# State v. Vivek and also praying for a

- **Citation:** Judicial Magistrate Chandauli in case Crime No. 02 of 2013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-25
- **Case number:** Judicial Magistrate Chandauli in case Crime No. 02 of 2013
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-vivek-and-also-praying-for-a-42947
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Habeous
Corpus petition by impugned orderJudicial Magistrate-placing reliance upon
High School Certificate-found the girl
minor-ordered for detention in Nari
Niketan-while from Radiologist reportDoctor
found
above
18

yrs-girl
expressed her extreme desire to join the
company of her husband-as already
enjoying matrimonial life-Magistrate
wrongly
relied
upon
High
School
certificate-liberty
given
to
join
the
company of her desire-petition allowed.

Held: Para-14
In view of the statement of the Girl given
before
the
J.M.
refuting
all
the
allegations of coercion exercised by the
petitioner no.1, showing her complete
willingness and approval to her marital
status with the petitioner no.1 which
according to her she has already been
enjoying, considering her blatant refusal
to go along with her father, and also
keeping in view the observations made
by the Apex Court and giving due weight
to the irreconcilable conflict of the age
shown in High School certificate with the
age
given
in
medical
examination
referred to above, I think that the
continuation of Sonal's detention in Nari
Niketan is not justified. I therefore,
direct that she be set at liberty with
immediate affect.

Case Law discussed:
1991 Laws (S.C.) 930

## Text

1 All Sadanand Mishra Vs. Regional Concillation Officer & Ors.
563

15. In view of the aforesaid facts
and circumstances, I find that the
conciliation
officer/Assistant
Labour
Commissioner exceeded its jurisdiction in
dismissing the conciliation proceedings as
barred by time. Therefore, the impugned
order dated 15.2.2006 passed in C.P. Case
No.Nil/2004 contained in annexure - 1 to
the petitioner is held to be without
jurisdiction. Accordingly, a writ of
certiorari is issued quashing the same with
the
direction
to
the
Conciliation
Officer/Assistant Labour Commissioner,
Faizabad to proceed with the conciliation
proceedings and to take appropriate steps
in
accordance
with
law
most
expeditiously.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2013

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE,
J.

Criminal Misc. Writ Petition No. 2155 Of 2013

Vivek Chandra Bhaskar and another

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

Counsel for the Petitioners:
Sri Santosh Singh

Counsel for the Respondents:
A.G.A., Sri A.K.Maurya

Constitution of India, Art.-226-Habeous
Corpus petition by impugned orderJudicial Magistrate-placing reliance upon
High School Certificate-found the girl
minor-ordered for detention in Nari
Niketan-while from Radiologist reportDoctor
found
above
18

yrs-girl
expressed her extreme desire to join the
company of her husband-as already
enjoying matrimonial life-Magistrate
wrongly
relied
upon
High
School
certificate-liberty
given
to
join
the
company of her desire-petition allowed.

Held: Para-14
In view of the statement of the Girl given
before
the
J.M.
refuting
all
the
allegations of coercion exercised by the
petitioner no.1, showing her complete
willingness and approval to her marital
status with the petitioner no.1 which
according to her she has already been
enjoying, considering her blatant refusal
to go along with her father, and also
keeping in view the observations made
by the Apex Court and giving due weight
to the irreconcilable conflict of the age
shown in High School certificate with the
age
given
in
medical
examination
referred to above, I think that the
continuation of Sonal's detention in Nari
Niketan is not justified. I therefore,
direct that she be set at liberty with
immediate affect.

Case Law discussed:
1991 Laws (S.C.) 930

(Delivered by Hon'ble Karuna Nand Bajpayee,J)

1. This Criminal Writ Petition has
been filed on behalf of the petitioners
seeking the direction in the nature of
certiorari for quashing the impugned
order dated 1.2.2013 and 4.2.2013 in
application no.12 of 2013 and also the
subsequent order dated 6.2.2013 passed
by
the
learned
Judicial
Magistrate
Chandauli in case Crime No. 02 of 2013
State Vs. Vivek and also praying for a
direction to the respondent no.5 to hand
over the girl Sonal petitioner no.2 to
petitioner no.1 who claims himself to be
the husband of girl Sonal.

