Judgment :- 1. This is the second time, during a short interval that I come across an order passed by a Magistrate (not the same) directing the custody of a young girl. The earlier case is reported in 1976 KLT. 735. The case now before me arises in an application for bail. From the bail application, it came to my notice that a girl, Sarojini by name, was directed by the Judicial II Class Magistrate, Cannanore, to be confined to the Central Prison, Cannanore, because she did not want to go with her father and wanted to go with the first accused, with whom she is said to be in love. That this Court has inherent power under S.482 Cr. P. C to pass appropriate orders, to avoid abuse of process of Court or otherwise to secure ends if justice, even though this Court is not exercising jurisdiction as an appellate Court or sitting in revision, cannot be disputed. 2. When this matter was brought to my notice, I felt that the subordinate Courts should be given a general direction as to how to deal with questions like this. Since the matter was important, I issued notice to the learned Advocate-General to assist me. 3. Now the facts of the case. 12 accused in Crime No. 49 of 1976 of Edakkad Police Station moved for bail before the Judicial II Class Magistrate's Court. They were arrested in connection with various offences including the one punishable under S.366 I.P.C. The accusation against them is that they formed themselves into an unlawful assembly on 5-10 76 and committed criminal trespass by entering into the house of the first informant and forcibly removed his daughter Sarojini alias Baby. According to the first informant she is aged 17 years. According to the accused, she is aged 18 years. The said Sarojini was taken into custody by the police and was produced before the Magistrate. It is stated in the application for bail that the Magistrate sent the girl for medical examination and in the meanwhile remanded her to the custody of the Superintendent of Central Prison, Cannanore. 4. 1 directed the Magistrate to submit an explanation detailing the circumstances under which he sent the girl to the Central Prison. He submitted his explanation on 26101976. 4. 1 directed the Magistrate to submit an explanation detailing the circumstances under which he sent the girl to the Central Prison. He submitted his explanation on 26101976. From the explanation it is seen that the girl was produced by the Edakkad police before him stating that she was kidnapped by the accused and others and that the girl is 17 years old. The Sub-Inspector of police requested the Magistrate to release the girl to the custody of her father till the disposal of the case. The Magistrate slates that he recorded a statement from the girl. According to her, she was aged 19 years and had completed S. S. L. C. The police removed her from a house unknown to her She was locked up in a room by her father for two days. She escaped from there and followed one Raviettan, Al. She was removed to a house at Kuthuparamba by the accused and it was from there that the police took her into custody. She does not want to go with either her mother or father. She wants to go with A-1. Her father filed an application stating that she is a minor and that she should be given to his lawful custody. Since the Magistrate found discrepancy between the age given by the girl and her father, he adjourned the case to the next day. The explanation then reads as follows: "Since the girl was not willing to go with the father and at the same time there is no other suitable person to whom the girl can be safely entrusted as an interim arrangement, she was remanded to the Central Prison, Cannanore". The Magistrate proceeds to say that when the girl was produced in Court on 7101976, she filed a petition stating that it was on account of the illtreatment meted out to her by her step-mother that she voluntarily left the house and went with A-1. She pleaded that she may not be entrusted with her father or step-mother since she anticipated danger from them. She also expressed apprehension that she would be given in marriage to a person not to her liking. In the following paragraphs, the Magistrate discusses about the discrepancy in the age of the girl, which persuaded him to send the girl for medical examination and certificate. She also expressed apprehension that she would be given in marriage to a person not to her liking. In the following paragraphs, the Magistrate discusses about the discrepancy in the age of the girl, which persuaded him to send the girl for medical examination and certificate. From the certificate issued by the Assistant Professor of Radiology, Medical College Hospital, Calicut, it was found that the girl has passed 17 years and is nearing 18 years of age The Magistrate felt that she could not be released without a guardian to protect her interest. I am extracting below the last sentence from Para.5 of the explanation by the Magistrate: "Further, on seeing the attitude of the girl, the Advocate appearing for the father reported that the father may not be able to keep watch over the girl." In the next paragraph, the Magistrate expresses concern about the possibility of the worsening of the law and order situation in the area because of the fact that the girl belongs to the Nambiar community and the first accused to the Thiyya community. Both the communities appear to have