High Court of Punjab and HaryanaCRM-M/28585/2020allowed

Sumitra v. State Of Punjab

2021-01-28Mr. Justice Amol Rattan Singh7 pages

CRM-M-28585 of 2020 (O&M) -

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH 203) CRM-M-28585 of 2020 (O&M) Date of Decision: 28.01.2021 Sumitra

...Petitioner

Versus

State of Punjab

...Respondent

CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH Present:- Mr. Arjunveer Sharma, Advocate, for the petitioner. Mr. Amit Mehra, Sr. DAG, Punjab *** AMOL RATTAN SINGH, J. (Oral) Case heard by video conferencing.

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("(5"&(&("< Pursuant to the said order a report dated 25.01.2021 has been received from the JMIC, Ludhiana, stating therein that upon summoning the Principal of the school where the prosecutrix is last stated to have studied, her date of birth was found to be entered as 10.06.2007 in the admission register for the year 2018-19, which date was entered on the basis of an Aadhaar Card submitted by the parents of the proseuctrix. It has been further stated in the report that a Junior Assistant in the Regional Office of the Punjab School Education Board was also summoned, who produced a certificate granting affiliation to the school that the prosecutrix last attended, with the said School Education Board. On the basis of the above, the learned Magistrate has further stated that the certificate issued on 27.06.2020 by the said school, giving

CRM-M-28585 of 2020 (O&M) -C therein the aforesaid date of birth of the petitioner, is seen to be a valid and genuine certificate.

Last, it has been stated that upon posing questions to the prosecutrix, as per the assessment of that court, her age appeared to be 13 to 14 years.

That being so, though otherwise an Aadhaar Card is not a firm proof of age because at the time of filling in a form for issuance of an Aadhaar Card, no authentic proof of age is asked for by the Unique Identification Authority of India, however, in view of the fact that even as per the assessment of the learned Magistrate, as regards the intellectual capacity of the prosecutrix, as also her physical appearance, she appeared to be 13 to 14 years of age, this petition is allowed, with the prosecutrix to make any statement that she wishes to under the provisions of Section 164 of the Cr.P.C., in the presence of her parents before the Area Magistrate. It is directed that at the time when the prosecutrix is taken before the learned Magistrate from the place where she is currently staying, i.e.

the Child Care Home, Doraha, the investigating officer in the FIR in question, shall not go either to that home or be present before the Magistrate, nor shall he meet/or attempt to meet the prosecutrix during the course of that journey. She would be accompanied by two lady police officials who would not try to tutor her in any manner, with the parents of the prosecutirx to reach before the learned Magistrate on 04.02.2021 at 12.00 noon, but with it further directed that the parents will not be allowed to meet the prosecutrix outside the court before she makes a statement and they would be sitting in the court prior to the proseuctrix being brought there.

CRM-M-28585 of 2020 (O&M) -5 would adhere to provisions of Sections 25 and 26 of the Protection of Children from Sexual Offences Act, 2012, including sub-section (4) of Section 26, which postulates that, wherever possible, the statement of a child would be recorded by audio/video electronic means. The said provisions read as follows:- "25. Recording of statement of a child by Magistrate.-

(1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974)(herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child: Provided that the provisions contained in the first proviso to subsection (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.

(2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code."

"26. Additional provisions regarding statement to be recorded.-

(1) The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence.

(2) Wherever necessary, the Magistrate or the police officer, as the case may be, may take the assistance of a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, while recording the statement of the child.

(3) The Magistrate or the police officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of the child.

4. Wherever possible, the Magistrate or the police officer, as the case may be, shall ensure that the statement of the child is also recorded by audio-video electronic means."

Her statement would be recorded before the Magistrate without

CRM-M-28585 of 2020 (O&M) -' meeting her parents but in their presence, with no police official to be present at the time of the recording of her statement. Of course, thereafter, she would be allowed to meet her parents. Consequently, the impugned order passed in the present petition, dated 27.08.2020, by the JMIC, Ludhiana, rejecting the application of the petitioner to get the statement of the minor girl (prosecutrix) recorded in the presence of the petitioner, is hereby set aside. Though this is a petition seeking only the setting aside of the aforesaid order, however, Mr. Sharma has also submitted at this stage that with the girl having been shown to be a minor, even as per the aforesaid report of the learned JMIC, her custody be now handed back to her parents, with her to be released from the said protection home.

Though in terms of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of even a minor married girl is to be with her husband, however, with no proof of marriage actually having been brought before this court, I find the request to be reasonable in the circumstances of the case, especially when this court is exercising jurisdiction under Section 482 of the Cr.P.C. Hence, after the prosecutrix has got recorded any statement under the provisions of Section 164 of the Cr.P.C before the concerned Magistrate, her custody would be returned to her parents, i.e. the present petitioner and the petitioners' husband.

The petition stands allowed in the above terms. 28.01.2021 (AMOL RATTAN SINGH) vcgarg JUDGE