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1992 DIGILAW 51 (PAT)

Priyanka Singh (Bhattacharya) v. State

1992-02-11

N.PANDEY, R.N.PRASAD

body1992
ORDER In both these applications, petitioner Priyanka Singh has prayed for her release from the Government After Care Home, Patna. Short facts which gave rise to these cases are these. The father of the petitioner instituted a case under sections 366 and 364 A of the Indian penal Code with the Laheriasarai Police Station alleging therein that the petitioner was kidnapped by accused Sudip Bhattacharya. The petitioner having come to know about the institution of the case, appeared before the Chief Judicial Magistrate, Darbhanga and made a prayer that her statement should be recorded. However, on that day, her statement was not recorded and she was sent to the Government After Care Home at the request of the Police. On 9.11. 1990 the Statement of the petitioner was recorded before the Chief Judicial Magistrate. In her Statement, she denied the allegations levelled against Sudip Bhattacharya and claimed that she performed her marriage with the said Bhattacharya. On 15.12.90, an application was filed by the petitioner before the Chief Judicial Magistrate praying therein for her release from the After Care Home. As in the first information report, the father of the petitioner had described age of the petitioner as 14 years in counter distinction to the claim of the petitioner who claimed herself to be 18-19 years old, a medical Board was constituted to submit a report with respect to the age of the petitioner. As per the report of the medical Board, the age of the petitioner on 1.12.1990 was between 18-19 years. However, the learned magistrate, while recording her statement on 9.11.1990, estimated her age as 18 years. After hearing the parties and considering the medical report, the learned magistrate rejected the petition of the petitioner on the ground that this was not the proper stage to release her from the After Care Home. Thereafter the instant criminal writ application was filed on 21.5.1991 for the release of the petitioner on the ground that she had performed her marriage with the aforesaid Sudip Bhattachatya and the case lodged by her father was false and concocted. It was also stated that at the time of the offence itself, she was major. Therefore, she had every right to perform her marriage according to her sweetwill. While the criminal writ application was pending, another criminal writ application viz. Cr.W.J.C. No. 234 of 1991 was filed on 10.6.1991. It was also stated that at the time of the offence itself, she was major. Therefore, she had every right to perform her marriage according to her sweetwill. While the criminal writ application was pending, another criminal writ application viz. Cr.W.J.C. No. 234 of 1991 was filed on 10.6.1991. However, subsequently, the said writ application was converted into a criminal revision application which was numbered as Cr. Rev. No. 603 of 1991. Subsequently, on the direction of the Court, both the petitions were heard together. It was contended on behalf of respondent no. 4 that the petitions filed on behalf of petitioner are not maintainable. It was stated that the petitioner being minor, cannot claim her release on the basis of her applications and respondent no. 4 being the father and legal guardian of the petitioner is only entitled for her release. Learned counsel for the petitioner. Mr. Atul Chandra, on the basis of the relevant materials on record, submitted that the petitioner being aged about 20 years, is legally entitled for her release. A request was made on behalf of the petitioner to allow her to appear before the Court and get her statement recorded. The case was adjourned from one date to another to enable respondent no. 4 also to appear in person so that the statement of the girl in question may be recorded in his presence. But in spite of several adjournments, respondent no. 4 did not appear. However, in presence of his lawyer and also other lawyers appearing for the parties, the petitioner was produced before the Court from the Government After Care Home. In her statement, which was recorded on 9.12.1991, she described her age as 21 years. She also described Sudip Kumar Bhattacharya as her husband and she also expressed her desire to go with her husband after her release. Thereafter on 16.12.1991, both the cases were finally heard. It was submitted that the petitioner was not accused in any criminal case. Considering all the material is available on the record and the submissions advanced on behalf of the parties, we passed the following order: "Heard Mr. Atul Chandra, learned counsel appearing for the petitioner, Mr. Anil Kumar Jha, learned counsel for respondent no. 4 and M/s F. A. Khan and Md. Gulam Gous, learned Advocates for the other respondents. Considering all the material is available on the record and the submissions advanced on behalf of the parties, we passed the following order: "Heard Mr. Atul Chandra, learned counsel appearing for the petitioner, Mr. Anil Kumar Jha, learned counsel for respondent no. 4 and M/s F. A. Khan and Md. Gulam Gous, learned Advocates for the other respondents. We are informed that the petitioner namely, Priyanka Singh (Bhattacharya) is not an accused in any criminal case. It is established from the relevant materials on the record that she has attained the age of majority. In that view of the matter, we direct the Superintendent, Government After Care Home, Patna, to release the petitioner forthwith. The reasoned order in these cases shall follow. We have already mentioned the facts of the case and the statement of the petitioner. From all the materials available on the record including the medical evidence. it appears that the petitioner is major. It also appears that she is not required in any criminal case. Learned magistrate also, while recording the statement of the petitioner under section 164 of the Code of Criminal Procedure on 9.11.1990 described her age as 18 years. Apart from the aforesaid the petitioner stated before us that she has performed her marriage with the aforesaid Sudip Kumar Bhattacharya out of her sweetwill. It was also stated that she was not willing to go to her father. However, we are not inclined to record any finding as to whether the so called marriage of the petitioner with Sudip Kumar Bhattacharya is legal or illegal. We are also not required to record any finding with respect to the merit of the criminal case. It is for the court concerned to deal with all these matters. Since the petitioner has been able to establish that she is major and not required in any criminal case, therefore, she is entitled for her release. In that view of the matter, we had already directed the Superintendent of the Government After Care Home to release her forthwith. However, We direct the petitioner to appear before the learned magistrate in the criminal case in question as and when she is required by the court concerned. In the result, both these applications, namely, Cr. W. J. C. No. 215 of 1991 and Cr. Rev. However, We direct the petitioner to appear before the learned magistrate in the criminal case in question as and when she is required by the court concerned. In the result, both these applications, namely, Cr. W. J. C. No. 215 of 1991 and Cr. Rev. No. 603 of 1991 are allowed and the order of the learned magistrate rejecting the petition of the petitioner is quashed. Applications allowed.