taken the issue as a prestige matter. The Assistant Public Prosecutor appears to have reported that there may be disastrous consequences it the girl is released. Para.6 of explanation winds up by saying "considering all these aspects and also considering the statement of the girl which shows that the incident is with the connivance of the girl. Her status is not different from the status of the accused". The Magistrals observes that it will not be safe to send the girl with A-1 or with (he members of his family since they are strangers to the girl. There was no alternative for him but to make other arrangements for the custody of the girl. She will not be admitted to an aftercare home, she being not convicted in any case. It was under these circumstances that he, as a temporary measure, in the best interests of the girl and also to protect the interests of both the sides, sent the girl to Central Prison for women. The Magistrate adds that he did so bona fide and requests this Court to ratify his action. 5. I directed the State Prosecutor to inform me as to what has happened to the girl thereafter. My information is. The Magistrate adds that he did so bona fide and requests this Court to ratify his action. 5. I directed the State Prosecutor to inform me as to what has happened to the girl thereafter. My information is. as conveyed by the State Prosecutor, after contacting the police, that the girl is confined in the Central Prison as per the orders of the Magistrate. 6. The question as to bow a girl of tender age who is not an accused and who is brought before Court has to be dealt with, is a delicate and at the same time serious question. Courts of law have to be extremely careful in handling such situations. While the paramount consideration in such cases is the welfare of the girl, Courts cannot be oblivious of the rights of a father over his child. This is what I observed in my earlier decision reported in1976 KLT. 735: "A citizen looks to Court of law for protection. A lady, young in age, and brought before Court under extraordinary circumstances like the one that we have in this case deserves respectful treatment at the hands of the Court. The order sought to be quashed has thrown to winds respect for human dignity, sanctity of womanhood and the protective umbrella that a Court is expected to give to a woman in distress." 7. The learned Advocate General submitted that the right of a father over his daughter is paramount. A father loses this right only in exceptional circumstances. Both the local and international law recognise the right of an unimpeachable parent to the custody of his child. The three classes of cases in which interference with the father's right over his child would be justified are: (i) when he forfeits it by his moral turpitude; (ii) where he abdicates his authority; and (iii) where the father moves his ward out of jurisdiction. 8. In a case for the issuance of Habeas Corpus, a full Bench of this Court in the decision reported in 1974 KLT. 650 had to deal with the rights of a father. In that case, an Ezhava boy, who claimed to have married a Nair girl, moved this Court. 8. In a case for the issuance of Habeas Corpus, a full Bench of this Court in the decision reported in 1974 KLT. 650 had to deal with the rights of a father. In that case, an Ezhava boy, who claimed to have married a Nair girl, moved this Court. The Full Bench observed as follows: "In this region, where, at best, we see the picture of a woman subjected to the pulls and pressures of marital (or, may be extra-marital) attachment on the one side and parental affection or guidance on the other taking into due account the rights and responsibilities which nature has entrusted to parents in regard to their children, we are not satisfied that any case of illegal detention or custody which calls for redress under Art.226 stands made out". 9. The second case cited before me by the learned Advocate-General is the one reported in 1970 A.C. 668 (House of Lords). That case related to the custody of a 10 year old boy who was under the care of foster parents for most of his life and whose foreign parents applied for his return. In a lengthy judgment, the House of Lords discusesd the principles that should guide Courts in ordering release of a ward or a minor child. The reasoning that runs through the judgment is that the first and paramount consideration should be the welfare of the child. Subject to this, the preponderant authority to the custody of the child is vested in the parent. I forbear from quoting the numerous passages brought to my notice for the reason that they are not strictly necessary for a decision in this case. 9. The learned Advocate-General incidentally referred me to certain authorities to contend that even a subordinate criminal Court has inherent jurisdiction and faintly argued that in cases of this sort, such inherent jurisdiction can be exercised even to appoint a guardian ad litem. I have my own doubts regarding the inherent jurisdiction of subordinate criminal Courts in this behalf. From the authorities that I could gather, the inherent jurisdiction in a criminal Court is restricted only to correct apparent mistakes or to set right inconsequential defects. Whether this extends to the appointment of a guardian ad litem is not a matter free from doubt. The learned Advocate-General also made the submission very guardedly since there was no clear authority on this point. Whether this extends to the appointment of a guardian ad litem is not a matter free from doubt. The learned Advocate-General also made the submission very guardedly since there was no clear authority on this point. 