# Bobby alias Javed Khan and another v. State of U.P. and others

- **Citation:** (2002) 1 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-17
- **Case number:** Civil Misc. Writ Petition No. 44 of 2002
- **Bench:** S.R. Singh, R.K. Dash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bobby-alias-javed-khan-and-another-v-state-of-u-p-and-others-39793
- **Pages:** 4

## Headnote

Constitution
of
India
Article
226
Directions issued to all the Chief Medical
Officers/ Superintendents to be followed
before issuing age certificate of a girl
any violation thereby may entail serious
consequences.

(Held is para 9).

Coming to the present case, we are of
the considered opinion that the FIR in
case crime no.321 of 2001 P.S. Sirsaganj
District Firozabad under Section 363 and
366 IPC cannot be quashed. It is,
however, provided that arrest of the
petitioners shall be stayed for a period of
six weeks from today within which they
shall produce km. Sangeeta before the
investigating officer who shall get her
medically
examined
by
way
of
ossification test for ascertaining her age
besides recording her statement under
Section 161 Cr.P.C. on receipt of the
medical report, the investigating officer
will
be
free
to
proceed
with
the
investigation in the manner as provided
under law.

## Text

1All] Bobby alias Javed Khan and another V. State of U.P. and others
201
Piliphit to pass an order in accordance
with law in the light of observations made
herein above in body of order.

13. Till order in accordance with law
is not passed by District Magistrate,
Pilibhit, the respondents are hereby
restrained from interfering in exercising
and
performing
the
financial
and
administrative powers and functions of
the petitioner as elected village Pradhan
of Gram Panchayat Bundhi Bhur Block
Puranpur District Piliphit.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE R.K. DASH, J.

Civil Misc. Writ Petition No. 44 of 2002

Bobby alias Javed Khan and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Nasiruzzaman

Counsel for the Respondents:
A.G.A.

Constitution
of
India
Article
226
Directions issued to all the Chief Medical
Officers/ Superintendents to be followed
before issuing age certificate of a girl
any violation thereby may entail serious
consequences.

(Held is para 9).

Coming to the present case, we are of
the considered opinion that the FIR in
case crime no.321 of 2001 P.S. Sirsaganj
District Firozabad under Section 363 and
366 IPC cannot be quashed. It is,
however, provided that arrest of the
petitioners shall be stayed for a period of
six weeks from today within which they
shall produce km. Sangeeta before the
investigating officer who shall get her
medically
examined
by
way
of
ossification test for ascertaining her age
besides recording her statement under
Section 161 Cr.P.C. on receipt of the
medical report, the investigating officer
will
be
free
to
proceed
with
the
investigation in the manner as provided
under law.

(Delivered by Hon'ble R.K. Dash, J.)

1. These two petitioners arraigned as
accused for the offence punishable under
Sections 363 and 366 I.P.C. in case crime
no. 321 of 2001 P.S. Sirsaganj District
Firozabad have filed this writ petition
under Article 226 of the Constitution
seeking
quashing
of
the
FIR
and
restraining the police to arrest them in the
aforesaid
case.
Briefly
stated
the
prosecution case as borne out from the
FIR, copy where of at annexure-5, is that
on 12th November, 2001 Km Sangeeta
aged about 14 years daughter of Sanjeev
Kumar, the informant had been to market
during day hours but did not return. A
search was made in course of which two
persons namely, Sunil and Shivkant
disclosed that they had seen Sangeeta
going with present petitioners. The
informant made a written complaint to the
police on the basis of which the aforesaid
case has been registered under Section
363 and 366 I.P.C.

2. The case of the petitioners as
stated in the writ petition is that the
informant, father of Sangeeta was tenant
under their father and both the families
had cordial relationship. Both Javed khan
and Sangeeta were intensely lovelorn
which
drove
them
to
a
marriage.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
202
According to the petitioners, the marriage
was performed on 15th November, 2001
and
'Nikahnama'
was
executed
accordingly. Besides, on the legal advice
both of them entered into a written
agreement admitting marriage and this
agreement was preceded by a certificate
issued by the Chief Medical Officer, Etah
who upon examination certified Sangeeta
to be aged about 19 years.

