Point of law: writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction. It is further evident that an illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing appropriate proceedings before the competent revisional or appellate forum under the statutory provisions of law but cannot be reviewed in a petition seeking the writ of habeas corpus.

JUDGMENT :

Pritinker Diwaker, J

This petition has been filed by the petitioners, seeking a writ of habeas corpus, commanding respondent no.4-Superintendent, Children Home (Girl) District Saharanpur, to release corpus-petitioner no.2-Km. Anchal, who has been allegedly illegally detained in the Children Home (Girl) District Saharanpur.

2. Facts of the instant case are that on 16.2.2020, FIR was lodged by Smt. Sudha, mentioning therein that on 15.2.2020, her minor daughter Km. Anchal (hereinafter referred to as 'petitioner no.2-corpus') aged 17 years has been enticed by one Arjun S/o Rishipal. She has alleged that while leaving the house, petitioner no.2-corpus had taken certain ornaments and cash amount. She has further alleged that the father, mother and brother of Arjun have helped him in taking petitioner no.2-corpus. Based on this FIR, offence under Sections 363 and 366 of IPC was registered against Arjun, his parents and relatives.

Later, petitioner no.2-corpus was recovered on 4.3.2020 and on the same day, her Section 161 CrPC statement was recorded wherein she has stated that as quite often she was beaten by her mother, out of frustration, on 15.2.2020, without informing her family members, she had gone to the house of her friend, namely, Km. Rachna-petitioner no.1, sister of Arjun. She has further stated that she was never taken away by any one and of her own free-will, she was living with her friend. She, however, has refused for her medical examination. As per High School Certificate, her age has been found 17 years, whereas as per Radiological examination conducted on 6.3.2020, her age was found about 20 years. In her statement recorded under Section 164 of Cr PC on 7.3.2020, she has reiterated that of her own she had gone to the house of petitioner no.1 and that nobody had forcibly taken her. On 13.3.2020, petitioner no.2-corpus was produced before the Chief Judicial Magistrate, Saharanpur and it was submitted by the police that as per High School Certificate, age of petitioner no.2-corpus comes to 17 years and 20 days and, therefore, suitable order be passed in relation to her custody. Mother of petitioner no.2-corpus filed an application before the Magistrate to the effect that petitioner no.2-corpus is minor and, therefore, in the interest of justice, she be sent to Balika Vikas Grih/Child Development Home. After considering all the facts of the case, a finding was recorded by the Magistrate, determining the age of petitioner no.2-corpus to be 17 years and the Magistrate has directed for producing her before Bal Kalyan Samiti/Child Welfare Committee (hereinafter referred to as 'the Committee') for issuance of further direction with regard to the custody of petitioner no.2-corpus. Pursuant to the order passed by the Magistrate, petitioner no.-2-corpus was produced before Committee and the order was passed by the Committee for keeping her in Children Home (Girl). Pursuant to this order, petitioner no.2-corpus is in Children Home (Girl) Saharanpur.

3. Aggrieved with this order, present petition has been preferred for issuance of a writ of habeas corpus. The main grounds, which have been raised by the petitioners, are:

(i) that in 164 of CrPC statement, petitioner no.2-corpus has categorically stated that she was being subjected to torture by her mother and brother, therefore, she left her house;

(ii) that petitioner no.2-corpus was living happily with petitioner no.1, i.e. her friend;

(iii) that once the custody of petitioner no.2-corpus has already been denied by her parents and petitioner no.2-corpus wants to go with petitioner no.1, she could not have been sent to Children Home (Girl) and that she has been kept in Children Home (Girl) against her wish;

(iv) that petitioner no.2-corpus is not minor and, therefore, she cannot be kept against her wish; and

(v) that even if petitioner no.2-corpus is minor, then also she cannot be kept in Children Home (Girl) against her wish.

4. In compliance of the order passed by the Magistra