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2020 Supreme(Pat) 86

IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Ashutosh Kumar, Birendra Kumar, JJ.
Shikha Kumari - Appellant
Versus
State Of Bihar And Others - Respondent
Criminal Writ Jurisdiction Case No.1355 of 2019 (Arising Out of PS. Case No.-7 Year-2019 Thana- GOVINDGANJ District- East Champaran)
Decided On : 05-03-2020

Advocates Appeared:
Mr. Bashishtha Narayan Mishra, Advocate, Mr. S,N. Rai, Advocate, Mr. B.K. Mishra, Advocate, Mr. Brij Kishor Mishra, Advocate, for the Appellant; Mr. Pushkar Narain Shahi, AAG-VI, Mr. Prabhu Narayan Sharma, A.C. to AAG-VI, Mr. Prabhat Ranjan, Advocate, for the Respondent

Headnote:

Constitution of India – Article 226 – Writ of habeas corpus under Article 32 of Constitution of India in Supreme Court is available in case of violation of fundamental rights guaranteed under Article 21 but it does not relate to interference with personal liberty by a private citizen – However, High Court has jurisdiction to issue writ of habeas corpus under Article 226 of Constitution of India not only for violation of fundamental rights of freedom but also for other purposes – High Court can issue such writ against a private person also – Writ of habeas corpus is also preferred for custody of child or in some cases for custody of wife. (Paras 43, 44 and 45)

Constitution of India – Article 226 – Writ of habeas corpus could not be issued, firstly, in cases where detention or custody is authorized by an order of remand issued by a competent court of jurisdiction and secondly, where a person is committed to jail by a competent court by an order which does not appear to be without jurisdiction – No writ of habeas corpus lies against an order of remand made by a competent court of jurisdiction – Writ of habeas corpus would not be maintainable, if detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction. (Paras 52, 55, 67 and 68)

Constitution of India – Article 226 – Writ of Habeas Corpus – An illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand can be cured by way of challenging legality, validity and correctness of order by filing appropriate proceedings before competent revisional or appellate court under statutory provisions of law – Such an order of remand passed by a Judicial Magistrate of competent jurisdiction cannot be reviewed in a petition seeking writ of habeas corpus – An illegal order of judicial remand cannot be termed/viewed as an illegal detention. (Para 68)

Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12(3) – Juvenile Justice (Care and Protection of Children) Rules, 2017, Rule 54(18)(iv) – Age of victim has to be determined in same manner as is being done of a person accused of a crime – However, same is limited only in respect of offences committed under Juvenile Justice (Care and Protection of Children) Act – Sending a girl to a Protection Home/Nari Niketan can never be equated with any punishment or to protect the society at large from such girl – In cases of elopement if a minor girl is sent to Protection Home/After-Care Home/Remand Home/Nari Niketan by a judicial order passed by a court of competent jurisdiction, same cannot be treated to be illegal confinement giving rise to a remedy under writ of habeas corpus – Court cannot pass order against well-being of a child or against his/her interests – Being merely confined within four walls of a Protection Home cannot be termed as detention for the purpose of writ of habeas corpus. (Paras 94, 95, 136 to 139)

Cr.WJC No.991 of 2010 – Overruled.

AIR 1982 SC 1297; (2017) 10 SCC 800 – Referred.

(1941) 3 All ER 388; AIR 1978 SC 597; (1973) 2 SCC 674; 1945 (7) F.C.R. 81; AIR 1966 SC 816; (1971) 3 SCC 118; 1951 SCR 344; (1972) 3 SCC 256; (2013) 1 SCC 314; (2014) 13 SCC 436; (2018) 9 SCC 745; (2019) 5 SCC 266; (2011) 2 SCC 772; (2009) 6 SCC 576; 2006 (3) SCC (Cri) 245; AIR 2013 SC 3467; (2013) 14 SCC 637; (2015) 7 SCC 773; 1976(1) SCR 906; 2011 (3) SCALE 298; (2009) 9 SCC 1] – Relied.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The jurisdiction of the High Court under Articles 226 and 227 of the Constitution includes issuing writs of habeas corpus not only for fundamental rights violations but also for other purposes, including custody of minors and adults, and against private persons (!) (!) (!) .

  2. A writ of habeas corpus cannot be issued against detention or custody that is authorized by a lawful order of remand passed by a court of competent jurisdiction. Judicial orders, including remand orders, are presumed to be valid unless challenged in appropriate proceedings before a higher court (!) (!) (!) (!) .

  3. An illegal or irregular exercise of jurisdiction by a Magistrate in passing an order of remand can be challenged through statutory appeals or revision, but such an order, if passed by a court with proper jurisdiction, does not constitute illegal detention (!) .

  4. Orders of detention or remand made by competent courts are presumed to be lawful, and a writ of habeas corpus is not maintainable solely to challenge such judicial acts. The scope of habeas corpus is limited to illegal detention, not judicially authorized custody (!) (!) (!) .

  5. The exercise of the High Court’s supervisory powers under Sections 482 and 483 of the Criminal Procedure Code or under constitutional provisions must be exercised sparingly and only in extraordinary circumstances of abuse or miscarriage of justice. General directions to all subordinate courts are not permissible unless justified by exceptional facts (!) (!) (!) (!) .

  6. In cases involving minors, the court's role as parens patriae requires it to act in the best interests of the child, considering their physical, mental, emotional, and psychological well-being. The court must ensure that decisions serve the child's welfare and not merely procedural or technical compliance (!) (!) (!) (!) (!) (!) .

  7. The determination of a minor’s age, especially in cases of elopement or marriage, should be based on the same criteria used for accused persons, primarily relying on official documents such as birth certificates, school records, or medical age assessments, with due consideration of the margin of error inherent in medical examinations (!) (!) (!) (!) (!) (!) .

