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Hanuman Panchal And Anr vs State Of Raj And Anr on 17 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

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

1. Hanuman Panchal S/o Shri Kailash Panchal, R/o Shiv
Nagar Capren, Bundi, Raj.
2. Mahima Rajawat W/o Shri Hanuman Panchal, D/o Shri
Mukund Singh Rajawat, R/o Shiv Nagar Capren, Bundi,
Raj.
—-Petitioners
Versus
1. State Of Rajasthan Through Pp.
2. Mukund Singh S/o Shri Bhanwar Singh, R/o Ward No.20
Capren, Old Sabjimandi, Bundi, Raj.
—-Respondents

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

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Order

17/05/2018

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.

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.

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
(2 of 5) [CRLMP-2049/2018]

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.

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.

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.

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.

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.

(3 of 5) [CRLMP-2049/2018]

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.

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:-

“Leave granted.

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.

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.

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.

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
(4 of 5) [CRLMP-2049/2018]

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.

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:-

“Radiological Examination
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 Examination-
All 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 17-
24 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.”

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.

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.

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.”

Relying upon the judgment given by the Supreme Court

in Suhani’s case (supra), the impugned FIR No. 33/2018
(5 of 5) [CRLMP-2049/2018]

registered at Police Station Kapren, Bundi for the offence under

Section 363 IPC is quashed.

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

Niketan is set free.

Superintendent of Police, Bundi is directed to ensure

necessary vigil that no harm is caused to the newly married

couple.

(KANWALJIT SINGH AHLUWALIA),J

Mak/-

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