must conclude on or before 20.11.2023 or within six weeks from today.

¶8It is incumbent upon the petitioners to provide all necessary assistance to the Investigation Officer during investigation, however, the petitioners shall not be arrested during this period.

¶9The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.

¶10In the event, if it is found that she had attained the age of majority and her 164 Cr.P.C. statement favours the petitioner no. 2, then the petitioners shall not be arrested till the submission of report by the police under section 173(2) Cr.P.C. OTHERWISE, the procedure of law would follow against the petitioners and the protection given to the petitioners would automatically stands vacated.

¶11With this observation, the writ petition stands disposed of. Order Date :- 16.10.2023 Abhishek High Court of Judicature at Allahabad