3. Learned Counsel appearing for
the petitioners strenuously urged that in
view of the background facts as narrated
in the writ petition that Sangeeta is a
major girl being aged 19 years as opined
by the Doctor and she having married to
petitioner no. 1 on her free will,
investigation taken up by the local Policy
pursuant to the FIR lodged by her father
should be brought to a halt and the whole
criminal proceedings should be quashed.
Per contra, learned A.G.A submitted that
it is too early to accept the defense plea
that Sangeeta is major and that she left the
parental home and married to petitioner
no.1 on her own volition. He further
contended
that
medical
certificate
produced by petitioner no.1 in support of
age of Sangeeta cannot be accepted on its
face value when the investigation is in
embryo.

4. Undisputedly the allegations as
made in the FIR, copy where of at
annexure-5, prima-facie make out a
cognizable offence requiring investigation
by the police. It is the settled position of
law that at the time of registration of a
case pursuant to the report, the police
cannot
go
into
the
correctness
or
otherwise of the allegations made therein.
Therefore,
when
the
report
reveals
commission of a cognizable offence, it is
obligatory of the concerned police officer
to register a case and then proceed with
the investigation if he has reason to
suspect
that
an
offence
has
been
committed. The expression "reason to
suspect of commission of a cognizable
offence, it is obligatory of the concerned
police officer to register a case and then
proceed with the investigation if he ahs
reason to suspect that an offence ahs been
committed. The expression "reason to
suspect of commission of a cognizable
offence" as appearing in Section 157 is
not there in Section 154 Cr. P. C.
Therefore,
when
any
information
regarding commission of a cognizable
offence is received, the Officer-in-Charge
of the concerned police station cannot
refuse registration of a case. In that view
of the matter, the allegation in the present
case being that Km. Sangeeta was minor
when she was enticed away by the
petitioners and this being a cognizable
offence, it is incumbent upon the police to
investigate the same.

5. The defence plea that Km.
Sangeeta was major at the relevant time
and that she left her parental home on her
own volition and married to petitioner
no.1 cannot be accepted on its face value
and the whole criminal proceedings and
the FIR cannot be quashed. It has come to
our notice that in large number of cases of
this nature, the accused having kidnapped
a girl approached the Chief Medical
Officer to obtain a certificate as to the age
of the girl and being armed with such
certificate moved this Court to direct the
Chief Judicial Magistrate or any other
Magistrate to record the statement of the
girl under Section 164 Cr. P.C. and then
quash the F.I.R.

6. Recording of statement of witness
under Section 164 Cr. P. C. and
1All] Bobby alias Javed Khan and another V. State of U.P. and others
203
examination of the victim girl by the
Doctor for ascertaining her age by
ossification test are part of investigation.
The
function
of
the
Court
and
investigating agency are well defined and
well demarcated. No one should tread
over the jurisdiction of the other. It has
been well settled by a decision of the
Apex Court in Jogindra Nahak Vs. State
of Orissa reported in (2000) 1 SCC 272
that statement of an witness under Section
164 Cr. P. C. cannot be recorded by the
Magistrate
un-sponsored
by
the
investigating officer. So far issuance of
certificate of age of the victim by the
Chief Medical Officer is concerned, it is
contended by the learned A.G.A. that
such certificate is issued on the basis of
the letter no. 4362 dated 26th August,
1986 of the Secretary, Health Department,
Government of U.P. The said letter has
been brought to our notice where in
paragraph 1 (d), it is provided that Chief
Medical Officer can issue age certificate
as
mentioned
therein.

