Smt. Deeksha Vs State of U.P. and 5 Others

1

Court No. - 42

Case :- HABEAS CORPUS WRIT PETITION No. - 462 of 2019

Petitioner :- Smt. Deeksha Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sudhir Kumar Agarwal,Indra Bhan Yadav,Kabir Yadav Counsel for Respondent :- G.A.,Sanjai Srivastava

¶5

Hon'ble Manoj Misra,J. Hon'ble Mrs. Manju Rani Chauhan,J.

¶6

Heard Sri Sudhir Kumar Agarwal, learned counsel for the petitioner, learned A.G.A. for the respondent nos. 1 to 5; and have perused the record.

¶7

This habeas corpus writ petition has been filed by Amrish Kumar for setting aside the order dated 03.04.2019 passed by the Child Welfare Committee, Saharanpur directing placement of the corpus (Deeksha) at Child Protection Home, Saharanpur. It has also been prayed that a direction be issued upon the respondents to produce the corpus (Deeksha) and to release her after setting aside the order of the Child Welfare Committee.

¶8

A perusal of the record would reveal that the respondent no.6, namely, Sudhir Kumar son of Phool Singh, lodged a first information report at P.S.-Nakur, District-Saharanpur against Sudhir Kumar @ Amrish Kumar son of Amar Kumar and Sunita wife of Amar Kumar. In the first information report, it is alleged that the informant's daughter, namely, Deeksha, aged about 14 years, has been enticed away by the accused persons.

¶9

In connection with the above case, the corpus (Deeksha) was recovered and her statement under Section 164 Cr.P.C. was recorded. In her statement, she has stated that her parents were not treating her properly and, therefore, she had left her house voluntarily and that no force has been used upon her. Thereafter, she was produced before the Child Welfare Committee. The Child Welfare Committee, upon finding her to be aged about 15 years, directed for her placement in a protection home.

¶10

In this habeas corpus petition, the petitioner has claimed that the correct date of birth of the corpus is 5th May, 1999 as reflected in her performance profiles, appended as Annexure no.6 to the writ petition. It is also claimed that as per the medical report also, she is major, therefore her placement in a protection home, against her wishes, is not legally justified.

¶11

On 18.07.2019 after considering the submissions of the learned counsel for the parties and by taking notice of the Matriculation

¶12

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¶13

Certificate of the corpus provided by the Central Board of Secondary Education in the year 2018, which discloses her date of birth as 09.05.2004, the Court directed for production of the relevant school records. The order dated 18.07.2019 passed by this Court is extracted below:-

¶14

"Rejoinder affidavit has been filed today. The same is taken on record.

¶15

This habeas corpus petition has been filed for production of the CorpusDeeksha who, at present, is placed in Child Protection Home, Saharanpur pursuant to order dated 3.4.2019 passed by the Child Welfare Committee, Saharanpur.

¶16

The learned counsel for the petitioner has submitted that the Child Welfare Committee has blindly relied upon the Matriculation Certificate of the corpus, depicting her date of birth as 09.05.2004 without testing whether the said date of birth has been genuinely recorded or not. Because in the school records of Aryan International School, from where she did her matriculation, her date of birth is recorded as 05.05.1999 and, therefore, on the date of the order she was an adult and her wish was required to be considered before placing her in Child Protection Home.

¶17

Attention of the Court has been invited to annexure no. 6 of the petition i.e. photocopy of performance profile of Deeksha provided by Aryan International School disclosing her date of birth as 05.05.1999. The performance profiles annexed are in respect of Session 2016-2017 and Session 2015-2016.

¶18

Sri Snajai Srivastava, learned counsel for the respondent no. 6 has invited attention of the Court to the Matriculation Certificate provided by the Central Board of Secondary Education in the year 2018 which discloses the date of birth of Corpus-Deeksha as 9.5.2004.

¶19

The Matriculation Certificate discloses that the student was enrolled in Aryan International School.

¶20

Under the circumstances, we deem it appropriate to require the learned A.G.A. to get the performance profiles, which has been annexed as annexure no. 6 to the writ petition, verified from the Institution concerned i.e. Aryan International School, so as to ascertain, whether, at any point in time, the date of birth of Deeksha, in the School records of Aryan International School, was entered as 5.5.1999.

¶21

List this matter on 30.7.2019. On which date, the corpus shall be produced before the Court.

¶22

When the matter is listed next, the name of Sri Sanjai Srivastava, Advocate shall be shown from the respondents side.

¶23

On the next date, learned A.G.A. shall produce the verification report, as directed above.

¶24

Let a copy of this order be supplied to learned A.G.A. for compliance."

¶25

Thereafter on 30.07.2019, order was passed requiring the presence of the Principal/Head Master of the institution concerned with relevant records. The order dated 30.07.2019 is extracted below:-

¶26

"Heard counsel for the petitioner; learned A.G.A. for respondents 1 to 5; and Sri Sanjai Srivastava for respondent no.6.

¶27

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¶28

On 18.07.2019, we had passed a detailed order, which is extracted below:-

¶29

"Rejoinder affidavit has been filed today. The same is taken on record.

¶30

This habeas corpus petition has been filed for production of the CorpusDeeksha who, at present, is placed in Child Protection Home, Saharanpur pursuant to order dated 3.4.2019 passed by the Child Welfare Committee, Saharanpur.

¶31

The learned counsel for the petitioner has submitted that the Child Welfare Committee has blindly relied upon the Matriculation Certificate of the corpus, depicting her date of birth as 09.05.2004 without testing whether the said date of birth has been genuinely recorded or not. Because in the school records of Aryan International School, from where she did her matriculation, her date of birth is recorded as 05.05.1999 and, therefore, on the date of the order she was an adult and her wish was required to be considered before placing her in Child Protection Home.

¶32

Attention of the Court has been invited to annexure no. 6 of the petition i.e. photocopy of performance profile of Deeksha provided by Aryan International School disclosing her date of birth as 05.05.1999. The performance profiles annexed are in respect of Session 2016-2017 and Session 2015-2016.

¶33

Sri Snajai Srivastava, learned counsel for the respondent no. 6 has invited attention of the Court to the Matriculation Certificate provided by the Central Board of Secondary Education in the year 2018 which discloses the date of birth of Corpus-Deeksha as 9.5.2004.

¶34

The Matriculation Certificate discloses that the student was enrolled in Aryan International School.

¶35

Under the circumstances, we deem it appropriate to require the learned A.G.A. to get the performance profiles, which has been annexed as annexure no. 6 to the writ petition, verified from the Institution concerned i.e. Aryan International School, so as to ascertain, whether, at any point in time, the date of birth of Deeksha, in the School records of Aryan International School, was entered as 5.5.1999.

¶36

List this matter on 30.7.2019. On which date, the corpus shall be produced before the Court.

¶37

When the matter is listed next, the name of Sri Sanjai Srivastava, Advocate shall be shown from the respondents side.

¶38

On the next date, learned A.G.A. shall produce the verification report, as directed above.

¶39

Let a copy of this order be supplied to learned A.G.A. for compliance."

¶40

Pursuant to the above order, the learned A.G.A. has obtained instructions from the Station House Officer (Incharge), P.S. Nakur, District Saharanpur. According to his instructions, the date of birth of the corpus as per the records maintained with the Central Board of Secondary Education is 09.05.2004. The Scholar Register and Transfer Certificate Form of Aryan International School, which has been obtained from the school concerned, also indicates her date of birth as 09.05.2004.

¶41

However, the scholar register of which extract has been produced is not a photocopy of the register but is hand filled form.

¶42

The petitioner has relied upon the performance profile of the corpus of

¶43

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Class-IX-A and Class VIII-A (sessions 2016-17 and 2015-16 respectively) in which the date of birth of the corpus is reflected as 05th May, 1999 and it appears to be generated through digital record i.e. computer printout.

¶45

The instructions obtained by the learned A.G.A. do not specifically deal with the genuineness/correctness of the performance profiles, which have been annexed as Annexure 6 to the petition, even though the same was required to be done under our order dated 18.07.2019.

¶46

The learned counsel for the petitioner has placed reliance on a recent judgment of the Apex Court rendered in Criminal Appeal No.1081 of 2019 (arising out of S.L.P. (Criminal) No.156 of 2019): Sanjeev Kumar Gupta Vs. State of U.P. and another, dated 25th July, 2019) , wherein the Apex Court has taken a view that under the Juvenile Justice (Care and Protection of Children) Act, 2015, no primacy is accorded to matriculation certificate over any other educational certificate in respect of date of birth recorded therein. The Apex Court has taken the view that the court would have to examine the facts and circumstances of each case before coming to a conclusion as regards the claimant being a juvenile or not.

¶47

As it is settled that the same principles are applicable for determination of the age of a child victim as are applicable to determine the age of juvenile, the ratio of the decision of the Apex Court in the case of Sanjeev Kumar Gupta's case (supra) would also be applicable in these proceedings.

