Smt. Mamta and Another v. State of U.P. and 4 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 17564 of 2023 Petitioner :- Smt. Mamta And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Harish Kumar Tripathi Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Vinod Diwakar,J.

¶1Heard Shri Harendra Prakash Dwivedi, Advocate holding brief of Shri Harish Kumar Tripathi, learned counsel for the petitioners and Shri Ratan 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 09.07.2022, registered in Case Crime No. 111 of 2022 under Section 363 IPC, P.S. Harpur Budhat, District Gorakhpur and not arrest the petitioners pursuant to the said FIR.

¶3Submission of learned counsel for the petitioners is that petitioner no. 1-Smt. Mamta is major and both the petitioners have married. Attention was drawn to statement of petitioner no. 1 recorded in the Court of Sessions Judge, Ludhiyana, Punjab on

26.09.2023, annexed at page no. 45 of the petition to submit that she had categorically stated that her date of birth is 01.01.2005 and has married the petitioner no. 2 and they were granted protection vide order dated 26.09.2023. It is also pointed out that now they have a child out of their wedlock.

¶4Per contra, learned AGA submits that Aadhar Card is not an authentic proof of age.

¶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-Smt. Mamta 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 02.01.2024 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 :- 29.11.2023 Shafique High Court of Judicature at Allahabad