Point of Law: Offence of Rape – Determination of Age - As per statutory mandate of S. 94(2) of J.J. Act, primacy is to be accorded to date of birth certificate from school or matriculation or equivalent certificate from concerned Examination Board and only in absence thereof birth certificate of a corporation or municipal authority or a panchayat can be looked into.

JUDGMENT :

1. Heard learned counsel for the petitioners, Sri. Anjeet Singh through video conferencing, learned A.G.A. for the State and perused the record.

2. This writ petition has been filed seeking the following reliefs:-

“(i) Issue a writ, order or direction in the nature of habeas corpus commanding and directing the respondents/Superintendent of Government Women's Asylum Khuldabad, District-Prayagraj to produce the detenue-Vandana @ Bandana Saini before this Hon'ble Court and to set free of detenue on her own sweet will and wishes.

(ii) Issue a writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iii) Award the cost of the writ petition in favour of the petitioners.”

3. This writ petition has been filed on behalf of petitioner no. 1, Vandana @ Bandana Saini (detenue) through her husband, Vivek @ Vivek Kumar, petitioner no. 2 against whom F.I.R. was lodged on 24.05.2019 which was registered as Case Crime No. 131 of 2019, under Sections 363, 366, 120B I.P.C. and Section 7/8 of P.O.C.S.O. Act, 2012, Police Station Malwan, District-Fatehpur. As per the statement of the detenue recorded on 23.12.2020 under Section 164 Cr.P.C. in which she had stated her age to be 17 years. As per F.I.R. version the age of the detenue is 16 years and 2 months. The detenue was sent in the custody of Superintendent of Government Women's Asylum Khuldabad, District-Prayagraj by order dated 25.12.2020 passed by Judge, Child Welfare Committee, Fatehpur. As per school leaving certificate of the detenue, her date of birth is 02.04.2004. Thus, she is minor.

4. Learned counsel for the petitioners submits that in medical report, the age of the victim/detenue has been opined about 19 years. As per the medical report, at the time of alleged incident, the victim/detenue was major. The victim/detenue has solemnized her marriage with Vivek @ Vivek Kumar on 17.5.2019 in a Temple at Gujarat. The victim/detenue in her statement recorded under Section 164 Cr.P.C. has not made any allegation against the petitioner no. 2, Vivek @ Vivek Kumar. It has further been submitted that in school leaving certificate, her date of birth has wrongly been shown as 02.04.2004 but the real fact is that at the time of the alleged incident, the victim/detenue was major.

5. Learned A.G.A. submits that the victim/detenue is a child below the age of 18 years as in her school leaving certificate of Class 8th, the date of birth of victim/detenue has been shown as 02.04.2004, copy of the same has been filed as Annexure-4 to the writ petition. In her own statement recorded under Section 164 Cr.P.C. the detenue has stated her age to be 17 years. Thus, she is minor. Therefore, there is no illegality in the order dated 25.12.2020 to keep the detenue in Government Women's Asylum Khuldabad, District-Prayagraj as she has refused to go with her parents. The order passed by the CWC is a judicial order, which has not been challenged in the present writ petition and even against the said order remedy of appeal lies under Section 101 of Juvenile Justice (Care and Protection of Children) Act, 2015.

6. We have carefully considered the submissions of the learned counsel for the parties and perused the record of the writ petition.

7. Section 94(2) of the Juvenile Justice (Care and Protection), 2015 (hereinafter referred to as “the J.J. Act”) provides for presumption and determination of age, as under:

“(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available and in the absence thereof.

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat.

(iii) and only in the absence of