# Smt. Gunja & Anr v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-18
- **Case number:** Criminal Misc. Writ Petition No. 12630 of 2023
- **Bench:** Anjani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gunja-anr-v-state-of-u-p-ors-49390
- **Pages:** 3

## Headnote

A. Criminal Law - Constitution of India,1950Article 226-Indian Penal Code,1860-Section 363-
Juvenile
Justice
(Care
and
Protection
of
Children) Act, 2015- Section 94- The issue
involved in this petition is primarily as to
whether the victim is minor or not-the birth
certificate from the school where the victim
obtained
education,
it
is
clear
that
an
ossification test, even if ordered by the court is
not liable to be taken into account
 -Since
there exists the educational record of the victim
regarding her age, it is not necessary to open
the sealed ossification test report as also the
statement of the victim under section 161 and
164 Cr.P.C. because the same is not required to
be looked into in view of section 94 of the Act of
2015-Held that prima facie, the allegation in
the first information report that the victim is
minor, is correct.(Para 1 to 17)

B. Sub-section 2 of Section 94 quoted above is
relevant and its perusal will show that age to be
determined, on the basis of date of birth
certificate from the school, or matriculation or
equivalent certificate. In the absence of the
above, it is to be determined on the basis of a
birth certificate issued by a corporation or
municipal authority or panchayat, It is only
when the documents noted above are not in
existence can an ossification test is to be
resorted to, for determining the age of a
person.(Para 9)

The writ petition is dismissed. (E-6)

## Text

11 All. Smt. Gunja & Anr. Vs. State of U.P. & Ors.
69
which have passed the impugned judgment
of
conviction,
through
the
Registrar
(Compliance) forthwith.
----------
(2023) 11 ILRA 69
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2023
BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Misc. Writ Petition No. 12630 of 2023

Smt. Gunja & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Suneet Nath Pandey

Counsel for the Respondents:
G.A., Sri Indradeo

A. Criminal Law - Constitution of India,1950Article 226-Indian Penal Code,1860-Section 363-
Juvenile
Justice
(Care
and
Protection
of
Children) Act, 2015- Section 94- The issue
involved in this petition is primarily as to
whether the victim is minor or not-the birth
certificate from the school where the victim
obtained
education,
it
is
clear
that
an
ossification test, even if ordered by the court is
not liable to be taken into account
 -Since
there exists the educational record of the victim
regarding her age, it is not necessary to open
the sealed ossification test report as also the
statement of the victim under section 161 and
164 Cr.P.C. because the same is not required to
be looked into in view of section 94 of the Act of
2015-Held that prima facie, the allegation in
the first information report that the victim is
minor, is correct.(Para 1 to 17)

B. Sub-section 2 of Section 94 quoted above is
relevant and its perusal will show that age to be
determined, on the basis of date of birth
certificate from the school, or matriculation or
equivalent certificate. In the absence of the
above, it is to be determined on the basis of a
birth certificate issued by a corporation or
municipal authority or panchayat, It is only
when the documents noted above are not in
existence can an ossification test is to be
resorted to, for determining the age of a
person.(Para 9)

The writ petition is dismissed. (E-6)

(Delivered by Hon'ble Anjani Kumar
Mishra, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. Heard learned counsel for the
petitioners, learned counsel for the first
informant and learned A.G.A. for the State.

2. The instant writ petition seeks
quashing of the FIR dated 14.11.2022
giving rise to Case Crime No.0486 of 2023,
under Section 363 I.P.C., Police Station-
Phoolpur, District- Varanasi.

3. It transpires from the record that
this petition came up for admission on
10.08.2023, when an order was passed for
production of the alleged victim before the
CMO, Varanasi for determination of her
age on the basis of ossification test. The
statements under section 161 and 164
Cr.P.C. were also directed to be recorded.

This was so ordered as it was
submitted that the victim is illiterate and
never
received
education
from
any
institution and therefore there is no
documentary proof regarding her age.

The ossification test report as also
the statements recorded under section 161
and 164 Cr.P.C. are available on record in
sealed condition.

A counter affidavit has been filed
on behalf of the first informant annexing
thereto, a certificate of the Headmaster of
70 INDIAN LAW REPORTS ALLAHABAD SERIES
Primary School, Katrao, Block Badagaon,
District Varanasi, which states that the
victim obtained education from Class 1 to
Class 5th in the said Institution and in the
records maintained her date of birth is
recorded as 15.11.2006.

