Sending Minor Girls To Nari Niketan In Cases Of Elopement Cannot Be Treated As Illegal Confinement: Patna HC [Read Judgment]

The High Court of Patna held that sending minor girls to Protection Home/Nari Niketan in cases of elopement cannot be treated as illegal confinement giving rise to a remedy under the writ of habeas corpus. The three-judge bench comprising Justice Ashwani Kumar Singh, Justice Ashutosh Kumar and Justice Birendra Kumar said, "Being merely confined within the four walls of a Protection Home cannot be termed as detention for the purpose of the writ of habeas corpus." The writ petition was filed for issuance of habeas corpus for the release of the petitioner (minor) from the Government After Care Home, Patna. The petition also challenged the correctness of the order passed by the Division Bench of the Patna High Court in Sahebi Khatoon v. State of Bihar & Ors. In the instant case, the father (informant) of the petitioner alleged that his daughter aged 16 years had gone for purchasing some medicine and she did not return home. On enquiry, he came to know from his co-villagers that she was seen going with one Dhanjeet Yadav of the same village, who she was having an affair with and wanted to marry. On further enquiry the informant came to know that a fake mark sheet of matriculation and a fake Aadhaar card recording the date of birth of the petitioner as 01.01.1998 was submitted in the office of the Registrar of Marriages along with a false affidavit. He alleged that the original mark sheet of matriculation her date of birth was recorded as 02.01.2002. Upon the recovery of the petitioner, the investigating officer filed a petition for recording her statement under Section 164 of the CrPC. and the magistrate who recorded her statement assessed her age as 16 years. After the statement of the petitioner was recorded an application was filed by the investigating officer before the court of ACJM seeking to get her medically examined. The same was allowed and the Civil Surgeon was requested to depute a lady doctor for medical examination of the petitioner. Accordingly, the doctor examined the petitioner and assessed her age between 16 and 17 years. Subsequently, the ACJM sent the petitioner to Short Stay Home and directed the parents to produce the original documents regarding her date of birth. Though the original document showing her date of birth to be 02.02.2002 was filed the petitioner continued to stay at the Short Stay Home. Taking into consideration the fact that the petitioner being a minor is not willing to go with her parents, the ACJM directed the investigating officer to take her to the After Care Home and to be kept there till the attainment of the majority. Aggrieved by the above-said order of the ACJM the petitioner filed instant habeas corpus writ petition for her release from After Care Home. The petitioner relied on the decision in Sahebi Khatoon case wherein the petitioner who was found to be a minor aged between 16-17 married a person of her choice, the Chief Judicial Magistrate sent her to After Care Home upon the complaint filed by the father. The Division Bench in Sahebi Khatoon case directed the release of the petitioner from the After Care Home and also issued an advisory to be circulated to all Judicial Magistrates that in such cases women ought to be released to go with the people of their choice in exercise of its jurisdiction under Section 483 of the CrPC. The order in Sahebi Khatoon case said, "The girl should be treated as major if she is assessed to be of an age in between 16 to 17 years as per the medical report and also as per own assessment. In such cases, instead of sending such girls to Remand Home or after Care Home, they should be released to go with the people of their choice. This order should be circulated to all Chief Judicial Magistrate and all Judicial Magistrates in the State of Bihar for proper compliance." In the instant case, the court looked into four issues: Whether, in a petition for issuance of a writ of habeas corpus, an order passed by a Magistrate could be assailed and set-aside?Whether an order of remand passed by a Judicial Magistrate could be reviewed in a petition seeking the writ of habeas corpus, holding such order of remand to be illegal detention?Whether an improper order could be termed/viewed as illegal detention?Whether under Section 483 Cr.P.C., a Division Bench can issue an order like in Sahebi Khatoon case directing all the Magistrates/CJMs of the State of Bihar? The court while relying on the ratio laid down by the apex court in several decisions like Kanu Sanyal v. District Magistrate, Darjeeling & Ors., Manubhai Ratilal Patel v. State of Gujarat & Ors., Serious Fraud Investigation Office v. Rahul Modi & Anr., came to the conclusion that a writ of habeas corpus would not be maintainable if the detention in custody is as per judicial orders...

Sending Minor Girls To Nari Niketan In Cases Of Elopement Cannot Be Treated As Illegal Confinement: Patna HC [Read Judgment]

Arabhi Anandan

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