Allahabad High Court
RUKHSAR KHATOON AND ANOTHERversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Disposal
- Disposed off/Decided on merits
- Bench
- LAKSHMI KANT SHUKLAVIVEK KUMAR BIRLARAJEEV MISRAYOGESH DUBEY JOINT REGISTRAR JUDICIAL
Holding
The Court held that arrest of the petitioners cannot be ordered until the first petitioner’s age is medically determined and a statement under Section 183 B.N.S.S. is recorded, and if she is a major, arrest is stayed pending a report under Section 193 B.N.S.S.
Summary
The petitioners, Rukhsar Khatoon and another, filed a criminal miscellaneous writ petition seeking quashment of FIR No. 137(2) BNS dated 13‑04‑2025 and protection from arrest. They contended that both were adults at the time of the alleged incident, relying on birth certificates and Aadhaar details, while the State argued that the first petitioner’s school records indicated a later birth date. The Court, referring to Supreme Court precedents (Suhani v. State of U.P. and P. Yuvaprakash v. State), ordered that the first petitioner be produced before the magistrate for a statement under Section 183 B.N.S.S. and subjected to an ossification test by a three‑doctor panel for age determination. The Court held that arrest could not be effected until the age test and statement are completed, and if she is found to be a major, arrest would be stayed pending a report under Section 193 B.N.S.S.; otherwise normal procedure would follow. Consequently, the writ petition was disposed with these directions, without quashing the FIR.
Issues considered
- Whether the FIR under Section 137(2) BNS can be quashed on the ground that the alleged parties are adults.
- Whether the petitioners are entitled to protection from arrest pending age determination.
- Whether the Court should direct an ossification test and statement under Section 183 B.N.S.S. before authorising arrest.
Legislation cited
- B.N.S.S. — s. 137(2), 183, 193
Subjects
- age determination
- ossification test
- criminal procedure
- FIR quashment
- Section 137
- Section 183
- Section 193
- child marriage
- arrest protection
Judgment
Neutral Citation No. - 2025:AHC:75362-DB
Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 9330 of 2025
Petitioner :- Rukhsar Khatoon And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Samsher Aalam
Counsel for Respondent :- G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Jitendra Kumar Sinha,J.
1. Heard Sri Samsher Aalam, learned counsel for the petitioners and Sri Rahul
Asthana, learned A.G.A. for the State and perused the record.
2. This writ petition has been filed praying to quash the first information
report dated 13.4.2025, registered in Case Crime No. 0077 of 2025, under
Section 137(2) BNS, P.S. Khampur, District Deoria and not arrest the
petitioners pursuant to the said FIR.
3. Learned counsel for the petitioners submitted that no offence as alleged is
made out as the petitioner no. 1 is a major girl and the entire criminal case
lodged by the informant is nothing but an abuse of the process of the law. It is
further submitted that as per Birth Certificate (at page 28), date of birth of
petitioner no. 1 is 7.2.2005 and as per Aadhar Card the date of birth of
petitioner no. 2 is 15.4.2024 and as such, the petitioners no. 1 and 2 are major
on the date of incident and they have married on their sweet will and no
offence has been committed.
4. Per contra, learned AGA submits that as per his instructions the petitioner
no. 1 was a student of Class X and in her educational record her date of birth
is 26.7.2008.
5. At this stage, learned counsel for the petitioners has placed reliance upon a
judgment of Hon'ble Supreme Court in the case of Suhani vs. State of U.P.
reported in 2018 0 Supreme (SC) 1430 and judgement dated 18.7.2023 passed
in Criminal Appeal No. 1898 of 2023 (P. Yuvaprakash vs. State Rep. by
Inspector of Polic) submits that in all such matters Hon'ble Apex Court has
directed for age determination test of the girl.
6. In view thereof, we direct that the petitioner no.1-Rukhsar Khatoon be
produced before the Magistrate concerned, for recording her statement under
section 183 B.N.S.S. and thereafter, she shall be brought before the Chief
Medical Officer concerned by the I.O. of the case who shall constitute a panel
of three doctors, for her age determination test (ossification test). Both these
exercises must conclude on or before 19.62025 or within six weeks from
today.
7. It is incumbent upon the petitioners to provide all necessary assistance to
the Investigation Officer during investigation, however, the petitioners shall
not be arrested during this period.
8. The arrest of the petitioners shall be subject to the 183 B.N.S.S. statement
of the girl and her age.
9. In the event, if it is found that she had attained the age of majority and her
183 B.N.S.S. statement favours the petitioner no. 2, then the petitioners shall
not be arrested till the submission of report by the police under section 193
B.N.S.S.. OTHERWISE, the procedure of law would follow against the
petitioners and the protection given to the petitioners would automatically
stands vacated.
10. With this observation, the writ petition stands disposed of.
Order Date :- 9.5.2025
Abhishek
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
Checking your session…