This petition for a writ of habeas corpus has been filed on behalf of Smt. Parvati Devi and it questions the validity of her confinement in Nari Niketan, Khulda bad, Allahabad, under the orders of Judicial Magistrate, Handa made in connection with crime case No. 78/81 under Section 365 I. P. C. in which Jokhu, the person who has filed the affidavit in support of this petition, is an accused. Briefly stated the facts giving rise to the petition are that the brother and mother of Smt. Parvati Devi lodged a first information report with the police under Section 366 I. P. C. against Jokhu alleging that Jokhu had enticed away Smt. Parvati Devi who was a minor girl. The police arrested Jokhu and also recovered Smt, Parvati Devi from his house. It produced Smt. Parvati Devi before the Judicial Magistrate Handia and prayed for appropriate orders for her custody. The Magistrate took steps to obtain medical report with regard to age of Smt, Parvati Devi and directed that in the meantime she be kept in the Nari Niketan, Khuldabad, Allahabad. Medical examination report as also the X-ray report submitted to the Magistrate indicated that Smt. Parvati Devi was aged between 17 and 18 years. On 19th of June, 1981, Smt. Parvati Devis mother, who had earlier moved an application requesting for her custody, stated before the Magistrate that although she was willing to keep Smt. Parvati Devi with her but she apprehended that Parvati Devi may run away from her house. Smt. Parvati Devi claimed that she was major. She showed her disinclination to go with her mother and indicated that she wanted to live with Jokhu accused. In the circumstances, the Judicial Magistrate passed an order that Smt. Parvati Devi should be kept at the Nari Niketan till further orders. It is claimed on behalf of the petitioner that she cannot be kept in the Nari Niketan against her wishes and that the order passed by the Magistrate in that regard is without jurisdiction. In response to the notices issued by this Court respondent No. 2 has produced Smt. Parvati Devi before us. Whereas according to the petitioner she being over 20 years of age has already attained the age of majority, the case of the respondents is that she is a minor and is below 18 years in age. In support of their claim the respondents mainly rely upon the medical examination xeports dated 3rd and 4th of June, 1981 according to which the age of Smt. Parvati Devi is between 17 and 18 years. To us Smt. Parvati Devi appears to be a girl of discernible age and she is in a position to under stand her well being. She has clearly stated that she neither wants to stay in the Nari Niketan nor with her mother and that she wants to live with Jokhu. It is thus clear that she is being kept in the Nari Niketan against her wishes.

First question that arises for con sideration is whether, even assuming that Smt. Parvati Devi is aged less than 18 years, can she be compelled to stay at the Nari Niketan against her wishes. Learned counsel for the respon dents relied upon the provisions contained in Section 97 of the Code of Criminal Procedure and contended that Smt. Parvati Devi who was a minor could be compelled to stay at the Nari Niketan. In our opinion the provisions of Section 97. Cr. P. C. are not at all attracted in the instant case inasmuch as Smt. Parvati Devi has not been recovered by the police under the authority of any warrant issued by any Magistrate. Learned counsel for the respon dents then tried to justify keeping of Smt. Parvati Devi in the Nari Niketan on the basis of provisions contained in Section 171 Cr. P. C. which lays down that where a com plainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed. Under this section the jurisdiction of the Magistrate to detain a witne