MANGULI MUDULI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The alleged kidnapper turned husband and the alleged associates-abetters of the offence of kidnapping have approached this Court in this application under S. 482, Cr. P.C., to quash the order of cognizance taken under Ss. 366/109, I.P.C. by the learned Subdivisional Judicial Magistrate (Sadar), Cuttack, vide his order dated 10-8-1994 in G.R. Case No. 2143 of 1993.

(2.) Usha (O.P. No. 2) is the girl who was allegedly kidnapped on 23-12-1993 as per the F.I.R. of her father Upendra (O.P. No. 3). It is alleged in the F.I.R. that by the date of occurrence she was 161/2 years old. It appears from order dated 24-6-1994 in the G.R. case that the date of birth of Usha as noted in the certificate granted by the Board of Secondary Education, Orissa, is May 29, 1977. Petitioner No. 2 after being arrested was allowed to go on bail as per order dated 26-4-1994 of this Court in Criminal Misc. Case No. 840 of 1994. Petitioner No. 1 was allowed to go on bail by this Court on 23-3-1994 in Criminal Misc. Case No. 458 of 1994. On the request of opposite party No. 3, learned Judge, in that case, directed the petitioner No. 1 to produce Usha in the chamber of the Hon'ble Judge. Accordingly, she was produced on 23-3-1994. In that connection this Court passed the following order :-

(3.) In view of these above quoted direction of this Court, learned S.D.J.M. conducted a summary inquiry and heard the parties and thereafter, passed order on 24-6-1994, granting the custody of the said Usha in favour of petitioner No. 2. The medical report basing upon the dates, both physical and radiological, was to the effect that she was more than 18 years and less than 20 years old by the date of her examination by the Doctor on a day during March to June, 1994 (date is not available from the said order). Learned S.D.J.M. relied upon the ossification report in preference to the date of birth noted in the certificate granted by the Board of Secondary Education, Orissa. He, however, observed that even according to the date of birth mentioned in the certificate she was more than 17 years old and, therefore, she was a major. Accordingly, learned S.D.J.M. directed for leaving opposite party No. 2 in the custody of petitioner No. 2.