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2005 DIGILAW 320 (CAL)

KRISHNA PRASAD PAUL v. STATE OF WEST BENGAL

2005-05-11

P.N.SINHA

body2005
P. N. SINHA, J. ( 1 ) THIS revisional application under sections 401/482 of the code of Criminal Procedure (in short Code), 1973 is directed against order dated 13. 7. 04 passed by the 1d. Sub-Divisional Judicial Magistrate (SDJM), West midnapore in G. R. Case No. 265/2004 arising out of Narayangarh Police Station case No. 9 dated 13. 2. 04 under sections 363/366/366a/368 of the Indian Penal code (in short IPC) and order dated 19. 7. 04 passed by the 1d. Sessions Judge, west Midnapore in Criminal Revision No. 123 of 2004 thereby rejecting the petition of informant petitioner for return of the minor victim girl, his own daughter, into his custody. ( 2 ) MR. Ganesh Srivastava, 1d. Advocate for the petitioner submitted that the petitioner is the father of the victim girl. The incident of kidnapping of the victim girl took place on 5. 2. 04 when the victim was approximately 15 years 10 months in age. Her date of birth according to admit card issued by the West bengal Board of Secondary Education is 1. 4. 88 and it establishes that on 5. 2. 04, the date of kidnapping, she was below the age of 16 years and was a minor. The petitioner being the father and natural guardian of the minor victim is entitled to take custody of the victim. After recovery, the victim was produced before the 1d. SDJM but the 1d. SDJM by order dated 13. 7. 04 did not pass order handing over custody of the victim to this petitioner. The 1d. Magistrate directed that the victim be detained in Vidyasagar Balika Bhawan, a Rescue Home as the victim did not show her inclination to go to custody of her father. The order of the 1d. Magistrate was bad in law as the 1d. Magistrate did not consider that victim was a minor at the time of incident, and being father and natural guardian, he was entitled to take custody of his own daughter. ( 3 ) MR. Srivastava further contended that the victim thereafter by engaging a lawyer preferred Criminal Revision No. 123/2004 before the 1d. Sessions Judge, west Midnapore and the 1d. Sessions Judge by order dated 19. 7. 04 dismissed the revision. But the 1d. Sessions Judge observed that, "the safety and security of a girl of such a young age have to be ensured. Srivastava further contended that the victim thereafter by engaging a lawyer preferred Criminal Revision No. 123/2004 before the 1d. Sessions Judge, west Midnapore and the 1d. Sessions Judge by order dated 19. 7. 04 dismissed the revision. But the 1d. Sessions Judge observed that, "the safety and security of a girl of such a young age have to be ensured. She cannot be allowed into the custody of the accused. She has refused to go into the custody of her father. But, unless an adult person having the requisite qualification to act as her guardian comes up and is approved by the victim girl, it would be an abdication of the duty of the Court to release her on her own bond. " Mr. Srivastava submitted that this observation of the 1d. Sessions Judge is absolutely illegal as any Tom, Dick and Harry cannot be appointed or approved as guardian to take custody of the victim girl. According to section 6 of the Hindu Minority and Guardianship Act, 1956, father of a Hindu minor is the natural guardian. This Act prescribes who can be appointed guardian of a minor. No outsider except father or mother can become guardian of a mirror and accordingly the latter part of the order of the 1d. Sessions Judge is erroneous. A husband may become a guardian of a minor wife, if there was valid marriage between victim and her alleged husband Alok Dolai. There was no valid marriage between victim and the said person as there was no 'sampradan' of the victim by her father in the alleged marriage. There is nothing to show who acted as guardian in the marriage and made the 'sampradan' of the victim. The alleged marriage was performed violating provisions of the Hindu Marriage Act (hereinafter called the H. M. Act) and the marriage is not valid and voidable. The marriage is not valid, if it was performed without following customs prevalent between the parties. In support of his contention he cited the decisions reported in AIR 1994 SC 135 , Surjit Kaur vs. Garja Singh and Ors. and AIR 1996 SC 614, Kanwal ram and Ors. vs. Himachal Pradesh Administration. ( 4 ) MR. Srivastava further submitted that the victim being a minor cannot engage any lawyer and cannot make any application before any Court. and AIR 1996 SC 614, Kanwal ram and Ors. vs. Himachal Pradesh Administration. ( 4 ) MR. Srivastava further submitted that the victim being a minor cannot engage any lawyer and cannot make any application before any Court. Provisions of sections 