Asha Devi vs The State Of Jharkhand
2021 Latest Caselaw 4923 Jhar

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               IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No.182 of 2020

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Asha Devi, aged about 34 years, w/o Ganesh Ravidas, represent being mother and natural guardian of the minor victim girl namely, Chandani Kumari @ Chandni Kumari of the instant case, r/o H.No.108, Y Quarter, At Gourkhunti, PO and PS Sudamdih, District Dhanbad ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.The Superintendent, Balika Girih, PO, PS and District -Dhanbad ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. P.K. Mukhopadhyay, Advocate For the State :- Mr. P.A.S. Pati, G.A.-II

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9/20.12.2021 This petition has been filed for quashing of the order dated 05.06.2020 passed in M.C.A. No.242/2020 by learned Dist. And Addl. Sessions Judge-IX cum Spl. Judge, POCSO, Dhanbad. The F.I.R was lodged on the Fardbeyan of the victim of the father and during investigation, on the basis of statement of the victim under section 164 Cr.P.C, victim's father was made accused in this case. The cognizance was taken on 02.03.2021 for the offence under section 376(A), 376(B) of the I.P.C and under section 3,4 of POCSO Act.

A petition was filed by the mother of the victim before the Court which was decided vide order dated 05.06.2020 and considering the safety of the victim girl the release in favour of the mother who is the petitioner was not allowed and the Court directed to send the victim girl to Balika Girih, Dhanbad. Aggrieved with this, the petitioner who happened to be mother of the victim girl has filed this petition.

Mr. Mukhopadhyay, the learned counsel appearing on behalf of the petitioner submits that in absence of consent of the petitioner the custody of the victim girl and the sending of the victim girl to Balika Girih, Dhanbad is bad in law. He submits that in one of the judgment of this Court in Shashank Mandal @ Bapi Mandal v. The State of Jharkhand and Another and in the judgment of Division Bench of Delhi High Court in the case of Neetu Singh v. The State and Others, law laid down that victim girl's consent for sending and handing over to the relative are prime concern. He submits that in absence of the said consent of the victim girl this order has been passed.

Mr. P.A.S. Pati, the learned counsel appearing on behalf of

the respondent State submits that this case is arising out of section 376 I.P.C and under the POCSO Act. He further submits that the father is the accused in view of the statement of the victim girl under section 164 Cr.P.C and the Court has rightly sent the victim girl to Balika Girih, Dhanbad as handing over the victim girl to the petitioner will amount to interference as there is likelihood that the victim girl shall be influenced by the parents to depose the statement in favour of the parents.

The Court has gone through the judgment impugned. The learned court has considered every aspect of the matter. The Court has recorded that special cautious and remedial and protective steps are to be taken for the victim under the POCSO Act as held by the Hon'ble Supreme Court and in the Act itself. In the case on which Mr. Mukhopadhyay, the learned counsel has relied on are the case arising out of Hindu Marriage Act in which the marriage has already been taken place and on that fact it has been held that consent of the victim is necessary. This case is arising out of POCSO Act and Section 36 is very specific on that wherein it has been said that the child is not to be exposed in any way by the accused at the time of recording of evidence. The trial court has recorded that evidence of the victim girl has not been recorded as yet. In the case in hand, the best interest of the child and handing over the custody of the victim child to the petitioner and the father who is an accused of molesting her own child no purpose will be served to quash the reasoned order passed by the concerned Court. There is no illegality in the impugned order. No relief can be extended to the petitioner.

Accordingly, instant petition [W.P.(Cr.) No.182 of 2020] is dismissed.

( Sanjay Kumar Dwivedi, J) SI/