Delhi District Court
Criminal Revision No. 42/08 1 Amrik ... vs State on 26 May, 2008
Criminal Revision No. 42/08 1 Amrik Singh Vs State
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Criminal Revision No. 42/08
Amrik Singh PETITIONER
Vs
State RESPONDENT
Date of arguments 24.5.08
Date of Order - 26.5.2008
ORDER
1. By this order I shall dispose of revision petition directed against an order dt 12.5.08, passed by Sh J.P Nahar, Ld Metropolitan Magistrate, New Delhi.
2. The brief facts giving rise to filing of the present revision petition are that on 17.3.08 one Khushboo ( the prosecutrix) lodged an FIR No. 171/08, police station Badarpur alleging that she became intimate with one Amarjeet Singh @ Vicky . He promised to marry her and under this pretext, one day he committed rape upon her . After a few months he again expressed his desire to marry her and took her to a room and again committed rape upon her. She became pregnant but Amrik Singh @ Vicky and his relatives took her to a lady doctor and got her aborted. It is alleged in this complaint that relatives of Criminal Revision No. 42/08 2 Amrik Singh Vs State Amrik Singh opposed the marriage of prosecutrix with him and thereafter detained her in a room. It is alleged that somehow she came out of the room and lodged the present FIR. The mother of the prosecutrix accompanied her to the police station. During investigation, the age proof was collected and the date of birth of the prosecutrix was found to be 8.7.93. It is alleged that during the investigation, accused again kidnapped the prosecutrix.. the parents and relatives of Amrik Singh moved an anticipatory bail before this court. Prosecutrix appeared before me on 6.5.08 during hearing of the said anticipatory bail. She did not support the allegations made in the FIR and stated that she had voluntarily married Amrik Singh. The Investigating Officer requested that the statement of prosecutrix be got recorded U/S 164 CrPC.
3. Accordingly, Sh J.P. Nahar, Ld Metropolitan Magistrate recorded statement U/S 164 CrPC of the prosecutrix. In this statement she testified that she had married Amrik Singh @ Vicky out of her free will and that she had lodged the FIR in the police station under the pressure of her mother. She testified that she had eloped from her house and had married Amrik Singh in a temple.
4. After recording of this statement, the question of custody of the prosecutrix arose. The Investigating Officer of the case moved an application praying that prosecutrix be sent to Nirmal Chhaya as she is minor but is not ready to go with her parents. Ld Metropolitan Magistrate passed the following hand written order on the margin of the application. The order is reproduced as under :
6.5.08 Pre: Ld APP for State.
IO with case file.
Prosecutrix in person.
Criminal Revision No. 42/08 3 Amrik Singh Vs State Mother of prosecutrix in person. Heard. Prosecutrix has not reportedly supported the case of prosecution. The girl say s that she wants to go to the house of her husb a n d / a cc u s e d / h e r in laws.
Keeping in view the circumsta nce s of the case, the prose c u t r i x being inc a p a b l e to thin k her well being is sent to Nirmal Chha ya and her custod y would be decided by Child Welfare Committee. In such view of the matter, the custod y of the prosecutrix is referred to Child Welfare Committee and in the mean w hile she has to stay at Nirmal Chhay a.
MM/ND 6.5.08
5. On the application moved by the present revisionist and the mother of the prosecutrix, Ld Metropolitan Magistrate passed the impugned order which is as under:
12.5.08 Present : Ld APP for the State.
Counsel for applicant.
Heard.
IO report is peruse d.
Keeping in view of Sec. 29 R /W Sub clause 3 of Section 29 of Juvenile Justice Act 2000. The present application had not maintainable before the present court and therefore the same be returned to file before the competent authority. Record be attached with the case file and be consigned to record room Sd / MM/Ne w Delhi
6. Ld. Counsels for revisionist has argued that the prosecutrix is a minor and has married the revisionist. Therefore the custody of the prosecutrix should be given to the revisionist. On the other hand, it is argued by Ld. Counsel for revisionist that a minor is incapable of Criminal Revision No. 42/08 4 Amrik Singh Vs State giving any consent. The revisionist had first committed rape and thereafter he wants to legalize it by marrying her. It is argued that the parents of the prosecutrix are entitled to her custody.
7. I have perused the record. As per the evidence collected by the Investigating Officer, the prosecutrix is of less than 15 years of age. But will Child Welfare Committee would assume jurisdiction to decide her custody simply by the fact of the prosecutrix being less than of 18 years?
8. For this purpose the recourse must be taken to The Juvenile Justice (Care and Protection of Children) Act, 2000 and it should be seen as to whether the prosecutrix is in need of care and protection or not. If a child is deprived of any care and protection, in that situation it is the duty of Ld Metropolitan Magistrate to send the matter to Child Welfare Committee but if the facts do not show such circumstances, the Metropolitan Magistrate is duty bound to release such child to its lawful guardian.
