Patna High Court: While addressing the issue of minors being put to observational homes in routine manner in spite of them (minors) being willing to reside with relatives, the Bench of Rajeev Ranjan Prasad, J., observed that, the judicial officers are required to be sensitized on the subject. The Bench remarked,
“It is only when there is no possibility of keeping the victim girl with her family or with a guardian, she would be required to be sent to an Observation Home.”
The instant application had been preferred by the victim girl who had been kept in the Remand Home since 20-03-2020 in connection with a Case registered under Section 363, 366(A) of the IPC lodged by her father alleging that his daughter was seen being taken away by the accused. On recovery, the victim disclosed that she had gone to the house of her maternal grandmother because her parents wanted to marry her to someone else. She disclosed her age as 18 years but the Magistrate assessed the same as 17 years without there being any basis for the same. Moreover, without considering the request of the victim girl to allow her to live with her maternal grandmother, the Magistrate had sent her to the Observation Home.
The Bench opined that the Additional Chief Judicial Magistrate while passing the impugned order should have acted with more circumspection and care. In all fairness, he should have called for the school certificate of the victim girl because he was aware that the victim girl was a student of Class-XII. The Magistrate had also failed to consider the submission of the victim girl that she wanted to live with her maternal grandmother. It was not the case that the parents of the victim girl had objected to sending the victim girl to her maternal grand-mother. Opining that the judicial officers were required to be sensitive towards the rights of the child and need to take care of them on the principles of parens patriae; the Bench remarked,
“The judicial officers are required to be sensitized on this issue otherwise similar examples will kept on coming before this Court. The need to keep a child in the Observation Home or to allow him/her to stay with her parents/guardians is one of the most essential consideration which is required to be given by the Magistrates when they find that a minor girl or victim of a crime is produced before them. There cannot be a remand of a victim girl to an Observation Home in a routine manner.”
The Bench stated that all possibilities were required to be explored keeping the best interest of the child in the mind, to facilitate her stay either with her own family or with a trusted guardian where her security would also be intact. In the instant case, there was no dispute that the petitioner was major and was entitled to set free. In Bar and Bench v. State of Bihar, 2018 SCC Online Pat 1179, the Court had heavily relied on the decision of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, and had observed that:
“…If we analyze the aforesaid judgment in the backdrop of facts and circumstances of the present case, even though we are conscious of the fact that the parents have various reasons to resist the wishes of their daughter, but once the daughter in categorical term on two occasions when she appeared before us, i.e. today and earlier to that on 26.06.2018, expressed her desire to have her own way of life and exercise her fundamental right, we have no hesitation in allowing her to go the way she desires and exercise the constitutional right available to her. She is a free citizen and no one even her parents have a right to curtail or withhold the freedom available to her under the Constitution…”
For the reasons stated above, the Court set aside the impugned order and directed respondent 5 to release the petitioner from the Observation Home. The Bench further directed that it would be open to the petitioner to choose her place of residence and to her father to persuade her to live with the family without resorting to any force or extra-judicial method to pressurize the petitioner in any manner. Additionally, observing that the judicial officers are required to be sensitized on the subject, the Bench urged the Chief Justice to consider issuing appropriate directions to the Bihar Judicial Academy to hold classes on the subject and take efforts to sensitize the judicial officers of the State as to how to deal with such cases in accordance with law.[Khushi Kumari v. State of Bihar, 2021 SCC OnLine Pat 1352, decided on 25-03-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Adv. Upendra Kumar Singh
For the Respondent/s: APP Sheo Shankar Prasad