¶48

In view of the above, we deem it appropriate to require the petitioner to implead Aryan International School, Nakur Road, Ambehta, District Saharanpur as respondent no.7. Such impleadment shall be made during the course of the day. Notice shall be issued to the respondent no.7 to be served through CJM, Saharanpur, fixing 22nd August, 2019.

¶49

List on 22nd August, 2019. On the next date, the Principal/Headmaster of the said Institution or any person authorized by him, shall produce the relevant records including scholar register to indicate the date of birth of Deeksha and shall state on affidavit whether her date of birth was ever recorded as 05th May, 1999 in the institution; and whether the performance profiles which have been annexed as Annexure 6 to the petition were issued by the institution through electronic record maintained by the institution.

¶50

In the meantime, the corpus shall be taken back to the Protection Home from where she has been produced and she shall be produced before us on the next date.

¶51

The notice issued to the newly impleaded respondent no.7 shall be accompanied with a copy of this order.

¶52

Let a copy of this order be also supplied to the learned A.G.A. for information."

¶53

On 22.08.2019, a representative from the school concerned had appeared but since there appeared some discrepancies in the register produced by him, a detailed order was passed calling for the presence of the Principal of the institution concerned on 28.08.2019. The order dated 22.08.2019 is extracted below:-

¶54

"On 30th July, 2019, the Court had passed a detailed order which is extracted below:

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¶56

"Heard counsel for the petitioner; learned A.G.A. for respondents 1 to 5; and Sri Sanjai Srivastava for respondent no.6. On 18.07.2019, we had passed a detailed order, which is extracted below:-

¶57

"Rejoinder affidavit has been filed today. The same is taken on record. This habeas corpus petition has been filed for production of the CorpusDeeksha who, at present, is placed in Child Protection Home, Saharanpur pursuant to order dated 3.4.2019 passed by the Child Welfare Committee, Saharanpur.

¶58

The learned counsel for the petitioner has submitted that the Child Welfare Committee has blindly relied upon the Matriculation Certificate of the corpus, depicting her date of birth as 09.05.2004 without testing whether the said date of birth has been genuinely recorded or not. Because in the school records of Aryan International School, from where she did her matriculation, her date of birth is recorded as 05.05.1999 and, therefore, on the date of the order she was an adult and her wish was required to be considered before placing her in Child Protection Home.

¶59

Attention of the Court has been invited to annexure no. 6 of the petition i.e. photocopy of performance profile of Deeksha provided by Aryan International School disclosing her date of birth as 05.05.1999. The performance profiles annexed are in respect of Session 2016-2017 and Session 2015-2016.

¶60

Sri Snajai Srivastava, learned counsel for the respondent no. 6 has invited attention of the Court to the Matriculation Certificate provided by the Central Board of Secondary Education in the year 2018 which discloses the date of birth of Corpus-Deeksha as 9.5.2004.

¶61

The Matriculation Certificate discloses that the student was enrolled in Aryan International School.

¶62

Under the circumstances, we deem it appropriate to require the learned A.G.A. to get the performance profiles, which has been annexed as annexure no. 6 to the writ petition, verified from the Institution concerned i.e. Aryan International School, so as to ascertain, whether, at any point in time, the date of birth of Deeksha, in the School records of Aryan International School, was entered as 5.5.1999.

¶63

List this matter on 30.7.2019. On which date, the corpus shall be produced before the Court.

¶64

When the matter is listed next, the name of Sri Sanjai Srivastava, Advocate shall be shown from the respondents side.

¶65

On the next date, learned A.G.A. shall produce the verification report, as directed above.

¶66

Let a copy of this order be supplied to learned A.G.A. for compliance."

¶67

Pursuant to the above order, the learned A.G.A. has obtained instructions from the Station House Officer (Incharge), P.S. Nakur, District Saharanpur. According to his instructions, the date of birth of the corpus as per the records maintained with the Central Board of Secondary Education is 09.05.2004. The Scholar Register and Transfer Certificate Form of Aryan International School, which has been obtained from the school concerned, also indicates her date of birth as 09.05.2004.

¶68

However, the scholar register of which extract has been produced is not a

¶69

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¶70

photocopy of the register but is hand filled form.

¶71

The petitioner has relied upon the performance profile of the corpus of Class-IX-A and Class VIII-A (sessions 2016-17 and 2015-16 respectively) in which the date of birth of the corpus is reflected as 05th May, 1999 and it appears to be generated through digital record i.e. computer printout.

