Kanchan Kumari @APPELLANT@Hash State of Rajasthan & Ors

Present petition has been filed under Section 482 Cr.P.C. praying that FIR No.149/2018, registered at Police Station Chirawa, District Jhunjhunu, for

offences under Sections 363, 366 IPC and Section 17 of POCSO Act, be quashed alongwith all subsequent proceedings.

This court on 15.05.2018 had passed the following order:-

“Issue notice to the respondents.

On the asking of Court, Ms. Meenakshi Pareek, ld. PP, accepts notice on behalf of respondent Nos.1 to 3.

Respondent No.3 through learned Public Prosecutor is directed to serve a notice upon respondent No.4 to 6 regarding pendency of the present petition

and the next date fixed before this court.

Meanwhile, Deputy Registrar(Judicial) is directed to record the statement of petitioner No.1, today upon identification by the counsel.

To await statement of petitioner No.1 recorded by Deputy Registrar(Judicial), list the present petition on 21.05.2018. On that date, Investigating

Officer along with the records shall remain present in court.

Meanwhile, further proceedings arising out of impugned FIR are stayed. A further direction is issued to respondent Nos. 2 and 3 ensure necessary

vigil that no harm is caused to the life and liberty of the petitioners.

Name of Ms. Meenakshi Pareek, PP, be reflected in the cause list as counsel for the respondent Nos.1 to 3.

Copy of this order be handed over to the learned Public Prosecutor under the seal and signature of Court Master for onward transmission and

necessary compliance.â€​

In pursuance of above said order, statement of petitioner No.1 Kanchan Kumari was recorded by the Deputy Registrar (Judicial) of this court. The

said statement was taken on record by this court on 22.05.2018 by passing the following order:-

“In pursuance of the order dated 15.5.2018, Dy. Registrar (Judicial) has recorded the statement of petitioner no.1 Kanchan Kumari. The said

statement is taken on record. Registry is directed to make the same part of the paper book.

List this case for arguments on 3.7.2018. Till then, the interim order already in favour of the petitioners shall continue.â€​

Thereafter dispute arose regarding age of petitioner No.1 and this court on 11.07.2018 had passed the following order:-

“There is a dispute regarding age of petitioner No.1.

Hence, it is ordered that a board of three Doctors, after conducting ossification test of petitioner No.1, shall determine her age.

Let the petitioner No.1 appear before the Superintendent, SMS Hospital, Jaipur, on 16.07.2018. The Superintendent, SMS Hospital, Jaipur, shall

constitute a board of three Doctors who, on that day, shall conduct ossification test of petitioner No.1 and thereafter shall submit their report to this

court.

To await report regarding age of petitioner No.1, list on 24.07.2018. Till then, interim order already in favour of the petitioners shall continue.â€​

In pursuance of above said order, Superintendent, SMS Medical College & Hospital, Jaipur has submitted report of ossification test. The said report is

taken on record.

As per report of the Medical Board consisting of three Doctors, age of Kanchan Kumari is above 18 years and below 20 years. The said report is

based on complete physical, dental and X-ray examination of bones of Kanchan Kumari.

The Supreme Court recently in Civil Appeal No.4532/2018, Suhani & Anr. v. 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 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.â€​

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.â€​

Relying upon the judgment given by the Supreme Court in Suhani’s case (supra), the impugned FIR No.149/2018, registered at Police Station

Chirawa, District Jhunjhunu, for offences under Section 363, 366 IPC and Section 17 of POCSO Act, is quashed alongwith all subsequent

proceedings.

Learned counsel for the petitioners has submitted that presently, the petitioners are residing within the jurisdiction of Police Station Khetri, District

Jhunjhunu.

A further direction is issued to the SHO, Police Station Khetri, District Jhunjhunu, to ensure necessary vigil that no harm is caused to the life and

liberty of the petitioners.

In view of above, the present petition stands disposed of.