Back
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIKAS KUNVAR SRIVASTAV, J.
Km. Hashmi Thru. Her Father Natural Guardian Usman - Petitioner
Versus
State Of U.P. & Ors. - Respondent
Habeas Corpus No. 23362 of 2020
Decided on : 09-11-2021
Criminal Procedure Code, 1973 - Sections 161 and 164 - Indian Penal Code, 1860 - Sections 363 and 366 - Constitution of India, 1950 - Article 226 - Indian Evidence Act, 1872 - Offence of Kidnapping, abducting or inducing woman to compel her marriage, etc.- Habeas Corpus - Detention - Court may presume existence of certain facts - Determination of Age - Informant-complainant in said FIR stated that Stating therein, his 16 years’ old daughter left home for going to her maternal uncle's home at Village, P.S. but she did not reach there and he came to know from whispers amongst native villagers that one opposite party no.3, resident of same village enticed and taken away his minor daughter and kept detained her in some lonely place, which is not known to petitioner and his family members - Complainant/petitioner has further stated in the said F.I.R. that opposite party no.3 and his family members are not permitted him to meet the alleged detenue.
Finding of the court:
There is a strong presumption of correctness of the document bearing the entry of the date of birth of the alleged detenue, issued by school first attended namely “Primary School Sarawan” having been prepared in common course of business to be followed by a school - Thrust of issuing a writ of habeas corpus is also upon an unfounded apprehension in garb of an implied threat of communal tension in village as alleged detenue and opposite party no.3 belong to different religions namely Muslim and Hindu respectively. Alleged detenue being an adult herself desired to go with Opposite party no.3 to whom she wanted to marry - In view of above facts, where pleadings made in writ petition nowhere state about private opposite party no.3 being in collusion with police authorities or any public officer with regard to any act or omission, therefore, opposite party no.3 being a private individual does not fall within ambit of word "STATE" - Writ of mandamus in all circumstances cannot be issued against opposite party no.2 for release of alleged detenue - Petition suffers from concealment of material facts like date of birth of alleged detenue entered into her school records which she attended first, recovery of girl by police and proceedings adopted.
Result: Writ petition is dismissed.
JUDGMENT :
VIKAS KUNVAR SRIVASTAV, J.
1. The present writ petition of Habeas Corpus is moved by the petitioner-Usman, father of the alleged detenue, “Kumari Hashmi” aged about 16 years, r/o Village Sarawan, P.S. Itaunja, Distict-Lucknow. In addition, State of U.P. and Station Officer, Police Station-Itaunja, District-Lucknow, the private Opposite Party-Vineet Kumar S/o Sukhdev R/o Village Sarawan, Police Station-Itaunja, District-Lucknow is also made opposite party.
2. In brief, the facts emerging from the pleadings of the writ petition reveals that the daughter of the next friend, ‘Usman’ lodged an F.I.R. in local Police Station Itaunja, District-Lucknow on 13.11.2020 at 7:19 p.m. stating therein, his 16 years’ old daughter left the home at about 4:00 p.m. on 12.11.2020 for going to her maternal uncle's home at Village Darauna, P.S.-Itaunja, Lucknow but she did not reach there and he came to know from the whispers amongst native villagers that one Vineet Kumar, opposite party no.3, resident of the same village enticed and taken away his minor daughter and kept detained her in some lonely place, which is not known to the petitioner and his family members. The complainant/petitioner has further stated in the said F.I.R. that opposite party no.3, Vineet Kumar and his family members are not permitted him to meet the alleged detenue.
3. To set up the minority of his daughter, the petitioner-Usman has taken reliance on Aadhar Card wherein, date of birth is mentioned as 12.05.2004, which is made Annexure-2 to the petition. Being helpless to see or meet his daughter, the alleged detenue, opted to file the instant petition in hand. The entire petition is directed against the opposite party no.3 for the violation of fundamental right of petitioner and that of the alleged detenue. On the basis of facts stated in the petition, following reliefs are sought:-
(ii) Issue a writ, order or direction in the nature of mandamus directing the the opposite party no.3 to set free the detenue from his illegal detention frothwith.
(iii) Issue any other order or direction which this Hon’ble Court may deem just and proper in the circumstances of the case in favour of the petitioner.
(iv) Allow writ petition with cost in favour of the petitioners against opposite parties.”
4. Counter affidavit on behalf of the State is filed on 14.12.2020/17.12.2020. In para-3 of the counter affidavit, it is stated that the petitioner ‘Usman’ filed an FIR on 13.11.2020 in Police Station Itaunja, District Lucknow against the opposite party no.3, ‘Vineet Kumar’ whereupon Case Crime No.317 of 2020 under Sections 363 and 366 of Indian Penal Code was registered. The informant-complainant in the said FIR stated that opposite party no.3 has enticed his minor daughter and taken her away with him. The victim girl was recovered on 17.11.2020, the informant of the case, the next friend-Usman was called on and his daughter, the alleged detenue, Km. Hashmi was sent for medical examination, where she refused to undergo the medical examination. On the basis of educational certificate from the school first attended by her, the date of birth was found recorded 5.4.2001, according to which, the age of the victim on the date of incident was 19 years 7 months. Further, the statements of the victim under Sections 161 and 164 of the Cr.P.C. were recorded, that she left the home on her own. The Magistrate finding her an adult person set her free to go wherever she wants, she opted to go with the family members of the opposite party no.3, Vineet Kumar. She being an adult desired not to go with her parents. In support of the facts alleged in para-3 of the counter affidavit, learned A.G.A. placed the case diary before the court for perusal and also made relevant extracts from case diary Annexures to the
Point of Law : For assessing the age of victim of an alleged offence or of any person alleged to be a ‘victim’ of the offence or under unlawful detention as complained in writ of habeas Corpus is nec....
The age of a victim must be determined primarily using valid school records or certificates, with medical tests as a secondary option; unreliable documents cannot dictate age determinations.
The court ruled that a Child Welfare Committee cannot rely on unverified school records for age determination when medical evidence indicates adulthood, rendering its jurisdictional order invalid.
A writ of Habeas Corpus may be issued when a detention order lacks jurisdiction or is passed mechanically, especially in cases where age determination is not substantiated as per law.
Writ of habeas corpus – Criminal trial – Claim of juvenile – determination of age – Certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ o....
The court ruled that credible primary documents are essential for age determination, emphasizing the Aadhar card's validity over school records in the absence of supporting evidence.
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 certificat....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