¶72

The instructions obtained by the learned A.G.A. do not specifically deal with the genuineness/correctness of the performance profiles, which have been annexed as Annexure 6 to the petition, even though the same was required to be done under our order dated 18.07.2019.

¶73

The learned counsel for the petitioner has placed reliance on a recent judgment of the Apex Court rendered in Criminal Appeal No.1081 of 2019 (arising out of S.L.P. (Criminal) No.156 of 2019): Sanjeev Kumar Gupta Vs. State of U.P. and another, dated 25th July, 2019), wherein the Apex Court has taken a view that under the Juvenile Justice (Care and Protection of Children) Act, 2015, no primacy is accorded to matriculation certificate over any other educational certificate in respect of date of birth recorded therein. The Apex Court has taken the view that the court would have to examine the facts and circumstances of each case before coming to a conclusion as regards the claimant being a juvenile or not.

¶74

As it is settled that the same principles are applicable for determination of the age of a child victim as are applicable to determine the age of juvenile, the ratio of the decision of the Apex Court in the case of Sanjeev Kumar Gupta's case (supra) would also be applicable in these proceedings.

¶75

In view of the above, we deem it appropriate to require the petitioner to implead Aryan International School, Nakur Road, Ambehta, District Saharanpur as respondent no.7. Such impleadment shall be made during the course of the day. Notice shall be issued to the respondent no.7 to be served through CJM, Saharanpur, fixing 22nd August, 2019.

¶76

List on 22nd August, 2019. On the next date, the Principal/Headmaster of the said Institution or any person authorized by him, shall produce the relevant records including scholar register to indicate the date of birth of Deeksha and shall state on affidavit whether her date of birth was ever recorded as 05th May, 1999 in the institution; and whether the performance profiles which have been annexed as Annexure 6 to the petition were issued by the institution through electronic record maintained by the institution.

¶77

In the meantime, the corpus shall be taken back to the Protection Home from where she has been produced and she shall be produced before us on the next date.

¶78

The notice issued to the newly impleaded respondent no.7 shall be accompanied with a copy of this order.

¶79

Let a copy of this order be also supplied to the learned A.G.A. for information."

¶80

Pursuant to the above order, the Office has submitted a report that the counsel for the petitioner has failed to implead the respondent no. 7 and has not taken steps to serve the respondent no. 7.

¶81

The learned A.G.A. has informed us that the concerned school/institution was informed about the listing of this matter and a teacher from the institution is present in the Court with all the relevant records.

¶82

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¶83

Sri Ajay who claims himself to be a teacher in Aryan International School, Ambehta has produced before us the scholars register and transfer certificates form of Aryan International School which discloses a strange pattern inasmuch as its page 87 which carries entry of the name and description of the corpus Deeksha, discloses her scholar registration number as 522, whereas its page 88, which contains the description of another student namely, Mayank, shows scholar registration no. 482 and, similarly, page 89 discloses name of another scholar, namely, Mariyam Khan, with scholar registration no. 487. This suggests that the scholars register does not have entries sequentially. Moreover, we find that the witness Ajay has appeared without being served with the summons or notice from this Court.

¶84

Under the circumstances, we deem it appropriate to require the personal presence of the Principal of Aryan International School, Ambehta, District Saharanpur. He shall appear before us on 28th August, 2019 along with all the relevant records relating to admission/registration of the students in the institution as also file an affidavit disclosing whether the performance profile annexed as Annexure-6 to the petition is a genuine or a forged document and whether those performance profiles are generated through digital/electronic record maintained in the institution. The affidavit will also indicate as on what basis the date of birth of the corpus was entered in the scholars register and whether any verification of her date of birth entered in the scholars register was obtained from the previous institution inasmuch as from the record it appears that the corpus has taken admission in the institution in Class 8th. Therefore, whether her date of birth was recorded as 09.05.2004 in her earlier institution assumes important.

¶85

We also deem it appropriate to direct that the corpus (Deeksha) who has been produced before us today, shall be produced before the Chief Medical Officer, Allahabad on Saturday i.e. 24th August, 2019, who shall get her physically examined as also get the necessary radiological/ossification tests conducted and, on the basis of such examination/tests, shall estimate the lower and the upper age limits of the corpus. The said report shall be submitted in a sealed cover by the next date.

¶86

Till the necessary tests are conducted, the corpus shall be retained at Nari Niketan, Khuldabad, Prayagraj and after her tests are conducted, she shall be produced before the Court on the next date fixed.

¶87

List on 28th August, 2019.

¶88

Let a copy of this order will be supplied to the learned A.G.A. for compliance.

¶89

In the meantime, it is provided that the learned counsel for the petitioner shall carry out the necessary impleadment during the course of the day and he shall also take steps to serve the respondent no. 7, though it is expected that Ajay, the representative of the respondent no. 7 shall inform the Principal/Headmaster of the Institution about the next date fixed."

¶90

Thereafter, on 28.08.2019, the Principal of the institution concerned, namely, Gaurav Sharma, had appeared before the Court and had produced the relevant documents, which indicated that the recorded date of birth of the corpus was 9th May, 2004. However, as we had already called for the report from the Chief Medical Officer,

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Prayagraj, by our order dated 28.08.2019, we fixed a date for its production. The order dated 28.08.2019 is extracted below:-

¶93

"On 22nd August, 2019, this Court passed the following order:

¶94

"On 30th July, 2019, the Court had passed a detailed order which is extracted below:

¶95

"Heard counsel for the petitioner; learned A.G.A. for respondents 1 to 5; and Sri Sanjai Srivastava for respondent no.6.

¶96

On 18.07.2019, we had passed a detailed order, which is extracted below:-

¶97

"Rejoinder affidavit has been filed today. The same is taken on record. This habeas corpus petition has been filed for production of the CorpusDeeksha who, at present, is placed in Child Protection Home, Saharanpur pursuant to order dated 3.4.2019 passed by the Child Welfare Committee, Saharanpur.

¶98

The learned counsel for the petitioner has submitted that the Child Welfare Committee has blindly relied upon the Matriculation Certificate of the corpus, depicting her date of birth as 09.05.2004 without testing whether the said date of birth has been genuinely recorded or not. Because in the school records of Aryan International School, from where she did her matriculation, her date of birth is recorded as 05.05.1999 and, therefore, on the date of the order she was an adult and her wish was required to be considered before placing her in Child Protection Home.

¶99

Attention of the Court has been invited to annexure no. 6 of the petition i.e. photocopy of performance profile of Deeksha provided by Aryan International School disclosing her date of birth as 05.05.1999. The performance profiles annexed are in respect of Session 2016-2017 and Session 2015-2016.

¶100

Sri Snajai Srivastava, learned counsel for the respondent no. 6 has invited attention of the Court to the Matriculation Certificate provided by the Central Board of Secondary Education in the year 2018 which discloses the date of birth of Corpus-Deeksha as 9.5.2004.

¶101

The Matriculation Certificate discloses that the student was enrolled in Aryan International School.

¶102

Under the circumstances, we deem it appropriate to require the learned A.G.A. to get the performance profiles, which has been annexed as annexure no. 6 to the writ petition, verified from the Institution concerned i.e. Aryan International School, so as to ascertain, whether, at any point in time, the date of birth of Deeksha, in the School records of Aryan International School, was entered as 5.5.1999.

¶103

List this matter on 30.7.2019. On which date, the corpus shall be produced before the Court.

¶104

When the matter is listed next, the name of Sri Sanjai Srivastava, Advocate shall be shown from the respondents side.

¶105

On the next date, learned A.G.A. shall produce the verification report, as directed above.

¶106

Let a copy of this order be supplied to learned A.G.A. for compliance."

¶107

Pursuant to the above order, the learned A.G.A. has obtained instructions from the Station House Officer (Incharge), P.S. Nakur, District

¶108

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Saharanpur. According to his instructions, the date of birth of the corpus as per the records maintained with the Central Board of Secondary Education is 09.05.2004. The Scholar Register and Transfer Certificate Form of Aryan International School, which has been obtained from the school concerned, also indicates her date of birth as 09.05.2004.

¶110

However, the scholar register of which extract has been produced is not a photocopy of the register but is hand filled form.

¶111

The petitioner has relied upon the performance profile of the corpus of Class-IX-A and Class VIII-A (sessions 2016-17 and 2015-16 respectively) in which the date of birth of the corpus is reflected as 05th May, 1999 and it appears to be generated through digital record i.e. computer printout.

¶112

The instructions obtained by the learned A.G.A. do not specifically deal with the genuineness/correctness of the performance profiles, which have been annexed as Annexure 6 to the petition, even though the same was required to be done under our order dated 18.07.2019.

