P L D 1964 Dacca 42 (PLP)

"We should not be understood to have laid down that a Magistrate cannot pass under proper circumstances, acting under the provisions of section 100 of the Code of Criminal Procedure, an order that a person, who has been wrongfully confined, be kept in custody of the Court for a reasonable period of time in a neutral Home or any other place with a view to ascertain what the free will of the person concerned is. Such a course is usually taken in order to enable such a person to be free from the effect of any coercion or undue influence that might have been exercised over him or her. It is thought that such persons in such situations are incapable of exercising an independent mind unless kept for a reasonable time in natural custody. Even in such a case the person concerned cannot be detained indefinitely." The considerations which weighed with the learned Judges in making the above observations were that the will expressed by the victim immediately on production before the Magistrate may not be his or her free will. It cannot be disputed however that in that case also it was held that the free will of the victim, if major; was to prevail over anything else.

12. In the case of Nityananda Dutta v. Ashraf Alam alias Assa and another (Criminal Revision Case No. 778 of 1961 disposed of on 15‑2‑1962), decided by a Division Bench of this Court, in which one of us was a party, the order of the learned Magistrate allowing a girl aged over 16 years to go with the accused was not interfered with.

13. In the case of Ramesh Chandra Mandal v. Md. Atiqullah and another (Criminal Miscellaneous Case No. 59 of 1961, disposed of on 23‑8‑1961, by Murshed and Salahuddin Ahmed, JJ.) which was an application under section 491, Criminal Prodedure Code, the petitioner alleged that the opposite‑party had detained her/ his lawfully married wife. The girl being produced in Court stated her age to be 17 years and then the Court allowed her to go wherever she liked.

14. In the case of Bholanath Goswami v. The Commissioner of Police, Calcutta and others (61 C W N 333), a Division Bench of the Calcutta High Court, while considering a case coming under section 100 of the Criminal Procedure Code, observed as follows "The question for decision is whether the section empowers a Magistrate to order the detention of any person who is sui juris. The words "shall make such order as in the circum stances of the case seems proper" do not vest in the Magistrate any such jurisdiction. In our view, any order made in exercise of the discretion vested in the Magistrate is subject always to the implied proviso that the order is otherwise legal. In the case concerned the lady was not an accused and could not, therefore, be arrested and detained. As the person was not a minor, nor suffering from any other disability, requiring any special protection any order of detention would inevitably offend against one or more of the fundamental rights of the person concerned."

15. It will, therefore, be seen that there is almost unanimity that if the person concerned brought before the Magistrate, even when section 10J of the Criminal Procedure Code is applicable, is aged 16 years or over, the will of the victim must be allowed to prevail. The position of such a person is at the most that o a witness and, therefore, not being an accused he or she cannot be detained. The only provisions that can apply in such cases are those of sections 91 and 217 of the Criminal Procedure Code and if a bond is executed there is no question of detention. We are, therefore, of the view that, even in a case in which section 10 is applicable, the person detained, if major, cannot be kept any where against his or her free will.

16. We shall revert to the questions whether section 100, Criminal Procedure Code, is applicable in the present case, and if Jotsna is major.

17. Mr. Assaduzzaman Khan has argued that she is a minor and as such she should be detained in neutral custody until her statement relating to the offences alleged against the accused persons is recorded. Mr. Asaduzzaman Khan has not been able to point out any provisions in the Criminal Procedure Code apart from section

100. The said section is in general terms and makes no distinction between a major and a minor.

18. In the case of Santipada Gangull v. Sovarani Gangull (Criminal Revision Case No. 360 of 1959 disposed of on 25‑6‑59), decided by Rahman, J., to which reference has already been made, the learned Judge, after coming to a finding that in that case section 100 of the Criminal Procedure Code was not attracted, observed as follows "If the girl was, in fact, a minor, under the age of 14 years, then, in my view, the only other provision that might enable a Court to make such an order for the detention of such a minor who is not an accused or an alleged offender, is section 27 of the Bengal Children Act, 1922 (Bengal Act 11 of 1922). It is curious, however, that this Act too does not .contain any provision of the nature contained in section 14 of the Bombay Children Act (Bombay Act YI(I of 1924) which enables the Court to make arrangement for the proper custody of a minor girl who is involved in an offence."

19. It is not necessary for us to go into the provisions of the Bengal Children Act, 1922 in the present case as it is nobody's case that Jotsna is aged below 14 years. In the above case, the Magistrate did not come to a finding with regard to the age of the girl. An application for her examination by a radiologist for ascertainment of her age by the ossification test was pending, and in that view of the matter it was observed that "if she is minor, then the complexion of the entire case will necessarily change and adequate arrangements in accordance with law may have to be made for the custody of the minor girl. Naturally, if she is a minor, the persons best entitled to her custody would be her own parents ; but then the interest of the girl herself must be the most important factor in determining as to in whose custody, she should be kept on the analogy of the principles governing such matters under the Guardians and Wards Act."