2. In brief the facts giving rise to the
present controversy are like this:-
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

3. An FIR was lodged against the
petitioner Vivek along with some other
co-accused u/s 363 and 366 IPC. It was
alleged in the FIR that one girl Km. Sonal
had been enticed away by the petitioner
no.1 of this case. It seems that the
petitioner approached this court in order
to get the FIR quashed. The Division
Bench after hearing the matter passed an
order on 17.1.2013. A number of
directions were given vide this order. It
was also directed that the girl Sonal shall
be produced before the concerned Judicial
Magistrate who shall get her medically
examined in order to ascertain her age. It
was further ordered that depending upon
the findings arrived regarding her age
some other consequential orders including
appropriate orders regarding her custody
shall be passed by the J.M. It appears that
as a follow up action , the concerned J.M.
heard the matter and got Sonal medically
examined according to which her age was
found to be about 19 years and above 18
years. It transpires from the record that
during the proceedings that took place
before the J.M. the father of the girl
produced the high school certificate of the
girl indicating her date of birth to be
25.5.96. Reckoning her age on the basis
of the high school certificate she was
estimated to be a minor by the J.M.

4. The J.M. has also recorded her
statement in which she expressed her unwillingness to go along with her father. In
fact she informed the court to have
willingly
contracted
marriage
with
petitioner no.1 and denied all the
allegations of coercion exercised against
her. In the light of the finding of minority
arrived at by the J.M. and in view of her
complete disinclination to go along with
her father, the J.M. concerned thought it
fit to send her to Nari Niketan.

5. The respondent no.4 who is father
of the girl is being represented by his
counsel and has also filed his counter
affidavit asserting the minority of the girl
and also justifying the preference given to
the certificate by the lower court.
According to him he is the lawful
guardian of his minor daughter and as
such she ought to have been given back to
him.

6. I have heard both the sides and
perused the record.

7. It has been emphasized by the
counsel for the petitioner that though the
assessment through medical examination
is necessarily a flexible estimation of age
& the medical science has not perfected
itself to the extent that it may determine
the age of any one with precise certitude.
But when there is an estimate of age done
by radiological examination it includes a
maximum margin of error or margin of
flexibility both ways. In different cases
the Hon'ble Apex Court as well as this
court has accepted this margin of error. At
times it has been accepted as six months
both ways and at times one year both
ways. Two year margin of error is the
maximum that can be attributed to the age
determined
by
the
Doctor
through
medical examination. According to the
counsel if the age of the victim is assessed
to be 19 years according to the medical
examination, she could be 18 and a half
years old or 19 and half years old. This
shall be so when we take the margin of
flexibility to be six months both ways.
Similarly if we take the margin of one
year then she could be 18 years or 20
years of age or any where in between the
two. According to the counsel even if we
1 All Vivek Chandra Bhaskar and another Vs. State of U.P. and others
565
take the highest margin of flexibility both
ways it cannot go beyond two years on
the lower side and two years on the higher
side. On that reckoning the maximum that
can be said is that the girl Sonal was not
younger than 17 and not older than 21
years of age according to the medical
examination. According to the counsel the
medical science can certainly predict as to
which age-group the person belongs. But
in order to find out as to what is exact age
within that age group as suggested by the
medical science one can look for relevant
documents or some other oral evidence.
According to the counsel even if we
accept the highest margin of error or
flexibility this girl cannot be less than 17
years of age. In other words this medical
report which shows Sonal to be about 19
years old at least proves one thing
definitely that any evidence oral or
documentary which attempts to indicate
her age to be less than 17 is necessarily a
false evidence. The falsity of oral or
documentary evidence regarding age can
be proved by medical science in many
cases. According to the counsel though it
is true that within the age group as
suggested by medical science the age of a
person can fall anywhere in between the
two outer limits of any age group, and in
such
a
case
there
will
be
no
incompatibility between the radiologically
determined age and the age suggested by
other oral or documentary means, but the
medical science can always disprove the
falsely alleged age suggested by any one
if the suggested age falls outside the
maximum flexibility bracket. According
to him even if we construe the medical
report with the maximum margin of error
on the lower side then too this high school
certificate is a proved false document
because it suggests the age of the girl on
the relevant point of time to be even less
than 17. According to the counsel this is
not unknown in our society that the
parents have a tendency to get the age of
their offsprings recorded on the lower
side. However, reprehensible the practice
be, according to the counsel it is a reality
of the society. The counsel contends that
the J.M. concerned has wholly ignored
this aspect of medical science and seems
to have attributed a divine status to the
high school certificate. According to the
counsel even if in certain contexts the
high school certificate be given a
preferential status it shall not mean that it
is an infallible document. It's truthfulness
could always be proved or disproved
through evidence. According to him in the
present case the medical examination has
completely falsified the suggested age of
girl Sonal showing her to be less than 17
years of age.