11 and 183 of the Contract Act makes it clear that the victim being a minor cannot contact any lawyer and vakalatnama filed by her is erroneous. The victim cannot herself appear in any such proceeding. She has not been prosecuted in any proceeding and at best, she is a witness. If a minor enters into contract, it is void and engagement of lawyer by minor being work of agent is invalid. Accordingly, the orders of the 1d. SDJM as well as the 1d. Sessions Judge were bad in law. The victim being minor should be handed over into custody of her natural guardian, this petitioner. In support of his contention mr. Srivastava referred to paragraph 6 of Saroj Singh vs. State ofwest Bengal, reported in 2004 C Cr. LR (Cal)392. He also contended that decisions in 1978 cr. LJ 1003,1998 Cr. LJ 654 and 1998 (2) Crimes 168 are not applicable in the instant case over which the opposite party have placed reliance. ( 5 ) MR. Sekhar Basu, 1d. Senior Advocate appearing for the victim opposite party submitted that the victim is now a mother and she has given birth to a child. Question of two lives namely, that of victim and her child, are involved in this case and the Court cannot ignore the present circumstances. 'sampradan' is not an essential condition of valid Hindu marriage. Competent Civil Court can decide validity and legality of marriage. Even if a marriage is voidable the civil Court is the proper Court from where declaration is necessary to declare a voidable marriage null and void. Section 303 of the Code prescribes two types of person namely, accused and other person and in the instant matter the victim would come within the category of other person. Engagement by a power is not vital as a minor can be defended. Vakalatnama is a type of power-of-attorney and section 1a of Power-of Attorney Act does not speak of either minor or major. Before the Courts below there was a claim by father petitioner and a counterclaim by the victim girl. Engagement by a power is not vital as a minor can be defended. Vakalatnama is a type of power-of-attorney and section 1a of Power-of Attorney Act does not speak of either minor or major. Before the Courts below there was a claim by father petitioner and a counterclaim by the victim girl. It was, therefore, a proceeding in view of the provisions of the Code and victim is a person who is non-accused. Her prayer for releasing her would come within the definition of other proceeding as defined in section 294 (3) of the Code. She was brought by police in custody after recovery and she has a right of defending herself. ( 6 ) MR. Basu further submitted that minority is different in criminal law from civil law. The provision of Indian Majority Act do not apply in case of marriage. According to provisions of criminal laws and procedures a minor has to be construed as a person. Order of the 1d. Magistrate placing her in a Rescue home has suspended her right of movement. The victim has a right of movement guaranteed by the Constitution which has been restricted by the order of the 1d. Magistrate. The order of the 1d. Magistrate has restricted now lives of two persons, i. e. , of victim and her new born baby. Victim being the mother can consider the care and nourishment of the new born child. It is well-settled that a minor who has attained sense of maturity and understanding cannot be confined into jail or Rescue Home, particularly when, the minor is not an accused but a witness. The 1d. Magistrate as well as the 1d. Sessions Judge acted illegally by rejecting prayer of the victim for release on her own bond. In support of his contention Mr. Basu cited the decisions in the matter of Dhuronidhur Ghose, reported in ILR 17 Cal 299; Saroj Singh vs. State of West Bengal (mpra); Kalyani chaudhari vs. State of U. P. , reported in 1978 Cr. LJ 1003, Neetu Singh vs. State, reported in 1999 (4) Crimes 20 , Seema Devi @ Simaran Kaur vs. State of h. P. , reported in 1998 (2) Crimes 168; Raj Kumari vs. Superintendent, Women protection House, Meerut, reported in 1998 Cr. LJ 654 and Lila Gupta vs. Laxmi narain and Ors. , reported in AIR 1978 SC 1351 . ( 7 ) MR. LJ 654 and Lila Gupta vs. Laxmi narain and Ors. , reported in AIR 1978 SC 1351 . ( 7 ) MR. S. S. Roy, 1d. Advocate appearing for the State submitted that this court is not competent to enter into discussion whether there was performance of essential ceremonies of marriage between the victim and Alok Dolai. Competent Civil Court only can decide whether marriage was valid or invalid and a Civil Court can declare nullity of marriage and can annul a marriage. In this case the decision of this Court in Saroj Singh vs. State of West Bengal (supra) particularly paragraphs 8, 9 and 10 are important and relevant. ( 8 ) I have perused the revisional application and the materials on record and also considered the submissions made by the 1d. Advocates for the parties. The admitted facts as it appears from the materials on record is that, the petitioner being father of the victim girl lodged information at Narayangarh P. S. on 8. 2. 04 alleging that on 5. 2. 04 his minor daugther (the victim) was kidnapped by accused alok Dolai and others. The information was entered at Narayangarh P. S. into g. D. Entry No. 258 dated 8. 2. 04. Subsequently, the petitioner filed a complaint before the 1d. Chief Judicial Magistrate (in short CJM), Midnapore and the 1d. CJM sent the said complaint to Narayangarh P. S. for investigation under section 156 (3) of the Code treating the complaint as FIR. After receiving the said complaint the Narayangarh P. S. Case No. 9 dated 13. 2. 04 under sections 363/366/366a/368 of the IPC was started against Alok Dolai and three others. During investigation the victim, the daughter of the petitioner was recovered by police and she was kept at Vidyasagar Balika Bhawan at Midnapore. On 12. 7. 04 the petitioner filed an application before the 1d. SDJM, West Midnapore (Sadar) for releasing the victim into his custody as she was a minor at the time of incident of kidnapping. The 1d. SDJM by order dated 13. 7. 04 rejected the prayer of the petitioner in spite of observing that the victim girl was a minor. The 1d. SDJM also rejected the prayer of the victim girl to release her on her own bond and directed that the victim girl be kept in Vidyasagar Balika Bhawan, midnapore until further order. The 1d. SDJM by order dated 13. 7. 04 rejected the prayer of the petitioner in spite of observing that the victim girl was a minor. The 1d. SDJM also rejected the prayer of the victim girl to release her on her own bond and directed that the victim girl be kept in Vidyasagar Balika Bhawan, midnapore until further order. ( 9 ) CHALLENGING the order dated 13. 7. 04 a revisional application was preferred before the 1d. Sessions Judge, West Midnapore by the victim which was registered as Criminal Revision No. 123/04. The 1d. Sessions Judge after hearing the 1d. Advocates of the parties by his order dated 19. 7. 04 dismissed the revisional application observing that, the victim was a minor and as she refused to go to custody of her father, she cannot be compelled to go to custody of her father, the petitioner. The 1d. Sessions Judge in his order also observed that,"but unless an adult person having the requisite qualification to act as her guardian comes up and is approved by the victim girl, it would be an abdication of the duty of the Court to release her on her own bond. The revisional application significantly does not make any whisper about any competent person she wishes to remain under. " ( 10 ) THE abovequoted portion of the order of the 1d. Sessions Judge has seriously been challenged by the petitioner in this Court in the instant matter. Besides that, the 1d. Advocate for the petitioner has also raised a question that the alleged marriage between the victim and Alok Dolai was bad in law and void as there was no 'sampradan' by her father or guardian recognised under the law. It has also been contended that the incident took place on 5. 2. 04 and according to the admit card issued by the West Bengal Board of Secondary education date of birth of victim is 1. 4. 88 and therefore, she was 15 years 10 months in age at the relevant time of incident and was a minor. When the marriage was void ab initio, the minor girl cannot be released on her own bond or cannot be released to the custody of her alleged husband and she should be handed over to the custody of the petitioner. When the marriage was void ab initio, the minor girl cannot be released on her own bond or cannot be released to the custody of her alleged husband and she should be handed over to the custody of the petitioner. ( 11 ) AFTER considering the entire matter and perusing the certified copy of the order passed by the 1d. SDJM and also the order of the 1d. Sessions Judge, i find that the victim girl refused to return back to the custody of her father, the present petitioner. It was alleged on behalf of the opposite party victim girl that she was married with Alok Dolai. Mr. Basu for the opposite party victim girl submitted that it was a registered marriage and so no question of 'sampradan' or observation or performance of other ceremonies of marriage arises at all. No paper was produced before this Court through affidavit to show that there was registration of marriage between victim girl and Alok dolai so that the Court can place reliance on such document. Of course from the certified copy of the Criminal Revision No. 123/04 of the Court of 1d. Sessions judge, West Midnapore, it appears that in the said revisional application the victim girl, was described as wife of Alok Dolai. A copy of marriage registration certificate was shown to this Court on behalf of the victim opposite party during submission from the Bar but, as it was not filed through any affidavit no reliance can be placed on such certificate of marriage. However, the cause title of the revisional application of the Court of the 1d. Sessions Judge, Midnapore make it clear that victim girl is now a married lady. ( 12 ) DURING the course of hearing Mr. Basu contended that it is now a question of two lives as the victim girl has given birth to a child recently. No paper was produced before this Court to establish that victim girl has given birth to a child. This Court by order dated 2. 3. 05 called for a report from the superintendent, Vidyasagar Balika Bhawan, Midnapore as to whether the victim girl has birth to a child recently. In view of direction of this Court a report has been received from the Superintendent of Vidyasagar Balika bhawan, Gope, Midnapore and this said report reveals that the victim has given birth to a female child on 30. In view of direction of this Court a report has been received from the Superintendent of Vidyasagar Balika bhawan, Gope, Midnapore and this said report reveals that the victim has given birth to a female child on 30. 1. 05 at 9. 30 a. m. at Midnapore Medical college and Hospital. After delivery of the female child she was released from the hospital on 31. 1. 05 and the victim along with her female child are now staying at the said home. The factual position as it appears is that the victim has given birth to a child on 30. 1. 05 and she is now a mother. A copy of discharge certificate dated 31. 1. 05 issued by Midnapore Medical College and Hospital has been annexed with the report and in the said discharge certificate of hospital alok Dolai has been described as the husband of victim girl. This paper prima facie shows that Alok Dolai is the husband of victim. Keeping' in mind the present position and status of the victim the Court will have to proceed in this matter relating to prayer of petitioner for releasing the victim in ,o his custody and also the wishes of the victim relating to refusal to go back to \ he custody of her father. ( 13 ) THE submission of Mr. Srivastava, 1d. Advocate for petitioner regarding invalidity of the marriage of the victim cannot be decided by this Court as this court is not the proper forum to decide whether a marriage is void or voidable. Section 5 of the H. M. Act lays down the conditions for a Hindu marriage and section 6 prescribes guardianship in marriage. Section 7 of the H. M. Act prescribes ceremonies for a Hindu marriage and it lays down that a marriage may be solemnised in accordance with the customary rites and ceremonies. Sub-section (2) of section 7 of the said Act prescribes that where such rites and ceremonies include 'saptapadi', the marriage becomes complete and binding when the seventh step is taken. Section 7 of the. H. M. Act does not prescribe that 'sampradan' is an essential condition for a valid Hindu marriage and the submission of Mr. Srivastava in this respect is not acceptable at all. Section 7 of the. H. M. Act does not prescribe that 'sampradan' is an essential condition for a valid Hindu marriage and the submission of Mr. Srivastava in this respect is not acceptable at all. Section 11 of the H. M. Act lays down that any marriage solemnised after commencement of the Act shall be null and void if it contravenes anyone of the conditions specified in clauses (i), (iv) and (v) of section 5. In the instant case as it appears that the marriage is not void at all as there was no contravention of the conditions specified in clauses (i), (iv) and (v) of section 5. Section 12 of the H. M. Act prescribes which are voidable marriage and it lays down that if the marriage is solemnised in contravention of clause (ii) of section 5 or that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent was obtained by force or fraud. In the instant case there was no contravention of clause (ii) of section 5 of the H. M. Act nor there is any allegation that consent of the guardian was obtained by force or fraud. ( 14 ) IN this case as it appears that the victim at the time of her alleged marriage with Alok Dolai was a minor. Minority of the victim at the time of marriage would not make the marriage either void or voidable. In this connection the decisions in Neetu Singh (supra) and Seema Devi (supra) cited by the 1d. Advocate for the opposite party are quite apposite. In these decisions it has been held that a marriage solemnised in contravention of clause (iii) of section 5 is neither void nor voidable under the provisions of the H. MAct. The only relevant provision is section 18 of the H. M. Act which provides for punishment for contravention of condition specified in section 5 (iii) of the H. M. Act and the punishment may be imprisonment for 15 days or with fine which may extend upto Rs. 1000/- or both. Section 5 (iii) of the H. M. Act relates to age of the bride at the time of marriage. After amendment of the H. M. Act the age of the bride must be 18 years at the time of marriage. 