Donating daughter to a Baba held illegal as daughter not a property : Bombay High Court

 on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.1366 OF 2021Shankeshwar @ Shambhu s o Bhausaheb Dhakne… Applicant Versus1. The State of Maharashtra2. XYZ… Respondents…WITHBAIL APPLICATION NO.1345 OF 2021Sopan s o Sarjerao Dhakne… Applicant Versus1. The State of Maharashtra2. XYZ… Respondents…Mr. S. S. Thombre Advocate for the applicant in BA 1366 2021.Mr. P. P. More Advocate for applicant in BA 1345 2021.Mr. N. T. Bhagat APP for the respondent State in both matters.Ms. Shital E. Waghmare Advocate for respondent No.2 in both matters....CORAM:SMT. VIBHA KANKANWADI J.Reserved on : 21.12.2021Pronounced on : 03.01.2022ORDER : .The applicants are the accused persons who have been arrestedin connection with Crime No.2821 registered with BadnapurPolice Station Dist. Jalna for the offences punishable under Sections376 376(D) 341 323 of Indian Penal Code and under Sections 4 6 8and 12 of the Protection of Children from Sexual Offences Acton 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtafter referred to as the “”POCSO Act”).2.Heard learned Advocate Mr. S. S. Thombre for the applicant inBail Application No.13621 learned Advocate Mr. P. P. More forthe applicant in Bail Application No.13421 learned APP Mr. N. T.Bhagat for the respondent State in both matters and learned AdvocateMs. Shital E. Waghmare for respondent No.2 in both matters.3.It has been submitted on behalf of the applicants that theapplicants have been falsely implicated. The victim informant who isstated to be 17 years old girl states that she resides with her father whois devotee in Mahadev Temple. She was proceeding at about 4.00 p.m.on 13.08.2021 on a scooter owned by one Baba near her house at thattime she was stopped by both the applicants. She was dragged nearMosambi garden. After outraging her modesty they had ravished her.Thereafter she was allowed to go. It is in fact outcome of the actionstaken by the present accused persons. Affidavits have been filed beforethe learned Additional Sessions Judge stating as to what the applicantshave done and what the villagers had done with the Baba under whoseinfluence the informant and her father was doing. Said Baba along withsome other disciples were given shelter in the temple premises itselfabout 9 to 10 years prior to the incident. It was assured by him and his(2) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtdisciples that they would carry the Pooja and other activities in thetemple. All was going on well for about 2 to 3 years but thereafter misbehavior of the Baba and his disciples started. They used to consumeGanja Bhaang and slowly they started collecting youth from the villagefor such activities. Even a Gramsabha was organised on 09.03.2021 andit was decided that said Baba and other disciples along with the victimshould be asked to leave the temple premises. Thereafter the saidaction carried forward and said Baba and others were asked by theGrampanchayat to leave the premises. The said resolution which waspassed in the Gramsabha was seconded by one of the accused. Thephotocopy of the proceeding book and complaint that was given to thepolice patil about the illegal activities those were carried out by saidBaba in the temple premises has been attached. 4. It was also submitted on behalf of the applicants that theinvestigation is over and charge sheet is filed on 21.09.2021. The furtherphysical custody of the applicants is not required. The entire charge sheet does not show the birth date evidence though in the FIR she hasgiven her birth date. Under such circumstance the provisions of POCSOAct are not applicable prima facie. As regards the medical opinion isconcerned there were absolutely no signs on the body of the girl whichwould indicate that the act was forcible. The final opinion can be given(3) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtafter the receipt of CA report since the girl was aged below 20 at thattime. Though the medical papers say that the age of the girl is 17 years9 months yet on 06.09.2021 a reminder was given by the investigatingofficer to the medical officer for his opinion in view of the fact that theX ray report gives her age between 17 to 19 years. Therefore with thiskind of evidence the applicants need not be asked to remain in jail.They are ready to abide by the terms of the bail. 5.Per contra the learned APP as well as the learned Advocate forrespondent No.2 vehemently submitted that there is ample evidencecollected against the applicants. The act done by the applicants isheinous. The victim had given her date of birth in her FIR itself and thatwas sufficient though at this stage the radiological age of the girl isstated to be between 17 to 19 years yet the date of birth can be provedat the time of trial. Further the learned Advocate for respondent No.2has filed a photocopy of Aadhar card of victim which is now marked asExhibit ‘X’ showing the same date of birth as stated by her in the FIR.The girl in categorical terms has stated that she has been ravished byboth the applicants and supported by her own statement on oath underSection 164 of the Code of Criminal Procedure. Case is not made out torelease the applicants on bail. on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt6.In the FIR though the victim informant had given her age andthe date of birth the investigating officer has not collected anydocumentary proof. She could have produced her Aadhar card beforethe investigating officer also. It was tried to be contended that thefather of the girl used to go from one place to another and therefore there is no