TMI Blog2020 (3) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dismissed. - Criminal Writ Jurisdiction Case No.1355 of 2019 - - - Dated:- 5-3-2020 - Mr. Ashwani Kumar Singh, Mr. Ashutosh Kumar And Mr. Birendra Kumar, JJ. For the Petitioner : Mr. Bashishtha Narayan Mishra, Advocate Mr. S,N. Rai, Advocate Mr. B.K. Mishra, Advocate Mr. Brij Kishor Mishra, Advocate For the State : Mr. Pushkar Narain Shahi, AAG-VI Mr. Prabhu Narayan Sharma, A.C. to AAG-VI Amicus Curiae : Mr. Prabhat Ranjan, Advocate. ORAL JUDGMENT Mr. Ashwani Kumar Singh, Heard Mr. Bashishtha Narayan Mishra, learned counsel appearing for the petitioner and Mr. Pushkar Narain Shahi, learned Additional Advocate General-VI for the State. Patna High Court CR. WJC No.1355 of 2019 dt. 05-03-2020 2. This writ petition has been listed before us in view of reference made by a Division Bench which doubted the correctness of the order passed by another Division Bench in Cr.WJC No.991 of 2010 (Sahebi Khatoon @ Sahebi vs. State of Bihar Ors.). 3. In the writ petition, the petitioner has prayed for issuance of a writ in the nature of habeas corpus for her release from the Government After Care Home, Gaighat Patna. 4. The father of the petitioner Asho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet Yadav. She stated that she wants to go together with Dhanjeet Yadav. She has further contended that her family members are inimical to her and she has threat to her life at the hands of one Marmesh son of Ganesh Yadav. 8. After the statement of victim was recorded, an application was filed by the investigating officer before the court of Additional Chief Judicial Magistrate on 18.01.2019 seeking permission to get the victim examined medically at Sadar Hospital Motihari. 9. The said prayer was allowed and the Civil Surgeon, Motihari was requested to depute a lady doctor for medical examination of the victim. 10. Another petition along with a photo copy of admit card issued by the Bihar School Examination Board, Patna was filed on 18.01.2019 by the father of the victim seeking her release in his favour as she was minor and her date of birth recorded in the admit card was 02.01.2002. 11. Vide order dated 18.01.2019, the learned ACJM, Motihari directed the investigating officer to produce the victim along with her medical examination report. 12. On 19.01.2019, the investigating officer produced the victim after her medical examination with medial report. The doctor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court in Sahebi Khatoon (Supra). 21. In the matter of Sahebi Khatoon (supra), the petitioner had married a person of her own choice. Her father filed a written complaint before the officer-in-charge of Azam Nagar Police Station alleging therein that his minor daughter has been kidnapped by one Md. Arif and other eight accused persons. During investigation, Md. Arif was arrested and his wife Sahebi Khatoon was produced before the court of Chief Judicial Magistrate, who sent her for medical examination to get her age assessed and her statement was also recorded under Section 164 of the CrPC wherein she stated that she was not kidnapped but she got married with Md. Arif of her own volition. Since the petitioner was found to be aged between 16- 17 and was also carrying pregnancy of 32-34 weeks as per medical assessment, the learned Chief Judicial Magistrate sent her to After Care Home, Gaighat at Patna. She filed a habeas corpus writ petition for her release. The Division Bench vide order dated 23.09.2010 apart from directing the release of the petitioner from After Care Home also issued an advisory to be circulated to all Judicial Magistrates that in such cases, women o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to live with the person of her choice. In the given facts and circumstances of case, there was no reason to arrest the respondent no.6, and for sending the petitioner to after Care Home at Patnacity. The Chief Judicial Magistrate, Katihar, without considering the legal aspect of the matter, and completely ignoring the medical report, as well as the statement of the petitioner recorded under Section 164of the Cr.P.C, passed an order of remand of petitioner to after Care Home at Patnacity. By passing the impugned order, the C.J.M., Katihar committed illegality also for the reason that even though the petitioner was not an accused in any case, either in a police case or in a complaint case, she was treated as an accused, and sent to Remand Home, which was nothing but illegal confinement of the petitioner. There was no reason for sending her to Remand Home,when she had expressed her desire to go and live with her parents in law. This kind of illegality is being committed repeatedly by Judicial Officers throughout the State of Bihar. In so many cases, of similar facts we have passed such orders, but still we find, similar error being committed by courts, due to which Criminal Wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the court, viz., the power to issue writ of certiorari to correct the apparent error in a judicial order. The Bench was of the view that if by a judicial order, a minor girl was sent to After Care Home, she cannot be said to be in illegal detention. The Bench was also of the view that the order may be improper or it may not have taken into account relevant factors, social/judicial, but remand in an After Care Home cannot be said to be an illegal detention and thereby providing this Court the jurisdiction to issue a writ of habeas corpus. 