Disposed

Khushi Alias Khushnam and Another v. State of U.P. and 2 Others

Allahabad HC16 Apr 2019CRLP/9956/2019

Case brief

AI extract

What is this about?

High Court Court No. 33 disposed of a writ petition seeking quashing of an FIR under IPC and POCSO, directing the petitioner to produce the minor victim before the CJM for age determination and statement recording within four weeks, suspending coercive action pending the outcome.

What did the court decide?

Petition disposed. Petitioner to produce victim before CJM by April 29, 2019. Coercive action stayed till then if produced.

Khushi Alias Khushnam 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. - 9956 of 2019

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Petitioner :- Khushi Alias Khushnam And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vivek Sharma Counsel for Respondent :- G.A.,Ravi Prakash Singh

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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 and 2; and perused the record.

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The instant petition seeks quashing of the First Information Report dated 4.04.2019 registered as Case Crime No.0117 of 2019, under Sections 363 I.P.C., and Section 7/8 Pocso Act, P.S. Adampur, District Amroha (J.P. Nagar).

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The allegation in the First Information Report, which has been lodged by the father of the victim Smt. Khushi alias Khushnam (the petitioner no.1) is to the effect that his daughter, who is aged about 16 years, has been enticed away by the accused persons.

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The petitioners have prayed for quashing of the First Information Report by claiming that the victim Smt. Khushi alias Khushnam is adult and that she has voluntarily married Somesh Kumar (petitioner no.2). However, there is no satisfactory documentary evidence on record to show that the victim is an adult though reliance has been placed on Adhaar Card of the victim, which discloses her date of birth as 1.1.2001.

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The learned A.G.A. has submitted that the date of birth entered in an Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed off by requiring the investigating agency to determine the age of the victim and record the statement of the victim and, thereafter, take appropriate action as per law.

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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.2 shall produce the petitioner no.1 (Smt. Khushi alias Khushnam) before the court of Chief Judicial Magistrate, Amroha (J.P. Nagar) by or before 29th April, 2019. Upon her production, the Chief Judicial Magistrate, Amroha (J.P. Nagar) shall proceed to record the statement of Smt. Khushi alias Khushnam to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner no.2. 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

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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.2 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 guardian of the victim for the purpose of determining the age of the victim. On the date so fixed or within such reasonable time as may be possible, 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 29th 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 further clarified that if the victim is not produced by the date fixed as above, there shall be no protection and the investigation agency shall be free to take all steps that may be necessary to bring the investigation to its logical conclusion.

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With the aforesaid observations/directions, the petition is disposed off. Order Date :- 16.4.2019 Manish Tripathi

Khushi Alias Khushnam and Another v. State of U.P. and 2 Others

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Khushi Alias Khushnam and Another v. State of U.P. and 2 Others

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