Md. Abdul Majid Sarker Vs. The State

Appellate Division Cases

(CRIMINAL)

PARTIES

Md. Abdul Majid Sarker……………………………Appellant

=Vs=

The State and others………………………………. Respondent

JUSTICE

Mahmudul Amin Choudhury C.J

Mainur Raza Chowdhury J

Md. Ruhul Amin J

Syed J. R. MudassirHusain J

JUDGEMENT DATE 10.6.2002.

Section 491, 891 of the Code of Criminal Procedure

Having given our anxious consideration to the available materials and on hearing the learned Advocate of both the sides we prma fades hold that the date of birth of victim Masuda Khanam (Has) is 30.10. 1984 and not 29.10.1983. Being prima facies a minor on the date of occurrence and even today we are of the view that the girl not being an accused has been illegally and improperly detained in judicial custody and when prima facies she is a minor it is right and proper that the girl should stay with her parents and as she is not an accused she cannot be kept in,judicial custody. In such a situation the opinion of the girl who is a minor is irrelevant. The minor’s refusal to go with her father the appellant is not at all a material consideration. The father being the best well wisher of the minor is entitled to her custody and for her own interest she should be given to her father’s custody…(12)

…….. an application under section 891 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner….(13)

5 BLT (AD) 5,1 (Sree Mongal Chandra Nandi Vs. Bangladesh). 7 MLR (AD) 82, , Md. Sayedul Arefin Vs. Y. O. Gafur, AIR 1916 (P.C) 242,

Criminal Appeal No. 42 of 2001 (From the judgment and order dated 16.4.2001 passed by the High Court Division in Criminal Miscellaneous Case No. 5638 of 2000).

Md. Fazlul karim. Senior Advocate, (, Sha/iidiil Islam, Advocate with him) instructed By

Md. Nawab AH. Advocate-on-Record. ………For the appellant

Fida F. Kama/ Advocate instructed Mvi. Md. Whaidullah, Advocate-on-Record………For respondent No. 4.

Respondent Nos.l-3: Not represented.

Judgment

1. Mahmudul Amin Choudhurv C. J. : This appeal by leave at the instance of the informant who is the fether of xkuni Masuda Khanam (Hasi) is against judgment and order dated 16.4.2001 passed by a Division Bench of the High Court division in Criminal Misecllaneous Case No. 5638 of 2000 discharging the Rule Which arose out of an application filed under section 491 of the Code of Criminal Procedure for custody of aforesaid victim Masuda Khanam (Hasi) in respect of Nari-o-Shishu Case No. 90 of 2000 corresponding to Nagogaon G.R. Case No. 149 of 2000 refusing to give custody of aforesaid Masuda Khanam (Hasi) with the appellant who is her father.The short fact leading to this appeal is that the present appellant lodged F.I.R with Naogaon police station alleging that respondent No. 4. on 10. 6. 2000 abducted said massed khanam (Hasi) while she was going to school in order to compel her to marry him. Case of the appellant is that his daughter Vlasuda Khanam (Hasi) is aged 15 years on the date of occurrence. In that case the police after invesigation submitted ch.irg sheet and the case is now pending before the trial court. The police recover Masud Khanam (Hasi) and arrested respondent No. 4. Md Enamul Hoque on 9.7.2000 and her statement was recorded wherein she expressed her intention not to go with her father. There after the victim was sent to judicial custody. The appellant then made a prayer for custody of her minor daughter which was rejected by the learned Magistrate and then againg the tribunal was moved unsuccessfully. The appellant then moved the High Court Division under section 491 of the Code of Criminal Procedure wherein the Rule was discharged by a Division Bench on 16.4.2001

2. Leave was granted to consider the follow ing:”Mr. Md. Fa/lul Karim, learned Counsel appearing on behalf of the petitioner submits that victim Masuda Khanam (Hasi) is a minor girl of 15 years who has been kept in the judicial custody against her will, it is submitted that the High Court Division erred in law in law in failing to exercise authourity under section 491 of the Code of Criminal Procedure in such a case when the victim is a minor and not an accused in the case and her confinement in the custody is illegal and she ought to have been handed over to her father petitioner. He submits that the Hi:’1 Court Division failed to appreciate the legal pc ‘ on as propounded in the case reported in 5 BLT (AD’ Page I. He also submits that the father is the competent and natural guardian of the minor girl and her continuous detention is illegal. It is the definite case of the prosecution that victim Masuda Khanam (Hasi) is a minor girl and in support of that certain Paperes have been annexed with the petition.”

