JUDGMENT 1. - Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the papers which have been received from the Court of learned Additional Chief Judicial Magistrate, Nimbahera. 2. By this petition under section 482 Cr.P.C. the petitioner has prayed that the impugned order dated 28.6.1997 passed by the learned Additional Chief Judicial Magistrate, Nimbahera be quashed as it amounts to abuse of the process of the Court and the petitioner should be set at liberty so that she may be free to go where she likes under the protection of the police. 3. The main contention of the learned counsel for the petitioner is that the petitioner is a major woman and she can look after her interest very well and therefore, there is no reason why her liberty should be curtailed by keeping her in the custody of her father or brother or any other person or authority. 4. The facts so far they are relevant for the disposal of this petition may be summarised below. 5. It appears that Shri Ram Lal filed a complaint in the Court of Additional Chief Judicial Magistrate, Nimbahera on 1.8.1996 against Amba Lal and Champa Lal alleging the commission of offence under section 366 read with 120 B IPC in respect of Smt. Manju, who is the daughter of Bhanwar Lal and sister of Ram Lal. The complaint was sent to police u/ s 156(3) Cr.P.C. The police registered the first information report No. 392/96 in respect of offence under section 366 IPC. During investigation Smt. Manju was recovered by the police on 10.6.1997. At the time of recovery she was found in the company of Amba Lal s/o Chhoga Lal and both of them were near the temple of Radha Kishan in Tikam Nagar. Ram Lal, who was accompanying the police officer identified Smt. Manju at the time of recovery. 6. On 27.6.1997 Ram Lal submitted an application before the Additional Chief Judicial Magistrate, Nimbahera and prayed that Smt. Manju, who was a minor should be given in his custody. It was also stated in the application that Amba Lal and Champa Lal had taken away Smt. Manju to Surat and that Smt. Manju was a minor. The copy of the transfer certificate purporting to have been issued by the Head Master of the Government Upper Primary School was also submitted. It was also stated in the application that Amba Lal and Champa Lal had taken away Smt. Manju to Surat and that Smt. Manju was a minor. The copy of the transfer certificate purporting to have been issued by the Head Master of the Government Upper Primary School was also submitted. According to the transfer certificate, the date of birth of Smt. Manju was 1.7.1980. 7. An application on behalf of Srnt. Manju was also submitted before the Additional Chief Judicial Magistrate. In that application, it was alleged that Ram Lal wanted to send Smt. Manju in "Nata" against her will and that she had been abandoned by her husband with whom she was legally married and that her age was about 19 years and that she wanted to establish herself according to her wishes and she should be either set free or sent with his relative Nand Lal, a resident of Ghosund a. The learned Additional Chief Judicial Magistrate after hearing the arguments on both the applications and considering the entries of the transfer certificate and the result of radiological examination conducted at General Hospital, Chittorgarh, came to the conclusion that the evidence regarding her age was conflicting, that the matter was under investigation, that it was necessary to give two months time to Smt. Manju and in view of these circumstances, the learned Additional Chief Judicial Magistrate directed that Smt. Manju be given in the custody of her father Bhanwar La or his brother Ram Lal for a period which was to end on 29.8.1997. 8. It is against this order that this petition under section 482 Cr.P.C. has been filed. It is not disputed that Smt. Manju is the daughter of Bhanwar Lal. It is also not disputed that her marriage with Jagdish was celebrated about 8 years ago and her husband Jagdish is alive. It is not disputed that Smt. Manju was recovered by the police at Surat and at that time she was accompanying Amba Lal. 9. During arguments, it was revealed that Amba Lal is already married and her wife is living with him. No case has been registered against Smt. Manju and as such she is not a person accused of any offence. 10. 9. During arguments, it was revealed that Amba Lal is already married and her wife is living with him. No case has been registered against Smt. Manju and as such she is not a person accused of any offence. 10. In the above circumstances, the learned counsel for the petitioner has strongly urged that Smt. Manju is not a minor and therefore her personal liberty, cannot be curtailed by her detention in Hari Niketan or in the custody of any person. 11. On the other hand according to prosecution Smt. Manju is minor, her date of birth as entered in the transfer certificate is 1.7.1980 and if the entries of the transfer certificate are relied upon, her age would be 17 years and four months. According to the report given by the doctor, who conducted the radiological examination, Smt. Manju was found to be between 18 to 19 years of age. The copy of the affidavit dated 22.10.1996 shows that in her affidavit Smt. Manju described her age as 20 years. 12. So far as the age of the petitioner Smt. Manju is concerned, there are three documents having some bearing on the question of her age. The first is the entry of the transfer certificate issued by the school, in which she had studied. According to this certificate her date of birth is 1.7.1980 and she is a minor. The second is the opinion given by the Doctor after conducting radiological examination, by which the doctor has opined that she is between 18 to 19 years of age and, the third is the affidavit of Manju, which was attested on 22.10.1996. In that affidavit Smt. Manju has described herself to be of 20 years age. 13. The learned counsel for the petitioner has submitted that in her police statement recorded under section 161 Cr.P.C. Smt. Manju has stated her age to be 19 to 20 years. 14. The crucial question is whether the disputed question of fact can be decided in this petition by this Court of this question should be decided by some other Court legally empowered to decide this question. 15. The learned Public Prosecutor has urged that the investigation is in progress and therefore, the police should be permitted to collect evidence regarding her age and after that this question should be decided. 16. I am afraid. 15. The learned Public Prosecutor has urged that the investigation is in progress and therefore, the police should be permitted to collect evidence regarding her age and after that this question should be decided. 16. I am afraid. The disposal of this petition cannot be postponed till the investigation is complete. The petition will have to be decided without any delay. Hence the prayer made by the learned Public Prosecutor is declined. 17. The learned counsel for the petitioner has cited the decisions given in following cases. (1) D.B. Habeas Corpus Petition No. 1349/97 Babu Lal v. The State of Rajasthan (decided on 24.4.1997) (2) Mst. Gurnamo v. State, Cr.L.R. (Raj.) 1987 p. 394 (3) lora Singh v. State of Punjab, 1984 (2) Crimes 837 (4) Sheela Bai & Anr. v. State of M.P., 1 (1997) CCR 538 (5) Ramphool v. State, (WLN (UC) 1973, 225) (6) Sawa and Shankerlal v. Ganpatram, (WLN (UC) 1980, 292) 18. In Sawa and Shankerlal v. Ganpatram (WLN (UC) 1980, 292), the Head Master of the school did not produce the material on the basis of which entry in the school register was made. The trial court as well as the first appellate court did not place reliance on the entries of the school record. In second appeal, this Court upheld the view taken by the trial court and the first appellate court. 19. In Ramphool v. State (WLN (UC) 1975, 225) it was observed that opinion of the Radiologist was preferable to the opinion of illiterate regarding the age of the children. 20. In Sheela Bai & Anr. v. State of M.P., 1 (1997) CCR 538) it was held that the charge under section 366 IPC was not proved beyond reasonable doubt, because the entry of the date of birth in school leaving certificate/admission register was not legal evidence of the age of the girl or the boy. 21. In Jora Singh v. State of Punjab, (1984(2) Crimes 837), the school leaving certificate was the only evidence which was pressed into service for proving that the prosecutrix was a minor. Relying on tam Om Prakash v. State of Punjab, 1993 (2) Cr. L.R. 395) the entries of the school record were found to be not sufficient to prove the charge against the appellant. 22. In Mst. Relying on tam Om Prakash v. State of Punjab, 1993 (2) Cr. L.R. 395) the entries of the school record were found to be not sufficient to prove the charge against the appellant. 22. In Mst. Gurnamo v. State, (Cr.L.R. (Raj.) 1987, 394 the girl had given her age as 22 years in her affidavit. On medical examination the doctor opined her age between 18 to 20 years. Mother's evidence about her age was found to be erroneous and when the girl appeared before the High Court, the Court found her age to be approximately 20 years and held that the girl was major. 