8. I have carefully cogitated upon all
the submissions made by rival sides.

9. The contention raised by the
petitioner's
counsel
seems
to
have
substance. In fact a careful perusal of the
radiological opinion would show that the
doctor has categorically opined that the
girl Sonal is above 18 years of age. After
giving this radiological finding , the
doctor has further considered her body
growth, development and G-examination.
Thereafter the age has been estimated to
be about 19 years. In such a situation the
margin of flexibility or the margin of
error can not be lowered any further
below 18 years. There is a marked
difference between ' about 18 years' and '
above 18 years' of age. Where the doctor
has observed that the girl is above 18
years, that obviously means that the girl is
not less than 18 years of age. Such an
observation indicates the lower most outer
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
limit of the flexibility bracket. Such kind
of observation is made by the doctors on
the basis of the fusion of certain bones of
the body which can not be completed
before a person attains a particular age. If
a fusion has already been completed
which
cannot
be
completed
before
attaining a particular age then it can safely
be
predicted
by
the
radiological
examination that a particular person has
crossed certain age or is above that age. In
fact the margin of error is accepted by the
radiological experts because of the
individual variations which have been
observed
depending
upon
the
geographical
areas
and
the
health
conditions and nutrition of various
individuals placed in different conditions
and places. It is after enormous researches
that the experts have concluded that a
particular fusion of particular bone does
not start before attaining a certain age any
where by any one. Similarly a certain
fusion can not be completed before
attaining a certain age. The individual age
variations of a particular fusion are not
and can not be stretched beyond certain
limits. There can not be a limit less
variation. It is only after considering all
these factors that the doctor gives his
opinion that a particular person has
attained a particular age or not. A
categorical opinion of the doctor that the
girl Sonal is above 18 years of age
concludes this issue completely & belies
the contradictory age shown in the High
School certificate.

10. The Court's opinion is also
supported by the observations made by
Apex Court in the case Daya Chand Vs.
Sahib Singh 1991 Laws(S.C.) AIR(SC)
930 where the certificate of age was
disbelieved for the reason of the same
being in conflict with the medical
evidence. The relevant portion of the
citation may be quoted as thus:

??..............In a case like this, the
conflicting evidence of the record from
the two schools is not safe to rely on,
particularly when the medical opinion,
based on radiological examination and
other
physical
characteristics,
is
available for determining the age of Sahib
Singh
more
accurately.
The
data
available as a result of the medical
examination, apart from the opinion of
the doctors based on the medical
examination, with reference to Modi's
Medical Jurisprudence, 21st Ed., shows
that Sahib Singh's age on 16.3.1989, the
date of medical examination, must have
been definitely above 19 years since the
fusion of some of the bones which was
found on that date, could not occur below
the age of 19 years at the minimum. This
would mean that on the date of the
offence, he must have been definitely
above
the
age
of
18
years
at
least........................................

?............The tendency of many to
have lesser age recorded in school ls
well-known and, therefore, the date of
birth being recorded as 1.1.1973 in the
other school, can be easily appreciated
but cannot be accepted, because the same
is clearly in conflict with the medical
evidence. In this state of evidence, there
was no justification for the High Court to
have interfered with the concurrent
finding of the Metropolitan Magistrate
and the Additional Sessions Judge, that
the age of Sahib Singh on 26.7.1988, the
date of offence, was above 16 years on
account of which he was not a juvenile.?

11. The learned lower court seems to
have completely missed to gauge and
appreciate
all
the
above
discussed
1 All Vivek Chandra Bhaskar and another Vs. State of U.P. and others
567
crucially relevant facets of the matter in
blissful ignorance of the hard core
realities of the society. It simply did not
attempt to enquire and test whether the
age indicated in the certificate could at all
be possible or be correct on the
touchstone of the scientific medical data
available or not.

12. If in a given case the falsity of
the age indicated in the high school
certificate is apparent on the face of
record or is demonstrably repugnant to the
conclusive radiological findings there is
no reason why it should be ignored. It is
not always that a conclusive medical
report is available. More than often the
medical report is inconclusive and admits
of a wide flexibility bracket on both the
sides. But if there is irreconcilable
incompatibility, as is apparently present in
this matter, it ought to have been duly
considered and adjudged by the lower
court.

