P L D 1964 Dacca 228 (PLP)

This is a Reference by Mr. M. U. Bhuiyan, Additional Sessions Judge, Faridpur recommending that the order made by Mr. M. A Rahman, Sub‑Divisional Magistrate, Sadar, Faridpur dated 25‑1‑62 in G. R. Case No. 723 of 1961 rejecting an applica tion for further medical examination of one Jyotshana Rani Saha should be set aside.

2. Facts out of which the present Reference arises, shortly stated, are that one Joyotshana Rani Saha, daughter of the petitioner Jnanendra Nath Saha is alleged to have been kidnapped by the opposite‑party in the night of 19‑10‑61 from the custody of the petitioner. The girl when produced before the Sub- Divisional Magistrate stated that she was of 18 years of age and the Sub‑Divisional Magistrate, thought it necessary to have her medically examined by the Civil Surgeon, Faridpur. The Civil Surgeon, it appears from his report, examined the girl with her consent and expressed his opinion to the effect that she was about 18 years of age. The father of the girl submitted a petition on that very day for examination of the girl by a Medical Board at Dacca alleging that the Civil Surgeon of Faridpur was under the influence of the opposite‑party.

3. The learned Magistrate disposed of the application in the following terms by his order dated 25‑1‑62 :‑

" Seen the petition submitted by the prosecution. In the fact and the report submitted by the Civil Surgeon, I do not consider it necessary to refer the matter to Medical Board." There is no indication of the application of the mind of the Magistrate to the allegation made against the Civil Surgeon or the ground on which he rejected the application nor the Magistrate has given any indication in the judgment as to why he considered that the report of the Civil Surgeon was sufficient for reaching a conclusion on a point which is so material and vital in this case. The Magistrate failed to consider that the girl was not examined by a radiologist. The Civil Surgeon's report does not indicate that it is based on any such examination. It is true that in a matter like this, the Magistrate has to exercise his discretion but the discretion must be exercised on sound judicial principles. That being the position, I am of opinion that the case should be sent back to the Magistrate for applying his mind properly to the petition for re‑examination of the girl and if he is satisfied that such re‑examination is necessary, he may order accordingly. But it should be remembered that such medical examination can take place only if the girl in question gives her consent.

4. I would, in this connection, also refer to the following observation made in an unreported Criminal Revision Case No. 360 of 1959, in the case of Santipada Ganguly‑Santipada Ganguly v. Sovarani Ganguly Noor Jahan Begum by his Lordship Hamoodur Rahman, J. " The Magistrate, on the other hand, it appears, although he did not reject the opinion of the Sub‑Divisional Medical Officer, was not satisfied therewith and perhaps thought that better proof of the age of the girl was necessary. An application for her examination by a radiologist for the ascertainment of her age by the ossification test is pending before the Magistrate concerned. That will enable the Court as far as practicable to know with some decree of accuracy the approximate age of the girl. It is of the utmost importance, therefore, that as soon as possible a decision should be arrived at as to the age of the girl, for, if she is established to be a major, then there is no doubt that the Court would not have the power to detain her against her will and that she must be allowed to go where she chooses as decided in the cases referred to earlier." I have quoted this passage to indicate that examination by a radiologist for the ascertainment of the age of the girl by an ossification test was considered by this Court to be a method which gave some degree of accuracy in finding out an approxi mate age of the girl. It is, however, to be noticed as is rightly claimed by Mr. Moazzem Hossain, that in that case the Magistrate himself was not satisfied with the report. But that distinction as pointed out by him is not material now inasmuch as I am of opinion that the case should be sent back to the Magis trate for recording his satisfaction or otherwise with the report and also for reaching a decision after the due application of mind to the petition before him as to whether a re‑examination of the girl should take place subject, of course, to her consent.

5. For the reasons stated above, the reference is accepted. The impugned order is set aside and the case is sent back to the Magistrate to dispose of the petition of the complaint in accordance with law. S. B./K. B. A. Reference accepted.