Madhumita Sinha v. State Of Bihar — 1993 DIGILAW 488 (PAT)

Judgment 1. The petitioner seeks her release from After Care Home, Gulzarbagh, Patna where she has been lodged in connection with Agam Kuan (Sultanganj) P.S. Case No. 98 of 1993. The aforesaid case was instituted under Secs. 363, 366-A and 212, Indian Penal Code at the instance 9f her brother, respondent No. 4 herein, against Faiyz Ansari, Abbas Ansari and others alleging that the petitioner was kidnapped by them for immoral purposes on 28.3.1993. She was apprehended along with the said two accused persons on 29.3.1993 and sent to the After Care Home. 2. The petitioner claims to be major as per the date of birth mentioned in the matriculation certificate, namely, 24.3.1974. She further claims to have married Faiyaz Ansari of her own accord with whom she wants to live. This, according to her, was being objected to by her parents and in the circumstances, she voluntarily left her parents house. 3. Notice of the application was given to Rajiv Kumar. Affidavits have been filed on behalf of the parties including the State of Bihar. 4. During course of hearing detailed arguments were made on the question of age of the petitioner. On behalf of the petitioner, reliance was placed on the matriculation certificate (Annexure-2) and opinion of Dr. Dayal, Tutor, Department of Forensic Medicine, Nalanda Madical College, Patna (Annexure-4). The respondents, on the other hand placed reliance on the opinion of the Medical Board consisting of Dr. Vijoy Kumar, Professor and Head of Department of Forensic Medicine, Patna Medical College. Dr. (Mrs.) Manju Gita Mishra, Associate Professor, Department of Gynaecology, Patna Medical College and Dr. Arun Kumar Sinha, Civil Surgeoncum-Chief Medical Officer, Patna as also the opinion of Dr. S.P. Jaiswal, Professor and Head of Department of Radiology, Patna Medical College, (Annexures A and B to the counter affidavit of the State), besides the affidavit of the parents and the horoscope. According to the opinion of Dr. Dayal (Annexure-4), the petitioner is said to be age of 19 to 2l years as in April, 1993, but according to the opinion of the Medical Board (Annexure A) she was 16 to 17 years as on 10.6.1993 while Dr. Jaiswal determined her age at about 17 years on 18.6.1993. 5. It would, thus appear that there is sharp controversy about the age of the petitioner. Jaiswal determined her age at about 17 years on 18.6.1993. 5. It would, thus appear that there is sharp controversy about the age of the petitioner. That apart, having regard to the fact that the aforesaid criminal case is pending it would not be desirable for us to go into the question of age and decide it collaterally since out finding or opinion howsoever carefully worded, may unwittingly prejudice the case of one or the other party. To be fair to the petitioner, we may mention that in the criminal case, the police has submitted final report, mistake of fact, on 28.7.1993 on the basis of age assessed by Dr. Dayal. However, admittedly final report has not been accepted. It is well settled that police report is mere opinion of the Investigating Officer which is not binding on the Magistrate. Thus, until the matter is finally disposed of, notwithstanding the submission of final report, criminal case will be deemed to be pending. 6. We would like to indicate at this stage that in the course of preliminary hearing, in order to satisfy ourselves, prima facie, about the age of the petitioner and her inclination or desire as to whether she would like to live with her parents or Faiyaz Ansari after her release from Care Home, we directed the State Counsel to produce her in person. Accordingly, on 8.11.1993 she was produced. We interrogated her in camera. We also heard her father who is a practicing advocate. We may mention in fairness to the petitioner, that she claimed to be major and unequivocally expressed desire to be released from the Care Home in favour of Faiyaz Ansari whom she claimed to have married. However, from her looks and talk we found it difficult to conclude that she was major or capable of mature understanding. In the circumstances, we directed the parties to file affidavits bringing documents on record as they may like, to enable us to pass a proper order in the case. 7. It appears from the record that at the instance of the Superintendent of the State After Care Home, the petitioner was subjected to psychiatric examination on 22.4.1993 and 23.4.1993 by Dr. A.K. Gupta, Department of Psychiatry P.M.C.H. Patna, perhaps, because she described to be suffering from mental disorder in the First Information Report (supra). 7. It appears from the record that at the instance of the Superintendent of the State After Care Home, the petitioner was subjected to psychiatric examination on 22.4.1993 and 23.4.1993 by Dr. A.K. Gupta, Department of Psychiatry P.M.C.H. Patna, perhaps, because she described to be suffering from mental disorder in the First Information Report (supra). In the opinion of said doctor, the petitioner suffers from, mood disorder and is a mental case. Counsel for the state drew our attention to the order of the Additional Chief Judicial Magistrate, Patna City dated 30.8.1993 in the matter of release of the petitioner at the instance of the informant Rajiv Kumar. The learned Magistrate while rejecting the prayer held on the basis of symptoms of the disease mood disorder as mentioned in Medical Jurisprudence by Dr. Modi and Dr. M.S. Bhatia that mood disorder is a serious type of mental ailment attended by various complications characterised by disturbances of the mood accompanied by full or partial mania or depressive syndrome. It generally occurs before the age of 18 years. Persons suffering from mood disorder physically appear to be quite well but they are not in a position to state any thing independently. There is a tendency to commit murder or suicide under false beliefs. Person suffering from such a disease having criminal propensities require care, supervision and control. Having regard to these symptoms, the Magistrate rejected the prayer for release and directed the Superintendent of the Care Home to take necessary steps for sepcialised treatment by psychiatrist and other experts. 8. Counsel for the State submitted that in view of the symptoms of mood disorder, from which the petitioner is said to be suffering, it would not be safe to rely on her statement and pass order on that basis, question of age apart. Counsel for the informant in this connection drew our attention to a letter said to have been written by Abbas Ansari, marked Annexure-F to the counter affidavit of respondent No. 4. Counsel stated that perusal of the aforesaid letter would show that undue pressure and influence was being exercised on the petitioner by or on behalf of Faiyaz Ansari to make a particular kind of statement before the Magistrate or in the High Court. Counsel stated that perusal of the aforesaid letter would show that undue pressure and influence was being exercised on the petitioner by or on behalf of Faiyaz Ansari to make a particular kind of statement before the Magistrate or in the High Court. The petitioner has been repeatedly reminded to state (as and when she may be asked by either the Magistrate or this Court) that her marriage (Nikah) had been performed on 23.3.1993 in which dain Mahar was fixed Rs. 15,000. She has also been repeatedly reminded to say that she wants to live with her husband Faiyaz Ansari and does not want to live with her father for fear of being killed. 9. During course of submissions counsel for the petitioner was in a position to deny the genuineness of the letter. All that was said by him was that the letter was never received by the petitioner although it was addressed to her. It may well be that respondent No. 4 managed to get hold of the letter by some dubious means. However, since the letter is not said to be fake or forged, it is not possible to ignore its correctness altogether particularly when in the course of her statement before us on 8.11.1993 she had said, précised the same very things as have been written in the letter. It appears to us that the petitioner has been subjected to constant brain washing. The opinion of Dr. A.K. Gupta (supra) becomes relevant in this background. Apart from what has been said about he symptoms of Mood Disorder from which she is said to be suffering, as indicated ,above we did not feel quite inspired by her answers when she appeared before us on 8.11.1993. She definitely appears to be person of weak impressionable mind, if not more. He replies or statements were exactly on the same lines as ordained to her, in the letter. May be that the particular letter did not reach her. But this might not have been the only letter of its kind. Prudence thus demands that notwithstanding the question of age, her statement should not be accepted on its face value as free and voluntary statement of a mature, responsible person. That may not be in her own interests. 10. It would not be proper to allow the petitioner to remain in the Care Home either, where even basic amenities are scarce. Prudence thus demands that notwithstanding the question of age, her statement should not be accepted on its face value as free and voluntary statement of a mature, responsible person. That may not be in her own interests. 10. It would not be proper to allow the petitioner to remain in the Care Home either, where even basic amenities are scarce. We have gave doubts as to whether proper medical treatment can be provided to her there. The best course, in our opinion from the point of view of the welfare of the petitioner would be to direct her to be released in favour of her father so that she may receive proper medical treatment and becomes capable of taking proper decision for herself. We may mention that her father in course of our talk on 8.11.1993 appeared to a well meaning person. He assured us that he would keep the petitioner and look after her properly. There is no reason to doubt his bona fide. 11. The Additional Chief Judicial Magistrate, Patna City, accordingly, is directed to release the petitioner in favour of her father, namely, Bijoy Kumar Sinha on executing bond that he will produce her in court as and when required in connection with Agam Kuan (Sultanganj) P.S. Case No. 98 of 1993. This application is, accordingly, disposed of. Before we part with this order, we again make it clear that this order or any observation made by us herein will not prejudice the parties one way or the other as regards the aforementioned criminal case.