The
said
Government Order in our opinion, is
being misused and misapplied by the
Medical Officer and he being hand-ingloves
with
the
kidnapper
issues
Certificate of age of the victim girl to
protect
him
form
the
criminal
proceedings. It is not the intention of the
State Government that Chief Medical
Officer without ascertaining the necessity
of age certificate can examine. In the
present
case,
it
appears
form
the
certificate, Copy where of at annexure-3,
that Chief Medical Superintendent, Etah
on the basis of X-ray report opined that
Sangeeta was aged about 19 years. A
Photograph of a girl to whom the Medical
Superintendent identified as Sangeeta is
attached to such Certificate. The X-ray
was conducted by the Radiologist, District
Hospital, Etah. Questions arise as to who
met the expenses of the X-ray in as much
as, whether x-ray was done at the State's
expense or at the expense of Sangeeta or
somebody else and further who identified
the girl to the Radiologist whose x-ray
was done. In other words, whether in fact
Sangeeta appeared before the Radiologist
and her x-ray was done or someone else
impersonated herself as Sangeeta. In a
case under Sections 363 and 366 I.P.C.,
determination of age of the victim girl is
one of the main factors to bring home the
charge to the accused. It is, therefore, the
duty of the investigating officer to get the
victim girl examined by the doctor by
way of ossification test and in that process
no one can complain the identity of the
girl.

7. Taking all the above aspects into
consideration, we are of the view that
issuance of such certificate by the Chief
Medical Superintendent, Etah (annexure3) either on asking of Sangeeta or Bobby
alias Javed Khan, petitioner no. 1 amounts
to interference with the process of
investigation. We, therefore, feel it
expedient to give the following directions
to be followed before issuing age
certificate of a girl if asked for:

(i) that as and when an application is
filed by a girl or any body else on her
behalf for issue of age certificate, the
Chief
Medical
Officer/
Superintendent concerned shall ask
for an affidavit of the applicant
indicating the necessity of such
certificate and whether any report has
been made to the police alleging
kidnapping/abduction;

(ii) that the Police Station under which
the girl usually resides with her
parents shall be noticed to inform as
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
204
to whether any case has been
registered
alleging
kidnapping/
abduction of the girl.

(iii) that the parents and in their absence
near relations of the girl shall be
noticed at the expense of the
petitioner to appear at the time of
medical examination. If it is reported
by the police that on the basis of a
complaint, FIR has been registered
under Section 363 & 366 I.P.C. or for
any other offence, the Medical
Officer shall refuse to examine the
girl and issue certificate of age.

8. The directions as aforesaid shall
be strictly followed by all the Medical
Officers of the State and any violation
there of may entail serious consequence.
The
Principal
Secretary
of
Heath
Department, Government of U.P. is
directed to communicate this Judgement
to the Chief Medical Officer /Chief
Medical Superintendents for compliance.

9. Coming to the present case, we
are of the considered opinion that the FIR
in case Crime no. 321 of 2001 P.S.
Sirsaganj,
District
Firozabad
under
Section 363 and 366 I.P.C. cannot be
quashed. It is however, provided that
arrest of the petitioners shall be stayed for
a period of six weeks form today within
which they shall produce Km. Sangeeta
before the Investigating Officer who shall
get her medically examined by way of
ossification test for ascertaining her age
besides recording her statement under
Section 161 Cr. P.C. On receipt of the
medical report, the investigating officer
will be free to proceed with the
investigation in the manner as provided
under law.

10. With the above observation and
direction, the writ petition stands finally
disposed of. Registry is directed to send a
copy of this judgement to Principal
Secretary,
Health
Department,
Government of U.P. for Compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE R.P. MISHRA, J.

Civil Misc. Writ Petition No. 585 of 2001

Bhola Nath and others ...Petitioners
Versus
State Bank of India , Branch Sirsa, Sirsa
Bazar and others

 ...Respondents

Counsel for the Petitioners:
Sri R.N. Kesari

Counsel for the Respondents:
Sri A.K. Mishra
S.C.

Constitution of India, Article 226-Scope
and Limitations- Power of the Court-
discretionary one- if the barrower given
undertaking to deposit the amount for
stay of recovery proceeding - bound by
said condition- in case of default-court
declined to interfere-held- can not be
claimed as matter of right.

Held-para 6

Therefore, it is absolutely necessary that
such borrowers who have undertaken or
have been directed to deposit some
amount as a condition for staying the
recovery
proceedings
must
be
held
strictly bound by the said conditions and
in the event of non-compliance of the
conditions imposed, this Court will be
fully justified in declining to grant the
relief
under
Article
226
of
the