Pradeep Kushwaha vs The State Of Madhya Pradesh on 27 September, 2017

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W.P.No.6179/2017(Habeas Corpus)

(Pradeep Kushwah Vs. State of M.P. Another)
27.09.2017
Shri M.L. Yadav, Advocate for the petitioner.
Shri Prakhar Dengula, Govt. Advocate for the
respondent no.1/State.

The present petition seeking issuance of writ of habeas
corpus is filed on the foundational allegations that the
petitioner who claims himself to be the husband of the corpus
alleges that respondents have unlawfully detained and
confined the corpus, his wife namely Pooja in Nari Niketan,
despite the said corpus being major.

On the direction of this Court, the corpus present
before this Court brought from Nari Niketan Home by S.I.
Kedar Singh Yadav and Constable No.661 Meena Rathore,
P.S. Gohad Distt Bhind Head Constable No. 683 Maya Devi
Police Line Gwalior.

It is an undisputed fact that the petitioner is an accused
in an offence bearing Crime No. 373/2016 alleging offences
punishable u/S 363 and 376 of IPC and Sec 3/4 of Protection
of Children From Sexual Offences Act,2012 where the
prosecutrix is the corpus.

The only question to be decided by this Court is as
regards the corpus being major or minor.

Guidance in that regard can be sought from the
provision of Sec 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 which has been
considered, interpreted and explained by the Apex Court in its
decision rendered in the case of Jarnail Singh Vs. State of
Haryana reported in 2013 Cr.Law Journal 3976.

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W.P.No.6179/2017(Habeas Corpus)

Rule 12 referred to hereinabove reads as under :
“12. Procedure to be followed in determination of Age.?
(1) In every case concerning a child or a juvenile in
conflict with law, the court or the Board or as the case
may be the Committee referred to in rule 19 of these rules
shall determine the age of such juvenile or child or a
juvenile in conflict with law within a period of thirty days
from the date of making of the application for that
purpose.

(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining –

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than
a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought from
a duly constituted Medical Board, which will declare the
age of the juvenile or child. In case exact assessment of
the age cannot be done, the Court or the Board or, as the
case may be, the Committee, for the reasons to be
recorded by them, may, if considered necessary, give
benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year.

and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or
the medical opinion, as the case may be, record a finding
in respect of his age and either of the evidence specified
in any of the clauses (a)(i),
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W.P.No.6179/2017(Habeas Corpus)

(ii), (iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date
of offence, on the basis of any of the conclusive proof
specified in sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing pass an order
stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules and
a copy of the order shall be given to such juvenile or the
person concerned.

(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of
the Act and these rules, no further inquiry shall be
conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof
referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply
to those disposed off cases, where the status of juvenility
has not been determined in accordance with the
provisions contained in sub-

rule(3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate order in
the interest of the juvenile in conflict with law.” Even
though Rule 12 is strictly applicable only to determine the
age of a child in conflict with law, we are of the view that
the aforesaid statutory provision should be the basis for
determining age, even for a child who is a victim of crime.
For, in our view, there is hardly any difference in so far as
the issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of crime.
Therefore, in our considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW-PW6. The
manner of determining age conclusively, has been
expressed in sub-rule (3) of Rule 12 extracted above.
Under the aforesaid provision, the age of a child is
ascertained, by adopting the first available basis, out of a
number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available, would conclusively
determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the
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W.P.No.6179/2017(Habeas Corpus)

concerned child, is the highest rated option. In case, the
said certificate is available, no other evidence can be
relied upon. Only in the absence of the said certificate,
Rule 12(3), envisages consideration of the date of birth
entered, in the school first attended by the child. In case
such an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration, for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in
the absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the concerned
child, on the basis of medical opinion.

In terms of the above provision and the law laid down by
the Apex Court and in the presence of Primary School
Admission Register, the same has to be given primacy and
prevalence over other evidences such as radiological test
report or any other academic record except matriculation
marksheet.

Admittedly, the corpus has not studied beyond Class
VIII and therefore there is no Class X or XII marksheet.

The admission register reflects the date of birth of the
corpus to be 06.08.2000 when the corpus was admitted in
Class I in the Academic Year 2006-07 and therefore going by
the said date of birth, she is presently 17 years 1 ½ months
in age and therefore is a minor.

Aadhar Card filed by the petitioner reflects date of birth
of the corpus as 01.01.1999 which cannot be relied upon in
the absence of any supportive material and in the presence of
admissible and primary evidence of proof of date of birth
recorded in the Admission Register.

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W.P.No.6179/2017(Habeas Corpus)

Accordingly, it is evident that the corpus being minor is
rightly been admitted to the Nari Niketan.

Accordingly, no case is made out for issuance of writ of
habeas corpus which is accordingly dismissed.

The corpus be taken back to Nari Niketan and confined
till she attains the age of majority or if any other order is
passed by the Trial Court.

Learned counsel for the petitioner at this stage submits
that the corpus is pregnant and therefore apprehends that
she may not be given proper care at Nari Niektan.

The Superintendent of concerned Nari Niketan is
directed to ensure proper treatment and diet which is
prescribed under the Rules and Regulations for pregnant
inmates of Nari Niketan.

The corpus is free to make complaint to the appropriate
authority in case of deficiency in medical treatment or dietary
requirements.

No cost.

(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
sh/-

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