  8. The principle of benefit of doubt applies in age assessments, generally favoring the individual, but its application varies depending on whether the individual is an accused or a victim. In criminal cases, the benefit of doubt tends to favor the accused, while in cases of minors or victims, the court must carefully consider the implications of age determination (!) (!) (!) .

  9. Orders directing the detention of minors in protective or care institutions are not equivalent to illegal detention if such orders are made within the bounds of legal authority and with regard to the child's best interests. Such confinement does not automatically amount to illegal detention warranting habeas corpus relief (!) (!) (!) (!) .

  10. General directions issued to subordinate courts to treat minors as adults based solely on medical age assessments are invalid. The courts cannot issue sweeping directives that undermine the independence of judicial officers or the procedural safeguards established by law (!) (!) (!) (!) .

  11. The concept of parens patriae empowers the state and courts to intervene in the welfare of minors and incapacitated persons, guiding decisions to serve their best interests, which include physical health, mental well-being, education, and safety (!) (!) (!) (!) (!) .

  12. The role of the court as guardian involves ensuring that any decision regarding minors, especially in cases of elopement or marriage, aligns with their overall welfare, and that their rights are protected without resorting to illegal detention or orders that contravene their best interests (!) (!) (!) .

  13. The courts have the authority to correct illegal or improper orders through statutory remedies, but cannot use habeas corpus to challenge judicial remand orders that are within jurisdiction, even if such orders are considered improper or flawed in reasoning (!) (!) (!) .

  14. Orders of detention or remand that are made in accordance with the law and within jurisdiction are presumed valid, and habeas corpus is not an appropriate remedy unless there is clear evidence of illegal detention or abuse of judicial process (!) (!) (!) .

  15. Finally, the courts emphasize the importance of respecting the independence of judicial officers while exercising supervisory powers, and caution against issuing broad or general directives that could infringe upon the autonomy of subordinate courts unless exceptional circumstances justify such intervention (!) (!) (!) .

These points collectively highlight the principles governing habeas corpus, the limits of judicial intervention in judicial orders, and the special considerations necessary when dealing with minors, especially in cases of elopement, marriage, or detention in care institutions.


JUDGMENT

Ashwani Kumar Singh, J. - Heard Mr. Bashishtha Narayan Mishra, learned counsel appearing for the petitioner and Mr. Pushkar Narain Shahi, learned Additional Advocate General-VI for the State.

2. This writ petition has been listed before us in view of reference made by a Division Bench which doubted the correctness of the order passed by another Division Bench in Cr.WJC No.991 of 2010 (Sahebi Khatoon @ Sahebi vs. State of Bihar & Ors.) .

3. In the writ petition, the petitioner has prayed for issuance of a writ in the nature of habeas corpus for her release from the Government After Care Home, Gaighat Patna.

4. The father of the petitioner Ashok Pandey had submitted a written report on 07.01.2019 at 7.45 p.m. to the officer-in-charge, Govindganj (Malahi) wherein he has alleged that his daughter aged 16 years had gone to Sirni Bazar on 10.12.2018 in the evening for purchasing some medicine and when she did not return for a quite long time, he started inquiring as to her whereabouts and came to know from his co- villagers that she was seen going together with one Dhanjeet Yadav of the same village. When he inquired from the parents and family members of Dhanjeet Yadav in this regard, they started abusing him and said that Dhanjeet Yadav would marry his daughter. He has further alleged that when he came to know that Dhanjeet Yadav and his family members had taken his daughter to Bettiah Court, he went together with his brother Santosh Pandey to Bettiah Civil Court, but by then they had already left the court premises. On further inquiry, he came to know that a fake mark sheet of matriculation and a fake adhar card recording the date of birth of his daughter as 01.01.1998 was submitted in the office of the Registrar of Marriages along with a false affidavit whereas in the original mark sheet of matriculation her date of birth is recorded as 02.01.2002. He has further alleged that the accused persons have forcibly abducted his daughter and they want to illegally marry her with Dhanjeet Yadav.

5. On the basis of the aforesaid written report, Govindganj (Malahi) P.S. Case No.07 of 2019 dated 07.01.2019 was registered under Sections 363, 366A, 468, 471, 385, 504 and 506 read with 34 of the Indian Penal Code (for short the IPC) against Dhanjeet Yadav, his parents and other relatives and investigation was taken up.

6. Upon recovery of the victim, the investigating officer filed a petition on 18.01.2019 for recording her statement under Section 164 of the Code of Criminal Procedure (for short the CrPC). The Magistrate, who recorded her statement assessed her age as 16 years.

7. The daughter of the informant, in her statement under Section 164 of the CrPC, disclosed that she was having affair with Dhanjeet Yadav since last two years. She had left her parents house out of her own volition and married him in a temple at Kothi High School. After marrying him, she had come back to her parents house. She has further stated that she did not establish any physical relationship with Dhanjeet Yadav. She stated that she wants to go together with Dhanjeet Yadav. She has further contended that her family members are inimical to her and she has threat to her life at the hands of one Marmesh son of Ganesh Yadav.

8. After the statement of victim was recorded, an application was filed by the investigating officer before the court of Additional Chief Judicial Magistrate on 18.01.2019 seeking permission to get the victim examined medically at Sadar Hospital Motihari.

9. The said prayer was allowed and the Civil Surgeon, Motihari was requested to depute a lady doctor for medical examination of the victim.

10. Another petition along with a photo copy of admit card issued by the Bihar School Examination Board, Patna was filed on 18.01.2019 by the father of the victim seeking her release in his favour as she was minor and her date of birth recorded in the admit card was 02.01.2002.

11. Vide order dated 18.01.2019, the learned ACJM, Motihari directed the

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