¶113

The learned counsel for the petitioner has placed reliance on a recent judgment of the Apex Court rendered in Criminal Appeal No.1081 of 2019 (arising out of S.L.P. (Criminal) No.156 of 2019): Sanjeev Kumar Gupta Vs. State of U.P. and another, dated 25th July, 2019), wherein the Apex Court has taken a view that under the Juvenile Justice (Care and Protection of Children) Act, 2015, no primacy is accorded to matriculation certificate over any other educational certificate in respect of date of birth recorded therein. The Apex Court has taken the view that the court would have to examine the facts and circumstances of each case before coming to a conclusion as regards the claimant being a juvenile or not.

¶114

As it is settled that the same principles are applicable for determination of the age of a child victim as are applicable to determine the age of juvenile, the ratio of the decision of the Apex Court in the case of Sanjeev Kumar Gupta's case (supra) would also be applicable in these proceedings.

¶115

In view of the above, we deem it appropriate to require the petitioner to implead Aryan International School, Nakur Road, Ambehta, District Saharanpur as respondent no.7. Such impleadment shall be made during the course of the day. Notice shall be issued to the respondent no.7 to be served through CJM, Saharanpur, fixing 22nd August, 2019.

¶116

List on 22nd August, 2019. On the next date, the Principal/Headmaster of the said Institution or any person authorized by him, shall produce the relevant records including scholar register to indicate the date of birth of Deeksha and shall state on affidavit whether her date of birth was ever recorded as 05th May, 1999 in the institution; and whether the performance profiles which have been annexed as Annexure 6 to the petition were issued by the institution through electronic record maintained by the institution.

¶117

In the meantime, the corpus shall be taken back to the Protection Home from where she has been produced and she shall be produced before us on the next date.

¶118

The notice issued to the newly impleaded respondent no.7 shall be accompanied with a copy of this order.

¶119

Let a copy of this order be also supplied to the learned A.G.A. for information."

¶120

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¶121

Pursuant to the above order, the Office has submitted a report that the counsel for the petitioner has failed to implead the respondent no. 7 and has not taken steps to serve the respondent no. 7.

¶122

The learned A.G.A. has informed us that the concerned school/institution was informed about the listing of this matter and a teacher from the institution is present in the Court with all the relevant records.

¶123

Sri Ajay who claims himself to be a teacher in Aryan International School, Ambehta has produced before us the scholars register and transfer certificates form of Aryan International School which discloses a strange pattern inasmuch as its page 87 which carries entry of the name and description of the corpus Deeksha, discloses her scholar registration number as 522, whereas its page 88, which contains the description of another student namely, Mayank, shows scholar registration no. 482 and, similarly, page 89 discloses name of another scholar, namely, Mariyam Khan, with scholar registration no. 487. This suggests that the scholars register does not have entries sequentially. Moreover, we find that the witness Ajay has appeared without being served with the summons or notice from this Court.

¶124

Under the circumstances, we deem it appropriate to require the personal presence of the Principal of Aryan International School, Ambehta, District Saharanpur. He shall appear before us on 28th August, 2019 along with all the relevant records relating to admission/registration of the students in the institution as also file an affidavit disclosing whether the performance profile annexed as Annexure-6 to the petition is a genuine or a forged document and whether those performance profiles are generated through digital/electronic record maintained in the institution. The affidavit will also indicate as on what basis the date of birth of the corpus was entered in the scholars register and whether any verification of her date of birth entered in the scholars register was obtained from the previous institution inasmuch as from the record it appears that the corpus has taken admission in the institution in Class 8th. Therefore, whether her date of birth was recorded as 09.05.2004 in her earlier institution assumes important.

¶125

We also deem it appropriate to direct that the corpus (Deeksha) who has been produced before us today, shall be produced before the Chief Medical Officer, Allahabad on Saturday i.e. 24th August, 2019, who shall get her physically examined as also get the necessary radiological/ossification tests conducted and, on the basis of such examination/tests, shall estimate the lower and the upper age limits of the corpus. The said report shall be submitted in a sealed cover by the next date.

¶126

Till the necessary tests are conducted, the corpus shall be retained at Nari Niketan, Khuldabad, Prayagraj and after her tests are conducted, she shall be produced before the Court on the next date fixed.

¶127

List on 28th August, 2019.

¶128

Let a copy of this order will be supplied to the learned A.G.A. for compliance.

¶129

In the meantime, it is provided that the learned counsel for the petitioner shall carry out the necessary impleadment during the course of the day and he shall also take steps to serve the respondent no. 7, though it is expected that Ajay, the representative of the respondent no. 7 shall inform

¶130

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the Principal/Headmaster of the Institution about the next date fixed." Pursuant to the above order, the Principal of Aryan International School, Saharanpur, namely, Gaurav Sharma has appeared before us along with the relevant registers and documents.