23. In Babu Lal v. State of Rajasthan, (D.B. Habeas Corpus Petition No. 1349/97) the radiological examination showed her age to be between 17 to 18 years and in view of the facts and circumstances of the case, a Division Bench of this Court came to the conclusion that the girl Sumitra had attained the age of majority and was above 18 years of age. 24. Relying on the observations made in the above mentioned cases, the learned counsel for the petitioner has urged that in view of the affidavit dated 22.10.1996 of Smt. Manju in which she has stated that she is between 18 to 19 years of age, it should be taken as established that she is above 18 years of age and she should be set at liberty, because she is a major and she cannot be detained in any custody against her will unless there is any express provision of law authorising her detention in any custody. It is also submitted by him that the entries of the school record i.e. the transfer certificate, according to which the date of birth of Smt. Manju is 1.7.1980 has no probative value, because the prosecution has not shown the material on the basis of which the entries of the date of birth was made in the certificate, and therefore, the entries of transfer certificate should not be given any importance. 25. I have carefully considered the arguments advanced by the learned counsel for the petitioner and the observations made in the cases cited by the learned counsel for the petitioner. 25. I have carefully considered the arguments advanced by the learned counsel for the petitioner and the observations made in the cases cited by the learned counsel for the petitioner. It is true that every person, by virtue of the provisions contained in Art. 21 of the Constitution is entitled to insist that his/her personal liberty should not be curtailed otherwise than in accordance with the procedure established by law. Article 21 of the Constitution applies to minors as well as to majors. In view of Art. 21 of the Constitution, if any public authority intends to deprive any person, male or female of his/her personal liberty, it must be shown that there is a law in force authorising such curtailment of personal liberty and the conditions laid down for the exercise of legal power to deprive a person of his/her personal liberty have been fulfilled. 26. So far as the persons, who have attained majority m accordance with the provisions of Indian Majority Act, 1895 are concerned, unless any legal guardian has been appointed by a competent court, they possess the legal right to consider about their own welfare without being placed in the custody of any other person. It has been held in many several cases that prosecutrix in a case of alleged kidnapping/abduction and rape is not a person accused of an offence, and therefore, she cannot be treated as an accused for the purpose of her arrest and detention. Such a woman, who is major is entitled to be set free so that she may go wherever she likes according to her own best judgment. The Code of Criminal Procedure does not contain any provision, which may be said to authorise the police or the Court to keep any worsen in detention or in custody of any person if she is not a person accused of any offence. 27. So far as the minor girls are concerned, it requires consideration whether there is any law which requires the Court to protect the interest of the minor girls in such cases. 28. The learned Public Prosecutor has drawn my attention to the provisions of Juvenile Justice Act, 1986. Chapter III of Juvenile Justice, 1986 deals with neglected juvenile. 27. So far as the minor girls are concerned, it requires consideration whether there is any law which requires the Court to protect the interest of the minor girls in such cases. 28. The learned Public Prosecutor has drawn my attention to the provisions of Juvenile Justice Act, 1986. Chapter III of Juvenile Justice, 1986 deals with neglected juvenile. Section 13 provides that if any police officer or any other person or organisation authorised by the State Government in this behalf, by general or special order, is of opinion that a person is apparently a neglected juvenile, such police officer or other person or organisation may take charge of that person for bringing him before a Board. Sub-section (2) of Section 13 provides that when information is given to an officer-in-charge of a police station about any neglected juvenile found within the limits of such station, he shall enter in a book to be kept for the purpose the substance of such information and take such action thereon as he -deems fit and if such officer does not propose to take charge of the juvenile, he shall forward a copy of the entry made to the Board. Sub-section (3) of Section 13 provides that every juvenile taken charge of under sub-section (1) shall be brought before the Board without any loss of time but within a period of twenty-four hours of such charge taken excluding the time necessary for the journey from the place where the juvenile had taken charge of to the Board. Sub-section (4) of Section 13 provides that every juvenile taken charge of under sub-section (1) shall, unless he is kept with his parent or guardian, be sent to an observation home (but not to a police station or jail) he can be brought before a Board. 29. Section 14 prescribes special procedure to be followed by the Board when a report is made to it. 30. Section 15 deals with the enquiry by the Board regarding neglected juveniles. 