Quashed

Hanuman Panchal and Anr. v. State of Raj and Anr.

Rajasthan HC17 May 2018CRLMP/2049/2018

Case brief

AI extract

What is this about?

Quashing of FIR under Section 363 IPC in matrimonial dispute. High Court held female petitioner is a major based on ossification test margins and school certificates. Relying on Supreme Court precedent, proceedings quashed and respondent freed.

What did the court decide?

FIR No. 33/2018 under Section 363 IPC quashed; respondent in Nari Niketan set free; direction to SP for vigilance.

Hanuman Panchal and Anr. Vs State of Raj… — Child Custody and Guardianship | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 2049/2018

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Hanuman Panchal S/o Shri Kailash Panchal, R/o Shiv Nagar Capren, Bundi, Raj.

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Mahima Rajawat W/o Shri Hanuman Panchal, D/o Shri Mukund Singh Rajawat, R/o Shiv Nagar Capren, Bundi, Raj.

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----Petitioners

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Versus

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State Of Rajasthan Through Pp.

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Mukund Singh S/o Shri Bhanwar Singh, R/o Ward No.20 Capren, Old Sabjimandi, Bundi, Raj.

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----Respondents

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For Petitioner(s) : Mr. DK Bhardwaj with Mr. Kailash Sharma For Respondent(s) : Ms. Meenakshi Pareek PP

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HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Order

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17/05/2018

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The present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No. 33/2018 registered at Police Station Kapren, Bundi for the offence under Section 363 IPC.

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It is not disputed that the petitioner no.2 Mahima Rajawat according to her own free will left the house of her parents and has performed marriage with the petitioner no.1. However, the age of the petitioner no.2 is in dispute before this Court.

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The learned counsel for the petitioner has produced photocopy of the Certificate of Secondary Examination, 2016 issued by Board of Secondary Education, Rajasthan. In the said

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(2 of 5)

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[CRLMP-2049/2018]

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Certificate, the date of birth of the petitioner is recorded as 19.9.1999. The learned counsel for the petitioner has also produced photocopy of the marksheet of VIII^th Class issued by Sanjay Bal Vidhya Niketan, Kapren, Bundi. In the said certificate, the date of birth of the petitioner no.2 is recorded as 19.9.1999. The learned counsel for the petitioner has placed on record true attested copies of the aforesaid documents on record.

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Sub Inspector Mr. Vasudev has submitted that the date of birth of petitioner no.2 in the examination form is recorded as 19.9.2000 and hence, it is contended that on the day when petitioner no.2 left the house of her parents, she was aged 17 years and 8 months.

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The investigating officer has further submitted that ossification test of petitioner no.2 was carried and Board of Doctors have determined the age of petitioner no.2 as more than 17 years but less than 18 years.

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Rule 12.3 of Juvenile Justice (Care and Protection of Children) Rules, 2007 specifically states that margin of one year on either side is to be granted for determination of age on the basis of ossification test. Thus, if the margin of one year is granted, petitioner no.2 is more than 18 years of age. Her Secondary Examination which is equivalent to Xth Class, specify her date of birth as 19.9.1999 and hence, on the date when petitioner no.2 left the house of her parents, she was more than 18 years of age.

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Examination form is not admissible in evidence. However, it is submitted that Board of Secondary Education Rajasthan even on request has not issued the copy of certificate and mark-sheet depicting the age of petitioner no.2.

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(3 of 5)

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[CRLMP-2049/2018]

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Be that as it may, by granting one year margin to the report of ossification test, whereby age of prosecutrix has been determined as more than 17 years but less than 18 years, this Court shall hold that the petitioner no.2 is more than 18 years of age.

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Supreme Court presently in Civil Appeal No. 4532/2018, Suhani & Anr. vs. State of U.P. & Ors. , decided on 26.4.2018, has passed the following order:-

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“Leave granted.

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The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3.

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It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no. 2.

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On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nari Niketan, Allahabad.

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When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India

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(4 of 5)

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[CRLMP-2049/2018]

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Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh.

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We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-

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“Radiological Examination

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X-Rays advised for age estimation:X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine -Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department. Report of Radiological ExaminationAll epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years. Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years. Medial end of clavicle not fused, suggestive of age 22-27 years. S1 of sacrum not fused with S2, suggestive of age 1724 years. Imp.:-Estimated Bone age is between 19-24 years. FINAL REPORT/OPINION : Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years.”

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In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.

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In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.

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The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of.”

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Relying upon the judgment given by the Supreme Court in Suhani’s case (supra), the impugned FIR No. 33/2018

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(5 of 5)

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[CRLMP-2049/2018]

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registered at Police Station Kapren, Bundi for the offence under Section 363 IPC is quashed.

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The petitioner no.2 who is at moment confined in Nari Niketan is set free.

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Superintendent of Police, Bundi is directed to ensure necessary vigil that no harm is caused to the newly married couple.

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(KANWALJIT SINGH AHLUWALIA),J

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Mak/-

Hanuman Panchal and Anr. v. State of Raj and Anr.

Case brief

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Hanuman Panchal and Anr. v. State of Raj and Anr.

Case brief

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