¶132

Gaurav Sharma has stated that the scholar register and transfer certificate form entries are copied from the admission records by the clerk concerned. It appears that while making entries in the scholar register and transfer certificate form, serial-wise entries were not made by the clerk concerned and therefore the register is not serially placed as has been noticed by this court while passing the order dated 22nd August, 2109. He has produced before us the original application submitted by Deeksha's parents in which photograph of Deeksha as well as photographs of her father and mother are affixed. The application form indicates that the date of birth of Deeksha is recorded as 9th May, 2004. The serial number mentioned is 522/15-16 and admission date is 17th April, 2015.

¶133

Deeksha has also been produced before us. She has admitted that the admission application bears her photograph as well as photographs of her parents and that it carries signature of her father. She, however, claims that the date of birth entered therein as 9th May, 2004 is not correct.

¶134

Gaurav Sharma, the Principal of Aryan International School, has stated before us that the performance profile of Deeksha which has been brought on record at pages 39, 40, 41 and 42 of the paper book are not issued by the institution and the entries made therein do not tally with the digital record of the institution. He has produced before us the performance profile of Deeksha for class VIII-A (Session 2015-16) and class IX-A (Session 2016-17), which indicate that her date of birth is 9th May, 2004, which tallies with date of birth entered in her admission form. He has also produced before us report card issued to Deeksha by Indian Public School, Nakur (Saharanpur) for class VII which indicates her date of birth as 9th May, 2004. He stated that it was on the basis of these documents that the date of birth 9th May, 2004 was entered in the scholar register as well as in the admission form.

¶135

Learned counsel for the petitioner has called upon Deeksha to explain the performance profile which has been annexed at pages 39 to 42 of the paper book.

¶136

Deeksha has stated before us that these are performance profiles issued to her and they are not forged documents. She has also stated that the performance profile carries signature of her teacher, namely, Ajay. She states that it carries signature of the Principal of the institution.

¶137

Gaurav Sharma, in response to the above statement made by Deeksha, has submitted that Ajay is not a class teacher but is a dance teacher and the signatures of the Principal which are put on the performance profile do not tally with any Principal who had held charge in the institution.

¶138

As there appears to be a serious dispute as regards the correctness of the entries made in the performance profile of Aryan International School on which reliance has been placed by the petitioner, keeping in mind that in the C.B.S.E. examination the corpus has appeared with date of birth shown as 9th May, 2004, we are, prima facie, of the opinion that the date of birth of the corpus 9th May, 2004 cannot be doubted or discarded.

¶139

12

¶140

However, as we have directed for ossification test of the corpus and the Chief Medical Officer, Prayagraj has submitted a letter through learned AGA that though the corpus was produced for radiological/X-ray tests in the concerned department of Moti Lal Nehru Medical Hospital, Prayagraj but the report has not been made available till date, we deem it appropriate to direct that the matter shall be listed day after tomorrow.

¶141

Put up this matter day after tomorrow i.e. 30th August, 2019. In the meantime, the Chief Medical Officer, Prayagraj shall obtain necessary reports from the concerned hospital regarding radiological/ossification tests of the corpus and shall prepare and submit the report accordingly.

¶142

The personal presence of Gaurav Sharma, Principal of Aryan International School, Saharanpur is dispensed with.

¶143

The corpus (Deeksha) shall be kept at Nari Niketan, Khuldabad, Prayagraj till the next date and shall be produced before the court day after tomorrow.

¶144

Let a copy of this order be supplied to the learned AGA for compliance."

¶145

On 30th August, 2019, the Chief Medical Officer, Prayagraj had submitted a report that from appearance, the corpus (Deeksha) appears to be aged about 19 years. As, this report was not accompanied by the X-Ray plates, on 30th August, 2019 following order was passed:-

¶146

"Pursuant to our orders dated 22nd August, 2019 and 28th August, 2019, respectively, the Chief Medical Officer, Prayagraj has submitted report that from appearance the corpus (Deeksha) appears to be aged 19 years.

¶147

The department of Radiology, M.L.N. Divisional Hospital, Prayagraj has submitted a report which indicates that X-ray of right wrist and elbow discloses all epiphysis fused; whereas X-ray of clavicle (M/E) discloses medial end epiphysis not fused. The radiological report does not indicate whether clavicle medial end epiphysis have appeared or not as also whether fusion process has started. The X-ray plates have also not been produced.

