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2009 DIGILAW 757 (CAL)

Lipiara Khatun v. STATE OF WEST BENGAL

2009-09-23

ASHIM KUMAR ROY

body2009
Judgment :- (1). The subject matter of challenge in the instant criminal revision is an order passed by the learned Sessions Judge, Murshidabad in conection with a criminal revision whereby the learned Judge affirmed an order passed by the learned Additional Chief Judicial Magistrate, Lalbag, rejecting the petitioners prayer for release on her own bond. (2). Heard Md. Golam Mastafa, learned Advocate, appearing on behalf of the petitioner as well as Mr. Sandipan Ganguly, learned Advocate, appearing on behalf of the State. Perused the impugned order as well as other materials on record. (3). The present petitioner is a victim of an offence punishable under Sections 363/366 (A)/120B of the Indian Penal Code. It is the case of the prosecution that she was a minor being the below age of 16 years at the time of the alleged incident. It is the further case of the prosecution that she was kidnapped by the accused, Dilbar Sk. from the custody of her lawful guardian without their consent. Although, it appears from the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure that she went with the accused, Dilbar Sk. on her own, i.e., without any force and willingly and then they married each other but admittedly she was a minor at the time of the alleged occurrence. (4). It is true, according to the Muslims Personal Law, a girl after attaining the age of puberty, i.e., after the age of 15 years, can marry on her own but that does not mean that if she is taken away from the custody of her lawful guardian without their consent, there cannot be any offence of kidnap. (5). This is a case where there is specific allegation made by her father that she was taken away from his custody by the accused, Dilbar Sk. without his consent. (6). Now, on a combined reading of allegations made in the First Information Report as well as the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure. without his consent. (6). Now, on a combined reading of allegations made in the First Information Report as well as the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure. I have no doubt that this petitioner is a child in need of Care and Protection as defined under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, as her parents or guardian are unfit and incapacitated to exercise control over her, which would be evident from the fact that she left their custody without their knowledge and consent and according to her statement recorded under Section 164 of the Code of Criminal Procedure as well as her statement before the Court she was not willing to go back to her parents. Thus, she being a child in need of care and protection within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000, she cannot be released on her own bond, on the contrary, for ends of justice, it would be appropriate that she should be forwarded to the appropriate Child Welfare Committee to take necessary action in this regard in accordance with law. (7). Accordingly, while I am rejecting this application, I direct the learned Court below to forward the present petitioner, who at the present moment at Shilayan Home at Berhampore Shelter Home before the appropriate Child Welfare Committee within two days from the date of communication of this order. On her production before the Committee, the Committee shall pass appropriate order in accordance with law within a week thereafter.