# Smt. Geeta & Ors v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 7 ILRA 1197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Crl. Misc. W.P. No. 9135 of 2024
- **Bench:** Vivek Kumar Birla, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-ors-v-state-of-u-p-ors-opp-parties-52213
- **Pages:** 6

## Headnote

Act,
2015,
Section
94
-
Presumption and determination of age -
Age of the victim is to be determined on
the basis of an ossification test where
there is no reliable document regarding
the age - If neither the birth certificate
from the school nor the high school
certificate nor the birth certificate issued
by a competent authority as required by
Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (in
short, 'Juvenile Justice Act') is available,
then the only option as per Section 94 of
the Juvenile Justice Act is to rely upon the
ossification test report. (Para 9)

Allowed. (E-5)

List of Cases cited:

## Text

7 All. Smt. Geeta & Ors. Vs. State of U.P. & Ors.
1197
without quashing the FIR, the right to
liberty of petitioners deserves to be
protected for the detailed reasons assigned
herein above.

47. Accordingly, petition is
disposed of directing that till cognizance
is taken on police report under Section
173(2)
Cr.P.C.,
by
the
court,
the
respondents
shall
not
arrest
the
petitioners
pursuant
to
the
First
Information Report dated 23.04.2024,
registered as Case Crime No. 0274 of
2024, under Sections- 436, 450, 392 and
120-B IPC, Police Station- Modi Nagar,
District-
Commissionerate
Ghaziabad
(Rural), subject to cooperation in ongoing
investigation, which shall be concluded
within two months.

48. In case, the accused persons do
not cooperate with the investigation, the
investigating officer shall be at liberty to
file a recall application for recalling this
order before this court.
----------
(2024) 7 ILRA 1197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. W.P. No. 9135 of 2024

Smt. Geeta & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Raj Kamal

Counsel for the Opp. Parties:
G.A., Prem Chandra Dwivedi
Juvenile Justice (Care and Protection of
Children)
Act,
2015,
Section
94
-
Presumption and determination of age -
Age of the victim is to be determined on
the basis of an ossification test where
there is no reliable document regarding
the age - If neither the birth certificate
from the school nor the high school
certificate nor the birth certificate issued
by a competent authority as required by
Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (in
short, 'Juvenile Justice Act') is available,
then the only option as per Section 94 of
the Juvenile Justice Act is to rely upon the
ossification test report. (Para 9)

Allowed. (E-5)

List of Cases cited:

1. Smt. Juli Kumari and Another vs. State of UP
and 2 Others, Criminal Misc. Writ Petition No.
17046 of 2022

2. State of M.P. vs. Anoop Singh, reported in
2015 (7) SCC 773

3. Suhani vs. State of U.P., 2018 0 Supreme
(SC) 1430

4. P. Yuvaprakash vs. State Rep. By Inspector of
Police, 2023 SCC OnLine SC 846

(Delivered by Hon'ble Vivek Kumr Birla, J.
& Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard Sri Raj Kamal, learned
counsel for the petitioners, Sri Prem
Chandra Dwivedi, learned counsel for the
respondents and Sri Ratan Singh, learned
AGA for the State-respondents.

2. The present writ petition has
been preferred with the prayer to quash the
impugned first information report dated
14.05.2024 registered as Case Crime
No.118 of 2024, under Section-363, 366
I.P.C.,
Police
Station-Araon,
DistrictFirozabad, and for a direction to the
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents not to arrest the petitioners in
pursuance
of
the
impugned
first
information report.

3. Learned counsel for the
petitioners submitted that petitioner nos.1
and 2 are major and out of their own free
will, they got married on 15.05.2024,
therefore, no offence is made out against
the petitioners. Reliance has been placed
by the petitioners on the judgement and
order dated 05.12.2022 passed by this
court in Criminal Misc. Writ Petition
No. 17046 of 2022 (Smt. Juli Kumari
and another vs. State of UP and 2
others).

4. In support of the above
contention, petitioner nos.1 and 2 had filed
joint affidavit in the present writ petition.
Learned counsel for the petitioners further
submitted that after getting married, they
have also applied for online registration of
their marriage, which has been annexed as
annexure no.5 to the writ petition.