3. Mr. Shahidul Islam, learned Advocate appearing on behalf oi the appellant submits that the appellant is the father of the victim Masuda Khanam (Hasi) w ho is languishing in judicial custody. He submits that she is a minor and at best her status is that of a witness but not an accused and when she is a minor she should be handed over to her father the appellant . He submits that her confinement in custody is illegal and her father is the most competent and natural guardian and when he is praying for custody of her minor daughter it ought to have been allowed by the High Court Division.

4. Mr. Fida F. Kamal learned Advocate appearing on behalf of respondent No. 4. on the other hand submits that from the date of birth as mentioned in Secondary School Certificate Examination if would appear that by this time Masuda Khanam (Hasi ) became a major and as such she can not be forced to so with the appellant. In such a situation she must have her won choice and she already has married respondent No . 4. Md. Enamul Hoque at her own will and against her wish she cannot he released and handed over to her father appellant.

5. It appears that at the time of granting leave to appeal the learned Counsel placed reliance in a case of this Division reported in 5 BLT(AD) Page KSree Mongal Chandra Nandi Vs. Bangladesh). In that decision it has been held that when a victim girl was found to be a minor she ought to have been given in the lawful custody of the father. The opinion of the minor is irrelevant and the same cannot be a condition precedent for giving her custody to the father. It has also been held that a minor’s refusal to go with her father is not at all a consideration regarding her custody and it was observed that father being the best well wisher of a minor daughter is entitled to the custody and in her won interest she should be given to her father’s custody.

6. Here in the present case the main question is whether Masuda Manama (Hasi) is a minor or not. If she is found to be s minor she should be given to the custody of her father the appellant. In such a situation opinion of the minor is immaterial.

7. It appears that the application before the High Court Division was filed under section 491 of the Code of Criminal Procedure and the High Court Division observed that a question arose whether that court is competent to pass an order under section 491 of the Code of Criminal Procedure in ration to the detune who is detained in custody by an order of a competent court and the High Court Division relying on a decision reported in 53 DLR 135 held that when a detune is detained by an order of a court unless and until the order is reversed by another competent court the detention cannot be construed as illegal and improper and the High Court Division after observing that the order of detention was passed by a competent court they cannot interfere under section 491 of the code of Criminal Procedure.

8. It is true that the petition has been filed under section 491 of the Code of Crimnial Procedure before the High Court Division. This has not been filed against the order passed by the learned Sessions Judge refusing to release aforesaid Masuda Khanam (Hasi) to the custody of her father the present appellant before us. In that application the appellant prayed for custody of the petitioner on the ground that she is minor and not an accused in the case filed by the appellant against respondent No. 4 Her status is that of a witness and not an accused and as she is a minor she cannot be detained in the custody. Admittedly the petitioner has been sent to the judicial custody when she refused to go with her father and thereafter the appellant moved the High Court Division under section 491 of the Code of Criminal Procedure. The High Court Division it appears observed that when Masuda Khanam (Hasi) has been sent to judicial custody by s competent court the appellant has no retnedy under section 491 of the Code of Criminal Procedure. In arriving at this decision the High Court Division relied on a decision given in Criminal Miscellaneous Case Nos. 620 of 2000 and 6S58 of 2000 wherein one of the Judges was a party. But this Division in the case of Arun Karmakar Vs. The State reported in 7 MLR (AD) 82 has held that an application under section 491 of the Code of Criminal Procedure in such type of cases is maintainable. When this Division has found after a detail consideration of the reported decisions that a petition under section 491 of the Code of Criminal Procedure in such type of case is maintainable the High Court Division committed illegality in refusing to enter into the merit of the case holding that the order of detention has been passed by a competent court.

9. In such matters the main criteria is the age of the victim girl. According the prosecution on the date of occurrence i. e. on 10. 6. 2000 Masuda Khanam (Hasi) was a minor and according to the learned Advocate she is now below the age of 18 years and when she is still a minor and not an accused in tiie case she cannot be confined in the custody. It appears that the High Court Division has not considered this aspect of the matter. That Division was bound to come to a finding as to the age when she is not an accused which will determine the fate of the proceeding before that Division. But simply holding that petition under section 491 of the Code of Criminal Procedure is not maintainable the High Court Division refused to enter into the matter.

10. It is the definite case of the appellant that Masuda Khanam (Hasi) was born on 30.10.1984 and the same has been recorded in the Municipal Birth Register as reported on 19. 12. 1984 and after a calculation from this date it would appear that she has not as yet attained the age of 18 years. The appellant produced a copy of the Birth Register maintained by Naogaon Municipality and it supports the contention that date of birth of Masuda Klianam (Hash was recorded as on 30. 10. 1984 and this was reported on 19.12.1984 which is little over after two months of her birth. The learned Advocate for respondent No. 4 on the other hand placed reliance on her Secondary School Certificate Examination where her date of birth has been mentioned as on 29.10.1983 and if that date is found to be correct date of birth then she has now attained the age of majority. We have called for the Admission Register of the school and from that Register it appears that her date of birth has been mentioned as on 29.10.1983 Now the question is which date of birth is correct. It is well known that in this Sub-Conlinent people always try to give a different date 4 of birth and in most cases later date of birth has always been shown. But it is not the tendency to raise the age of a person. In the present case date of birth has been shown in the Admission Register as on 29.10.1983 but in the Municipal Register it was shown as on 30.10.1984 which was reported to the Municipality on 19.12.1984.

11. Mr. Shahidul Islam, appearing on behalf of the appellant submits that in 1993 when the victim girl was taken for her admission in Naogaon P.M. Girls School in Class Five the School authority on calculation found that she will not be able to sit in her S.S.C Examination if her date of birth is recorded as on 30.10.1984 and at their insistence age was raised and date of birth was noted as on 29.10.1983. This was done only to facilitate the victim to sit in her S.S.C examination ultimately. Admittedly the occurrence took place on 10.6.2000 and on 23.1.1993 when the victim girl was admitted in Class Fi\c there was no reason to raise the age apprehending that such occurrence will take place. The genuineness of the copy of the Municipal Birth Register and the fact that it was reported on 19.12.1984 has not been challenged on behalf of respondent No. 4 and there was no occasion or reason to change the date of birth exception the reason that has been submitted forcefully hy the learned Advocate for the appellant. The facts and circumstances indicate that the date of birth of the victim has been correctly reflected in the Municipal Birth Register. There was no reason or occasion tor the appellant to give a date of birth in the Municipal Birth Register then the actual date of birth and that was reported after two months from the date of actual birth and thereafter about nine yearsa new date of birth has been given while the victim was being admitted in the school and the reason behind it was to allow her to sit in the S.S.C examination subsequently. The submissions of the learned Advocate for the appellant in this respect has force. Finding as to the age in such matter at this stage is always prinia faeies and when prima faeies it is found that the date of birth of the victim is 30.10.1984 it is prima faeies found that she is aminor.

12. The learned Advocate for respondent No .4 drawing our attention to the report of the medical examination submitted that the victim was found to be aged in between 17 to 19 years and that examination was done on 19.7.2000 and by this time she has become a major and as such she cannot be forced to go with the appellant . But the Privy Council in the case of Md. Sayedul Arefin Vs. Y. O. Gafur reported in AIR 1916(P.C) 242 has held that Doctor’s certificate is only in assertion of opinion. Final confirmation will be on the basis of the evidence adduced at the time of trial. Doctors have not given any clear opinion. Their opinion veried from 17 years to 19 years. In such a situation it cannot be prima faeies found at this stage that on the date of occurrence or at least on I6.7.2OOO the girl was a major.

13. Having given our anxious consideration to the available materials and on hearing the learned Advocate of both the sides we prma faeies hold that the date of birth of victim Masuda Khanam (Has) is 30.10. 1984 and not 29.10.1983. Being prima faeies a minor on the date of occurrence and even today we are of the view that the girl not being an accused has been illegally and improperly detained in judicial custody and when prima faeies she is a minor it is right and proper that the girl should stay with her parents and as she is not an accused she cannot be kept in judicial custody. In such a situation the opinion of the girl who is a minor is irreleveni. The minor’s refusal to go with her father the appellant is not at all a material consideration. The fathei being the best well wisher of the minor is entitled to her custody and for her own interest she should be given to her father’s custody.

14. In view of our above discussion we have no hesitation to hold that an ,:pp’;cation under section 891 of the Code of Crimin.’l hncedurc is maintainable for custody of a minor in see ihat the minor is not held illegally and in an improper manner and in the instant case when the age of the victim is prima fades below the age of majority we are inclined to allow the victim to the custody of the appellant.

15. For the foregoing reasons we are inclined to allow the appeal and the appeal is accordingly allowed. Judgment and order passed by the High Court Division is hereby set aside and the Rule is made absolute. Superintendent of Nagoaon Jail is directed to release the detune Masuda Khanam (Hasi), daughter of the appellant forthwith and handover her to the custody of her father the appellant

Ed.

Source : I ADC (2004), 34