Anita & Ors. v. State of Delhi & Ors.

1. W.P.(CRL) 1669/2012 has been filed by the petitioners under Article 226 of the Constitution of India read with Section 482 Cr.P.C. W.P.(CRL) Nos.1669 & 1758/2012 Page No.1 of 4 2013:DHC:7495 ~, ~ praying inter alia for quashing of FIR No.294/2012 lodged at the instance of the petitioner No.1 under Section 376 Cr.P.C. with PS Pul Prahlad Pur, Delhi, alleging that on 3.10.2012, the petitioner No.2 had raped her.

2. W.P.(CRL) 1758/2012 has been filed by the petitioners under Article 226 of the Constitution of India read with Section 482 Cr.P.C. praying inter alia for quashing of FIR No.346/2012 lodged at the instance of the respondent No.7 (mother of the petitioner No.1 in WP(Cri.)No.1669/2012), registered under Sections 363/366/34 Cr.P.C. at PS Pul Prahlad Pur, Delhi.

3. Learned ASC for the State submits that the cases are still pending investigation and charge-sheets have not yet been filed.

4. Counsel for the petitioners states ~hat the petitioners No.1 & 2 in WP(CRL. )No.1669/2012 have solemnized their marriage on 17.11.2012 under the Hindu rites and customs and they have been blessed with a baby boy. It is submitted that the parties have resolved their differences and the petitioner No.1 has comfortably settled at her matrimonial home and does not wish to pursue the FIRs. It is also contended that as on date, both the petitioners are adult and W.P.(CRL) Nos.1669 & 1758/2012 Page No.2 of 4 a-therefore they are entitled to approach this Court for quashing of the aforesaid FIRs.

5. Learned ASC for the State opposes the present petition on the ground that the petitioner No.1 is still a minor. He submits that an ossification test was conducted in respect of the petitioner No.1 at AIIMS on 3.10.2012, the date when the FIR had been registered, and as per the report of the said test, the age of the petitioner No.1 was determined to be between 15.[3] to 15.[8] years. He states that even as on date, the petitioner No.1 is below 16 years of age.

6. Learned ASC states that in view of the decision of the Supreme Court in the case of Gian Singh vs. State of Punjab and Another, reported as (2012) 10 SCC 303 and the decision of the Division Bench of this Court in the case of Court on its Own Motion (Lajja Devi) vs. State, reported as 2012 VI AD (Delhi) 465, the present petition is pre-mature and cannot be entertained at this stage.

7. It is pertinent to note that in the case of Lajja Devi (supra), the Division Bench had held that where the prosecutrix is below 16 years of age, the request for quashing of the FIR on the ground that the prosecutrix and the accused have reconciled their dispute and the W.P.(CRL) Nos.1669 & 1758/2012 Page No.3 of 4 y prosecutrix has married the accused, ought not to be entertained till they attain majority, as her consent is irrelevant.

8. On the other hand, counsel for the petitioners relies on a certificate dated 21.11.2012 stated to have been issued by the Chief Medical Officer at a hospital at Aligarh, UP to contend that she was 18 years of age on 21.11.2012.

9. A perusal of the aforesaid certificate reveals that the same has been issued by the CMO on the basis of a statement made by the prosecutrix herself and only on her physical examination, without conducting any scientific examination that is required to be undertaken to establish the bone density of a party. The said document can hardly be relied, more so when the State has placed on record the ossification test of the petitioner No.1 conducted at a premium medical institution of the country, namely, AIIMS, which is accepted as being authentic.

10. In view of the guidelines laid down in the cases of Gian Singh (supra) and Lajja Devi (supra), the present petitions are dismissed as being premature.

SEPTEMBER 13, 2013 sk W.P.(CRL) Nos.1669 & 1758/2012 HIMA KOHLI, J