5. After hearing the aforesaid
submission and on perusal of record on
finding that there is no reliable evidence
regarding the age of the petitioner no.1, this
court directed by order dated 06.06.2024 to
petitioner no.2 to produce the petitioner
no.1 before the CJM, Firozabad with
further direction that the CJM, Firozabad
shall ensure the ossification test of
petitioner no.1 for determination of her age
and also directed the CJM, Firozabad to
record the statement of petitioner no.1, u/s
164 Cr.P.C. in presence of Investigating
Officer of the present case with further
direction that after recording the statement
of petitioner no.1, CJM, Firozabad will
forward the copy of the same in a sealed
cover along with the report of ossification
test. Copy of the order dated 06.06.2024
passed by this court is being quoted as
under:

"The petitioner does not
appear to be educated and there is
no
proof
of
her
age.
The
investigation so far has led the
Police to a surreptitious certificate
being issued by the In-charge
Headmaster
of
Composite
Vidyalaya
Saifpur,
District
Firozabad who has certified the
petitioner's date of birth to be
10.10.2007. The certificate does
not inspire confidence. It is written
on a plain paper by the In-Charge
Headmaster/ Headmistress with a
rubber stamp seal. It is not that a
scholar's
transfer
register
maintained in ordinary course of
business issued by the said school,
showing the victim's date of birth.
The certificate too has been issued
on 16.05.2024, that is to say, after
the FIR was registered and appears
to be a self-serving document. This
shows that there is no better proof
about the victim's age available
with the 4th respondent as well;
else it would have been provided to
the Police.
In the circumstances, it is
directed that the second petitioner,
Rohit s/o Bhoore Singh, who claims
to have married the victim on
15.05.2024 at the Arya Samaj
Mandir, Tundla, Firozabad shall
produce her before the Chief
Judicial Magistrate, Firozabad on
10.06.2024 and the Chief Judicial
Magistrate shall cause the victim to
be produced in turn before the
Chief Medical Officer, Firozabad,
who will forthwith constitute a
Medical Board comprising three
7 All. Smt. Geeta & Ors. Vs. State of U.P. & Ors.
1199
doctors, one of whom will be an
Orthopaedician.
The
Medical
Board shall submit a report to this
Court through the Chief Judicial
Magistrate in a sealed cover based
on a scientific test evaluating the
victim's age. This course of action
is necessary because no better
evidence envisaged under Section
94 of the Juvenile Justice Act, 2015
is forthcoming.
It is further provided that
when the victim appears before the
Chief
Judicial
Magistrate
on
10.06.2024,
the
Investigating
Officer will also remain present
and get the statement of the victim
under Section 164 Cr.P.C. recorded
before
the
Chief
Judicial
Magistrate. A certified copy of the
statement of the victim shall also be
forwarded to this Court in a sealed
cover along with the report of the
Medical Board by the date fixed.
Lay this petition as fresh
again on 14.06.2024.
Until the next date of
listing, the Police are restrained
from arresting the petitioners in
Case Crime No. 118 of 2024 under
Section 363, 366 I.P.C., Police
Station Araon, District Firozabad.
It is further provided that
on the next date of listing, the
victim and petitioner no. 2 shall
remain personally present before
this Court.
Let
this
order
be
communicated to the Chief Judicial
Magistrate,
Firozabad,
the
Superintendent
of
Police,
Firozabad
through
the
Chief
Judicial Magistrate, Firozabad, the
Chief Medical Officer, Firozabad
through
the
Chief
Judicial
Magistrate, Firozabad, the Station
House
Officer,
Police
Station
Araon, District Firozabad through
the
Superintendent
of
Police,
Firozabad
by
the
Registrar
(Compliance) within 24 hours."

6. In pursuance of the order dated
06.06.2024, ossification test report of
petitioner no.1 along with the statement of
petitioner no.1 recorded u/s 164 Cr.P.C.
was sent to this court in a sealed cover. As
per the ossification test report, age of the
girl was determined about 17 years. It is
settled law as per the judgement of State of
M.P. Vs. Anoop Singh reported in 2015 (7)
SCC 773 that there are always chances of
difference of two years either plus or minus
in the age determined by the ossification
test report and such presumption is always
given to the accused, therefore, age of
petitioner no.1 can be presumed to be
above 18 years. Paragraph no.17 of Anoop
Singh' case (supra) is being quoted as
under:

"17. The High Court also
relied on the statement of PW 11 Dr
A.K. Saraf who took the x-ray of
the prosecutrix and on the basis of
the ossification test, came to the
conclusion that the age of the
prosecutrix was more than 15 years
but less than 18 years. Considering
this the High Court presumed that
the girl was more than 18 years of
age at the time of the incident. With
respect to this finding of the High
Court, we are of the opinion that
the High Court should have relied
firstly
on
the
documents
as
stipulated under Rule 12(3)(b) and
only in the absence, the medical
opinion should have been sought.
We find that the trial court has also
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
dealt with this aspect of the
ossification test. The trial court
noted that the respondent had cited
Lakhanlal v. State of M.P. [2004
SCC OnLine MP 16 : 2004 Cri LJ
3962] , wherein the High Court of
Madhya Pradesh said that where
the doctor having examined the
prosecutrix and found her to be
below 181⁄2 years, then keeping in
mind the variation of two years, the
accused should be given the benefit
of doubt. Thereafter, the trial court
rightly held that in the present case
the ossification test is not the sole
criterion for determination of the
date of birth of the prosecutrix as
her certificate of birth and also the
certificate
of
her
medical
examination had been enclosed."

7. From perusal of the statement of
petitioner no.1, it is clear that she
specifically stated that she herself left her
house along with petitioner no.2 from her
own free will and, thereafter, she got
married with petitioner no.2 and now she
wanted to live with petitioner no.2.

8. Hon'ble Supreme Court in the
cases of Suhani Vs. State of U.P. reported
in 2018 0 Supreme (SC) 1430 and P.
Yuvaprakash
Vs.
State
Rep.
By
Inspector of Police reported in 2023 SCC
OnLine SC 846, determine the age of
victim on the basis of ossification test
where there is no reliable document
regarding the age. Paragraph nos.14, 16 and
19 of P. Yuvaprakash case (supra) are
being quoted as under:

"14. Section 94(2)(iii) of
the JJ Act clearly indicates that the
date of birth certificate from the
school
or
matriculation
or
equivalent
certificate
by
the
concerned examination board has
to be firstly preferred in the
absence
of
which
the
birth
certificate
issued
by
the
Corporation
or
Municipal
Authority or Panchayat and it is
only thereafter in the absence of
these such documents the age is to
be
determined
through
"an
ossification test" or "any other
latest medical age determination
test" conducted on the orders of the
concerned authority, i.e. Committee
or Board or Court. In the present
case, concededly, only a transfer
certificate and not the date of birth
certificate or matriculation or
equivalent
certificate
was
considered. Ex. C1, i.e., the school
transfer certificate showed the date
of birth of the victim as 11.07.1997.
Significantly,
the
transfer
certificate was produced not by the
prosecution but instead by the court
summoned witness, i.e., CW-1. The
burden
is
always
upon
the
prosecution to establish what it
alleges; therefore, the prosecution
could not have been fallen back
upon a document which it had
never relied upon. Furthermore,
DW-3, the concerned Revenue
Official (Deputy Tahsildar) had
stated on oath that the records for
the year 1997 in respect to the
births and deaths were missing.
Since it did not answer to the
description
of
any
class
of
documents mentioned in Section
94(2)(i) as it was a mere transfer
certificate, Ex C-1 could not have
been relied upon to hold that M
was below 18 years at the time of
commission of the offence.
7 All. Smt. Geeta & Ors. Vs. State of U.P. & Ors.
1201
16.
Speaking
about
provisions of the Juvenile Justice
Act, especially the various options
in Section 94(2) of the JJ Act, this
court held in Sanjeev Kumar Gupta
v. The State of Uttar Pradesh4 that:
"Clause (i) of Section 94(2)
places the date of birth certificate
from
the
school
and
the
matriculation
or
equivalent
certificate from the concerned
examination board in the same
category (namely (i) above). In the
absence
thereof
category
(ii)
provides for obtaining the birth
certificate
of
the
corporation,
municipal authority or panchayat.
It is only in the absence of (i) and
(ii) that age determination by
means of medical analysis is
provided.
Section
94(2)(a)(i)
indicates a significant change over
the
provisions
which
were
contained in Rule 12(3)(a) of the
Rules of 2007 made under the Act
of 2000. Under Rule 12(3)(a)(i) the
matriculation
or
equivalent
certificate was given precedence
and it was only in the event of the
certificate not being available that
the date of birth certificate from the
school first attended, could be
obtained. In Section 94(2)(i) both
the date of birth certificate from the
school as well as the matriculation
or equivalent certificate are placed
in the same category.
19. It is clear from the
above narrative that none of the
documents produced during the
trial answered the description of
"the date of birth certificate from
the school" or "the matriculation
or equivalent certificate" from the
concerned examination board or
certificate
by
a
corporation,
municipal
authority
or
a
Panchayat. In these circumstances,
it
was
incumbent
for
the
prosecution
to
prove
through
acceptable
medical
tests/examination that the victim's
age was below 18 years as per
Section 94(2)(iii) of the JJ Act. PW9, Dr. Thenmozhi, Chief Civil
Doctor and Radiologist at the
General
Hospital
at
Vellore,
produced the X-ray reports and
deposed that in terms of the
examination of M, a certificate was
issued stating "that the age of the
said girl would be more than 18
years and less than 20 years". In
the
cross-examination,
she
admitted that M's age could be
taken as 19 years. However, the
High Court rejected this evidence,
saying that "when the precise date
of birth is available from out of the
school records, the approximate
age estimated by the medical expert
cannot be the determining factor".
This finding is, in this court's
considered view, incorrect and
erroneous. As held earlier, the
documents
produced,
i.e.,
a
transfer certificate and extracts of
the admission register, are not what
Section 94(2)(i) mandates; nor are
they
in
accord
with
Section
94(2)(ii) because DW-1 clearly
deposed that there were no records
relating to the birth of the victim,
M. In these circumstances, the only
piece of evidence, accorded with
Section 94 of the JJ Act was the
medical ossification test, based on
several X-Rays of the victim, and
on the basis of which PW-9 made
her statement. She explained the
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
details regarding examination of
the victim's bones, stage of their
development and opined that she
was between 18-20 years; in crossexamination she said that the age
might be 19 years. Given all these
circumstances, this court is of the
opinion that the result of the
ossification or bone test was the
most
authentic
evidence,
corroborated by the examining
doctor, PW-9."

