High Court Division
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Rizia Khatoon ………..
………Informant- Appellant
vs
State ….. Respondent
Judgment
January 26th, 2014.
Custody of Victim-Safe Custody
When the victim is minor then her custody with the mother is the safe custody than that of the Jail custody. .. …. (11)
No one Appears-For the Informant-Appellant.
Sakila Rowshan, DAG with Sharmina Haque, AAG and Md Sohrawardi, AAG-For the State.
Judgment
Syed Md Ziaul Karim 1 J: By this appeal the Informant-Appellant (mother of the victim) has challenged the legality and propriety of the order dated 3-4-1997 passed by learned Special main- Judge, Magura in Special Case No. 51 of 1996, directing for jail custody of the victim.
2. Facts in brief are that, on 2-9-1996 Md. Abdul Zabber Officer-in-Charge, Magura Police Station lodged a First Information Report alleging that on the basis of a telephonic message the police recovered one Sabikunnessa alias Kusum aged about 16 years on 3-8-1996.
On interrogation the victim stated that she came with Dr. Khalilur Rahman who consequently committed rape upon her. Thereafter, he sends the victim to the Court and she was examined by the doctor who opined that no rape was committed upon her.
3. Thereafter, the victim was given to the custody of her mother herein appellant.
4. Police after investigation submitted Charge-Sheet under section 6(1) of the Nari-o-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 (briefly as Ain 1995) accusing only accused Dr. Khalilur Rahman.
5. Thereafter, the case was taken up for trial by the learned Judge of Nari-o-Shishu Daman Bishes Adalat (briefly as Adalat).
6. Thereafter, on the prayer of the learned Public Prosecutor, the victim was asked to sent to the jail custody from the custody of her mother by the impugned order.
7. Feeling aggrieved the mother of the victim, herein appellant, preferred the instant appeal.
8.No one appears to support the appeal.
9.In view of the facts this is an old appeal of 1997, we are inclined to take it up for disposal on merit considering the materials on record.
10. The learned Deputy Attorney-General appearing for the State opposes the Appeal, and submits that the learned Judge of the Court below after considering the entire materials on record rightly passed the impugned order under the aforesaid provision, which calls for no interference by this court.
11. On going to the materials on record it transpires that, after considering the allegation made in the First Information Report, statement of the victim and the medical report, the victim was earlier released from the jail custody and was given to the custody of her mother.
It further appears to us that she was living with her mother without any allegation from any quarter. It is pertinent to point out that the public prosecutor in his own initiative filed such application for sending the victim to the jail custody from the custody of her mother.
After considering the facts and circumstances of the case we are of the view that when the victim is minor then her custody with the mother is the safe custody than that of the jail custody. Therefore, we are unable to approve the impugned order. Thus the Rule having merit succeeds.
12. In view of forgoing narrative the appeal is allowed. The impugned order dated 3-4-1997 passed by the learned Judge in Special Case No. 51 of 1996 is hereby set-aside and the victim shall remain to the custody of her mother Rizia Khatun till disposal of the case.
Office is directed to communicate the order at once.
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Rizia Khatoon ………..
………Informant- Appellant
vs
State ….. Respondent
Judgment
January 26th, 2014.
Custody of Victim-Safe Custody
When the victim is minor then her custody with the mother is the safe custody than that of the Jail custody. .. …. (11)
No one Appears-For the Informant-Appellant.
Sakila Rowshan, DAG with Sharmina Haque, AAG and Md Sohrawardi, AAG-For the State.
Judgment
Syed Md Ziaul Karim 1 J: By this appeal the Informant-Appellant (mother of the victim) has challenged the legality and propriety of the order dated 3-4-1997 passed by learned Special main- Judge, Magura in Special Case No. 51 of 1996, directing for jail custody of the victim.
2. Facts in brief are that, on 2-9-1996 Md. Abdul Zabber Officer-in-Charge, Magura Police Station lodged a First Information Report alleging that on the basis of a telephonic message the police recovered one Sabikunnessa alias Kusum aged about 16 years on 3-8-1996.
On interrogation the victim stated that she came with Dr. Khalilur Rahman who consequently committed rape upon her. Thereafter, he sends the victim to the Court and she was examined by the doctor who opined that no rape was committed upon her.
3. Thereafter, the victim was given to the custody of her mother herein appellant.
4. Police after investigation submitted Charge-Sheet under section 6(1) of the Nari-o-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 (briefly as Ain 1995) accusing only accused Dr. Khalilur Rahman.
5. Thereafter, the case was taken up for trial by the learned Judge of Nari-o-Shishu Daman Bishes Adalat (briefly as Adalat).
6. Thereafter, on the prayer of the learned Public Prosecutor, the victim was asked to sent to the jail custody from the custody of her mother by the impugned order.
7. Feeling aggrieved the mother of the victim, herein appellant, preferred the instant appeal.
8.No one appears to support the appeal.
9.In view of the facts this is an old appeal of 1997, we are inclined to take it up for disposal on merit considering the materials on record.
10. The learned Deputy Attorney-General appearing for the State opposes the Appeal, and submits that the learned Judge of the Court below after considering the entire materials on record rightly passed the impugned order under the aforesaid provision, which calls for no interference by this court.
11. On going to the materials on record it transpires that, after considering the allegation made in the First Information Report, statement of the victim and the medical report, the victim was earlier released from the jail custody and was given to the custody of her mother.
It further appears to us that she was living with her mother without any allegation from any quarter. It is pertinent to point out that the public prosecutor in his own initiative filed such application for sending the victim to the jail custody from the custody of her mother.
After considering the facts and circumstances of the case we are of the view that when the victim is minor then her custody with the mother is the safe custody than that of the jail custody. Therefore, we are unable to approve the impugned order. Thus the Rule having merit succeeds.
12. In view of forgoing narrative the appeal is allowed. The impugned order dated 3-4-1997 passed by the learned Judge in Special Case No. 51 of 1996 is hereby set-aside and the victim shall remain to the custody of her mother Rizia Khatun till disposal of the case.
Office is directed to communicate the order at once.