1000/- or both. Section 5 (iii) of the H. M. Act relates to age of the bride at the time of marriage. After amendment of the H. M. Act the age of the bride must be 18 years at the time of marriage. In the instant case the victim did not complete age of 18 years at the time of her alleged marriage with Alok Dolai and therefore, there was contravention of clause (iii) of section 5 of the H. MAct. This contravention of section 5 (iii) of the H. M. Act or Child Marriage Restraint act do not make the said marriage void. Such marriage can only lead to punishment as provided in the Act. If the petitioner as father challenges the validity of the marriage of his daughter, i. e. , the victim, he has to approach proper Civil Court and this Court cannot decide whether marriage of the victim with Alok Dolai was either void or voidable or punishable. However, the observation made above clearly indicates that such marriage was neither void nor voidable. ( 15 ) THE decisions cited by the 1d. Advocate for petitioner in Surjit Kaur (supra)and Kanwal Ram (supra) are not at all applicable in the present case. The decision in Surjit Kaur relates to proof of customary marriage and in the reported case there was no evidence of customs. It was a decision of the Hon'ble Supreme court under the H. M. Act. In the present case provisions of the H. M. Act are not at all applicable as this Court is not the proper forum to decide proof of marriage, proof of customs in the marriage as well as validity of marriage. In the instant case as it is submitted there was registered marriage and accordingly this decision does not help the petitioner. The decision in Kanwal Ram is of no help to the petitioner as the said decision relates to offence under section 494 of the ipc read with admission of accused relating to marriage under the H. M. Act. I have already observed that this Court is not the proper forum to prove the validity or invalidity of the marriage. The present proceeding is not a proceeding under section 494 of the IPC and being so, this decision does not help the petitioner. The decision in Lila Gupta (supra) cited by the 1d. I have already observed that this Court is not the proper forum to prove the validity or invalidity of the marriage. The present proceeding is not a proceeding under section 494 of the IPC and being so, this decision does not help the petitioner. The decision in Lila Gupta (supra) cited by the 1d. Advocate for the victim opposite party is also of no help to the victim girl as the said decision lays down the principle of law that marriage contracted in contravention of proviso to section 15 of the H. M. Act is not void. In the present case no question of contravention of provisions of section 15 of the H. M. Act applies and, therefore, the said decision does not help the opposite party. ( 16 ) I agree with the views of Mr. Srivastava that the abovequoted observation of the 1d. Sessions Judge relating to mode of appointment of guardian for minor victim is bad in law. Section 6 of the Hindu Minority and Guardianship Act lays down that natural guardian of a Hindu minor in respect of minor's person as well as in respect of minor's property are in the case of boy or an unmarried girl father and, after him the mother. It is true that at the time of alleged incident of kidnapping on 5. 2. 04 the victim was aged about 15 years 10 months according to her age as mentioned in the admit card issued by the Board of secondary Education, West Bengal. But, the fact as it emerges from the papers as well as from the submission of the 1d. Advocates of the parties that the victim girl is now not an unmarried girl. The report of the Superintendent of the Vidyasagar Balika Bhawan, Midnapore along with the discharge certificate issued by the Midnapore Medical College and Hospital reveals that the victim has given birth to a child on 30. 1. 