- (1.) The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report registered as Case Crime No. 0501 of 2017, under Sections 363, 366 Indian Penal Code, Police Station Kotwali City, District Hardoi.
(2.) We have heard learned counsel for the petitioners and learned counsel for the State, Shri S.P. Singh. We have gone through the contents of the impugned First Information Report.
(3.) Order dated 20th February, 2019 reads as under. "1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report registered as Case Crime No. 0501 of 2017, under Sections 363, 366 Indian Penal Code, Police Station Kotwali City, District Hardoi. 2. We have heard learned counsel for the petitioners and learned counsel for the State, Shri S.P. Singh. We have gone through the contents of the impugned First Information Report. 3. Order dated 22nd September, 2017 notices the gist of the issue raised by the petitioners. The order reads as under: "Heard learned counsel for the petitioners and Sri U.K. Tiwary, learned Brief Holder for the State respondents. We have been taken through the allegations contained in the F.I.R. and the material on record. Learned A.G.A. may file counter affidavit within a month. Petitioners will have two weeks thereafter to file rejoinder affidavit. Issue notice to the respondent no. 4 returnable within six weeks. List on the date mentioned in the notice. Smt. Shivani Verma (petitioner no.1) and Ajay (petitioner no.2) are present before the Court duly identified by their counsel. Smt. Shivani Verma has stated that she has married petitioner no.2 out of her own free will and is living with him happily without any coercion or influence. It is further stated that she is major. Till the next date of listing or till submission of police report under Section 173 Cr.P.C., whichever is earlier, the arrest of the petitioners namely, Shivani Verma and Ajay, who are wanted in Case Crime No. 0501 of 2017, under Sections 363, 366 IPC, Police Station Kotwali City, District Hardoi shall remain stayed of course subject to the restraint that the petitioners shall fully cooperate with the investigation and shall appear as and when called upon to assist in the investigation.? 4. We have taken judicial notice of the fact that victim of offence is petitioner no. 1. Petitioner no. 1 claims by virtue of this petition before this Court that she and petitioner no. 2 were in love. Petitioner no. 1 left her parental house on 28th July, 2017 of her free will. It has further been asserted by petitioner no. 1/victim/prosecutrix that her correct date of birth is 1st January, 1999. Being above the age of 18 years, she has a right to get married as per her wish. Consequently, petitioner no. 1 got married to petitioner no. 2 on 8th September, 2017. Photographs of marriage have been appended as Annexure 2. 5. In para 12 of the petition, it has been stated that the informant has given wrong age of petitioner no. 1 as 17 years, in the impugned First Information Report. 6. Short counter affidavit has been filed on behalf of the Prosecuting Agency in Court which is taken on record. The affidavit has been filed along with statement of the prosecutrix recorded under Section 164 Cr.P.C. We have referred to the statement of the prosecutrix/petitioner no. 1 recorded under Section 164 Cr.P.C. in extenso. The petitioner as the prosecutrix has stated that she is High School pass. In the testimonials, her date of birth has been recorded as 10th May, 2001, which is the correct date of birth. Petitioner no. 2, Ajay lives in the neighbourhood. The prosecutrix has been in love with Ajay since the last about 1 and 1/2 year and has had physical relations with him. It has been stated that on 28th July, 2017, Ajay took her to Haridwar and they lived in Jwalapur in rented premises. They lived in Haridwar for two months as husband and wife. They had physical relations. Thereafter they came to Lucknow on 8th September, 2017 and got married in Arya Samaj Mandir. The prosecutrix requested her father to get her married to Ajay, however her parents did not agree. It is because of this reason that she went with Ajay. It has further been asserted that she got married to Ajay of her free will. 7. Document (Annexure 2) is ossification test report of the prosecutrix/petitioner no. 1. Her age has been found to be above 18 years. 8. Strangely, although the victim in the course of investigation and through the process of this Court has asserted that she had neither been kidnapped nor abducted, however the Prosecuting Agency on the basis of date of birth entered in the transfer certificate has concluded that she was born on 10th May, 2001 and therefore, on the date of incident, was aged 16 years 2 months and 18 days. In such circumstances, it is being concluded in terms of provisions of Juvenile Justice Act that the offence has been committed, de hors the stand of the kidnappee/abducteee. 9. We find that the transfer certificate has not been brought on record by the Investigating Officer. In such circumstances, we direct the Investigating Officer to remain present in Court. The transfer certificate on the basis of which it is being concluded that the victim is a minor be brought on record. 10. We also direct Shri Kul Shekhar Singh, Joint Director Prosecution, Hardoi to remain present in Court and explain as to under what circumstances, provisions of Juvenile Justice Act are being invoked, although age of the prosecutrix is at issue, and not of a juvenile in conflict with law. The Investigating Officer and Joint Director Prosecution, Hardoi shall also demonstrate before this Court as to under what circumstances the law on the issue is being ignored, as declared by this Court repeatedly, the core of the issue being whether the victim has been kidnapped/abducted or not. 11. List on 25.02.2019 at 10.15 a.m. 12. Interim direction to continue till the next date of listing.";