SINGH, J. - (1.) HEARD the learned counsel for the petitioners.
(2.) BY this petition, filed under Article 226 of the Constitution of India, the petitioner Budh Ram has prayed that a Writ of Habeas Corpus be issued and Kum. Kamla daughter of Jagga Ram resident of Sadulsahar District Sri Ganganagar, who is presently lodged at Nari Niketan, Jaipur be set free. The facts of the case may be briefly summarised below: Kum. Kamla daughter of Jagga Ram resident of Sadulsahar, left the house of her father about four months before she was recovered by the police officer. A complaint was filed in the court of Civil Judge (JD) and Judicial Magistrate, First Class, Sadulsahar containing the allegations that she had left the house of her pare-nts and started living with Jaswant Singh. The complaint was sent to the Station House Officer of the Police Station, Sadulsahar, under Section 156 (3) of the Criminal Procedure Code and the First Information Report No. 120/99 was registered at the Police Station. During the investigation Kum. Kamla was recovered from the house of Jaswant Singh. She was produced before the Judicial Magistrate, Sadulsa-har. Jaswant Singh was also arrested by the police and he was remanded to the Judicial Custody. Medical examination of Kum. Kamla was got done and, according to Medical Report, Kum. Kamla was found to be between 15 to 16 years of age. However, when Kum. Kamla was produced before the Judicial Magistrate, she stated her age to be 18 years. She further stated that she had been living with Jaswant Singh for the last four months and that she was not prepared to return to the house of her parents as she apprehended danger to her life. She further expre-ssed her desire to go back to the house of Jaswant Singh. In view of the facts and circumstances of the case, the Judicial Magistrate, by his order dated 12. 06. 1999, directed that Kum. Kamla be kept at Nari Niketan, Jaipur. The learned counsel for the petitioner has submitted that Kum. Kamla is 18 years old, according to her own statement made before the Judicial Magistrate, Sadulsahar and, therefore, she should be treated as a major lady. Regarding the Medical Report which states that Kum. Kamla is 15 to 16 years old, the learned counsel for the petitioner has submitted that the opinion given by the medical expert regarding age may suffer from a marginal error of two years and, therefore, the medical report cannot be said to be sufficient to show that Kum. Kamla is a mi-nor lady. He has, therefore, requested that this Court should decide the question of age of Kum. Kamla in these proceedings. It is further submitted by him that Kum. Kamla being a major person, has unfettered right to take a decision about herself and the Judicial Magistrate, Sadulsahar and no legal power to direct that she be kept at Nari Niketan, Jaipur. It is further submitted by the learned counsel for the petitioner that, even if Kum. Kamla is found to be a minor, the order dated 12. 06. 1999 passed by the Judicial Magistrate, Sadulsahar, is without any jurisdiction because under the Criminal Procedure Code, 1973, the Judicial Magistrate has no power to detain any witness against her will. In other words, the submission of the learned counsel for the petitioner is that detention of Kum. Kamla in the Nari Nike-tan, Jaipur in pursuance of the order dated 12. 06. 1999 is without jurisdiction and is violative of Article 21 of the Constitution of India. He has, therefore, prayed that this petition should be admitted, a Writ of Habeas Corpus be issued and Kum. Kamla be set free so that she may go wherever she likes. After careful consideration of the submissions made by the learned coun-sel for the petitioner, we are not inclined to admit this petition under Article 226 of the Constitution of India.
(3.) THE age of Kum. Kamla has been found to be between 15 to 16 years of age, by the medical examination. No school certificate is available probably because she did not attend any school. THE allegations made by her parents are that she is a minor and these allegations are prima facie supported by the medical report. In proceedings under Article 226 of the Constitution of India, the disputed question of age cannot be decided by this Court. If any authority is needed for this view, a reference may be made to the decision of the Hon'ble Apex Court in the State of Kerala & ors. vs. O. C. Kuttan and Ors. (1 ). In that case, the High Court, in a writ petition filed under Article 226 of the Constitution of India, determined the age of the girl and held that no offence had been committed by the accused-persons. THE Hon'ble Supreme Court observed:- ". . . . we have no hesitation to come to the conclusion that the High Court committed gross error in embarking upon an inquiry by shifting of evidence and coming to a conclusion with regard to the age of the lady on the date of alleged sexual intercourse, she had with the accused persons and also in recording a finding that no offence of rape can be said to have been committed on the allegations made as she was never forced to have sex but on the other hand she willingly had sex with those who paid money. " We, therefore, decline to accept the prayer that we should decide the question of age of Kum. Kamla in the present proceedings instituted under Article 226 of the Constitution of India. Since the question regarding age of Kum. Kamla cannot be decided by this Court in the writ petition filed under Article 226 of the Constitution of India, it would be proper to take into consideration the medical report regarding the age of the lady. The medical report, as noted by the learned Judicial Magistrate in his order dated 12. 06. 1999, shows that Kum. Kamla is 15 to 16 years old. In our opinion, the medical report is sufficient to prima facie establish that Kum. Kamla is 15 to 16 years old and is a minor unmarried female below 16 years. ;