SILCHAR:The Gauhati high court has raised questions on the Assam Police’s move to invoke the Protection of Children from Sexual Offences (Pocso) Act against people accused of child marriage, observing that the state’s crackdown had created “havoc” in the private life of people and there was no need for custodial interrogation of the accused.
Justice Suman Shyam’s observations on Tuesday came during hearings on a bail plea by Sajahan Ali, a religious teacher at a madrasa who was arrested on February 4 in Bongaigaon district and a batch of petitions for anticipatory bail filed by nine people booked for child marriage across four districts.
As justice Shyam appeared inclined to grant anticipatory bail to the nine men during the hearing on Tuesday, the government lawyer said the cases against them were registered under Pocso Act which was a non-bailable offence.
“What is the POCSO here? Merely because POCSO is added, does it mean the judges will not see what is there?” justice Shyam shot back, underlining that the high court was not acquitting anyone or preventing the government from investigating cases of child marriages.
“If marriage is taking place in violation of the law, the law will take its own course. These cases have been happening… We will only consider if immediate custodial interrogation is required or not. At this moment, this court thinks that these are not matters for custodial interrogation. We will ask them to appear and record their statements. These are not NDPS, smuggling, stolen property cases.” the court said in its oral observations.
“These are not matters for custodial interrogation. You (the state) proceed as per law, file a charge sheet, if they are convicted, then they are convicted,” it added.
On February 3, Assam started a campaign to arrest people accused of child marriage under stringent sections of the Pocso Act, and the Prohibition of Child Marriages Act. News agency PTI said 4,225 cases have been registered and 3,031 people arrested till February 14.
Last week, Assam’s inspector general of police (law and order) Prashanta Kumar Bhuyan said the accused in these cases would be kept in two detention centres meant to incarcerate foreigners due to shortage of space in regular jails and protests over the arrests.
Justice Shyam, who also heard the case against Sajahan Ali, said: “This (crackdown) is causing havoc in the private life of people. There are children, family members, old people. Obviously, it (child marriage) is a bad idea. We will give our views but at the moment the issue is whether they should be all arrested and put in jail”.
The bench said the basic charge against Sajahan Ali, even if the allegation was correct, related to an offence under the Prohibition of Child Marriages Act 2006 under which anyone who promotes, or negligently fails to prevent child marriage, is liable to be punished with two years in prison and a fine.
“But it has to be established that marriage of a child took place and the guilty persons knowingly had a role to play in the matter,” the bench said
Lawyer Hafiz Rashid Chowdhury, who appeared for Sajahan Ali, said he was arrested on February 4 for a marriage that took place in 2021 and yet the police claimed he was “caught red handed”.
Sajahan Ali is not a family member, a Qazi or even resident of the village where the marriage took place. He is just a religious teacher working at a madrasa. The government is using the term “illegal husband” but a child marriage becomes valid if the minor doesn’t lodge a complaint within two years of becoming an adult,” he added.
Advocate Aman Wadud said Pocso was meant for protecting children from sexual exploitation but in these cases, facts and circumstances are totally different. “The wives are living happily with their husbands and kids. There is no question of sexual offence here,” he said.
