PRIYA DEVI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1 to 4; and Sri Akhilesh Kumar for the respondent no.5. This habeas corpus petition has been filed for a direction upon the respondents to produce the corpus (Priya) before the Court and to set her at liberty. A perusal of the record would reveal that a first information report was lodged by Hari Prasad (the father of the corpus-Priya) on 24.07.2018 at P.S. Jafarganj, District Fatehpur which was registered as Case Crime No.146 of 2018, under Section 363 IPC and Section 7/8 of the Pocso Act. The first information report was lodged naming three persons. In the first information report it was alleged that the corpus Priya is aged 15 years. Statement of the corpus was recorded under Section 164 Cr.P.C. In the said statement she stated that she is High School pass; that her date of birth is 14.05.2003; that her parents were forcing her to marry and, therefore, without informing anyone in the house, she left the house; that she left the house on her own; that no force has been used upon her; and that no one has enticed her away. Upon finding that the corpus was a minor and that she was not willing to go with her parents, the Child Welfare Committee rejected the custody application filed by her parents and placed her in the Protection Home.

(2.) In this habeas corpus petition, which has been filed by Ramesh Chandra alias Mukesh, claiming himself to be the husband of the corpus, it is alleged that being husband of the corpus, the petitioner is entitled to the custody of the corpus. It has also been claimed that the corpus is an adult aged about 19 years though her date of birth has been wrongly recorded as 14.05.2003. It has been prayed that the corpus should be called upon and medically examined for determining her age and thereafter her statement be recorded. The learned A.G.A. has pointed out that in her matriculation certificate (High School Marks-sheet), which is admitted to the corpus, the date of birth of the corpus is recorded as 14.05.2003. It is urged that as per Section 94 of the Juvenile Justice (Care & Protection of Children) Act , 2015 (for short J.J. Act, 2015) preference is to be given to the date of birth recorded in a High School certificate over medical evidence and therefore the order of the Child Welfare Committee cannot be said to be illegal.

(3.) Having noticed the rival submissions, before we proceed to address the issue, it would be apposite to observe that the Apex Court had consistently been of the view that the principles applicable for determining the age of juvenile in conflict with law are to be applied for determining the age of child victim (vide Jarnail Singh Vs. State of Haryana, (2013) 7 SCC 263; State of M.P. Vs. Anoop Singh, (2015) 7 SCC 773; and Mahadeo Vs. State of Maharashtra, (2013) 14 SCC 637). Section 94 of the J. J. Act, 2015 provides for presumption and determination of age. Sub-section (2) of section 94 of the J. J. Act, 2015, which is relevant, is extracted below: