P L D 1965 Dacca 553 (PLP)

The learned Advocate‑General conceded that the detention of Rani Bala was illegal as the impugned order has been made with out any authority of law. Rani Bala was for the first time produced before the Sub‑ Divisional Magistrate (North) on 2‑6‑1964. On that day the learned Magistrate remanded her to jail custody. The relevant part of that order is in the following terms: "Accd. Abdur Razzaq and the victim girl Rani Bala also produced to‑day from Natore Court: The supplementary record also received. Seen the prayer of I. O. It is necessary to ascertain the actual age of the girl Rani Bala by medical examination through X'Ray. So she is remanded to custody." Thereafter several petitions were presented before the Magistrate for the release of Rani Bala but to no effect. The learned Sessions. Judge was also moved but he made the following order: "Heard the learned Advocate for the petitioners. Petitioner No. 1 is not in custody but she prays for bail of petitioner No. 2 who is in custody. The petitioner No. 2 not being an accused in any case and not being accused of any offence the remedy in this case lies by an application under section 491 Cr. P, C. which can only be entertained by the High Court. Hence this application for bail be rejected." The learned Sessions Judge, it appears, found the detention to be illegal but he thought that remedy lay in an application under section 491 of the Code of Criminal Procedure and he left the parties to pursue that course. We have not been able to find out any provision of law under which the detention can be justified. She is not an accused in any case. She may at best be a witness. There is no provision of law which authorises her detention by a Magistrate. As we have reached the conclusion that the detention is illegal, the only question that now arises is as to what order should be made by us. Rani Bala is a Hindu girl. Although there is a claim that she has embraced Islam yet that claim is to be proved at the regular trial. It is not denied that her parents are Hindus and that she is a Hindu by birth. The age of the girl is also a material point to be determined at the trial, if any, under section 366 of the Penal Code on the evidence that may be led in the case. For the purpose of this petition, we have, however, before us a medical report of the Civil Surgeon as produced by the accused‑petitioner Abdur Razzaq in the Court below. On the other band, the officer‑in‑charge of the Savar Police Station seized a horoscope from the house of the petitioner Kiran Bala which shows that on the date of the occurrence she was below 16 years of age. The Officer‑in‑charge submitted a report in this behalf to the Sub‑Divisional Magistrate and that report is in the following terms:‑ "Sir, I beg to report that victim girl Rani Bala Choudhry daughter of Annada Prasad Choudhry of Savar, District Dacca was born on 11th Falgoon 1358 B. S. On the date of occurrence her age was 12 years 1 month and 2 days as per her horoscope which, I have seized. Shefali Chowdhry is her elder sister who was born on 17th Agrahayan 1355 B. S. and her age on the date of occurrence was 15 years, 3 months and 26 days. Shefali Choudhry is older to Rani Bala Choudhry by more than three years. I have seized the horoscope of Shefali Choudhry also. The local witnesses proved her age as per horoscope. But the Civil Surgeon, Dacca wrongly opined the age of Rani Bala Choudhry about 18 years. I got Shefali Choudhry, elder sister of Rani Bala Choudhry examined by the Radiologist of Dacca Medical College Hospital who opined the age of Shefali Choudhry between 16 and 17 years. It‑ tallies with her horoscope. From this it is clear that the Civil Surgeon submitted wrong report about the age of Rani Bala Choudhry. Rani Bala Choudhry is a minor girl." The material part of the report of the Radiologist, Medical College Hospital, Dacca (a copy of which has been annexed to an affidavit affirmed on behalf of the petitioner on 27‑8‑64) on the result of the examination of Shefali is in the following terms:‑ "From the above radiological findings I am of the opinion that Miss Shefali Choudhry whose left thumb‑impression is put on page No. 1, is about 16‑17 (sixteen to seventeen) years of age." Authenticity of the said report has not been denied before us. It has also not been challenged before us by any one that Shefali Choudhry is the elder sister of Rani Bala. The police report is also to the effect that Shefali is the elder sister of Rani Bala. We, therefore, accept the averment made on oath in the petition of Kiran Bala that Shefali is the elder sister of Rani Bala. Shefali being about 16/17 years of age, we do not know how we can hold that she is above the age of her younger sister. The only material so far placed before us indicating that Rani Bala is above 16 years of age is the report of the Civil Surgeon of Dacca. As against that there is a horoscope seized by the police from the house of Kiran Bala. It has been seized by the officer‑in‑charge from her house and the averment made by Kiran Bala that Shefali is the elder sister of Rani Bala, finds corroboration in the report of the officer‑in‑charge. Further the Radiologist of the Dacca Medical College, as already noticed, found Shefali to be aged about 16/17 years only. That being so on the materials so far placed before us, it seems to us that Rani Bala has not yet attained the age of 16 years. The detention of Rani Bala is illegal. For the Superintendent of the Dacca Central Jail to throw out a minor girl in the street on her release, will be an act of irresponsibility which he cannot be permitted to do. Kiran Bala is admittedly the mother of Rani Bala. Pending further investigation, and trial, Rani Bala should be released and handed over to her. The prayer of the officer‑in‑charge was to hand over the girl to him for investigation but the Magistrate did not give him the facility, as prayed for. He should have, in the interest of justice and expeditious disposal of cases of this nature provided him with the facilities as asked for. A case under section 363/366 of the Pakistan Penal Code is pending in which Abdur Razzaq is an accused. Certain findings of fact may have been arrived at in order to dispose of this application but these observations and findings, we take particular care to say, are confined to the proceedings before us and made on the materials so far available. These conclusions have been reached on affidavits; whereas at the trial there will be oral as well as documentary evidence to be tested by cross -examination, and the trial Court will be free to reach such con clusions on fact as it deems fit and proper. We need hardly add in this connection that the officer‑in charge, Savar Police Station will, however, be entitled to take such steps for examination of Ranibala for completing the inves tigation as may be necessary under the law and in the interests of justice. For the reasons stated above, we make the Rule absolute in Criminal Miscellaneous Case No. 77 of 1964 and order that B Rani Bala Chowdhry be released forthwith and we further direct the State to hand over her to the custody of her mother petitioner Kiran Bala Chowdhry. The Criminal Miscellaneous Case No. 78 of 1964 is covered by the decision of Criminal Miscellaneous Case No. 77 of 1964, and is disposed of in the above terms. ABDULLAH, J.‑--I agree. K. B. A. Order accordingly.