31. Section 16 empowers the Board to make an order that juvenile be placed under the care of a parent, guardian or other fit person on his executing bond with or without surety to be responsible for the good behaviour and well-being of the juvenile and for the observance of such conditions as the Board may think fit to impose. 32. Section 16 empowers the Board to make an order that juvenile be placed under the care of a parent, guardian or other fit person on his executing bond with or without surety to be responsible for the good behaviour and well-being of the juvenile and for the observance of such conditions as the Board may think fit to impose. 32. Section 17 provides that where a parent or guardian of a juvenile complains to the Board that he is not able to exercise proper care and control over the juvenile and the Board is satisfied on inquiry that proceedings under the Act should be initiated regarding the juvenile, it may send the juvenile to an observation home or a place of safety and make such further inquiry as it may deem fit and the provisions of Section 15 and Section 16 shall, as far as may be, apply to such proceedings. 33. The crucial question is whether in the case of minor females, who are recovered by the police in connection with alleged offences under section 366 and 376 IPC or any other offence involving woman, the power conferred on the Board under sections 13 to 17 of the Juvenile Justice Act, 1986 can be exercised by the Board ? The answer to the question would depend on the interpretation of the definition of juvenile as given in Cl. (h) of Section 2 of Juvenile Justice Act, 1986.Cl. (h) of Section 2 reads- "Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years." According to the definition of "juvenile" given in Cl. (h) of Section 2 females below 18 years of age would be covered by the expression "juvenile". 34. Cl. (1) of Section 2 defines the expression "neglected juvenile". Cl. (h) of Section 2 females below 18 years of age would be covered by the expression "juvenile". 34. Cl. (1) of Section 2 defines the expression "neglected juvenile". Cl. (1) of Section 2 reads- "neglected juvenile" means a juvenile who (i) is found begging; or (ii) is found without having any home or settled place of abode and without an ostensible means of subsistence and is destitute; (iii) has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile; or (iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of prostitution, or is found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life; (v) who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain" 35. A bare perusal of the definition of "neglected juvenile" given in Cl. (1) of Section 2 of the Juvenile Justice Act shows that a "neglected juvenile" means a "juvenile" who is found begging or is found without having any house or settled place of abode and without any ostensible means of subsistence and is destitute or has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile or who lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of prostitution, or is found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life or who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain. 36. A female below 18 years of age would therefore be entitled to be called a "neglected juvenile" if her case falls in one or more of the sub-clauses of Cl. (1) of Section 2 of the Juvenile Justice Act. 37. Amba Lal is admittedly a married person, whose wife is living. He has developed illicit relationship with Smt. Manju, the prosecutrix in this case. Whether the act of Amba Lal is or is not punishable under any law for the time being in force, deserves to be regarded as immoral for the purpose of sub-clause (v) of Cl. (1) of Section 2 of the Juvenile Justice Act. Sub-clause (iv) of Cl. He has developed illicit relationship with Smt. Manju, the prosecutrix in this case. Whether the act of Amba Lal is or is not punishable under any law for the time being in force, deserves to be regarded as immoral for the purpose of sub-clause (v) of Cl. (1) of Section 2 of the Juvenile Justice Act. Sub-clause (iv) of Cl. (1) is also attracted if the girl is found to be associating with any person, who leads an immoral, drunken or depraved life. Sub-clause (iii) is attracted to the cases of those ladies (as well as the males, who are minors), who have a parent or guarden, but who is unfit or incapacitated to exercise control over the juvenile and sub-clause (ii) of cl. (1) is attracted to those cases where juvenile does not have any home or settled place of abode and without any ostensible means of subsistence and is destitute. 