05 and in the hospital records her husband's name has been recorded as Alok Dolai. The fact which comes before this Court is that the victim girl is not only married, but she is now a mother also. After marriage the husband is the guardian of Hindu girl even if the said girl is minor and, has not completed the requisite age as provided in section 5 (iii) of the H. M. Act. The fact which comes before this Court is that the victim girl is not only married, but she is now a mother also. After marriage the husband is the guardian of Hindu girl even if the said girl is minor and, has not completed the requisite age as provided in section 5 (iii) of the H. M. Act. ( 17 ) IN this connection the decision in Dhuronidhur Ghose (supra) cited by the 1d. Advocate for the victim opposite party is very much pertinent. In the said reported case a Hindu girl of fifteen years in age was given in marriage and the father of the girl took away the said minor girl from custody of her husband without consent of husband. It was held that the husband of Hindu girl of fifteen is her lawful guardian and taking away of father of such minor married daughter without consent of the husband amounts to kidnapping from lawful guardianship even though the father may have had no criminal intention in so doing. This decision is squarely applicable in the instant case and after marriage of the victim her husband is her lawful guardian. The observation of the 1d. Sessions Judge which has been mentioned above under quotation being not in accordance with settled principles of law is illegal and improper as the 1d. Sessions Judge failed to appreciate who may be the lawful guardian of a minor, who is victim and is a married girl. The observation of the 1d. Sessions judge that, "unless an adult person having the requisite qualification to act as her guardian comes up and is approved by the victim girl, it would be an abdication of the duty of the Court to release her on her own bond," being bad in law is set aside. Any Tom, Dick and Harry cannot be appointed a guardian of a victim girl particularly that of a minor. The Hindu Minority and Guardianship act prescribes the procedure of appointment of guardian and section 6 of the said Act prescribes who are natural guardians. If no natural guardian of a minor is alive then, proper Civil Court can be approached for appointment of guardian of minor. In the instant case the victim who has allegedly been married with Alok Dolai is not without any guardian and after marriage the husband is her lawful guardian. If no natural guardian of a minor is alive then, proper Civil Court can be approached for appointment of guardian of minor. In the instant case the victim who has allegedly been married with Alok Dolai is not without any guardian and after marriage the husband is her lawful guardian. If the petitioner wants to have the custody of the victim minor girl he is at liberty to approach proper Civil Court for the custody of the victim girl, and the Civil Court after considering all facts and circumstances can decide who would be guardian of the victim girl, or who may be declared as guardian. ( 18 ) MR. Srivastava, 1d. Advocate for the petitioner also submitted that the victim being a minor cannot engage any lawyer and cannot make any application before any Court as provisions of sections 11 and 183 of the Contract Act makes it clear that the victim being a minor cannot contact any lawyer and vakalatnama filed by her is erroneous. I am unable to accept the submission of 1d. Advocate for the petitioner. Section 303 of the Code prescribes right of person against whom proceedings are instituted to be defended. True construction of the language of section 303 of the Code would make it clear that this section prescribes two types of persons namely, (1) accused of an offence before a criminal Court and (2) against whom any proceeding are instituted under the code, may of right be defended by a pleader of his choice. In the instant case the proceeding was started against Alok Dolai and others on the basis of FIR lodged by this petitioner concerning kidnapping of the victim girl. Thereafter, during investigation the victim girl was recovered and was kept confined at vidyasagar Balika Bhawan. She is not an accused but, is a vital witness of the said criminal proceeding and in view of section 303 of the Code when she is under confinement in a home she has a right to be defended through her pleader, even if she was a minor at the time of incident. The submission of Mr. Sekhar basu, 1d. Advocate for the opposite party victim that vakalatnama is a type of power-of-attorney and it does not speak of either minor or major is accepted by the Court. It appears that before the 1d. SDJM and the 1d. The submission of Mr. Sekhar basu, 1d. Advocate for the opposite party victim that vakalatnama is a type of power-of-attorney and it does not speak of either minor or major is accepted by the Court. It appears that before the 1d. SDJM and the 1d. Sessions Judge at midnapore there was a claim by the petitioner and a counter-claim by the victim girl, and accordingly, there was a proceeding in view of the provisions of the code and the victim girl is a person who is not an accused. She was brought