Archana vs State of U. P. - 2021 Supreme(All) 1447

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1447

IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, SHAMIM AHMED, JJ.
Smt. Archana and Another - Petitioners
Versus
State of U.P. and Others - Respondents
Habeas Corpus Writ Petition No. 808 of 2020
Decided On : 05-01-2021

Advocates Appeared:
For the Petitioner: Anand Kumar Tiwari.
For the Respondent: G.A.

Headnote:
Criminal Procedural Code, 1973 - Section 164 – Indian Penal Code, 1860 - Sections 363, 366, 376 Protection of Children from Sexual Offences Act, 2012 - Section 4 - Juvenile Justice (Care and Protection), 2015 - Section 2(12), 2(35), 37, 94, 94(2), 101 – Punishment for Rape - Punishment for kidnapping - Kidnapping, abducting or inducing woman to compel her marriage, etc - Orders passed regarding a child in need of care and protection - Held, it is not in dispute that as per educational certificate, the date of birth of the corpus - Hence, keeping in mind the provisions of Section 94 of the J.J. Act, the age recorded in the educational certificate cannot be discarded in the proceedings under the J.J. Act moreso when corpus in her statement recorded on 31.08.2020 under Section 164, Cr.P.C. has stated that her age is 17 years - Once corpus has been found to be a child as defined by Section 2(12) of J.J. Act and allegedly, a victim of a crime, she would fall in the category of "child in need of care and protection" in view of clauses (iii), (viii) and (xii) of sub-Section (14) of Section 2 of the J.J. Act - Hence order passed by Child Welfare Committee placing in a protection Home would be within its powers confers under Section 37 of the J.J. Act - Writ petition dismissed.

JUDGMENT :

1. Heard Sri Anand Kumar Tiwari, learned counsel for the petitioners and Sri Patanjali Mishra, learned A.G.A. for the respondents.

2. This Habeas Corpus writ petition has been filed by the petitioner no.2 on behalf of petitioner no.1 for following relief:-

"i. issue a writ, order or direction in the nature of certiorari quashing the order dated 3.9.2020(Annexure No.7 to the writ petition) passed by the learned Bal Kalyan Samiti, district Bareilly in Case Crime No.39 of 2020, under Sections 363, 366, 376 I.P.C. and Section 4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Kyolariya, District Bareilly;

ii. issue a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce petitioner no.1 before this Hon'ble Court and to set her at liberty."

3. Briefly the facts of the present case are that F.I.R. dated 05.03.2020 being Case Crime No.39 of 2020 under Sections 363, 366 I.P.C. showing the date of incident as 28.02.2020 was registered at P.S. Kyolariya, District Bareilly at the instance of mother of the petitioner no.1. As per F.I.R. version age of the petitioner no.1 is under 16 years. As per educational certificate, the date of birth of the petitioner No.1 is 05.11.2003 and thus, she is aged about 17 years. As per her own statement of the petitioner no.1 dated 31.08.2020 recorded under Section 164 Cr.P.C. her age is 17 years. It appears that subsequently during course of the investigation in the aforesaid F.I.R. Section 376 I.P.C. and Section 4 of POCSO Act were also added. As per medical examination conducted by the Chief Medical Officer, Bareilly dated 07.08.2020, age of the petitioner no.1 is about 17 years. Thus, the petitioner is a minor. F.I.R. under Sections 363/366/376 I.P.C. and Section 4 of POCSO Act is registered against the petitioner no.2. The impugned order dated 03.09.2020 has been passed by Member/Magistrate, Bal Kalyan Samiti, whereby the petitioner no.1 has been given in the custody of Assistant Superintendent, State Woman Protection Home, Bareilly. Aggrieved with this order the petitioner no.2, who is accused in the aforesaid F.I.R., has filed the present Habeas Corpus writ petition for quashing the impugned order and for a direction to produce petitioner no.1 before this Court and to set her at liberty.

4. Learned counsel for the petitioners submits as under:-

(i) The petitioner no.1 may be produced before this Court so that the mother of the petitioner no.2, may meet petitioner no.1 and proper treatment of the petitioner no.1 may be carried and to set her at liberty.

5. Sri Patanjali Mishra, learned A.G.A. supports the impugned order and submits that the petitioner no.2 is an accused in the aforesaid F.I.R. under Section 363, 366, 376 I.P.C. and Section 4 of POCSO Act. The petitioner no.1 is minor and she has been rightly directed to be kept in State Woman Protection Home, Bareilly.

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 (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination