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2013 DIGILAW 732 (PAT)

Arti Kumari v. State Of Bihar

2013-07-02

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

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C.A.V. ORDER AMARESH KUMAR LAL This application has been filed for issuance of writ of Habeas Corpus commanding the respondent-authorities to release the petitioner from the After Care Home, Gaighat Panta. 2. The case of the petitioner, in brief, is that on the basis of written report of Deo Narayan Sharma (respondent no. 3) that his minor daughter Arti Kumari (petitioner) aged about 16 years has been kidnapped by Amit Kumar @ Mangal, Rita Devi, Sumit Kumar and Anup Kumar Sasaram P.S. Case No. 783 of 2012 was instituted for the offence punishable under Section 366A IPC. Thereafter, during investigation, the petitioner was seen by the Investigating Officer at Arrah railway station and she was taken back to Sasaram informing her parents. On 27.9.2012 she was produced before the learned Chief Judicial Magistrate, Sasaram to record her statement under Section 164 Cr.P.C. Her statement under Section 164 Cr.P.C. was recorded by Judicial Magistrate, 1st Class (Annexur-2). She has stated that no one has kidnapped her rather she went away from her father’s house as the family members were putting pressure on her to get married. She is aged about 21 years and she does not want to stay with her parents. The Board of Doctors has also examined and submitted its report dated 27.9.2012 (Annexure-3) and her age has been estimated at 19 years. Again on 27.9.2012 she was produced before the learned Chief Judicial Magistrate, Rohtas at Sasaram where she disclosed her age 21 years and denied to go to her parents’ house, whereas, her father filed a petition to take her back to his house. Her father produced school certificate showing that the petitioner was minor. Considering the facts, the petitioner was directed to be taken to After Care Home, Gaighat Patna by the learned Chief Judicial Magistrate. 3. It is submitted that final form dated 26.10.2012 (Annexure-5) was submitted in aforesaid Sasaram P. S. Case No. 783 of 2012 and the petitioner is not an accused in that case she should be directed to be released. 4. It has also been submitted that since the petitioner is a major, she is entitled to live according to his own will and she should be released from After Care Home. In support of his contention he has relied upon a decision of this Court dated 23.4.2013 passed in Cr. 4. It has also been submitted that since the petitioner is a major, she is entitled to live according to his own will and she should be released from After Care Home. In support of his contention he has relied upon a decision of this Court dated 23.4.2013 passed in Cr. Writ No. 301 of 2013 in which the order dated 6.3.2013 passed by learned Chief Judicial Magistrate, Muzaffarpur directing the girl (petitioner) to be kept in After Care Home has been set aside and a direction has been given to Superintendent, After Chare Home, Gaighat Patna to produce the girl (petitioner) before CJM for restoration of her custody to her husband and mother-in-law (respondent no. 3 and 5) forthwith. 5. Learned counsel for the State has submitted that although respondent no. 5 Amit Kumar has appeared through vakalatnama but has not filed any counter affidavit. He had filed a slip for early hearing of the case as the petitioner is pregnant. 6. It has been submitted by learned counsel for the State that the petitioner is in Remand Home on the basis of the order passed by learned Chief Judicial Magistrate who has passed the order dated 27.9.2012 as she was minor and she did not like to go to her parents (lawful guardian) as such for protection she was remanded to the After Care Home, Gaighat, Patna. Since the petitioner has been kept in After Care Home in view of judicial order of learned Chief Judicial Magistrate as such it cannot be said that the petitioner has been illegally detained or confined. The petitioner has remedy under the code of criminal procedure itself and she is entitled to move before the learned Chief Judicial Magistrate and can agitate her grievance. 7. It has been submitted that habeas corpus petition cannot be entertained when a person is committed to judicial custody or police custody by competent court by an order which prima facie does not appear to be without jurisdiction. The order passed by learned Chief Judicial Magistrate, remanding the petitioner to After Care Home, Gaighat is a judicial order and as such the writ of habeas corpus will not lie. In Support of his contention, he has relied upon a decision of Hon’ble Supreme Court in the case of Manubhai Ratilal Patel through Ushaben vs. State of Gujarat & Ors., reported in (2013) 1 SCC 314 . 8. In Support of his contention, he has relied upon a decision of Hon’ble Supreme Court in the case of Manubhai Ratilal Patel through Ushaben vs. State of Gujarat & Ors., reported in (2013) 1 SCC 314 . 8. It has been submitted that it appears from the order dated 23.4.2013 passed in Cr. Writ No. 301 of 2013 that this decision has not been considered by the Hon’ble judges. 9. After hearing learned counsel for both the parties and on perusal of the material on record, it appears that on the basis of written report of Deo Narayan Sharma (respondent no. 3) Sasaram (Town) P.S. Case No. 783 of 2012 was instituted for the offence under Section 366 A IPC against Amit Kumar (respondent no. 5) and others. During investigation, the petitioner was apprehended at Arrah railway station by the police officer and she was produced before the Chief Judicial Magistrate. Her father filed a petition to take her to his house but she denied to live with her parents. After considering the material on record, learned Chief Judicial Magistrate, Rohtas at Sasaram in Sasaram (Muffasil) P. S. Case No. 783 of 2012 appertaining to G. R. Case No. 1715 of 2012 found that the petitioner was minor and she does not want to live with her parents as such for her protection vide order dated 27.9.2012 she was sent to After Care Home where she is living in present. The petitioner claims to be a major on the basis of Medical report and her own statement. 10. It appears from the order dated 23.4.2013 passed in Cr. Writ No. 301 of 2013 that the judgment passed in Cr. Appeal No. 1572 of 2012 (Manubhai Ratilal Patel through Ushaben vs. State of Gujarat and Ors.) decided on 28th September 2012 reported in (2013) 1 SCC 314 was not placed before that Bench of this Court as such that Bench had no occasion to consider the aforesaid decision of Hon’ble Supreme Court. In Cr. Writ No. 301 of 2013 a prayer was also made to set aside the order dated 6.3.2013 passed by learned Chief Judicial Magistrate but in this case there is no such prayer. In Cr. Writ No. 301 of 2013 a prayer was also made to set aside the order dated 6.3.2013 passed by learned Chief Judicial Magistrate but in this case there is no such prayer. Secondly, the petitioner (Noor Saba) had married Mobark Hasan (respondent no.3) and her husband and mother-in-law, Khurshida Khatoon, were willing to take her to their home and as such the petitioner Noor Saba was directed to be produced before the learned Chief Judicial Magistrate to set the petitioner free so as to enable her to join her husband and mother-in-law. Secondly, it has been held in the case of Manubhai Ratilal Patel through Ushaben (supra) by Hon’ble Supreme Court that writ of habeas corpus was devised for production of an individual in case of illegal restraint or confinement. Habeas corpus petition cannot be entertained when a person is committed to judicial custody or police custody by a competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. It appears that Hon’ble Supreme Court after considering the several decisions has held that writ of habeas corpus cannot be entertained when a person is in custody by an order of competent court. It is better to quote paragraph 31 of the aforesaid judgment:- “31. ……. It is well-accepted principle 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 manner or wholly illegal. As has been stated in B. Ramachandra Rao and Kanu Sanyal, the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction 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. 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.” 11. Considering the facts and circumstances stated above, the writ of habeas corpus is not maintainable. 12. The petitioner is at liberty to move the learned Chief Judicial Magistrate, Rohtas at Sasaram who has sent her to After Came Home, Gaigaht Patna for redressal of her grievance, which would be disposed of expeditiously in accordance with law. 13. With the aforesaid observation, this petition is dismissed.