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2020 (3) TMI 1245 - HC - Indian LawsWrit of Habeas Corpus - elope of minor girl - Abduction and forceful and illegal marriage - fake mark sheet and id proofs - victim is a minor and is not willing to go with her parents - HELD THAT - The Latin phrase habeas corpus means literally that you that is the person with custody over the prisoner must have the body of the prisoner produced in court at the place and time ordered by a judge. The writ of habeas corpus provides individuals with protection against arbitrary and wrongful imprisonment. Habeas corpus writ is most commonly used in India as a remedy in case of preventive detention because in such cases the validity of the order detaining the detenue is not subject to challenge in any other court and it is only the writ jurisdiction which is available to the aggrieved party. However the scope of petition of habeas corpus has been expanded over a period of time. A writ of habeas corpus is also preferred for custody of child or in some cases for custody of wife. But there are certain limitations to this writ. The most important limitation is that before issuing any writ of habeas corpus the court must come to the conclusion that the detenue is under detention without any authority of law - By now it is well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus procedure may be examined is the date on which the application for habeas corpus is made to the court. 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 . It is evident that a 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. 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? - HELD THAT - The power of continuous superintendence of the High Court under Section 483 of the CrPC over the courts of Judicial Magistrates subordinate to it is with a view to ensure that there is an expeditious and proper disposal of cases by such Magistrates. The power of superintendence conferred on the High Court under Article 227 of the Constitution of India or under Section 483 of the CrPC is both administrative and judicial but such power should be exercised sparingly and only in appropriate cases. Such 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. Keeping in view the role of the Court as parens patriae it is expected from the court that whatever decision it might take as to the assessment of the age of the victim it needs to serve the best interests of the girl. Before reaching any conclusion the court must consider the detrimental effects on a girl child not only in terms of her physical or mental health but also in terms of her nutrition education and her general well being. The court cannot pass order against the well being of a child or against his/her interests. Being merely confined within the four walls of a Protection Home cannot be termed as detention for the purpose of writ of habeas corpus. No doubt the court s order may be termed as improper in that particular case but that does not invest the order with malafides or illegality. If such orders of the court are improper it may be corrected by invoking statutory provisions but by no means a writ of habeas corpus can be justified in such cases. Petition dismissed.
Issues Involved:
1. Maintainability of writ of habeas corpus against judicial remand orders. 2. Review of judicial remand orders in habeas corpus petitions. 3. Classification of improper judicial orders as illegal detention. 4. Issuance of general directions under Section 483 CrPC by High Courts. 5. Applicability of age determination principles in cases of elopement. 6. Role of courts as parens patriae in elopement cases. 7. Impact of the Supreme Court's judgment in Independent Thought on minor girls' marriages. Detailed Analysis: 1. Maintainability of Writ of Habeas Corpus Against Judicial Remand Orders: The court concluded that a writ of habeas corpus is not maintainable if the detention is pursuant to judicial orders passed by a competent court. The Supreme Court has consistently held that such writs cannot be entertained when a person is in judicial or police custody by virtue of a valid remand order. This principle was reaffirmed through various judgments, including *Manubhai Ratilal Patel vs. State of Gujarat* and *Saurabh Kumar vs. Jailor, Koneila Jail*. 2. Review of Judicial Remand Orders in Habeas Corpus Petitions: The court held that an illegal or irregular exercise of jurisdiction by a Magistrate in passing a remand order cannot be reviewed in a habeas corpus petition. Such orders should be challenged through appropriate appellate or revisional proceedings under statutory law. The court emphasized that habeas corpus is a procedural writ aimed at addressing unlawful detention, not for correcting judicial errors. 3. Classification of Improper Judicial Orders as Illegal Detention: The court determined that an improper judicial remand order cannot be classified as illegal detention. The Supreme Court has clarified that unless a remand order is passed without jurisdiction or in an absolutely mechanical manner, it does not constitute illegal detention. This distinction was highlighted in cases like *Serious Fraud Investigation Office vs. Rahul Modi*. 4. Issuance of General Directions Under Section 483 CrPC by High Courts: The court concluded that the High Court, while exercising its constitutional powers, cannot issue general directions under Section 483 CrPC for releasing minor girls to persons of their choice in cases of elopement. The inherent and supervisory powers of the High Court should be exercised sparingly and not to influence subordinate judiciary decisions. This principle was supported by the Supreme Court's ruling in *TGN Kumar vs. State of Kerala*. 5. Applicability of Age Determination Principles in Cases of Elopement: The court addressed the applicability of the Supreme Court's judgment in *Jaya Mala vs. Home Secretary, Government of J&K*, which allows for a margin of error in age determination. However, it distinguished that while this principle applies to both accused and victims, the benefit of doubt generally favors the accused. The court emphasized that age determination for victims should consider the best interests of the minor, adhering to the guidelines in the Juvenile Justice (Care and Protection of Children) Act, 2015. 6. Role of Courts as Parens Patriae in Elopement Cases: The court underscored its role as parens patriae, emphasizing the duty to protect the interests of minors. It highlighted the need to consider the physical, mental, and emotional well-being of minor girls in elopement cases. The court noted that sending minor girls to Protection Homes or Nari Niketans is not equivalent to detention but a protective measure, aligning with the doctrine of parens patriae. 7. Impact of Supreme Court's Judgment in Independent Thought on Minor Girls' Marriages: The court acknowledged the Supreme Court's judgment in *Independent Thought vs. Union of India*, which raised the age of consent for sexual intercourse to 18 years, making any sexual act with a minor girl below 18 years an offense of rape. This judgment impacts the treatment of minor girls in elopement cases, reinforcing that they cannot be allowed to stay with their husbands even if they express such a desire. Conclusion: The court dismissed the writ petition, holding that: - A writ of habeas corpus is not maintainable against judicial remand orders by competent courts. - Judicial remand orders cannot be reviewed in habeas corpus petitions. - Improper judicial orders do not constitute illegal detention. - General directions under Section 483 CrPC cannot be issued to subordinate courts for releasing minors. - Age determination for minors should consider their best interests and adhere to statutory guidelines. - The role of courts as parens patriae is crucial in protecting minors' well-being. - The judgment in *Independent Thought* necessitates treating sexual acts with minors as offenses, impacting decisions in elopement cases.
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