¶148

Put up this matter on Monday i.e. 2nd September, 2019. The X-ray plates shall be produced before the court on the date fixed. A supplementary report shall also be submitted whether Clavicle Medial End epiphysis have appeared or not.

¶149

Till then the corpus (Deeksha) shall be kept at Nari Niketan, Khuldabad, Prayagraj and shall be produced before the Court on Monday i.e. 2nd September, 2019.

¶150

Let a copy of this order be supplied to the learned AGA for compliance."

¶151

Pursuant to the order dated 30th August, 2019, the learned A.G.A. has produced the supplementary report as well as X-Ray plates, which are taken on record. The supplementary report indicates that medial end epiphyses of clavicle have appeared but are not fused. From the X-Ray plates produced before us, it does not appear that there is complete fusion of the epiphyses of the wrist joint as reported earlier.

¶152

In Modi's Medical Jurisprudence and Toxicology (24th Edition) in Chapter 10 at page 238 Ossification of bones have been dealt with.

¶153

13

¶154

At page 240, table showing the age of appearance and fusion of the epiphyses of some of the bones / joints, as observed by different authors, is there. From the table, it appears that clavicle of stemal end epiphyses may show their appearance in female between 14 to 16 years and the fusion may occur on or about the age of 20 years. The fusion of distal end of radius bone may take place around the age of 16-17 years.

¶155

Under the circumstances, keeping in mind the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and their applicability for determining the age of child victim (vide Apex Court's decisions in Jarnail Singh vs State Of Haryana, (2013) 7 SCC 263; State of M.P. v. Anoop Singh (2015) 7 SCC 773; and Mahadeo v. State of Maharashtra (2013) 14 SCC 673) , the medical report regarding the age of the corpus cannot be utilized to override the recorded date of birth of the corpus in her Matriculation Certificate which discloses her to be born on 09.05.2004. More so, when it is not in dispute that the corpus has studied in the institution concerned. Though the corpus has tried to set up another date of birth i.e. 05th May, 1999, by annexing certain performance profiles, but the genuineness of those performance profiles have been challenged and the Principal of the institution concerned had appeared before us and had produced documents to demonstrate that the date of birth of the corpus was recorded as 09th May, 2004 on the basis of the earlier school certificate. Other than that, no authentic certificate / document has been produced before us which may cast a doubt on the recorded date of birth.

¶156

That apart, the corpus has also appeared before us on numerous dates and from her physical appearance, on prima facie assessment, we are not convinced to record a finding that she is major or above the age of majority.

¶157

Under the circumstances, we have no option but to accept the date of birth of the corpus recorded in her educational record.

¶158

As the corpus has repeatedly refused to go with her parents, and a first information report has already been registered, in which the person, who is seeking for her custody, is one of the accused, we are satisfied that her placement in a protection home is legally justified to obviate any further offence against her.

¶159

In Independent Thought v. Union of India, (2017) 10 SCC 800 , the apex court after taking a conspectus of the provisions contained in the Constitution of India, the Indian Penal Code, the Prevention of Children from Sexual Offences Act, 2012 (Pocso Act) and the J. J. Act, 2015, held as follows:

¶160

“107. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is -- this does not seem a viable

¶161

14

¶162

option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus.”

¶163

The next friend of the corpus who has been pursuing this petition is none other than the alleged husband of the corpus who is accused of enticing her away. If the corpus is released, the possibility of her coming in contact with the accused cannot be ruled out. Her sexual exploitation at his instance cannot be ruled out. When we see the matter in the light of the decision of the apex court in Independent Thought's case (supra), she may become victim of crime at the instance of her own alleged husband. Under the circumstances, setting her free and at the mercy of her alleged husband would not be justified.

¶164

In view of the discussion made above, this habeas corpus petition is dismissed. The corpus shall be taken back to Child Protection Home, Pushpanjali Vihar, Saharanpur from where she has been produced. However, dismissal of this petition shall be without prejudice to the right of corpus' parents to seek for her custody as per law. If any such custody application is filed, the same shall be dealt with in accordance with law without being prejudiced by any observation made in this order. It is also clarified that the corpus shall not be kept in a protection home against her wishes once she attains the age of majority.

¶165

(Manju Rani Chauhan, J.) (Manoj Misra, J.) Order Date :- 2.9.2019 JK Yadav

Smt. Deeksha v. State of U.P. and 5 Others

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Smt. Deeksha v. State of U.P. and 5 Others

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