Appellate Division Cases
(CRIMINAL)
PARTIES
Arun Karmakar …………………………….Appellant
= Vs =
The Sate represented by the Deputy commissioner, Satkhira and another ………………………………………………..Respondents
JUSTICE
Mahmudul Amin Choudhur. CJ
Mainur Reza Chowdhury. J
Mohamad Fazlul Karim. J
JUDGEMENT DATE: Judgment February 3rd, 2002
Section 491 of the Code of Criminal Procedure. Majority Act 1875 read with Guardians and Ward Act. 1890, section 164 Cr. P. C.Thus the some total of our discussion above, notwithstanding that a person may have a right to move before higher court challenging legality of the order, one could also approach the High Court Division under the said section 491 of the Code of Criminal procedure for a direction that his minor ward having been detained in judicial custody illegally or in an improper manner, be made over to the custody of her natural guardian in the best interest of her welfare (19) Wahed Ali Dewan Vs. The State and others 46 DLR (AD) 10, Sree Mangla Chandra Nandi Vs, Bangladesh 17 BLD (AD) 33, Jharna Rani Saha Vs. Khondker Zayedul Haque 52 DLR (AD) 66, krishma Pada Dutta Vs. The Secetary, Ministry of Home Affairs and others 42 DLR 297, Muthu Ibrahim’s case ILB 37 Mad 567, Sukhendra Chandra Das 42 DLR 79, Bashu Dev Chatterjee V. Umme Salma and others 51 DLR (AD) 238
Criminal Appeal No. 13 of 2001 (From the judgment and order dated 12th December 2000 passed by the High Court Division in Criminal Miscellaneous Case No. 6858 of 2000).Mr. Probir Haider, Advocate (appeared with the leave of the Court), instructed by Mr. Md. Nawab Ali, Advocate-on-Record. … For the Appellant Mr. Abdul awal, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advacate-on-Record. … Respondents No.1
Respondents No.2 : Not Represented.
JUDGMENT
1. Mohammad Faziul Karim J: This appeal by leave at the instance of the informant appellant was to consider the submissions as to (i) whether the High Court Division is competent and independent to act under section 491 of the Code of Criminal Procedure in an appropriate case when it is found that the victim has been illegally and improperly kept under confinement under the garb of judicial custody when she is a minor on the order of the learned Sessions Judge and as such the said confinement is on the very face of it is illegal, (ii) whether a detune who is a minor can be kept in confinement for an indefinite period by a court for the purpose of determination of majority or minority on conclusion of trial, which is not warranted by law and is illegal or improper, (iii) whether the High Court Division could act under section 491 of the Code of Criminal Procedure when from the medical report as well as from the school certificate it appears that the victim Mamota Karmaker is still a minor and as such she can not be confined even at the direction of the learned Sessions Judge only for the determination of her age which has already been done and (iv)whether in view of the consistent view of the higher courts of the sub-continent that the question of custody of a minor can also be decided in a proceeding under habeas corpus under section 491 of the Code of Criminal Procedure without prejudice to the final adjudication by the Court concerned, the High Court Division Committed illegality in refusing to interfere in the matter.
2. The appellant filed the appeal against the impugned order passed in a rule issued on an application under section 491 of the Code of Criminal Procedure asking the respondents to show cause as to why Miss. Mamota Karmaker now in safe custody at Satkhira District Jail should not be ordered to be released as she has been kept there on the order of the learned Sessions Judge dated 1.11.2000 passed in Criminal Miscellaneous Case No. 577 of 2000illegally and improperly, the petitioner who is the father of said Manota Karmaker filed P. S. Case No. 11 dated 14.8.2000 on the allegations that on 7.8.2000 while said Mamota Karmaker was on her way back home was kidnapped by some ersons under the leadership of on Uqbal Hissain and thereafter the first information was lodged by the petitioner impleading six persons as accused; that Mamota Karmakder is aged about 15. Vi years and a student of Class -X in Mazahar Memortal High School. The victim girl was ultimately traced out at the house of on Khairul Basher at Narayangamj.