10. In cases where a minor who can intelligently answer questions when he or she is brought before Court, not from proper custody, have to be dealt with extreme care It often happens that the answers given by such a minor who is brought from a particular parent or guardian or from other custody are reflections of the wishes of such persons from whose custody the minor is brought, and must have been assiduously instilled into the ward. Such answers cannot be said to be by the independent exercise of the will of the minor. Under the international law, under the Guardian and Wards Act and under the Hindu Minority and Guardianship Act, the most important consideration in entrusting the custody of a child is the welfare of the child and when there is nothing against the father, the father is the pre-eminent person to be given the custody of the child. 11. In this case, I have a peculiar situation. The girl is said to be in love with the first accused. She was not brought from proper custody. She was not with her father. She obviously came from the house of her paramour or lover. She was obviously under the influence of love or infatuation. The girl was not an accused in the case. The Magistrate went wrong in observing that her status "is not different from the status of an accused". It does not appear that she was brought before Court as per a search warrant issued by the Court. The jurisdiction of the Court to pass appropriate orders under S.100 of the old Code, corresponding to S.97 of the new Code, is also restricted. Even so, a II Class Magistrate does not have power to act under this section. 12. The question is whether the Magistrate was justified in directing the girl to be sent to the prison. I have no hesitation to say, agreeing with the learned Advocate-General, that the Magistrate acted not only without jurisdiction but against all canons of law, propriety and respect for womanhood in directing the girl to be sent to the central prison. 12. The question is whether the Magistrate was justified in directing the girl to be sent to the prison. I have no hesitation to say, agreeing with the learned Advocate-General, that the Magistrate acted not only without jurisdiction but against all canons of law, propriety and respect for womanhood in directing the girl to be sent to the central prison. A prison is not the proper place for a girl, who is neither an accused nor a convict. In a prison she is placed with criminals. The Magistrate should have been doubly careful before issuing such an order. His request in the explanation to ratify what he did makes the position unhappy. Even as a temporary measure, he should not have done this. He seeks to justify it by saying that he did so to protect the interests of both the sides and that she was sent to the central prison for women. From the explanation it is seen that on 7101976, when the girl was brought from the central prison, she filed a petition regarding the ill-treatment from her father's house by her step-mother and that she voluntarily left the house and joined Al. This is contrary to what she stated in Court on 6101976. As to how she was able to file a petition, as to who supplied her with the necessary materials to file a petition, as to whether the Magistrate was approached by her seeking permission to engage a counsel or whether any one had access to her in jail are facts that need explanation. 13. The Magistrate questioned the girl, but did not question her father. Before directing her to be sent to the prison, the Magistrate should have questioned the father also, who was present in Court. This was, all the more necessary since she was brought, as I said earlier; not from her house. This would have helped ascertainment of the correct facts from the father. From the explanation submitted by the Magistrate, it is seen that the police requested the Magistrate to release the girl to her father. The father also made a similar request. 14. This would have helped ascertainment of the correct facts from the father. From the explanation submitted by the Magistrate, it is seen that the police requested the Magistrate to release the girl to her father. The father also made a similar request. 14. The most disturbing element in this case is the presence of the proverbial step-mother in the house and also the observation by the Magistrate in his explanation that an Advocate appearing for the father reported, seeing the attitude of the girl, that the father may not be able to keep a watch over the girl. She has complained about the step-mother's cruelty towards her. This may or may not be true. The father through his Advocate appears to have expressed to the Magistrate that it would be difficult for him to keep a watch over the girl. Even so, I do not think that the father has by this conduct forfeitedhis right to the custody of the girl. As to what should be done in such cases has been agitating my mind. T find the Criminal Procedure Code does not give any sufficient guideline as to the order to be passed in such cases. I had a look at the "Rescue Home and Rescue Shelter" Notification. The three