PARVATI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) This petition for a writ of habeas corpus has been filed on behalf of Smt. Parvati Devi and it questions the validity of her confinement in Nari Niketan, Khulda bad, Allahabad, under the orders of Judicial Magistrate, Handa made in connection with crime case No. 78/81 under Section 365 I. P. C. in which Jokhu, the person who has filed the affidavit in support of this petition, is an accused. Briefly stated the facts giving rise to the petition are that the brother and mother of Smt. Parvati Devi lodged a first information report with the police under Section 366 I. P. C. against Jokhu alleging that Jokhu had enticed away Smt. Parvati Devi who was a minor girl. The police arrested Jokhu and also recovered Smt, Parvati Devi from his house. It produced Smt. Parvati Devi before the Judicial Magistrate Handia and prayed for appropriate orders for her custody. The Magistrate took steps to obtain medical report with regard to age of Smt, Parvati Devi and directed that in the meantime she be kept in the Nari Niketan, Khuldabad, Allahabad. Medical examination report as also the X-ray report submitted to the Magistrate indicated that Smt. Parvati Devi was aged between 17 and 18 years. On 19th of June, 1981, Smt. Parvati Devi's mother, who had earlier moved an application requesting for her custody, stated before the Magistrate that although she was willing to keep Smt. Parvati Devi with her but she apprehended that Parvati Devi may run away from her house. Smt. Parvati Devi claimed that she was major. She showed her disinclination to go with her mother and indicated that she wanted to live with Jokhu accused. In the circumstances, the Judicial Magistrate passed an order that Smt. Parvati Devi should be kept at the Nari Niketan till further orders. It is claimed on behalf of the petitioner that she cannot be kept in the Nari Niketan against her wishes and that the order passed by the Magistrate in that regard is without jurisdiction. In response to the notices issued by this Court respondent No. 2 has produced Smt. Parvati Devi before us. Whereas according to the petitioner she being over 20 years of age has already attained the age of majority, the case of the respondents is that she is a minor and is below 18 years in age. In support of their claim the respondents mainly rely upon the medical examination xeports dated 3rd and 4th of June, 1981 according to which the age of Smt. Parvati Devi is between 17 and 18 years. To us Smt. Parvati Devi appears to be a girl of discernible age and she is in a position to under stand her well being. She has clearly stated that she neither wants to stay in the Nari Niketan nor with her mother and that she wants to live with Jokhu. It is thus clear that she is being kept in the Nari Niketan against her wishes. First question that arises for con sideration is whether, even assuming that Smt. Parvati Devi is aged less than 18 years, can she be compelled to stay at the Nari Niketan against her wishes. Learned counsel for the respon dents relied upon the provisions contained in Section 97 of the Code of Criminal Procedure and contended that Smt. Parvati Devi who was a minor could be compelled to stay at the Nari Niketan. In our opinion the provisions of Section 97. Cr. P. C. are not at all attracted in the instant case inasmuch as Smt. Parvati Devi has not been recovered by the police under the authority of any warrant issued by any Magistrate. Learned counsel for the respon dents then tried to justify keeping of Smt. Parvati Devi in the Nari Niketan on the basis of provisions contained in Section 171 Cr. P. C. which lays down that where a com plainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed. Under this section the jurisdiction of the Magistrate to detain a witness in an appropriate custody arises only when the witness has refused to execute a bond required to be executed by him under Section 170 of the Code of Criminal Procedure which enables a police officer in charge of a police station to require the complainant and such other persons who appear to be acquainted with the facts and circumstances of the case, to execute a bond to appear before the Magistrate. In the instant case the respondents do not claim that the station officer incharge of a police station ever required Smt. Parvati Devi to execute any bond. Accordingly provisions of Section 170 of the Code of Criminal Procedure do not get attracted and no question of a Magistrate passing an order under Section 171 Cr. P. C. arises. Indeed, the case of the respondents is that as Smt. Parvati Devi is a minor and as such she could not be required by the officer incharge of the police station, to execute any bond. If that be so and Smt. Parvatl Devi could not be required to execute a bond under Section 170 Cr. P. C. no question of dealing with her in accordance with the provision of Sections 171 Cr. P. C. could possibly arise. We are, accordingly, of opinion that the confinement of Smt. Parvati Devi in the Nari Niketan Khuldabad, Allahabad against her wishes could not be authorised either under Section 97 or under Section 171 Cr. P. C. The respondents have failed to bring to our notice any legal provision where under the Magistrate has been authorised to issue a direction that a minor female witness shall, against her wishes, be kept in Nari Niketan. In the case of Mrs. Kalyani Chaudhari v. The State of U. P. and other 1978 Cr. L. J. 1003, a Division Bench of this Court has taken the view that no person can be kept in protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or under some other law permitting her detention in such a Home. In such cases the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a protective Home. It, therefore, follows that the present detention of Smt. Parvati Devi in Nari Niketan Khuldabad, Allahabad is illegal and cannot be sustained. In view of the fact that the question of the age of Smt. Parvati Devi is sub-judice and will be gone into by the criminal Court in the trial of Jokhu, we have refrained from expressing any opinion on this point. We would also like to make it clear that no observations made by us in this judgment is to, in any way stand in the way of any person, who claims that Smt. Parvati Devi is a minor, instituting regular proceedings under the Guardian and Wards Act for obtaining her custody in accordance with law. However, as Smt. Parvati Devi, herself claims that she is major and is over 18 years in age, she should be required to execute a personal bond in a sum of Rs. 1,000/- for appearing before the Court of Judicial Magistrate, Handia or any other competent Court whenever her presence is required by such Court in connection with crime case no. 78/81 under Section 366 I. P. C. pending against Jokhu and to further undertake that in case she changes her address mentioned in the bond she would inform the concerned Magistrate about it. In the result, the petition succeeds and is allowed. The respondents are directed to set petitioner Smt. Parvati Devi at liberty on her executing a personal bond in a sum of Rs. 1000/-to appear before the Court of Judicial Magistrate, Handia or any other competent Court whenever her presence is required by the Court in connection with crime case No. 78/81 under Section 366 I. P. C. pending against Jokhu and further giving an undertaking in the bond that in case she changes her address mentioned therein she would convey the necessary information to the concerned Magistrate. After the respondents have set Smt. Parvati Devi at liberty she would be free to go wherever she likes. We further direct that for executing the bond mentioned above and for securing her release in accordance with this order, Smt. Parvati Devi shall be produced by respondent no. 2 before the concerned Magistrate on 3rd of October, 1981. .