When the petitioner and others went for her rescue they were threatened and thereafter the first information report was lodged against nine persons under section 10(1) of BCe 2000 which was registered as G. R. Case No. 366 of 2000 of the court of the Magistrate, Satkhira. All the nine accused persons along with the victim surrendered be fore the High Court division in Criminal Miscellaneous Case No. 5199 of 2000 and prayed for anticipatory bail and the High Court Division directed them to surrender before the Tribunal within three weeks by order dated 27.8.2000 . Accused persons along with the victim surrendered before the learned Sessions Judge, Satkhira in Criminal Miscellaneous Case No. 570 of 2000 with a prayer for bail and also to release the victim girl in the custody of her alleged husband Uqbal Hossain. But the learned Sessions Judge put the ir… in the safe custody by order dated 13.9.2000 with a direction to produce the girl before the Civil Surgeoa for ascertaining her age and excepting Uqbal Hossaim, Shaikh biddut Ali and Md. Shahudul all other accused persons have been enlarged on bail.The learned Sessions Judge also called for a certificate from the Head Master of Mozahar Memorial Madhayamik Biddalaya. Kaliganj, Satkhira for the purpose of ascertainment of her age. The Civil Surgeon submitted report holding that the victim girl was aged about 17.5 to
18.5 years. The petitioner then filed Criminal Miscellaneous Case No. 577 of 2000 praying for releasing the victim girl to his custody which was rejected by the learned Sessions Judge by his order dated 1.11.2000 holding that the final decision will be taken after taking evidence. The petitioner thereafter challenging the order of detention of the victim detenue moved the High Court Division under section 491 Cr, P, C, alleging that she has been detained illegally and improperly.
3. The High Court Division discharged the Rule holding that the present application is not maintainable section 491, Cr. P. C. which contains only the dirctions of the nature of habeas corpus and there is no scope to determine the question of custody of any minor as the determination of such a question depends on several facts and circumstances including documentary and other evidence.
4. Mr. Pobir Halder the learned Advocate submits that the power of the High Court Division under section 491 of the Code of Criminal Procedure is quite independent and empowers the Court to issue the rule in the nature of Habeas Corpus in an appropriate caser for efficacious, speedy and appropriate remedy irrespective of tendency of a case in a Court. He next submits that detention of a minor victim girl pursuant to order dated 1.112000 of the Sessions Judge in Criminal Miscellaneous Case no. 577/2001 in judicial custody for an indefinite period for the purpose of determination of her majority r minority on conclusion of trial is a manner of confinement which is not warranted by law and such confinement is illegal or improper detention.
5. Mr. Abdul Awal, learned Deputy Attorney General appearing for the respondents submits that there is strong prima-facie case against the accused respondent no 2. and this is a case under Section 10(l)/30 of Nari-O-Shishu Nirjatan Daman Ain, 2000 for kidnapping of victim girl and the father being the legal guardian of a minor and once it is
ascertained that the victim girl is minor, non-consideration of the prayer for release of the victim girl by the High Court Division displayed lack of application of judicial mind in exercising jurisdiction under section 491 Cr. P. C. and in view of her admitted minority during pedency of the case she should be kept in there father’s custody.
6. The appellant has asserted in the petition of complaint that the victim girl was about 15.5 years of age and a student class X of Mazahar Memirial High School and together with the concise statement filed a certificate of the Headmaster of the said School stating that victim Mamota Karmaker, daughter of Arun Karmaker of village Purba Narayanpur P.O. and P. S. Kaligonj, District Satkhira was a student of Class X and her date of birth was on 12.11.1994 as per record of the school.
7. We have ourselves called for the register of admission of the School through the Deputy commission Satkhira who has sent the same duly attested by the Additional District Magistrate. Satkhira with a forwarding and find therefrom that her date of birth as recorded in the admission register of students was on 12.11.1984 . It further appears from the marksheet from the Secondary School Certificate Examination record supplied to by the Head Mater duly attested by the Additional District Magistrate. Satkhira that the date of birth of Mamota Karmaker was on 12.11.1984 who appeared at the Secondary School Certificate Examination held on 15.11.1999 From the above, it appears that the said Mamota Karmaker is of 17 years two months as on today 3rd of February. 2002 A girl’s majority is on attaining 18 years of age and presently prima facie the victim girl is a minor. This position is also admitted by respondent no. 1 in the concise statement. But the Doctor examining the victim has opined her age to be 17!/2 or I8V2 and while recording the statement under section 164 Cr. P. C the victim claimed hereself to be above 18 years of age. In the case of Me. Sayeedul Arefin Vs, Y. O. Gofrin AIR 1916 Privy Council 242 it has been feld that : “Doctors’ certificate which is only an assertion of opinion and the minor’s declaration before the Magistrate as to age are no proof as to age.”
8. In the case of Wahed AH Dewan Vs. The State and others reported in 46 DLR (AD) 10 it has been held that preference con not be given to other than the testimony of father supported by school certificate. In the case of Sree Mangla Chandra Nandi Vs, Bangladesh 17 BLD (AD) 33. the victim girl was found to be 15-16 years of age as per medical report and she was ordered by the court below to be kept in custody until she attains 18 years as she refused to her father observing that the observation made by a minor girl must be kept with reservation, it can not be a factor for not giving the victim to her father and accordingly it was directed to hand over the minor to the father.
9. In the case of Jharna Rani Saha Vs. Khondker Zayedul Haque reported in 52 DLR (AD) 66 though it was case of Nari-o-Shisu Nirjatan Ain 1995 and the age was not a material issuse and as per accused the detcnue was aged above 18 years, left father’s house and emplaced Islam and married the respondents but as per horoscope and the school certificate victim was found minor being about 15 years on the date of occurrence and it prima facie show that on the alleged date of occurrence and it prima facie show that on the alleged date of occurrence the girl was about 15.5 years of age and it was inhuman to keep the victim in custody and her welfare demands that she should be given to her father and as per law under which the trial is being held the girl should remain with her parents as minor cannot make her won choice. She not being an accused or an witness on record either party could call her as a witness as the trial and Court will ensure her attendance. In the case of Sree Mangal Chandra Nandi Vs, Bangladesh reported in 17 BLD(AD) 33 while directing the Superintendent of District Jail. Tangail to release the detenue forthwith and to hand over custody of minor daughter to her father this Division observed that: “In an unreported Criminal Petition for Leave to Appeal No. 101 of 1996, this Division held that the real welfare of a minor girl lay with her custody being given to her father as the father is the best well-wisher of a minor child. Any observation made by a minor girl must be taken with reservation and the same connot be a factor for not giving a victim girl to the lawful guardian of a father”.
10. In the case of krishma Pada Dutta Vs. The Secetary, Ministry of Home Affairs and others reported in 42 DLR 297 in an application under section 491 Cr. P. C. it was held that : “We are in respectful agreement with the views expressed in Muthu Ibrahim’s case ILB 37 Mad 567 and in the case of Sukhendra Chandra Das 42 DLR 79 that for the purpose of custody of the girl age of majority laid down in the Majority Act 1875 read with Guardians and Ward Act. 1890 i. e. the age of 18 years is the determining factor to decide whether the girl is to be given to the custody of the guardian or she is major. It is needless to sate that reference to the age of sixteen in case of a female minor in section 361 of the Penal Code is only for the purpose of commission of the offence of kidnapping punishable under section 363 of the Penal Code and not for the purpose of deciding whether the girl is suijuris.”
11. In view of the above, in the instant case doctor’s certificate as to age of the victim at 12.5 18.5 years of age and an opinion as to the age is no conclusive proof there of and the declaration in the staement under section 164 Cr. P. C. ofthe victim that she was a major are no proof of age and that radiologist’s opinion cannot be preferred to positive evidence like school certificate. In view of the above, the girl being prima facie minor we are of the view that the detenu not being an accused has been illegally and or improperly defended in judicial custody and she should be put to the custody of fater who is her legal and natural guardian.
12. As to the second point regarding maintainability under section 491 of the Code of Criminal Procedure the said provision is quoted as under : (1) The High Court Division may, whenever it thinks fit. direct ; (a) that a person within the limits of its ( appellate criminal jurisdiction) be brought up before the Court to be dealt with according to law:
(b) that a person illegally or improperly detained in publice or private custody within such limits be set at liberty; (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter ending or to be inquired into in such Court; (d) that a prisoner detained as aforeasid be brought before a Court matrial or any commissioners for trail or to be examined touching any matter pending before such court-martial or Commissioners repectively’ (e) that a prisoner within limits be removed from one custody to another for the purpose of trial;
and (2) The Supreme Court from time to time, frame rules to regulate the procedure in cases under this section;. (3) Nothing in this section applies to persons detained under any law for the time being in force providing for preventive detention.
13. In the case of Bashu Dev Chatterjee V. Umme Salma and others reported in 51 DLR (AD) 238 ona fact ofthe case that minor girl ofthe appellant was alleged to have been kidnapped on 4.3.1997 and who is now in judicial custody in the Jangail District Jail on an appeal from an order rejecting the Miscellaneous case on an application under 491 Cr. P. C it was held. ” As for the next appeal, Criminal Appeal No. 22 of 1998 , the learned Advocate for the appellant, submits that the Criminal Miscellaneous Case filed by the appellant was wrongly found to have become in fructuous and that the matter of custody of the victim girl ought to have been decided on merit. We think there is force in the submission of the learned Advocate. It is true that the victim girl was put back into judicial custody in pursuance of a direction from considering the application of the appellant seeking custody of his daughter who was in judicial custody. In the appeal before us against the order of ad interim bail , the matter of custody of the victim girl was not to be decided. The High Court division should have considered the Miscellaneous Case filed by the appellant under section 491 Cr. P. C. on merit. Normally in a situation like this an order of remand is called for but the learned Advocate for the appellant has prayed that the matter may be disposed of on merit here having regard to further development in the matter which culminated in filing of yet another petition for leave to appeal NO. 12 of 1999 , against the order passed by the same Bench in Criminal Miscellaneous Case No. 5382 of 1994.”