24. Since the order passed in Sahebi Khatoon (supra) was also by a two-judge Bench, in the instant case, the Division Bench thought it appropriate to refer this matter to Hon'ble the Chief Justice on the administrative side to constitute a larger Bench so that it could be decided whether such a direction could be given and circulated to all the judicial Magistrates/Chief Judicial Magistrates. 25. While referring the case to Hon'ble the Chief Justice to constitute a larger Bench, the Division Bench framed the following issues to be decided by larger Bench :- (1) Whether, in a petition for issuance of writ of habeas corpus, an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t due to the illegal detention in the After Care Home, the petitioner is being denied her right to live with her husband. He has further alleged that the date of birth mentioned in the school certificate and the school register is erroneous. He has further contended that his case is fully covered with the decision of this Court in Sahebi Khatoon (supra). 28. Mr. Mishra, learned counsel appearing for the petitioner has submitted, on the issues referred by the Division Bench, that as the order impugned whereby the petitioner has been directed to be kept in an After Care Home is illegal, a writ in the nature of habeas corpus would be maintainable before this Court. He contended that since Section 483 of the CrPC gives power of Superintendence to the High Court over the courts of Judicial Magistrates subordinate to it to ensure that there is proper disposal of cases by such Magistrates while exercising powers under Article 226 of the Constitution of India, this Court may suo motu exercise such power for quashing an illegal order passed by a Magistrate. He contended that in an appropriate case, this Court would be justified in issuing general directions to all the Magistrates includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched in cases of elopement of minor girls and on recovery, sending them to Nari Niketan/Protection Home/ Care Home. These issues may be summarized as:- (I) Applicability of Supreme Court's judgment in the matter of Jaya Mala (supra) in cases of elopement. (II) Role of courts as parens patriae. (III) Whether release of a minor girl child to the husband would violate the ratio as pronounced by the Supreme Court in the matter of Independent Thought? 31. Before discussing the applicability of writ of habeas corpus in case of remand in contravention of the law, we need to firstly examine the meaning and the scope of the writ of habeas corpus. 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. 32. The meaning of the term habeas corpus is you must have the body . In Halsbury Laws of England, 4th Edition, Vol.11, p.1452, p.768, it is observed : The writ of habeas corpus ad subjiciendum which is commonly k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y regulating Act of 1773. The charter of 1774 gave power to each of the justices of the Supreme Court of Calcutta to issue a writ of habeas corpus. The three Supreme Courts in Calcutta, Bombay and Madras by the Act of Parliament in 1861 were abolished and High Courts were established and the power to issue writs of habeas corpus was inherited by them. This power to issue writ of habeas corpus was taken away from 1875 and new power of the High Court arose under Section 491 of the Code of Criminal Procedure, 1898 to issue statutory directions in the nature of habeas corpus. By Articles 32 and 226, the Supreme Court and all the High Courts got jurisdiction to issue writ of habeas corpus throughout their respective territorial jurisdiction when the Constitution came into force. Patna High Court CR. WJC No.1355 of 2019 dt. 05-03-2020 40. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. 41. In Smt. Maneka Gandhi vs. Union of India Anr., [AIR 1978 SC 597], the Supreme Court held that procedure established by law as contemplated by Article 21 should be just, fair and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint . The form of the writ employed is We command you that you have in the King's Bench Division of our High Court of Justice -- immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody-- together with the day and cause of his being taken and detained -- to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf . The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the matter has considered the matter and pronounced its judgment, it cannot be reopened in a proceeding under Article 32 of the Constitution. The Supreme Court further observed that the writ of habeas corpus could not be granted as a return that the person is in detention in execution of a sentence on indictment of a criminal charge, is sufficient answer to an application for such a writ. 51. In Col. Dr. B. Ramachandra Rao vs. The State of Orissa Ors., [(1972) 3 SCC 256], the Supreme Court held that a writ petition cannot be issued where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal. 52. Thus, it can be held that a writ of habeas corpus could not be issued, firstly, in cases where the detention or custody is authorized by an order of remand issued by a competent court of jurisdiction and secondly, where a person is committed to jail by a competent court by an order which does not appear to be without jurisdiction. 53. On careful perusal of the above discussion, it can be said convincingly that there is a common factor which justifies the detention of the accused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olely because the investigation was stayed, it would not be apposite to say that there was no investigation and the orders passed by the learned Magistrate was flawed. As the orders of remand could not be said to be a part of investigation, the said order was not in conflict with the order passed under Section 482 of the CrPC. Finally, the High Court observed that illegal or unauthorized detention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and the custody of the petitioner being in pursuance of a judicial act, it could not be termed as illegal. 61. Being aggrieved by the order passed by the High Court, the accused challenged the order of remand before the Supreme Court. After extensively dealing with the object, purpose and importance of the writ of habeas corpus, the Supreme Court held as follows :- 24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Thus, we are disposed to think that the order [Manubhai Ratilal Patel v. State of Gujarat, Special Criminal Application No. 2207 of 2012, decided on 7-8-2012 (Guj)] of remand cannot be regarded as untenable in law. 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 [(1972) 3 SCC 256 : 1972 SCC (Cri) 481] and Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , the court is required to scrutinise 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Jurisdictional Magistrate in connection with offence under investigation. In that case relying on the ratio laid down in Saurabh Kumar vs. Jailor, Koneila Jail Anr. (supra) and Manubhai Ratilal Patel vs. State of Gujrat Ors. (supra), the Supreme Court held as follows :- The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail [(2014) 13 SCC 436 : (2014) 5 SCC (Cri) 702] and Manubhai Ratilal Patel v. State of Gujarat [(2013) 1 SCC 314 : (2013) 1 SCC (Cri) 475] . It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3- 2018/19-3-2018 and decided by the High Court on 21-3-2018 [Tasneem Rizwan Siddiquee v. State of Maharashtra, 2018 SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain challenge with regard to correctness of those orders. The High Court, however, considered the matter from the standpoint whether the initial order of arrest itself was valid or not and found that such legality could not be sanctified by subsequent order of remand. Principally, the issue which was raised before the High Court was whether the arrest could be effected after period of investigation, as stipulated in the said order dated 20-6-2018 had come to an end. The supplementary issue was the effect of extension of time as granted on 14-12- 2018. It is true that the arrest was effected when the period had expired but by the time the High Court entertained the petition, there was an order of extension passed by the Central Government on 14-12-2018. Additionally, there were judicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of habeas corpus petition, the High Court was not justified in entertaining the petition and passing the order. (emphasis supplied) 66. We have seen, hereinabove, in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of habeas corpus. 68. We, accordingly, sum up our conclusions in respect of the first three issues for determination as follows:- Question No.1 : Whether, in a petition for issuance of writ of habeas corpus, an order passed by a Magistrate could be assailed and set-aside ? Answer : Our irresistible conclusion in view of the ratio laid down by the Supreme Court in the aforementioned cases is that a writ of habeas corpus would not be maintainable, if the detention in custody is as per judicial orders passed by a Judicial Magistrate or a court of competent jurisdiction. Consequently an order of remand passed by a Judicial Magistrate having competent jurisdiction cannot be assailed or set aside in a writ of habeas corpus. Question No.2: Whether an order of remand passed by a Judicial Magistrate could be reviewed in a petition seeking the writ of habeas corpus, holding such order of remand to be an illegal detention ? Answer: An illegal or irregular exercise of jurisdiction by a Magistrate passing an order of remand can be cured by way of challenging the legality, validity and correctness of the order by filing appropriate proceedings before the competent revisional o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts, which were called upon to hold trials, particularly in cases involving an offence under Section 138 of the Negotiable Instruments Act, 1881, as also in all other cases involving offences which were technical in nature and did not involve any moral turpitude. 75. While granting leave to appeal, a Bench of two learned Judges of the Supreme Court referred the case to a larger Bench, posing the following question for determination: One of the questions which arises for consideration in this special leave petition is as to whether the High Court in exercise of its jurisdiction under Sections 482 and 483 of the Code of Criminal Procedure and/or under Article 227 of the Constitution of India could issue guidelines directing all courts taking cognizance of offences under Section 138 of the Negotiable Instruments Act inter alia to invoke the discretion under Section 205 of the Code of Criminal Procedure and only with a further direction that summons under Section 205 shall be issued at the first instance? Keeping in view the importance of the question involved as also the various decisions of this Court upon which the learned Judge of the High Court has placed reliance, in our o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the inherent power of the High Court under Section 482 of the CrPC or under Article 227 or an extraordinary jurisdiction under Article 226 of the Constitution of India can be invoked only under an extraordinary situation where the abuse of the process of the court or miscarriage of justice is writ large. 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 functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right to make representation. Subsequently, the order of detention was approved by the Home Secretary, Government of Jammu Kashmir and referred the matter to the Advisory Board. Lastly, the Advisory Board also opined that there was sufficient cause for the detention of the detenu. 83. The grounds on which Riaz Ahmad was detained were as follows :- (i) That on Jan. 10, 1981, when the detenu was travelling by a mini-bus, the conductor of the bus demanded fare which the detenu refused to pay and left the bus after administering threats. Subsequently, on the same day detenu along with 7-8 other persons, three of whom were named, stopped the mini-bus at Hari Chowk, Jammu and attacked the conductor Chander Shekhar with a dagger with the intention to kill him and caused injuries to his person. (ii) That on Aug. 1, 1981, around 12 noon the detenu in company of 3-4 other associates took lemon water from Navin Kumar Jain Rehri Wala at Mubarak Mandi and refused to pay for the same and on further demand took out a dagger (khokhri) and threatened saying By demanding money you are inviting your death . 84. While deciding the case of the detenu, the Superme Court observed : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partially fused. Radiological age is between eighteen and nineteen years. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ahadeo vs. State of Maharashtra Anr., [(2013) 14 SCC 637], the Supreme Court has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape. 93. Again, in State of M.P. vs. Anoop Singh, [(2015) 7 SCC 773], the Supreme Court held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape, and a medical opinion can be relied on only in the absence of the documents prescribed in Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 94. It is, thus, clear that age of the victim has to be determined in the same manner as is being done of a person accused of a crime. However, the same is limited only in respect of offences committed under the Juvenile Justice (Care and Protection of Children) Act. The State of Bihar has notified Juvenile Justice (Care and Protection of Children) Rules, 2017 and Rule 54(18)(iv) of the same provides that For the age determination of the victim, in relation to offences against children under the Act, the same procedure mandated for the Board and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a difficult contemplation. Science in this respect does not show exact result and the medical opinion can be given in a range of age and not with certainty. There have been certain decisions while dealing with determination of age of an accused. 101. At this stage, one can aptly refer to the case of Jaya Mala (supra) wherein it has been held . ...However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.... 102. By application of principles of 'margin of error' and 'benefit of doubt', the Supreme Court held the detention order of the detenu Riyaz Ahmad wholly unwarranted and quashed the same. 103. But, can it be said that both the principles are equally applicable in elopement cases as applied in Jaya Mala (supra). The answer to such question cannot be given in a straight jacket formula. 104. No doubt, as far as the applicability of principle of margin or error is concerned, it is equally applicable in cases of age determination of victim because uncertainty in medical science does not differentiate the accused and the victim. However, the principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s patriae. This concept is of much relevance while taking a decision even on the basis of verdict of Jaya Mala's case. 109. 'Parens Patriae' is a Latin term means 'parent of his or her country'. 110. Black's Law Dictionary defines 'parens patriae' as : The State in its capacity of sovereign, a provider of protection to those unable to care for themselves . 111. The parens patriae is a doctrine that allows the State to step in and serve as a guardian for children, the mentally ill, the incompetent, the elderly, or disabled persons, who are unable to care for themselves. It refers to the public policy viz the power of the State Government to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection. Normally, the natural parents and family are expected to take care of their children, but when they fail, the State steps into the shoes of the parents and family to provide some care and protection as their own parents and family should have provided for them. 112. With the passage of time, the principle of parens patriae shifted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if he/she was competent to do so. 118. Conceptually, the Parens Patriae theory is the obligation of the State to protect and take into charge the rights and privileges of its citizens for discharging its obligations. 119. The Directive Principles as well as the Fundamental Rights enshrined in our Constitution make it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert those rights, the State comes into picture and protects the rights of such Citizens. 120. The Preamble to our Constitution read with Article 38, Article 39 and Article 39A makes it amply clear that the State must take up these responsibilities. The State must strive to promote social, economic and political welfare of the people. A harmony needs to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments towards the people. While discharging these commitments, the state ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... girl child below age of 18 years between two categories; (i) those who are married and (ii) those who are not married. The husband can successfully intercourse with his wife, if she is above the age of 15 years irrespective of her consent. However, for all other purposes, the age of consent is 18 years. The petitioner submitted that this classification had no rational nexus with the object sought to be achieved. The rationale for increase of the age of consent in 2013 from the earlier age 16 years, which was the age of consent since 1940 was that a girl below the age of 18 years is incapable of realizing the concept of consent for intercourse and she is treated as minor under the law and thereby mentally and physically not mature enough to give a valid consent. Therefore, consent by a girl of less than 18 years of age is no consent under the law. The petitioner further submitted that if this is the object of increasing the age of 18 years from 2013, then marriage of a girl at the age of 15/16/17 years does not make the girl mature enough mentally and physically for the purpose of consent. 124. Exception (2) to Section 375 of the IPC reads as follows :- Sexual intercourse or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rests' and at this stage, role of guardian becomes important. For minors, it is the guardian who understands their best interests. 131. It is not only the duty of the natural guardian to protect the interests of minors rather the courts are also duty bound to ensure the safety and well being of a minor child. In this light, if one follows the verdict of Sahebi Khatoon (supra) and treat a girl child of 16-17 years as a major, it would be against the notion of parens patriae, as discussed above and it will also put the person of her choice liable to be prosecuted for the offence of rape even in case she decides to marry him out of her own volition and to have sexual intercourse with him. 132. Thus, one of the grounds for presuming the age of a girl in the higher side would be at the risk involved therein, viz such presumption of fact going wrong. However, this reason cannot pre-empt a court to treat a girl child as a major, but the rule of caution needs to be adhered to. Practically, it has been observed that in cases of elopement, a girl is always willing to go to her husband and not to her parents. However, after the judgment of Independent Thought (supra), the courts can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 139. Keeping in mind the discussions made hereinabove and our conclusions in respect of the issues referred to this Bench for determination by the Division Bench, we hold that the general direction issued by the Division Bench in Sahebi Khatoon (Supra) to all the Magistrates of the subordinate courts throughout the State of Bihar to treat the girl as major if she is assessed to be of the age in between 16-17 years as per the medical report and also as per own assessment and in such cases instead of sending such girls to Remand Home or After-Care Home they should be permitted to go with the people of their choice is bad in law. We further hold that in cases of elopement if a minor girl is sent to Protection Home/After-Care Home/Remand Home/Nari Niketan by a judicial order passed by a court of competent jurisdiction, the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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