TaxTMI 
TaxTMI 
2020 (3) TMI 1245
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....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 submit....
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....nation report. 12. On 19.01.2019, the investigating officer produced the victim after her medical examination with medial report. The doctor, who had examined the victim, had assessed her age between 16 and 17 years. 13. It is reiterated that the learned Magistrate, who had recorded the statement of the victim under Section 164 of the CrPC, had assessed her age to be 16 years. The documents filed by the informant recorded the date of birth of the victim as 02.01.2002. The medical report also suggested that the victim was a minor, but she expressed her desire to go to her sasural. 14. Under the circumstances mentioned above, vide order dated 19.01.2019, the learned ACJM, Motihari sent the victim to Short Stay Home at Motihari and directed her parents to produce the original documents regarding her date of birth and adjourned the matter to 25.01.2019 for passing further orders. 15. On 25.01.2019, when the victim was produced from the Short Stay Home, Motihari, the informant filed the original documents showing her date of birth to be 02.01.2002, but learned ACJM, Motihari adjourned the case to 29.01.2019 and, thereafter, to 04.02.2019, 12.02.2019, 15.02.2019, 25.02.2019 a....
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....e release of the petitioner from After Care Home 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. 22. In order to bring clarity to the matter, we deem it appropriate to extract the operative part of the order dated 23.09.2010 passed in Sahebi Khatoon (supra) hereinunder: 23.09.2010 "The facts of the case is that petitioner and respondent no.6 Md. Arif got married as per their own choice and since it was not a marriage of their parents consent, so they thought it proper to go away for some time from their place of residence, in order to get the matter settled. Petitioner and her husband went to Kolkata and for some time they resided there. The father of the petitioner Abdus Salam filed a written complaint before officer-in-charge of Azam Nagar police station alleging that her minor daughter Sahebi Khatoon has been kidnapped by respondent no.6 and other eight accused persons, Azam Nagar police station case no.76 of 2010 was registered for offence under Section 363, 366, 379, 120B and 34 of....
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....ughout the State of Bihar. In so many cases, of similar facts we have passed such orders, but still we find, similar error being committed by courts, due to which Criminal Writs, for issuance of Habeas Corpusare repeatedly being filed. In such case, confinement of writ petitioners (girls who are majors) at Remand Home is illegal confinement and fit for issuance of Writ of Habeaus Corpus. Section 483 of the Cr.P.C. imposes a duty on High Courts to exercise continuous superintendence over the courts; Judicial Magistrate, Subordinate to it, and to see that cases are expeditiously and properly disposed of by such Courts. In present nature of case, it seems to have been essential that a general direction be issued to all Magistrates of Subordinate Courts to exercise their jurisdiction, properly and judiciously. In exercise of jurisdiction u/S 483 Cr.P.C. all Judicial Magistrates/Chief Judicial Magistrates throughout the State of Bihar are directed to, decide such cases in the light of the decision of the Apex Court in Jaimala Vrs. Home Secretary, Govt. of Jammu and Kashmir reported in AIR 1982 SC 1297. The girl should be treated as major if she is assessed to be of an age in between 16 ....
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....constitute a larger Bench, the Division Bench framed the following issues to be decided by larger Bench :- "(1) Whether, in a petition for issuance of writ of habeas corpus, an order passed by a Magistrate could be assailed and set-aside; (2) 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 an illegal detention; (3) Whether an improper order could be termed/viewed as an illegal detention; (4) Whether under Section 483 Cr.P.C., a Division Bench of this Court, exercising constitutional powers of issuing prerogative writs, especially writ of habeas corpus, could issue general directions to all the Magistrates/Chief Judicial Magistrates of the State of Bihar for releasing such women and permitting them to go along with the people of their choice, who are minors and are brought before them (Magistrates) with the charge of their having married somebody of their own volition." 26. Since the reference was desired to be resolved by a larger Bench, the same has come up for consideration before us under the orders of Hon'ble the Chief Justi....
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....xercise such power for quashing an illegal order passed by a Magistrate. He contended that in an appropriate case, this Court would be justified in issuing general directions to all the Magistrates including the Chief Judicial Magistrates of the State of Bihar for releasing similarly circumstanced detenues. According to him, even if a minor aged about 16 years and above is brought before the Magistrate with the charge of her having married somebody on her own volition, the Magistrate would not be justified in sending her to an After Care Home or Protection Home. In support of his submissions, he has placed reliance on the decision of the Supreme Court in Jaya Mala vs. Home Secretary, Government of J. & K. & Ors. [AIR 1982 SC 1297]. 29. Per contra, Mr. Pushkar Narain Shahi, learned Additional Advocate General appearing for the State submitted that in a writ seeking a writ of habeas corpus, the provision of Section 483 of the CrPC can not be invoked for passing a general direction and setting aside the order passed by the Chief Judicial Magistrate. He contended that in case of any illegality in the judicial order of remand, the High Court by issuing a writ of certiorari may quash ....
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.... 32. The meaning of the term habeas corpus is "you must have the body". In Halsbury Laws of England, 4th Edition, Vol.11, p.1452, p.768, it is observed : "The writ of habeas corpus ad subjiciendum" which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquiry into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal." 33. Habeas corpus ad subjiciendum means "that you have the body to submit or answer." 34. May in his Constitutional History of England (1912), Vol.II, p.130, described writ of habeas corpus as "the first secu....
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....ept according to procedure established by law. 41. In Smt. Maneka Gandhi vs. Union of India & Anr., [AIR 1978 SC 597], the Supreme Court held that procedure established by law as contemplated by Article 21 should be just, fair and reasonable and any unjust, unfair and unreasonable procedure by which liberty of a person is taken away shall destroy such freedom. 42. Article 22 empowers enactment of legislation providing for preventive detention. But no one can be detained for a period longer than two months unless an Advisory Board has opined that there is, in its opinion, sufficient cause for its detention. There are safeguards of furnishing of grounds of detention and rights of representation. 43. A writ of habeas corpus under Article 32 of the Constitution of India in the Supreme Court is available in case of violation of fundamental rights guaranteed under Article 21 but it does not relate to interference with the personal liberty by a private citizen. However, the High Court has jurisdiction to issue writ of habeas corpus under Article 226 of the Constitution of India not only for violation of fundamental rights of freedom but also for other purposes. The High Court can....
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....his behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes (supra), "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end. ..." 47. In Basant Chandra Ghose vs. King Emperor [1945 (7) F.C.R. 81], the Federal Court concluded : "... If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. ..." 48. In A.K. Gopalan vs. Government of India, [AIR 1966 SC 816], the Supreme Court speaking through Wanchoo, J., ....
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....mitted to jail by a competent court by an order which does not appear to be without jurisdiction. 53. On careful perusal of the above discussion, it can be said convincingly that there is a common factor which justifies the detention of the accused and i.e. "the order has to be passed by a court of competent jurisdiction". 54. A major question that comes before the Court is whether a writ of habeas corpus lies against the order of any remand by any court. 55. A plethora of judgments speak about it and it is a settled proposition that no writ of habeas corpus lies against an order of remand made by a competent court of jurisdiction. However, we proceed to examine the relevant judgments and the circumstances under which it could be applied. 56. Additionally, we need to see the difference between illegal and irregular orders. These variations need to be examined one by one. 57. Thereafter, the issue of the consequences on an order of remand without jurisdiction and whether it is mere irregularity or it turns into illegality shall be discussed. 58. In Manubhai Ratilal Patel vs. State of Gujrat & Ors. [(2013) 1 SCC 314], the accused was arrested on 16.07.2012 and was p....
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....tion. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exists reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. 25. It is apt to note that in Madhu Limaye, In re [(1969) 1 SCC 292] it has been stated that: (SCC p. 299, para 12) " 12. Once it is shown that the arrests made by the ....
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....risdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law." (emphasis supplied) 63. In Saurabh Kumar vs. Jailor, Koneila Jail & Anr., [(2014) 13 SCC 436], the petitioner, who was in judicial custody by virtue of order passed by Judicial Magistrate had filed a writ of habeas corpus under Article 32 read with Articles 14, 21, 22 of the Constitution of India for a direction to the respondents to produce him before the Supreme Court and also to direct respondent State to devise a way to prevent malicious arrest and detention by the police that too without maintaining necessary record and further to direct the St....
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.... 2018/19-3-2018 and decided by the High Court on 21-3-2018 [Tasneem Rizwan Siddiquee v. State of Maharashtra, 2018 SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued." (emphasis supplied) 65. In Serious Fraud Investigation Office vs. Rahul Modi & Anr., [(2019) 5 SCC 266], the Supreme Court cancelled bail granted by the Delhi High Court to Rahul Modi and Mukesh Modi accused of duping investors of several hundred crores through a ponzi scheme run by their Gujarat based other co-operative societies. Both the accused were release....
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....m, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of habeas corpus petition, the High Court was not justified in entertaining the petition and passing the order." (emphasis supplied) 66. We have seen, hereinabove, in Kanu Sanyal vs. District Magistrate, Darjeeling & Ors. (supra) that while dealing with writ of habeas corpus, the Supreme Court has held that it is essentially a procedural writ. It deals with the machinery of justice and not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. In Manubhai Ratilal Patel vs. State of Gujrat & Ors. (supra), the Supreme Court has held that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical or wholly illegal manner. In Saurabh Kumar vs. Jailor, Koneila Jail & Anr. (supra), the Supreme Court has held that since the petitioner was in judicial custody by virtue of an order passed by a Judi....
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....habeas corpus, holding such order of remand to be an illegal detention ?" Answer: An illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand 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 court under the statutory provisions of law. Such an order of remand passed by a Judicial Magistrate of competent jurisdiction cannot be reviewed in a petition seeking the writ of habeas corpus. Question No.3 : "Whether an improper order could be termed/viewed as an illegal detention ?" Answer: In view of the clear, unambiguous and consistent view of the Supreme Court in the aforediscussed cases, we unhesitatingly conclude and hold that an illegal order of judicial remand cannot be termed/viewed as an illegal detention. 69. Thus, the first three issues referred for determination are answered, accordingly. 70. The last issue referred for determination by this Bench is :- "(4) Whether under Section 483 Cr.P.C., a Division Bench of this Court, exercising constitutional powers of issuing prerogative writs, especially wr....
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....lia to invoke the discretion under Section 205 of the Code of Criminal Procedure and only with a further direction that summons under Section 205 shall be issued at the first instance? Keeping in view the importance of the question involved as also the various decisions of this Court upon which the learned Judge of the High Court has placed reliance, in our opinion, we think that this is a matter which should be heard by a larger Bench. It is directed accordingly." 76. A three-judge Bench of the Supreme Court in TGN Kumar vs. State of Kerala & Ors. (supra) while answering the question posed by the two-judge Bench, in paras 13, 21 and 22 held as follows : "13. Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. 21. Thus, in the instant case....
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....power cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. The power of superintendence exercised over the courts of judicial Magistrates does confer jurisdiction upon the High Court to intervene in functions of the subordinate judiciary, whose independence is of paramount importance in the discharge of its judicial functions. 78. In Dharmeshbhai Vasudevbhai & Ors. vs. State of Gujarat & Ors., [(2009) 6 SCC 576], the Supreme Court has held that the High Court, apart from exercising its supervisory jurisdiction under Article 227 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the C r.P.C. 79. In Popular Muthiah vs. State Represented By Inspector Of Police, [2006 (3) SCC (Cri) 245], the Supreme Court has held that it is also significant to note that whereas inherent power of a court or a tribunal is generally recognized, such power has been recognized under the CrPC only in the High Court and not in any other court. The High Court, apart from exercising its revisional or inherent powers, indisputably may also exercise its superviso....
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.... (ii) That on Aug. 1, 1981, around 12 noon the detenu in company of 3-4 other associates took lemon water from Navin Kumar Jain Rehri Wala at Mubarak Mandi and refused to pay for the same and on further demand took out a dagger (khokhri) and threatened saying "By demanding money you are inviting your death". 84. While deciding the case of the detenu, the Superme Court observed : "In respect of each incident set out in the ground F.I.R. has been lodged. In every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and Criminal Courts set up for administering justice will be substituted by detention laws often described as lawless law. There is not the slightest suggestion that witnesses are not forthcoming in respect of the alleged infraction of law. Why the normal investigation was not pursued is a question difficult to answer. If in respect of the incident of Jan. 10, 1981, a charge could have been laid under Section 307 I.P.C., on the face of it, a serious charge, the detenu as accused could have been arrested and if he moved for bail the same could have been legally resisted. ..." ....
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...., the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed." (emphasis supplied) 87. After discussing the facts and dictum of the Supreme Court in Jaya Mala (supra), let us analyze the applicability of the same in the age assessment of a girl in cases of elopement. 88. There is a sharp difference between the two cases as in Jaya Mala (supra) the principle of margin of error in age determination was discussed in reference to the age of the accused. It would not be out of context to assert at this stage that in criminal jurisprudence, the benefit of doubt always goes to the accused. 89. To the cont....
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....d of a crime. However, the same is limited only in respect of offences committed under the Juvenile Justice (Care and Protection of Children) Act. The State of Bihar has notified Juvenile Justice (Care and Protection of Children) Rules, 2017 and Rule 54(18)(iv) of the same provides that "For the age determination of the victim, in relation to offences against children under the Act, the same procedure mandated for the Board and the Committee under Section 94 of the Act is to be followed". 95. Thus, after considering the statutory provisions and the judgments of the Supreme Court, we are of the opinion that till the judgment in Jarnail Singh (supra) holds good, the age of the victim has to be determined on the same line as of the person accused of an offence. 96. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age of a juvenile in conflict with law. 97. Sub-section (2) of Section 94 provides the manner in which the Child Welfare Committee or the Juvenile Justice Board should undertake the process of age determination. It reads as under:- "Section 94(2).- In case, the Committee or the Board....
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....t, can it be said that both the principles are equally applicable in elopement cases as applied in Jaya Mala (supra). The answer to such question cannot be given in a straight jacket formula. 104. No doubt, as far as the applicability of principle of margin or error is concerned, it is equally applicable in cases of age determination of victim because uncertainty in medical science does not differentiate the accused and the victim. However, the principle of 'margin of error' of two years on either side as laid down by the Supreme Court in Jaya Mala (supra) cannot be seen from the same lenses in reference to accused and the victim. It is well settled principle of criminal law that benefit of doubt should always go to the accused. Accordingly, it may be said that in case of an accused the lower side of the margin (reduced age) would be beneficial to him as he would be treated as a juvenile if assessed below 18, but while applying the principle of 'margin of error' in reference to the victim in cases of elopement, which principle is to be followed, is still undecided. 105. To settle the guiding principle in such cases is of prime importance, as the outcome of app....
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.... to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection. Normally, the natural parents and family are expected to take care of their children, but when they fail, the State steps into the shoes of the parents and family to provide some care and protection as their own parents and family should have provided for them. 112. With the passage of time, the principle of parens patriae shifted to the right approach which respects the constitutional and procedural rights of a juvenile. 113. In Heller vs. DOE [(509) US 312], Justice Kennedy observed: "The State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves." 114. In State of Kerala & Anr. vs. N.M. Thomas & Ors., [1976(1) SCR 906], it has been categorically held that the Court is also 'State' within the meaning of Article 12 of the Constitution of India. Thus, Court can also act as Parens Patriae so as to meet the ends of justice. 115. Relying on the above-mentioned reasoning, the Supreme Court in Aruna Ramchandra ....
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....to picture and protects the rights of such Citizens. 120. The Preamble to our Constitution read with Article 38, Article 39 and Article 39A makes it amply clear that the State must take up these responsibilities. The State must strive to promote social, economic and political welfare of the people. A harmony needs to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments towards the people. While discharging these commitments, the state may even deprive some rights and privileges of the individual victims or their heirs to protect their other important rights in a better manner and secure the ends of social welfare. The values enshrined in our Constitution are a testimony of the standard of governance and welfare that the people expect from their representatives to maintain and carry out respectively. Doctrine of Parens Patriae is simply one of the links in this long chain. This doctrine makes sure that the voiceless, abandoned and disabled people are ultimately the responsibility of the State and the State must take all the steps to ensure their well-being as they are not in a positio....
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.... is treated as minor under the law and thereby mentally and physically not mature enough to give a valid consent. Therefore, consent by a girl of less than 18 years of age is no consent under the law. The petitioner further submitted that if this is the object of increasing the age of 18 years from 2013, then marriage of a girl at the age of 15/16/17 years does not make the girl mature enough mentally and physically for the purpose of consent. 124. Exception (2) to Section 375 of the IPC reads as follows :- "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." 125. The Supreme Court, having heard the parties, while elaborately discussing the 'best interests' of a girl child and impact of an early marriage in her mental, physical and psychological health in Independent Thought (supra), observed as follows :- ". ... an early marriage and sexual intercourse at an early age could have detrimental effects on the girl child not only in terms of her physical and mental health but also in terms of her nutrition, her education, her employability and her general well-being. To make matters w....
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....of her own volition and to have sexual intercourse with him. 132. Thus, one of the grounds for presuming the age of a girl in the higher side would be at the risk involved therein, viz such presumption of fact going wrong. However, this reason cannot pre-empt a court to treat a girl child as a major, but the rule of caution needs to be adhered to. Practically, it has been observed that in cases of elopement, a girl is always willing to go to her husband and not to her parents. However, after the judgment of Independent Thought (supra), the courts cannot permit the minor girl to stay with her husband even if she is 16-17 old. 133. While deciding the age of a victim in cases of elopement in the light of Jaya Mala's case, an interesting aspect needs to be discussed. For that, it is necessary to refer to what Supreme Court has held in the said case. It states that "however, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side". 134. Thus, it can be seen that the Supreme Court has used the phrase "one can take judicial notice" 135. Another important aspect which has arisen in ....