9. Therefore the basic question involved in the present petition is as to whether Ld. Metropolitan Magistrate was right in referring the question of custody of the minor prosecutrix to Child Welfare Committee established under The Juvenile Justice (Care and Protection of Children) Act, 2000.
10. Ld. Metropolitan Magistrate in the impugned order has referred to Section 29 of this Act. Under this provision of the Act, a Child Welfare Committee has been constituted for dealing with a child in need of care and protection.
Criminal Revision No. 42/08 5 Amrik Singh Vs State
11. Such a child is defined in Section 2 (d) in this Act. The same is reproduced as under :
Section 2 (d) "child in need of care and protection" means a chuild,
(i) who is found without any home or settled place or abode and without any ostensible means of subsistence, [(ia) who is found begging, or who is either a street child or a working child,]
(ii)who resides with a person (whether a guardian of the child or not) and such person
(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or
(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person,
(iii)who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,
(iv)who has a present or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child.
(v)Who does not have parent and no one is willing to take care of or whose parents have abandoned [or surrendered] him or who is missing and run away child and whose parents cannot be found after reasonable injury.
(vi)Who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,
(vii)who is found vulnerable and is likely to be inducted into drug Criminal Revision No. 42/08 6 Amrik Singh Vs State abuse or trafficking,
(viii)who is being or is likely to be abused for unconscionable gains,
(ix)who is victim of any armed conflict, civil commotion or natural calamity;
12. Before referring the question of custody of the prosecutrix to Child Welfare Committee, Ld. Metropolitan Magistrate should have determined as to under which of the categories mentioned in the above definition, the said prosecutrix fell. However Ld. Metropolitan Magistrate has not specified as to under which category the prosecutrix falls. The reasons are obvious. The Metropolitan Magistrates are over burdoned with work. They have to pass an order there and then in crowded court room and in a surcharged atmosphere specially in cases of such kind where the family members of both sides and the police officials are singing their own tunes. The infrastructural and Ministerial support available to them is bare minimal. Normally the Magistrates have to scribble their orders in their hand and that too almost immediately on hearing the arguments, where as large number of litigants and matters are awaiting their turn.
13. The facts of the present case would show that prosecutrix is not without any home or settled place.
She is also not a beggar, street child or a working child. She does not reside with a person who has threatened to kill her or injure her or some other child.
She is not mentally or physically challenged child. Her parents or guardians are not in any manner unfit or incapacitated to exercise control over this child.
She is having her parents.
Criminal Revision No. 42/08 7 Amrik Singh Vs State She is not likely to be grossly abused or tortured for the purpose of sexual abuse.
She is not likely to be inducted in drug abuse etc. or for unconscionable gains.
She is not a victim of any armed conflict, civil commotion or natural calamity.
14. Therefore it is clear that the prosecutrix does not fall within the definition of "a child in need of care and protection" as defined in Section 2 (d) of Juvenile Justice (Care and Protection of Children) Act, 2000. I accordingly hold that Ld. Metropolitan Magistrate has erred in sending the matter to Child Welfare Committee. I therefore set aside the impugned order dated 12.5.2008 and consequently an order dated 6.5.2008 wherein Ld. Metropolitan Magistrate sending the court record to Nirmal Chhaya for deciding the question of her custody by the Child Welfare Committee. Though both the parties have prayed that question of custody should be determined by this court, however while sitting in revisional jurisdiction, I am not inclined to enter into this question unless the same is determined by Ld. Metropolitan Magistrate.
15. In these circumstances I direct Ld. Metropolitan Magistrate to determine the question of custody after hearing all the parties concerned i.e. the prosecution, the prosecutrix, her parents (the respondents herein) and the present revisionist.
16. Ld. Counsels for both the parties have placed on record the judgements of High Court and the Supreme Court claiming the custody of the prosecutrix. Ld. Metropolitan Magistrate shall consider the submissions of the parties and case law submitted by them and Criminal Revision No. 42/08 8 Amrik Singh Vs State thereafter would pass an order deciding the custody of the prosecutrix.
17. All the parties in the present case are governed by Hindu Law. As per Section 6 of the Hindu Minority and Guardianship Act 1956, in case of an unmarried minor girl, the father is her natural guardian. In case of a married minor girl, the husband is her natural guardian. Ld. Metropolitan Magistrate, while determining the question of custody of the minor prosecutrix, would also be guided by the principle enshrined in the most humane provision of the Hindu Minority and Guardianship Act, which is reproduced as under :
Section 13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be paramount consideration.
(2) No person shall be entitled to be guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.
18. The copy of the order along with the trial court record be returned immediately to the concerned Metropolitan Magistrate. All the parties shall appear before him on 28.5.2008 at 2:00 pm.
19. Revision is disposed of accordingly.
Announced in the open court on 26.5.2008.
(VINODKUMAR) Additional Sessions Judge Patiala House Courts New Delhi