14. In the case of Jharna Rani Saha Vs, Khondker Zavedul Haque reported in 52 DLR (AD) 66 invoking the jurisdiction from an appeal against an order under section 491 Cr, P. C this Court holding the detenue below the age of majority was handed over to the custody of the legal parents. In the case of Jharna Rani Saha Vs. Khaodkar Zavedu! Hoque reported in 17 BLD(AD) 33 the Appellate Division on an appeal from order in Miscellaneous Case upon an application under section 491 Cr. P. C. it has been held that detain a minor in jail custody is inhuman and directed to release the detenue forthwith and handover to the custody of her father and thus approved the applicability of section 491 Cr. P. C. in a situation where the illegal or improper detention of a minor girl has been alleged and to obtain her release to the legal guardian.
15. In the case of Muhammad Rafuque V. Mohammad Ghafoor reported in PLD. 1972 SC 6 wherein it has been ruled as under : ” The High Court has to fold jurisdiction under this section (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally and improperly detained. The question which fall for determination, however, is that if the girl finds that the person brought before it was not only illegally or improperly confined or detained what order can be passed regarding the custody of that person”. So holding observed that if a person was a minor the Court may make over his Custody to the Guardian which will be dealt with in accordance with law.”
16. In the case of Most, Tauqir Fatima Vs, Iqbal Mehdishah reported in 1990 Pakistan Criminal Law Journal 342 following the decision in PLD 1972 SC 6 it has been held that proceedings by was y of haves corpus are proceedings calling upon a person hearing custody of another person to produce and to demonstrate under what authority he holds him in custody. The High Court in matters pertaining to custody of minors has got jurisdiction under section 491 of the Code of Criminal Procedure which remedy is efficacious, speedy and appropriate and is to be exercised without prejudice to the rights of parties to have the matter finally adjudicated upon by the guardian judge. If the High Court finds that person brought before it was being illegally and in properly confined or detained and is a minor. Court may make over the custody to guardian which will be dealing with him in accordance with law, but if the person in major, the only jurisdiction which court can exercise is to set at liberty whether illegally or improperly detained in public or private custody.
17. Similarly in the case of Nasima Akhter Vs, Sh Gulzar Ahmed reported in 1995 Pakistan Criminal Law Journal 474 it has been held that: “No doubt Guardian and Wards Act of 1890 regulated the custody of the minors and section 491 Cr., P. C. is quite independent could empowers the Court to issue the writ of haves corpus in appropriate cases irrespective of the provisions of the Guardianship and Ward Act 1890.”
18. In the case of Miss Hina Jilani Vs, Sohail But reported on PLD (1995) Lahore 151 the question of maintainability of an application under section 491 of the Code of Criminal Procedure was raised where it has been held that the jurisdiction under section 491 Cr, P, C. of a court is more parental in nature dispute can be resolved on basis of technicalities. Courts jurisdiction under section 491 Cr. P. C. is different and distinct from family Court, a person may have a right to move guardian Court but in appropriate case section 491 can be invoked when confinement is not warranted by law.
19. Thus the some total of our discussion above, notwithstanding that a person may have a right to move before higher court challenging legality of the order, one could also approach the High Court Division under the said section 491 of the Code of Criminal procedure for a direction that his minor ward having been detained in judicial custody illegally or in an improper manner, be made over to the custody of her natural guardian in the best interest of her welfare.
20. In view of the above provision of law and the decisions we have no hesitation to hold that an application under section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held in custody illegally and/or in on improper manner. In view of our finding as to maintainability under section 491 of the Code of Criminal Procedure and in the instant case the age of the victim is prima facie below the age of majority we are inclined to allow the victim to the custody of the parents.
21. In the facts and circumstances of the case,either party could call her as a witness at the trial and in that event the parents could assure her attendance in the Court and the District Magistrate while releasing her to the custody of the parents with or without bond would ensure her attendance as and when necessary at the trial.
22. In the result, this appeal is allowed setting aside the impugned judgment and order of the High Court Division.
Ed.
Source : I ADC (2004),63