JAYA KUMARI @ JAYA BHARTI Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application, the order passed by the Criminal Court, refusing to release the petitioner, has been challenged.

(2.) Having heard Sri Ajay Kumar Thakur, learned counsel in support of the application, I am of the view that though the order of the Criminal Court is legally not correct still the petitioner cannot be released at present. It is alleged that a case has been instituted by father of the petitioner with regard to kidnapping of the petitioner. The petitioner is a school going student. As per the matriculation certificate, she is still a minor. Upon her recovery, she was produced before the Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure where the Magistrate noted her age to be about 16 years though, she professed her age to be 20 years. The Magistrate, considering her to be a minor, sent her to Nari Niketan, Gaighat, Patna. In the meantime, a Medical Board was constituted and the medical report was also on record which suggests that her age would be between 17 to 18 years. In terms of Rule 22(5) of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003, the matriculation certificate is conclusive proof of the age. That being so, notwithstanding medical report, there cannot be any dispute that petitioner is a minor.

(3.) Sri Thakur submits that in her statement under Section 164 of the Code of Criminal Procedure, she has stated that she wants to go with her husband with whom she has lawfully married. Unfortunately, in view of the provision of Hindu Marriage Act, a girl below 18 years or the boy below 21 years are prohibited from marriage. Thus, the husband cannot be said to be lawful guardian in any manner of his wife. Mr. Thakur next submits that the criminal court has found that the girl was minor and was a victim then it should have referred the matter to the Juvenile Justice Board under the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 as an abandoned juvenile (vagabond) and once that is done it would be the Juvenile Justice Board who would decide the fate. Here, he is correct. The criminal court ought not to have dealt with the matter and once they came to a finding that she was a juvenile, the matter had to be referred to the Juvenile Justice Board to pass appropriate orders in the matter.