9. In the present case, neither the
birth certificate of school nor high school
certificate nor birth certificate issued by
competent authority as required by Section94 of the Juvenile Justice (Care And
Protection of Children) Act, 2015 (in short
'Juvenile
Justice
Act')
is
available,
therefore, only option as per Section-94 of
the Juvenile Justice Act is relying upon the
ossification test report.

10. Therefore, considering the age of
petitioner no.1 determined by the ossification
test as well as statement of petitioner no.1
recorded u/s 164 Cr.P.C., it is clear that
petitioner no.1 is of marriageable age and she
willingly got married with petitioner no.2 as
she had clearly stated in her statement that
she had left her home with petitioner no.2
willingly and both of them have been living
as husband and wife. Therefore no case u/s
363, 366 IPC is made out.

11. In view of the above, writ
petition succeeds and is allowed.

12. The first information report
dated 14.05.2024 registered as case crime
no.118 of 2024, u/s 363, 366 IPC, Police
Station-Araon, District-Firozabad as well as
all consequential proceedings are hereby
quashed.
13. Photocopies of the ossification
test report as well as statement of petitioner
no.1 recorded u/s 164 Cr.P.C. be kept on
record. The original shall be returned in a
sealed cover, at the earliest as per
rule/procedure.

14. We, however, clarify that while
deciding the present petition, we have not
looked into the validity of marriage of the
petitioners.
----------
(2024) 7 ILRA 1202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. W.P. No. 9665 of 2024

Hussain Zaidi Alias Guddu ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
M J Akhtar, Shahzad Alam

Counsel for the Opp. Parties:
G.A., Satyam Narayan, Shams Uz Zaman

(A) Criminal Law - Indian Penal Code,
1860 - Sections - 420, 467, 468 & 471 -
complaint/FIR disclosing civil transaction
may also have a criminal texture but if the
dispute is predominantly civil in nature
then
merely
because
FIR/complaint
attracts
ingredients
of
any
criminal
offence will not resist the court from
quashing the criminal proceeding but in
those cases where there are specific
allegations of committing forgery and
allegations in the FIR/complaint are not
predominantly civil in nature but criminal
in nature, then there is no bar to continue
the criminal proceeding despite the fact