Her Class 8th Mark-sheet issued
from Shri Suraj Prasad Intermediate
College, Varanasi has also been annexed. In
this mark-sheet also her Date of Birth is
recorded as 15.11.2006.

The issue involved in this writ
petition is primarily as to whether the victim
is minor or not. .

With regard to the above, the
Juvenile Justice (Care and Protection of
Children) Act, 2015 comes into play and
Section 94 of the said Act is being extracted
below:-

"(1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act (other
than for the purpose of giving evidence) that
the said person is a child, the Committee or
the Board shall record such observation
stating the age of the child as nearly as may
be and proceed with the inquiry under section
14 or section 36, as the case may be, without
waiting for further confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought before
it is a child or not, the Committee or the
Board, as the case may be, shall undertake
the process of age determination, by seeking
evidence by obtaining?

(i) the date of birth certificate from
the school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:

Provided such age determination
test conducted on the order of the Committee
or the Board shall be completed within
fifteen days from the date of such order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

A perusal of Sub-section 2 of Section
94 quoted above is relevant and its perusal
will show that age to be determined, on the
basis of date of birth certificate from the
school, or matriculation or equivalent
certificate. In the absence of the above, it is
to be determined on the basis of a birth
certificate issued by a corporation or
municipal authority or panchayat,. It is only
when the documents noted above are not in
existence can an ossification test is to be
resorted to, for determining the age of a
person.

Since, in the case at hand, there exists
and has been brought on record, the birth
certificate from the school where the victim
obtained education, it is clear that an
ossification test, even if ordered by the
court is not liable to be taken into account.
The ossification test itself was ordered by
this court on the submission no date of
birth certificate or educational certificate
existed since the victim was illiterate and
had
obtained
no
education,
at
all,
whatsoever.
This
assertion
which
is
recorded in the order dated 10.08.2023 is
manifestly false. The allegations in the
counter
affidavit
have
not
been
controverted
by
the
petitioners.
11 All. Deepu Yadav @ Deep Singh Vs. State of U.P. & Ors.
71

Even learned AGA has seconded the
submissions that have been made by
learned counsel for the first informant and the
assertions made in the counter affidavit on
record.

Under the circumstances, this court is
constrained to hold that prima facie, the
allegation in the first information report that the
victim is minor, is correct.

Since there exists the educational record of
the victim regarding her age, this court does not
consider it necessary to open the sealed
ossification test report as also the statement of
the victim under section 161 and 164 Cr.P.C.
because the same is not required to be looked
into in view of section 94 of the Act of 2015.

In any case, these documents have been
brought on record on the basis of a prima facie
false statement made on behalf of the victim.

Since it has been held herein-above that
the allegation in the first information report that
the victim is minor, stands established from the
material on record, the allegations in the first
information report contain the ingredients of a
cognizable offence. The FIR under the
circumstances cannot be quashed.

As the issue involved in the petition is
whether the victim is minor or her statement
under section 161 and 164 Cr.P.C. is also of no
consequence because no person can depose, on
the basis of the personal knowledge about his or
her own age or date of birth.

The writ petition is accordingly dismissed
with costs of Rs. 5000/- upon the petitioners for
having made a false assertion both in the
petition and before the Court.
----------
(2023) 11 ILRA 71
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2023
BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Criminal Misc. Writ Petition No. 14042 of 2023

Deepu Yadav @ Deep Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dileep Singh Yadav

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Control of Goondas
Act, 1970 - Section 3(1) - A notice issued to
the petitioner under Section 3(1) of U.P. Control
of Goondas Act- challenge to a notice is not
tenable- existence of an alternative remedy
before
the
District
Magistrate-have
every
opportunity of replying to the impugned showcause notice issued -and to contest the
proceedings.

W.P. dismissed. (E-9)

Cases cited:

1. Kareem Vs St. of U.P. through Principal
Secretary- Misc. Bench No. 24256 of 2020

(Delivered by Hon'ble Anjani Kumar
Mishra, J.
&
Hon'ble Vivek Kumar Singh, J.)

1. Heard learned counsel for the
petitioner, learned A.G.A. for the State and
perused the record.

2. The writ petition has been filed
seeking following relief: