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2020 (3) TMI 1245 - HC - Indian LawsWrit of Habeas Corpus - elope of minor girl - Abduction and forceful and illegal marriage - fake mark sheet and id proofs - victim is a minor and is not willing to go with her parents - HELD THAT:- The Latin phrase habeas corpus means literally that "you", that is, the person with custody over the prisoner, must "have the body" of the prisoner produced in court at the place and time ordered by a judge. The writ of habeas corpus provides individuals with protection against arbitrary and wrongful imprisonment. Habeas corpus writ is most commonly used in India as a remedy in case of preventive detention because in such cases, the validity of the order detaining the detenue is not subject to challenge in any other court and it is only the writ jurisdiction which is available to the aggrieved party. However, the scope of petition of habeas corpus has been expanded over a period of time. A writ of habeas corpus is also preferred for custody of child or in some cases for custody of wife. But, there are certain limitations to this writ. The most important limitation is that before issuing any writ of habeas corpus, the court must come to the conclusion that the detenue is under detention without any authority of law - By now, it is well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus procedure may be examined is the date on which the application for habeas corpus is made to the court. It can be said convincingly that there is a common factor which justifies the detention of the accused and i.e. "the order has to be passed by a court of competent jurisdiction". It is evident that a writ of habeas corpus would not be maintainable, if the detention in custody is pursuant to judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction. It is further evident that an illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand cannot be treated as an illegal detention. Such an order can be cured by way of challenging the legality, validity and correctness of the order by filing appropriate proceedings before the competent revisional or appellate forum under the statutory provisions of law but cannot be reviewed in a petition seeking the writ of habeas corpus. Whether under Section 483 Cr.P.C., a Division Bench of this Court, exercising constitutional powers of issuing prerogative writs, especially writ of habeas corpus, could issue general directions to all the Magistrates/Chief Judicial Magistrates of the State of Bihar for releasing such women and permitting them to go along with the people of their choice, who are minors and are brought before them (Magistrates) with the charge of their having married somebody of their own volition? - HELD THAT:- The power of continuous superintendence of the High Court under Section 483 of the CrPC over the courts of Judicial Magistrates subordinate to it is with a view to ensure that there is an expeditious and proper disposal of cases by such Magistrates. The power of superintendence conferred on the High Court under Article 227 of the Constitution of India or under Section 483 of the CrPC is both administrative and judicial, but such power should be exercised sparingly and only in appropriate cases. Such power cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. The power of superintendence exercised over the courts of judicial Magistrates does confer jurisdiction upon the High Court to intervene in functions of the subordinate judiciary, whose independence is of paramount importance in the discharge of its judicial functions. Keeping in view the role of the Court as parens patriae, it is expected from the court that whatever decision it might take as to the assessment of the age of the victim, it needs to serve the best interests of the girl. Before reaching any conclusion, the court must consider the detrimental effects on a girl child, not only in terms of her physical or mental health but also in terms of her nutrition, education and her general well being. The court cannot pass order against the well being of a child or against his/her interests. Being merely confined within the four walls of a Protection Home cannot be termed as detention for the purpose of writ of habeas corpus. No doubt, the court's order may be termed as improper in that particular case, but that does not invest the order with malafides or illegality. If such orders of the court are improper, it may be corrected by invoking statutory provisions, but by no means, a writ of habeas corpus can be justified in such cases. Petition dismissed.
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