Asim Kumar Mondal, J.@mdashToday it is fixed for passing necessary order. The petitioner preferred instant application u/s 401 and 482 of the Code of Criminal Procedure with a prayer to issue a rule calling upon two opposite parties to show cause as to why the order dated 4th October, 2012 passed by Ld. Additional Chief Judicial Magistrate, Contai, Purba Medinipur, in G.R. (E) case No. 104 of 2012 should not be set aside. The gist of the complaint, lodged by one Nitai Chandra Maity, O.P. No. 2, is that the girl named Lata Rani Maity is the daughter of O.P. No. 2, aged about 16 years and student of Class XI, was kidnapped by the present petitioner Sanatan Sardar with the help of other co-accused persons and was raped. So the concerned police station registered the case and started investigation and submitted a charge-sheet.
2. On 4th October, 2012 one petition was filed before the Ld. Court below praying for custody of the victim by the accused-petitioner claiming himself as the husband. The Ld. Court below after hearing both sides has been please to reject the said petition on the ground that the victim girl is minor.
3. Ld. Advocate on behalf of the State produced the CD. On perusal of the DC it appears that the victim girl has denied to go back to her father, rather she has expressed to go to her husband, i.e., the accused/present petitioner. The said statement has been recorded u/s 164 Cr.P.C. It is also clear from the submission of the Ld. Advocate on behalf of the State as well as on behalf of the petitioner/accused that the victim girl has given birth of a child out of the wedlock with the petitioner/accused. At present the victim girl is at the custody of the Home along with her newly born baby.
4. It is suggested by Ld. Advocated for the petitioner/accused that the victim girl may be permitted to live with her husband. The atmosphere of the Home is not well and will not be suitable for the victim girl as well as for her newly born baby. There will be lack of proper care and treatment etc. at Home. At the same time, the petitioner/accused be directed to appear before the Ld. Court below along the victim and baby time to time and report the status of living of victim at her matrimonial home.
5. Learned Advocate appearing on behalf of the petitioner submits that the petitioner is a major person and he is ready to maintain the victim girl as he has married her. The victim girl is now in the custody of Home with a child on her lap who is admittedly of one month old. There will be no proper care both for the newly born baby as well as the victim girl.
6. Under such circumstances, as the petitioner has crossed the age of seventeen years, it is submitted that she may be allowed to go to her husband and live with him for the welfare of the child on her lap as well as for herself. Admittedly, there is a technicality in the matter, but on the humanitarian ground, she should be allowed to go to the custody of her husband.
7. In support of this contention, learned Advocate for the petitioner has referred to one citation of a coordinate Bench of this Court reported in 2003 C Cr LR (Cal) 1057 (Sarif Ansari Vs. State of West Bengal & Anr.).
8. Perused the said citation. His Lordship, the Hon''ble Justice Pravendu Narayan Sinha, has held in the said case that the custody for a victim girl, who attained the puberty attaining above fifteen years of age but below seventeen years, competent to marry at her own will and her custody to be determined according to her own will.
9. The victim girl was called for at Court and interviewed personally. She has categorically denied to go to the custody of her father at any circumstances. At the same time, she expressed her willingness to go to her husband''s house where her in-laws are ready to accept her. She also expressed that the Home authority is not taking proper care of her child, who is a sucking baby of hardly one month old. She is also not properly maintained after delivery, as required, in the Home. There is no sufficient arrangement for medical examination of herself and her baby.
10. Under such circumstances and in view of the ratio laid down in the case (supra) by a coordinate Bench of this Court and finding that the present case is identical with the said case, I am of the view that the victim should go to the custody of her husband along with the baby on her lap for proper care and maintenance.
11. Learned Magistrate concerned, on filing such application on behalf of the petitioner, will consider the same in accordance with law and may pass appropriate order imposing such terms and conditions while releasing the victim girl from Home to the custody of her husband, as may deem fit and proper.
12. This custody of the victim girl be treated as interim custody till the completion of age of 18 years or any order of any appropriate court.
13. Accordingly, the impugned order rejecting the prayer to release the victim in the custody of the petitioner stands set aside. The revisional application is disposed of.
14. Let a copy of this order be sent to the concerned Magistrate as well as the Superintendent of the Home concerned by the Department for information and necessary action. Criminal Section is directed to supply urgent Photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.