record of her birth with any municipal authorities. Thefather of the girl stays with the Baba along with the girl’s brother. In herfirst information report she says that she was ravished on the same dayof FIR. She had disclosed the said fact to one Sanjay Rathod. It is to benoted that when the name of Sanjay Rathod could be revealed by her on13.08.2021 the statement of that person has been recorded on17.08.2021. The distance between the place of offence and LaxmanNagar Tanda where this witness stays is not on record right now butthen he says that he was knowing the victim since prior to the incident.If we consider the medical evidence it states that the hymen wasruptured however it is also stated that she was menstruating at thattime. The medical officer could not find any injury to geneteria however there was some tenderness on the chest. It is then stated thatthe medical officer cannot exclude the possibility of sexual assault yetthe final opinion appears to have been reserved till the CA report. TheCA reports have not been produced along with the charge sheet. Since(5) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtthe charge sheet has been filed the physical custody of the applicants isnot required for the purpose of investigation. 7. Though the defence of the applicants appear to be the fact thatthey had taken active part in holding of Gramsabha and a resolution hasbeen passed by the Grampanchayat that the priest in the temple who isstated to be the Baba with whom the father of the girl is residingconsumed narcotic drugs and he is driving certain persons to theaddiction and therefore he should be asked to leave the templepremises. Such complaint was made to the police officer also on11.03.2021. The affidavits filed by various persons in support of theapplicants giving history as to what prompted them to have theGramsabha and take the decision that the said Baba and his disciplesshould be removed from that place. This aspect will have to be noted. 8.Now the investigation is over. Charge sheet is also filed. Takinginto consideration the evidence that has been collected this would bethe fit case to release the applicants on bail however with stringentconditions. 9.Before parting a fact which has come on record through therespondent No.2 is worth noting and disturbing. Photocopy of thedocument styled as ‘Danpatra’ on stamp paper of Rs.100 executed on(6) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt29.08.2018 between the father of the girl and the Baba has beenproduced. It is stated that the father of the girl has given his daughter indonationto the Baba and it is stated that the said Kanyadan hasbeen made in presence of the god. When the girl as per her ownstatement is minor then why the father who is in all respect guardian ofthe girl should give the girl as Daan A girl is not a property which canbe given in donation. In view of this disturbing fact this Court hadgiven directions to the respondent No.2 to file an affidavit about theincident. On 20.12.2021 a statement was made by the learnedAdvocate for the respondent No.2 that though this Court by order dated08.12.2021 had asked the father of the victim to file the affidavit hehad not contacted her for drafting the affidavit but he informed thelearned Advocate that he is unwell and he is admitted to hospital inJalna. This Court then asked the learned APP to collect the informationas to whether the information given to the Court is correct eitherthrough the investigating officer or any responsible officer of the rank ofDeputy Superintendent of Police. The report was given by theinvestigating officer that in view of the order when he went to the placeof the victim he could find the victim and her father as well as the Babain the temple. Thus a misguiding statement was made before the Court.However affidavit has been filed before this Court on 21.10.2021.(7) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtPerusal of the said affidavit would show that it is filed by Baba and notby respondent No.2 i.e. the father of the girl because the charge sheetgives different name of father of the girl. In view of Section 228(A) ofthe Indian Penal Code which prohibits disclosure of identity of thevictim of the offences this Court is constrained not to disclose not onlythe victim’s name but also the name of her parents. But certainly theaffidavit that has been filed appears to be by the Baba who is not thefather of the victim. However if it is filed by the father of the victimwhose name has been given in the charge sheet then it can be seen thathe was aged 91 years on the date of affidavit. He says that he is thefather of the girl. The mother of the girl had expired long back and thenhe had given his daughter in adoption to Baba on 29.08.2018.Interestingly the name of the person to whom the daughter has beengiven in adoption is the same to that of the person who has filed theaffidavit i.e. affiant. The learned Advocate for the respondent No.2 hasnot even taken care while drafting the affidavit that it should be in theproper name. The affiant therefore further states that proper adoptiondeed has not been executed and the adoption process will be followed.He says that the girl is residing with him as on today. In fact when theopportunity was given to explain all the circumstances he has not statedas to what prompted him to give the girl in adoption. It was even orally(8) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtasked to the learned Advocate for the respondent No.2 as to underwhich provisions of law the said adoption has been done. She tried tocontend that it is as per the Hindu Adoption and Maintenance Act. But