types of women who shall be admitted are seen to be as follows: "(a) all persons ordered to be detained under the provisions of Suppression of Immoral Traffic in Women and Girls Act. (b) persons rescued from moral danger by the police or other social welfare agencies. (c) young women who fear moral danger and seeking admission voluntarily." This girl cannot fall into any of these groups. I was told that there are institutions by name "Abalamandirs" which are now under the control of the Government. From a copy of G. O. MS No. 359/66/A & RDD dt. 8-121966, I find the categories of persons to be admitted to Abalamandirs are as follows: "widows, deserted wives, divorcees and unmarried women of the age between 20 and 65 (both inclusive) who have no relatives to take care of them and with whom they could comfortably stay and who are leading a sane life shall be admitted to the Abalamandirs". This girl cannot be brought into this group either. 15. The problem is what is the proper order to make. This girl cannot be brought into this group either. 15. The problem is what is the proper order to make. The State Prosecutor told me that he had information from the police that this girl has her mothers sister's husband and that perhaps she might go with him. For the present, I direct the Magistrate to get the girl forthwith to Court and ascertain from her, whether she has her mother's sister's husband and whether she would like to go with him. If she agrees, she will be sent with him and he will be told that she should be made available to Court whenever called upon to do so. If this is not possible, the girl should be entrusted to her father and will be escorted to his house with police help. The father should be told that the girl will be looked after well, not to give her in marriage against her will till the disposal of the case and not to give room for any complaint. The father will also be directed to produce the girl in Court whenever called upon to do so, for the Magistrate to ascertain her welfare. 16. The criminal Courts have sometimes to deal with girls brought before them not as accused, but under other circumstances. Sometimes such girls though they have not attained majority would be intelligible enough to decide for themselves as to where they should go. Courts will have difficulty in certain cases in making a proper order of entrustment. In such cases, it has to be borne in mind that the parents have the natural right to custody of their children As a rule, Courts should without any hesitation entrust the custody of such girls to the father or mother. Discretion is left to the Court in choosing either of the parents after ascertaining the wishes of the girl and the circumstances of the case. I do not think that the criminal Courts even under extremely compelling reasons should depart from this rule. Even where a girl expresses her unwillingness to go with her father or mother, the Court should prefer the parents' company to that of a prison. Very stringent conditions can be imposed on the father or mother when a girl is to be entrusted to them against her will. Even where a girl expresses her unwillingness to go with her father or mother, the Court should prefer the parents' company to that of a prison. Very stringent conditions can be imposed on the father or mother when a girl is to be entrusted to them against her will. Since I do not have sufficient guidelines in law in such a matter, especially dealing with an order to be passed by a II Class Magistrate, who, as stated above, does not have jurisdiction under S.97 Cr. P. C., I am not in a position to make any other order. In this case, the order directing the girl to prison was not proper. 17. The matter should receive the attention of the Government. The Code of Criminal Procedure has to provide proper guidelines to Magistrates in this matter. The State Government can also frame rules or provide for necessary arrangements for accommodating such girls either in the Rescue Homes or Abalamandirs. 18. I acknowledge my thanks to the learned Advocate-General, who assisted me by his arguments, at my request. 19. This order will be communicated to the Judicial II Class Magistrate, Cannanore, forthwith. If, before this order reaches the Magistrate, the girl has been released, the Magistrate will submit a report to this Court as to the circumstances under which the girl was released. 20. I have pronounced this order in the bail application. I have advisedly cot taken this in suo mote revision for two reasons: (1) the matter should not get unnecessarily delayed, and (2) I have already heard the learned Advocate-General on the question of law involved. In addition to this, from the explanation submitted by the Magistrate it is seen that while on 6101976 the Sub Inspector of Police requested the Magistrate to release the girl to the father, the Assistant Public Prosecutor appears to have reported to him the next day that if the girl is released there will be a grave law and order situation. 21. In the bail application, I granted bail as an interim measure. I make the order releasing the petitioners on bail absolute. The direction that the petitioners will report to the Edakkad Police Station on every Monday is however vacated. A copy of this order will be communicated to the Secretary, Central Law Commission, New Delhi, and the Chief Secretary to the Kerala Government.