Disposed

Anshu @ Anshu Kushwaha and Another v. State of U.P. and 3 Others

Allahabad HC8 Apr 2019CRLP/8843/2019

Case brief

AI extract

What is this about?

This Court rejected the plea to quash an FIR alleging enticement of a minor. The Court directed the accused produce the victim before the Chief Judicial Magistrate within four weeks. Pending this, no coercive action is against the petitioner. The Magistrate is directed to determine the victim's age through medical examination and record her statement to decide the fate of the case.

What did the court decide?

Petition disposed with directions for production of victim before Chief Judicial Magistrate within four weeks to ascertain age and record statement.

Anshu @ Anshu Kushwaha and Another Vs State… — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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Court No. - 33

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Case :- CRIMINAL MISC. WRIT PETITION No. - 8843 of 2019

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Petitioner :- Anshu @ Anshu Kushwaha And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabal Kumar Dixit Counsel for Respondent :- G.A.

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Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J .

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Heard learned counsel for the petitioners; learned A.G.A. for the respondents 1, 2 and 3; and perused the record.

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The instant petition seeks quashing of the first information report dated 10.06.2018 registered as Case Crime No.276 of 2018, under Sections 363, 366, 120-B IPC and 7/8 of the Protection of Children from Sexual Offences Act, 2012, P.S. Kotwali Tirwa, District Kannauj.

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The allegation in the first information report is that the minor daughter of the informant, namely, Shivani @ Kajal, has been enticed away by the accused-Anshu @ Anshu Kushwaha and others.

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The petitioners have approached this Court by claiming that Shivani @ Kajal is an adult and that she has voluntarily entered into relationship with the petitioner no.1 (accused). Reliance has been placed on Adhaar Card of Shivani @ Kajal, which depicts date of birth of Shivani @ Kajal as 10.6.2000.

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Learned A.G.A. has submitted that entry of date of birth in an Adhaar Card is not conclusive as the agencies do not insist for age proof. It has thus been submitted that much reliance should not be placed on the date of birth shown in the Adhaar Card, particularly, when there is allegation in the first information report that the informant's daughter is minor.

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Having perused the record. We do not find any other documentary evidence on the basis of which we could hold the victim to be an adult. As it is not provided by law that the date of birth entered in an Adhaar Card would be conclusive, and we find no document on the basis of which such entry had been made, we deem it appropriate to dispose off this petition by providing as follows:-

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The petitioner no.1 shall produce the petitioner no.2 Shivani @ Kajal before the court of Chief Judicial Magistrate, Kannauj by or before 22nd April , 2019. Upon her production, the Chief Judicial Magistrate, Kannauj shall proceed to record the statement of Shivani @ Kajal to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.1. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner no.1 or any other person and that no force has been used on her, learned Magistrate shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural

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guardian of the victim for the purpose of determining the age of the victim. On the date so fixed or within such reasonable period as may be required, the learned Magistrate shall proceed to determine the age of the victim as per law, keeping in mind the provisions that are applicable for determination of the age of a victim and may, if necessary, direct for ossification test/medical examination of the victim from a District Government Hospital. If the victim is found to be a minor, the learned Magistrate shall proceed to pass appropriate orders in respect of custody of the victim, as per law. However, in case the victim is found to be an adult, he shall proceed to record the statement of the victim under Section 164 Cr.P.C.

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On the basis of the statement of the victim and the age of the victim as determined above, the police shall submit report under Section 173 (2) Cr.P.C.

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The aforesaid exercise shall be completed preferably within a period of four weeks from the date of production of the victim before the Chief Judicial Magistrate concerned. Till 22nd April, 2019, or the date on which the victim is produced before the Chief Judicial Magistrate, whichever is earlier, no coercive action shall be taken against the petitioners in the above case. Thereafter, if the victim is produced before the Chief Judicial Magistrate, as directed above, the accused shall be dealt with as per the statement of the victim. Though, in the event the victim is found to be minor, the police would be free to take the investigation to its logical conclusion and may effect arrest of the accused.

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It is made clear that if the victim is not produced on the date fixed as above, the interim protection shall stand discharged and the Investigating Officer would be free to take steps to bring the investigation to its logical conclusion including arrest of the accused, if required.

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With the aforesaid observations/directions, the petition is disposed off.

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O rder Date :- 8.4.2019 A. Pt. Singh

Anshu @ Anshu Kushwaha and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Anshu @ Anshu Kushwaha and Another v. State of U.P. and 3 Others

Case brief

What is this about?

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