13. In the last. the respondents
counsel has made a faint half hearted
attempt to persuade this court to ignore
the radiological findings given by the
doctor on the ground that the division
bench might not have directed the medical
examination of the girl in case her high
school certificate had been produced
before that court. This contention can not
be accepted for many reasons. Firstly it is
very difficult to hazard the opinion as
what the court might have done in a given
situation. After all it is not unknown that
many a time the court in its wisdom
thinks it expedient to direct the medical
examination even when the documents
regarding
the
age
are
very
much
available. It is often so when the physical
appearance of the person concerned looks
demonstrably incompatible with the age
suggested
by
the
documents.
No
document
including
a
high
school
certificate, can be deemed to have
precluded the court from making further
enquiry
about
its
correctness
or
genuineness or truthfulness. How can the
court be divested of its powers to direct
medical
examination
of
anybody
including the girl, just because a high
school certificate has been produced! At
any rate, instead of anticipating and
dwelling upon such non events, this court
does not see any good reason to blind
itself to the radiological and medical
examination of the girl which is already
on record. There is nothing on record, nor
has
been
even
suggested
by
the
respondent's counsel , that the doctor who
did the medical examination of the girl
could have had any motive to falsely
prepare such a report or that the findings
recorded by him are not correct. All the
legal and logical implications of the
medical report must be allowed to follow
it.

14. In view of the statement of the
Girl given before the J.M. refuting all the
allegations of coercion exercised by the
petitioner no.1, showing her complete
willingness and approval to her marital
status with the petitioner no.1 which
according to her she has already been
enjoying, considering her blatant refusal
to go along with her father, and also
keeping in view the observations made by
the Apex Court and giving due weight to
the irreconcilable conflict of the age
shown in High School certificate with the
age given in medical examination referred
to above, I think that the continuation of
Sonal's detention in Nari Niketan is not
justified. I therefore, direct that she be set
at liberty with immediate affect.
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

15. The impugned orders of the
lower court concerned are quashed.

16. Petition succeeds.

17. Let a copy of this order be sent
to the court concerned forthwith for
necessary compliance by the quickest
mode available.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.04.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition 2439 (Ceiling) of 1978

Kamla Kant and another ...Petitioners
Versus
III Additional District Judge and others

 ...Opp. Parties

Counsel for the Petitioners:
Sri A.R. Khan, Sri Amrendra Nath Tripathi
Sri Shiv Kumar Pandey

Counsel for the Opposite Parties:
Sri Ram Krishan Pandey
Sri S K Mehrotra
Code of Civil Procedure- Section-11Principle of "Res-judicata"- applicability-
in
Ceiling
proceeding-once
ceiling
proceeding
of
same
plots
finalizedimpugned notice u/s 10 for the same
subject matter-held-barred by principle
of "Resjudicata.

Held: Para-8-
Upon perusal of the orders impugned in
comparison to the order passed by the
Prescribed Authority as well as the
appellate
authority
in
the
earlier
proceeding I find that the same very
land
was
subjected
under
the
proceedings of declaration of surplus
land and also find that the order, passed
by the Prescribed Authority is based on
re appreciation of evidence which is not
permissible under the eye of law as has
been held in the judgments quoted
above. This fact is not disputed that the
earlier proceeding was on the same
subject in which the issue had already
been determined between the parties by
the Court of competent jurisdiction.
Therefore, I am of the view that the
proceeding in question was barred by
principle of res judicata. That being so
the orders impugned passed in such
proceeding are nullity.

Case Law discussed:
(1999) 1 Supreme Court Cases 71; (2003)(94)
RD 527; (2009) (27) LCD 71; 2002 (20) LCD
1408

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr Amrendra Nath
Tripathi,
learned
counsel
for
the
petitioners as well as learned Standing
Counsel.

2. Through the instant writ petition,
the petitioners have challenged the order
dated 13.1.1978, passed by the Prescribed
Authority, Kunda, Pratpgarh in Ceiling
Case No. 99 of 1974 as well as the order
dated
5.7.1978,
passed
by
the
II
Additional District Judge, Pratapgarh in
Revenue Ceiling Appeal No. 3 of 1978
and other connected appeals.

3. The petitioners are lease holders
of the land declared as surplus land of
respondent
no.
4.
Therefore,
after
declaration the land as surplus they filed
objection before the Prescribed Authority,
claiming their right available there on the
basis of registered lease executed in their
favour.
The
Prescribed
Authority
considered their objection and decided the
case by judgment and order dated
25.1.1975 and declared total 24 Bigha 7