Nazam and Another v. State of U.P. and 2 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 16647 of 2023 Petitioner :- Nazam And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mashaluddin Shah Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Vinod Diwakar,J.

¶1Heard Shri Mashaluddin Shah, learned counsel for the petitioners, learned counsel for the informant and Shri Surendra Singh, learned A.G.A. for the State and perused the record.

¶2This writ petition has been filed praying to quash the first information report dated 02.10.2023, registered in Case Crime No. 0657 of 2023 under Sections 363, 504, 506 IPC, P.S. Firozabad South, District Firozabad and not arrest the petitioners pursuant to the said FIR.

¶3By drawing attention to paragraph no. 6, it is stated by counsel for the petitioners that petitioner no. 1 is aged about 20 years and her date of birth is 08.05.2003. The High School certificate of petitioner no. 1 is with her parents. The contention of the learned counsel for the petitioners is that both the petitioners are major and married to each other out of their own free will, as such no offence under Section 363 I.P.C. is made out.

¶4Learned A.G.A. is not having instructions disputing the correctness of the aforesaid facts, however, he submits that in the First Information Report, the victim is alleged to be aged about 16 yeas.

¶5At 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 Police) submits that in all such matters Hon'ble Apex Court has directed for age determination test of the girl.

¶6In view thereof, we direct that the petitioner no.1-Nazam 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 20.12.2023 or within six weeks from today.

¶7It 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.

¶8The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.

¶9In 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.

¶10With this observation, the writ petition stands disposed of. Order Date :- 8.11.2023 Shafique High Court of Judicature at Allahabad