ARCHANA Vs. STATE OF U. P.

JUDGEMENT

(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:-

(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.