into custody by police on the allegation of her father after recovery and thereafter, she has been confined in a home and she has a right of defending herself. ( 19 ) MR. Srivastava also submitted that the alleged marriage is an attempt to wipe out elements of alleged offence against the accused persons under sections 363/366/366a/368 and 376 of IPC. No consideration or any opinion requires to be passed by this Court on such submission at this stage. The law would take its own course and on the basis of FIR lodged by the present petitioner the investigation is in progress and, after completing investigation the police would submit report in final form in accordance with law under section 173 (2)of the Code before the 1d. SDJM. It has already been observed that the victim will be the main witness of the said case and her evidence would indicate the fate of the trial, if the investigation ends in submission of final form in the manner of chargesheet. ( 20 ) AFTER going through the order of the 1d. SDJM and the 1d. Sessions Judge, west Midnapore, it is evident that both the 1d. Magistrate and the 1d. Sessions judge failed to appreciate the nature of the case and went wrong in grasping nature of the matter. The victim is not an accused of the case and she is the most important and vital witness of the case. It is true that a victim, who is minor should be handed over to the custody of her parents. In the instant case the incident took place on 5. 2. 04 when the victim was approximately 15 years 10 months in age. At present she is not only a victim but a mother also, and she has completed age of 17 years and is now running 17 years plus. In the instant case the incident took place on 5. 2. 04 when the victim was approximately 15 years 10 months in age. At present she is not only a victim but a mother also, and she has completed age of 17 years and is now running 17 years plus. Being mother, the victim now is capable of knowing and understanding her good or bad and, also good or bad of her new born child. ( 21 ) IN Raj Kumari vs. Superintendent, Women Protection House, Meerut (supra), Kalyani Chaudhary vs. State of U. P. (supra), Neetu Singh vs. State (supra), Seema Devi vs. State of H. P. (supra) and Saroj Singh vs. State of West bengal (supra) it was held that even a minor cannot be confined or detained in a protective home against her wishes. Speaking practically, there is no law which permits Court to give direction for keeping even a minor in Nari Niketan or any home against her Will. Question of giving the victim girl to the custody of her father, the present petitioner does not arise as the father was himself instrumental in getting the victim girl confined into protective home through the aid of police. After this petitioner lodged the FIR, the victim was recovered and was sent to Court and by the order of the 1d. Magistrate she was detained at Vidyasagar Balika Bhawan, a Home. From the order-sheet of the 1d. SDJM and the 1d. Sessions Judge it appears that the victim refused to go to custody of her father. The 1d. SDJM cannot confine the victim in Government Rescue home or Vidyasagar Balika Bhawan against her wishes. The victim is entitled to be released according to her wishes on the basis of her prayer subject to the conditions that may be imposed by the 1d. SDJM to ascertain her address where she would be available and to secure her attendance in Court at the time of trial and other condition, if any, if required for the investigation e. g. recording of statement of victim under section 164 of Cr. PC, medical examination, ossification test etc. ( 22 ) THE 1d. SDJM shall cause production of the victim girl before him/her and, if the victim makes any prayer before the 1d. SDJM, the 1d. Magistrate shall act in accordance with law in view of the guidelines indicated above. PC, medical examination, ossification test etc. ( 22 ) THE 1d. SDJM shall cause production of the victim girl before him/her and, if the victim makes any prayer before the 1d. SDJM, the 1d. Magistrate shall act in accordance with law in view of the guidelines indicated above. ( 23 ) THE above discussion makes it explicit that the order of the 1d. SDJM as well as the order of the 1d. Sessions Judge were not in accordance with law and accordingly the said orders are set aside. The revisional application filed by the petitioner having no merit fails and is disposed of in the light of the observations made above. ( 24 ) ALL interim orders passed earlier stand vacated. ( 25 ) SEND a copy of this order to the 1d. Sessions Judge, West Midnapore and 1d. SDJM, West Midnapore (Sadar) for information and necessary action. ( 26 ) URGENT xerox certified copy be given to the parties, if applied for, expeditiously. Revisional application dismissed.