38. The home of Amba Lal cannot be called the home of the petitioner Smt. Manju, nor the income or the means income property which are available to Amba Lal can be called the means of substance available to Smt. Manju. She does not want to live with her father and brother. She does not want to live with her legal husband Jagdish, she does not appear to possess any property to her own, nor she appears to have any independent income to maintain herself. She has developed illicit intimacy with Amba Lal as is evident by the affidavit dated 27.10.1996. In these circumstances, I am satisfied that Smt. Manju falls within the definition of "neglected juvenile" as defined in cl. (1) of Section 2 of the Juvenile Justice Act. 39. After her recovery, it was necessary for the police officer to have reported the matter to the board in accordance with the provisions of Section 13 of the Juvenile Justice Act and thereafter, it would have been the duty of the Board to conduct necessary inquiry and pass suitable orders. The learned Additional Chief Judicial Magistrate, Nimbahera does not appear to have paid the attention to the provisions of Sections 13 to 17 of the Juvenile Justice Act. 40. The next question to be considered and decided in this petition is what order should be passed in the facts and circumstance of the case. The learned Additional Chief Judicial Magistrate, Nimbahera does not appear to have paid the attention to the provisions of Sections 13 to 17 of the Juvenile Justice Act. 40. The next question to be considered and decided in this petition is what order should be passed in the facts and circumstance of the case. Whether this Court should conduct inquiry about the age of the prosecutrix petitioner while exercising the power under section 482 Cr.P.C. or the matter should be referred to the board acting under the Juvenile Justice Act for inquiring in to the matter and deciding whether Smt. Manju is or is not a minor for the purposes of Section 13 to 17 of the Juvenile Justice Act ? It is also to be considered whether Smt. Manju should be given in the Supurdagi of any person or a direction should be given that in the event she is found to be a major, she should be set at liberty so that she may go where she likes. 41. I am not aware to any provision, which may be said to empower any Court to direct that a major girl, who is neither an accused person nor is wanted in connection with any case, be given in custody of any other person. Therefore, the question of giving a major girl in the Supurdagi of another and his executing the Supurdaginama appears to be out of question as it is not legally authorised. Serious questions are likely to arise if such a course are adopted. How long the Supurdaginama shall remain in force; to what extent Supurdgar shall exercise the control over the person; who is given in supurdagi; whether the girl who has been given in supurdagi would be free to do whatever she likes or she would have to act under the orders of her Supurdgar ? How long the Supurdaginama shall remain in force; to what extent Supurdgar shall exercise the control over the person; who is given in supurdagi; whether the girl who has been given in supurdagi would be free to do whatever she likes or she would have to act under the orders of her Supurdgar ? I am afraid, in the absence of express provisions of law authorising this Court to give any major girl in the Supurdagi of any other person, it would not be advisable to give Smt. Manju in the Supurdagi of any person, If after conducting inquiry, she is found to be a major, she must be set at liberty unless she is wanted in other case and if she is found to be a minor, then the Board should pass appropriate orders in accordance with the provisions of the Juvenile Justice Act. 42. In the facts and circumstances of the case, the learned Additional Chief Judicial Magistrate Nimbahera is hereby directed to forward Smt. Manju to the Board con-stituted under the Juvenile Justice Act along with the copies of FIR the affidavit, the transfer certificate and other documents, which may be relevant for the purpose of conducting inquiry under the juvenile Justice Act. He shall forward Smt. Manju to the Board within a period of 15 days. The Board shall thereafter conduct inquiry in accordance with the provisions of the Juvenile Justice Act, to ascertain whether she is a minor and a destitute Juvenile as defined in Juvenile Justice Act, 1986. In case, the Board comes to the conclusion that she is a major, she shall be set at liberty, unless, she makes any application under some provision of law for being placed in a particular custody. In case, she is found to be a minor, necessary orders shall be passed by the Board for her protection so long she does not attain the majority. The paramount consideration would be the protection as well as well being of the petitioner. Subject to above directions, the Board shall have liberty to pass such orders as it deems fit in accordance with law.The petition is disposed of accordingly.Petition disposed of. *******