Malti Kumari and Another v. State of U.P. and 3 Others

Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 8877 of 2023 Petitioner :- Malti Kumari And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ravi Pandey Counsel for Respondent :- G.A.,Rakesh Kumar Maurya Hon'ble Vivek Kumar Birla,J. Hon'ble Vinod Diwakar,J.

¶1Heard Sri Ravi Pandey, learned counsel for the petitioners and learned A.G.A. for the State.

¶2None present for the informant.

¶3This writ petition has been filed praying to quash the first information report dated 21.04.2023, registered in Case Crime No. 202 of 2023 under Section 366 IPC, P.S. Iglas, District Aligarh and not arrest the petitioners pursuant to the said FIR.

¶4Learned AGA has already file counter affidavit but no counter affidavit has been filed on behalf of informant.

¶5Submission of learned counsel for the petitioners is that as per FIR, the age of the victim-petitioner no. 1 is 18 years. He further submits that as per statement recorded under Sections 161 and 164 Cr.P.C. of the victim she is 19 years and as per Aadhar Card her date of birth is 25.02.2004 and she is major and she left her house out of her own sweet will and in live in relationship with the petitioner no. 2 and nothing wrong was committed by her. The petition is supported by joint affidavit as such no offence under Section 363 I.P.C. is made out.

¶6Per contra, learned AGA submits that as per school record the victim was studying in class-V, and here the date of birth of is

18.07.2005 and, as such, she was about 3 months short of attaining the age of majority, however learned AGA submits that class-V educational certificate is not authentic proof of age.

¶7At 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.

¶8In view thereof, we direct that the petitioner no.1-Smt. Neha Kumari 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 30.8.2023 or within six weeks from today.

¶9It 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.

¶10The arrest of the petitioners shall be subject to the 164 Cr.P.C. statement of the girl and her age.

¶11In 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.

¶12With this observation, the writ petition stands disposed of. Order Date :- 3.11.2023 Ujjawal High Court of Judicature at Allahabad High Court of Judicature at Allahabad