taking into consideration the fact that the said act gives eligibilitycriteria whether this could have been done is a question and if it wasadoption then why the document styled as “Danpatra” has beenexecuted. There is no explanation for the same in the affidavit. ThisCourt is concerned with the future of the minor girl and in view of suchdocument coming forward can’t shut the eyes. This drives the Court toconsider the definition of the words child in need of care and protectionas defined in Section 2(14) of the Juvenile JusticeAct. Further this Court considers the provisions of Section29 of the said Act which gives powers to the Child Welfare Committee.Section 29 of the said Act runs thus : “29. Powers of Committee : on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odt“(ii)conducting inquiry on all issues relating toand affecting the safety and well being of the childrenunder this Act ..(iv)conducting inquiry for declaring fit personsfor care of children in need of care and protection ”10.Therefore under these circumstances this would be the fit casewhere the directions need to be given to Child Welfare Committee Jalnato hold inquiry on expeditious basis in respect of the girl and to find outwhether she is a fit person to be declared as a child in need of care andprotection. At the cost of repetition it can be said that in view of theactions taken by the father of the girl in executing “Danpatra” this Courtis required to interfere. This is in view of the future of the girl and sheshould not be driven to do any illegal activities. With theseobservations following order is passed : ORDERI)Bail Applications stand allowed.II)The applicant Shankeshwar @ Shambhu s o BhausahebDhakne in Bail Application No.13621 applicant SopanSarjerao Dhakne in Bail Application No.13421 who havebeen arrested in connection with Crime No.2821 registeredwith Badnapur Police Station Dist. Jalna for the offencespunishable under Sections 376 376(D) 341 323 of Indian Penal(10) on 03 01 2022 on 28 01 BA 1366 2021 and 1345 2021.odtCode and under Sections 4 6 8 and 12 of the POCSO Act bereleased on P. R. Bond of Rs.50 000 with two solvent sureties ofRs.25 000 each.III)The applicants shall not tamper with the evidence of theprosecution.IV)They shall not indulge in any criminal ActivityV)Bail before the Trial Court.VI)The Child Welfare Committee Jalna is directed to hold aninquiry on expeditious basis in respect of the girl i.e.victim informant and to consider whether the girl child is fit to bedeclared as child in need of care and protection. The investigatingofficer is directed to make available the copy of the charge sheetto the Child Welfare Committee. Further the Registrarscm(11) 

Summary: The issue whether a father can legally donate his girl child to a Baba by executing a Danpatra was before consideration of a bench of Bombay High Court consisting of Justice Vibha Kankanwadi in the matters between Shankeshwar @ Shambhu s/o Bhausaheb Dhakne and Anr. v. State of Maharashtra &amp; Anr.BA-1366-2021 and 1345-2021 decided on 3.1.2022. The facts of the case are that two accused had raped a minor girl child in a garden of the temple stay where she used to live with her father as disciples of a Baba for over a decade.The victim reported the incident and both the accused were arrested.Therefore, an application for bail was moved in this court. The counsels for the applicant contended that In their application, the applicants stated that the girl had filed a lawsuit against them under the influence of the ‘Baba’ residing with the girl and her father. It is alleged that the father and his followers will use drugs and intoxicants and involve the youth in the neighborhood. It is stated that the village held a Gram Sabha where the decision was taken to remove Baba with his disciples from the temple buildings along with the victim girl for influencing the youth in the village to consume narcotic drugs. They claimed they were inadvertently involved in the case because they supported the decision to eliminate Baba. The counsels for the respondent contended that the girl filed a FIR under the provisions of IPC and  POCSO Act after the girl filed a complaint with the police and raped her by outraging the her modesty. Judge Kankanwadi released both defendants on bail based on the filing of the indictment, implying that the investigation was complete and thus the applicants did not need to be detained. In the donation agreement, the court asked the victim’s father to explain his position in a statement. After much delay, the Court noted that the person presenting the affidavit was not the person identified in the criminal complaint as the victim’s father. It was noted that after the girl’s mother died, her father gave the girl up for adoption in 2018, who signed the declaration and was executed but the process has not yet been followed. The father’s lawyer was also unable to explain why a document called ‘Danpatra’ was executed. The Bombay High Court held that the act of a father who “donated” his daughter to a father while hearing a bail request from the defendant who sexually abused the 17-year-old is completely illegal. The court stated that the girl child is not a property that can be donated. Considering the actions of the girl’s father while performing “Danpatra”, it can be said that this Court should intervene. Considering the future of the girl and this should not be referred to any illegal activity, the Court instructed the Child Welfare Agency to investigate the girl expeditiously and ascertain if she was fit for being declared a child in need of care and protection. Click here to read the judgement