- (1.) THIS is a petition for a writ of habeas corpus on behalf of Pushpa Devi alias Rajwanti Devi through one Guddu resident of village Karaunda, Police Station Nanpara, District Bahraich. A preliminary objec tive was raised on behalf of the State that Guddu had no locus stand to make the petition. Smt. Pushpa Devi alias Rajwanti Devi was summoned by this Court and was produced before Court on 5-12-1994 and had shown her willingness to continue with the petitioner. It does not matter as to whether Guddu was duly authorised by her or stood in some relationship with her or not as the matters are brought to the notice of Court and Pushpa Devi has prayed in person for her release.
(2.) THE first thing to be seen in the case would be as to whether her detention is at all legal and for that matter, the facts may be mentioned in the form that Pushpa Devi, according to her petition had left the house of her own will on 13-6-94 and for that occurrence on FIR was lodged by Shri Teerath Ram, her father on 5-7-1994 which was registered at Crime No. 133 of 1994 under Section 363, 366, I. P. C. According to the petition, she was taken in custody by the police on 26-10-1994 for the purposes of above said first information report and she was also examined before Magistrate for a statement under Section 164, I. P. C. where she had stated that she had married Guddu on her own will and that there was no compulsion except from her parents who were threatening her. After this statement, she has been directed to be detained in Nari Nikatan. An application by her father for custody of her person has been rejected by the Magistrate. It was also contended that Smt. Pushpa Devi is a major and as an alternative argument, it was also contended that she could not be detained even if she was below the age of sixteen years against her own will. No counter-affidavit has been filed on behalf of the State and only this much was argued that she being a minor, cannot be allowed to go without the appointment of a proper guardian. In order to ascertain her correct age, an effort was made to obtain a copy of the scholars registered of her school where she had stated to have studied for some time. However, the Govern ment advocate has informed that according to report of the police persons who had gone to the village he could not contact the Head Master of the school concerned. It is rather strange. If the police officer could not contact the head master he could also not get the record of through any other teacher. In any event, the question of age is not very material in the petitions of the nature of Habeas Corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of a minor against her will unless there is some other reason for it. We have no minds to enter into the questions and decide as to when a particular minor is to be set at liberty in respect of her person or whether she shall be governed by the direction of her parents. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate. Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen could be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Section 363, 366, I. P. C. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no law at least none has been quoted before us where under the Magistrate may direct detention of a witness simply because he does not like her to go to any particular place. In such circumstances, the direction of the Magistrate is that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors.
(3.) IN view of the above reasons, the detention of the petitioner at Nari Niketan or anywhere else against her wishes is against law and accordingly the petition is to succeed. It may also be mentioned here that no challenge to the facts alleged in the petition were put forward at any time on behalf of the State nor any other factor was put forward to justify the detention of the petitioner.;