BIBI TARANNUM vs STATE GOVT OF NCT OF DELHI
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:03rd May, 2024
+ W.P.(CRL) 1390/2024
BIBI TARANNUM ….. Petitioner
Through: Mr. Rajiv Bajaj, Ms. Shruti Khosla with Mr. Vidur Marwah, Advocates.
versus
STATE GOVT OF NCT OF DELHI ….. Respondent
Through: Mr. Sanjay Lao, Standing Counsel (Crl.) with Mr. Priyam Agarwal, Mr. Abhinav Kumar Arya and Mr. Shivesh Kaushik, Advocates with Inspr. Madhurender, WSI Nidhi, PS Bara Hindu Rao
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
CRL.M.A. 13609/2024 (exemption)
Exemption allowed subject to all just exceptions.
W.P.(CRL) 1390/2024
1. Present petition has been filed by the petitioner seeking directions to respondent/State to produce her minor girl child before this Court.
2. Issue notice. Learned Standing Counsel for the State accepts notice on behalf of the State and has produced the Status report dated 03.05.2024. The same is taken on record.
3. As per status report, on 19.04.2024, an MLC information vide No.72629/2024 about sexual assault inflicted on a minor girl child Ms S, aged about 14 years, was received from Ram Manohar Lohia Hospital, New Delhi at PS Bara Hindu Rao vide DD No.35A on 19.04.2024. As per status report, during the course of inquiry, Emergency Officer, WSI Nidhi visited said hospital where patient/victim Ms. S was found admitted and accordingly, DCW CIC counselor was called and the victim was got counseled and thereafter she gave her written complaint in presence of her elder sister and brother-in-law, who got her admitted in hospital, in which she alleged that her real brother sexually exploited/made forceful physical relation with her multiple times at their native house in Village Koshikipur, Jilla Araria, Bihar and for the first time in the months of April and May, 2023. Thereafter, in view of the MLC of the victim and her written complaint, zero case FIR No.0001/2024 was registered at PS Bara Hindu Rao, Delhi under Section 376 IPC and 6 POCSO Act against the son of the petitioner (brother of the victim) on 19.04.2024 and initial investigation was carried out.
4. As per status report, during the course of investigation, on 20.04.2024, an application for recording of statement under Section 164 Cr.P.C. of victim was filed before the learned Court at Tis Hazari Courts, Delhi and learned MM visited said hospital and recorded victims statement under Section 164 Cr.P.C. at One Stop Centre of said hospital.
5. As per status report, during the course of investigation, on 22.04.2024, victim (through video conference from One Stop Centre of RML Hospital) and her mother (though physical appearance) were produced by the State before the Child Welfare Committee III, Sewa Kutir where victim and her mother desired for victims MTP (Medical Termination of Pregnancy) and gave their written consent to the Committee. Thereafter, CWC directed Medical Superintendent, RML Hospital to conduct MTP as per MTP Act and also directed the Investigating Officer to collect the exhibits and produce the victim and her parents before CWC after the discharge of the victim from hospital. Victim then got shifted in a ward of RML hospital for her due MTP process. As per status report, during the course of investigation, on 25.04.2024, MTP of the victim was conducted and sealed exhibits of victim and terminated foetus along with sample seal were seized vide DD No.81 and for the purpose of investigation, exhibits were deposited in FSL Rohini for DNA profiling on 26.04.2024 vide FSL Acknowledgement No.: SFSL(DLH)/5071/BIO/1130/24 Memo NO.336, PS Bara Hindu Rao as there could have been chances that exhibits might get putrefied or damaged in transporting from Delhi to Bihar.
6. As per status report, on 27.04.2024, victim was discharged from RML Hospital and 27.04.2024 and 28.04.2024 being Saturday and Sunday, respectively, the days on which CWC remains closed, the CWC Members on Duty were informed telephonically who directed to get the child placed in Child Care Institution (CCI) Rose Udaan, Home for Girls, Kamla Nagar and to produce before CWC along with parents on 29.04.2024. As per the directions of CWC, victim was placed in above mentioned CCI directly after being discharged from hospital. It is stated that victims mother along with her son-in-law was present at CCI and she was informed to remain present before CWC-III Sewa Kutir on 29.04.2024 and her son-on-law was also informed and location of CCI and CWC was also communicated to him.
7. It is further stated that on 29.04.2024, victim and her mother were produced before the CWC where victims mother had stated that she wanted to take the custody of the victim whereas victim told that she did not want to go with her mother as her mother was trying to pressurize her to save her elder son (the alleged accused/brother of victim in the present case). Accordingly, CWC ordered to place victim in CCI Rose Udaan, Home for Girls, Kamla Nagar and also directed the Police Officials, Araria District to do the needful to take legal action in the present matter and also to escort the child from Delhi to Bihar and to produce the child before the concerned CWC in Bihar. Thereafter, on 29.04.2024, victim child was lodged in CCI Rose Udyaan, Home for Girls, Kamla Nagar, Delhi.
8. Learned Standing Counsel for the State submits as per the allegations in Zero FIR No.0001/2024, the incident had taken place at village Koshikipur, Jilla Araria, Bihar, therefore, the FIR No.0001/2024 registered at PS Bara Hindu Rao, Delhi under Section 376 IPC and 6 POCSO Act against the son of the petitioner (brother of the victim) has been transferred to the concerned Police Station through SSP, Araria, Bihar, vide dispatch No.2787/So-DCP/AC-V/North District, Dated 29.04.2024 for registration of regular FIR, escort of the victim child from Delhi to Bihar and for further investigation.
9. Learned counsel appearing for the petitioner submits that the paramount welfare of the child is with her mother, who is present in Court and wishes to take her child with her. He also states that her son is absconding and she would not let him enter the house so that there is no chance of his meeting the victim. However, learned Standing counsel for the State has strongly opposed the custody of the child to be given to her mother at this stage due to the reason that her son (son of petitioner) is accused and if custody of the child is given to her mother, she would certainly tutor her to save the culprit.
10. In view of the above and also keeping in view the fact that the girl child is only 14 years old, and the act of sexual assault has been committed upon her by her own real brother, i.e., son of the petitioner, we hereby dispose of the present petition directing CWC to decide about the custody of the minor child after hearing both the sides. Liberty is granted to the petitioner to move application seeking custody of the child before CWC and on receipt such application, the same shall be decided expeditiously and in accordance with law. Needless to say that CWC while keeping in mind the best interest of the child would also find out from her whether she is willing to go back to her mother or not.
11. Order Dasti under the signatures of the Court Master.
(SURESH KUMAR KAIT)
JUDGE
(MANOJ JAIN)
JUDGE
MAY 03, 2024
st
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