20. In the case of Amin Bux v. Meher Ali and others (P L D 1962 Kar. 725), Wahiduddin Ahmed, J., on an application under section 491, Cr. P. C., filed by Amin Bux, the father of girl named Mst. Sohini, who was found to be aged more than 14 years, allowed her to go wherever she liked. In the case of Muhammad Sharif v. Lal Muhammad and another (P L D 1962 Quetta 108), Jamil Hussain Rizvi, J., has observed "In a case under section 363, P. P. C., the police officer should apply for a warrant being issued by a Magistrate under section 100, Cr. P. C., and then produce the minor before the Magistrate for such orders as in the circumstances of the case, the Magistrate might deem proper. The abducted girl was no doubt a witness in the case but she cannot be detained against her will specially in the case of a legally wedded woman."

21. Lastly we have the decision in Mushtaq Ahmed v. Mirza Muhammad Amin and others (P L D 1962 Kar. 442). In this case the petitioner claiming to be the husband of a girl named Mst. Shagufta Parween applied for a writ of habeas corpus against the father of the girl and another. The girl admitted her marriage with the petitioner and it was found that even according to the father she was aged more than 15 years at the time of the marriage. In these circum stances, a Division Bench of the West Pakistan High Court allowed the girl in deference to her will, to go with the petitioner.

22. It is true that we have not been able to lay our hands on any specific provision in the Code allowing the detention of the minor where an offence has been alleged to have been committed by somebody relating to the said minor until his or her evidence is recorded, but there cannot be any question that such a course is highly necessary in the interest of justice in certain circum stances. The alleged victim's statement in connection with the enquiry into the offence may, under certain circumstances, be of the utmost importance and may be the only piece of evidence in determining if an offence has been committed, and, if so, what offence. If the victim is a minor, i.e., below the age of 16 years, then the necessity for following such a course flows from the consideration that an impressionable mind is likely to be influenced by the atmosphere in which it is found.

23. In the mere absence of any specific statutory provision in the Code one need not read a prohibition. The very nature of the duties cast on Courts carries with it the widest discretionary powers in the exercise of control over the conduct of the proceed ings before them. This view is now well‑established and enshrined in numerous decisions by eminent Judges of the Superior Courts of this Sub‑continent. Indeed it was necessary to recognise this Rule for ensuring real and substantial justice between the con tending parties seeking justice in Courts, whether Civil or Criminal. Taking a minor into custody or arranging for his or her detention, with a view to temporarily isolating him or her from certain influences, may be necessitated by the dictates of justice. That f custody or detention is certainly different from the custody of an alleged criminal and even of a ‑ political detenae. It has the complexion of the custody of a guardian. It has an objective different from confinement or placing restriction on his or her movement. It is for giving a chance to the minor to develop his or her own independent opinion, free from external pressure. As we have already said, this is a discretion inherent in the Court. Considerations as to how that discretion is to be exercised and what facilities are available to the Magistrate, in exercising that discretion, is his concern, subject of course to the supervision of the Courts to which he is subordinate.

24. In the present case, the father of the girl in the first information report stated the age of the girl to be 14 years and in a petition filed before the learned Magistrate for medical evidence of the girl stated her age to be !5 years on the 4th of December 1961. The girl has stated that she is aged 18 years and this statement receives support from the report of Civil Surgeon. It is true that the father challenged the finding of the Civil Surgeon and prayed for examination of the girl by the Medical Board. In view of the admission of the father himself, however, on the 4th of December 1961, that her age was 15 years she must be more than 16 years now. In that view we do not think it will be just to keep the girl in custody against her will, particularly when she has not even been cited as a witness in the charge‑sheet.

25. While issuing the Rules we allowed the girl bail and she is now on bail. Regard being had to the fact mentioned above, we feel that this Rule should be made absolute and the girl be allowed to continue on the same bail pending the disposal of the case.

26. We may further observe that our decision with regard to granting bail to Jotsna does not come in conflict with the decision of Asir and Idris, JJ., referred to earlier.

27. Before we part with this case, we would like to observe that the Government should come forward to establish a neutral 1 home where such minors can be kept temporarily, away from criminals, under the care of a responsible person, so as to exclude the possibility of any external influence. Let a copy of this judgment be sent to the Chief Secretary to the Government of East Pakistan. A. M. SAYAM, J.‑I agree. K. B. A.