Jharna Rani Saha vs Khondaker Zayedul Hoque alias Jahangir and another
Citation : 52 DLR (AD) 66
Jurisdiction : Bangladesh
Appellant : Jharna Rani Saha
Respondents : Khondaker Zayedul Hoque alias Jahangir and another
Facts :
The appellant, Jharna Rani Saha, filed a written complaint (ejahar) on 12 August 1997, alleging that her daughter, Lata Rani Saha, had been abducted by the respondent, Khondaker Zayedul Hoque (the girl’s house tutor), and others. The complaint alleged that the abduction was carried out for the purpose of marriage against the girl’s will. Following an investigation, a medical report estimated the girl’s age to be between 17 and 18 years and noted she was habituated to sexual intercourse, although no signs of recent forceful intercourse were found. The legal proceedings concerning custody began when a Magistrate initially placed the girl in the custody (jimma) of the respondent’s father. This was later overturned by a Sessions Judge, who placed her in judicial custody (jail) to ensure a smooth investigation. The respondent then moved the High Court Division under Section 491 of the Code of Criminal Procedure, thereby invoking its habeas corpus jurisdiction and challenging the girl’s continued judicial custody. The High Court Division ordered that she be set at liberty to “go anywhere she likes,” based on the medical assessment that she was nearly 18 years of age. The mother subsequently appealed this decision to the Appellate Division.
Issues :
1. Whether the High Court Division Division properly exercised its jurisdiction under Section 491 CrPC by directing the release of the girl to go wherever she wished while an abduction investigation under the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain was ongoing.
Arguments :
Arguments of the Appellant:
The appellant argued that primary evidence, specifically the girl’s horoscope and school certificates, proved that she was a minor (approximately 15 years old) at the time of the incident. It was further alleged that the High Court’s order was passed ex parte, as the mother was not given a reasonable opportunity to present her case. The appellant further maintained that as the victim of an offence and a minor, the girl should be returned to her parents rather than being kept in jail or placed in the custody of the accused’s family.
Arguments of the Respondents:
The respondent claimed that the girl was over 18 years old, had left home voluntarily and embraced Islam. Afterwards, she married the respondant of her own free will. They relied on a statement the girl made under Section 164 of the CrPC, which supported the respondent’s version of events. The respondent’s counsel suggested that the girl should either stay in judicial custody or have her custody decided after the court heard her own opinion, arguing that releasing her to the mother might prejudice the trial.
Decisions :
The Appellate Division allowed the appeal and set aside the High Court’s order. The Court held that although the High Court Division possesses wide powers under Section 491 CrPC to examine the legality or propriety of a person’s custody, those powers must be exercised judicially after considering all the relevant facts and the surrounding circumstances. It was held that the High Court Division failed to consider the relevant facts, including the allegations of abduction and the pending investigation. Since primary evidence (like school certificates) suggested that she was a minor, the girl could not be allowed to make her own choice regarding where to go. The Court noted that, although keeping a girl in jail is “inhuman,” it is “right and proper” for a minor victim to stay with her parents rather than the family of the accused. Accordingly, the High Court Division’s direction permitting the girl to “go anywhere she likes” under Section 491 of CrPC was held to be an improper exercise of its habeas corpus jurisdiction in the circumstances of the case.
As a result, the Court directed that the girl be released from District Jail forthwith and placed in the custody of her mother. It further observed that the issues relating to her age and the allegations against the accused would be decided on the basis of evidence during the trial.
Relevant Laws :
- The Code of Criminal Procedure, 1898
- Section : 164, 491
- Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 [Replead by নারী ও শিশু নির্যাতন দমন আইন, ২০০০]
Author :
1. Fatema Jarrin Habiba
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