IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No. 886 of 2010 SANTOSH KUMAR SUMAN Versus STATE OF BIHAR & ORS ----------- 04. 01.09.2010 Petitioner claims to be the husband of Anjali Kumari @ Anjali Bharti, daughter of Pradeep Prasad Yadav, Village – Chakla, P.S. – Ghailar, District – Madhepura. Prayer of the petitioner is for issuance of writ of habeas corpus, directing the respondents to release his wife along with his six months son, since they are in illegal detention in Uttar Raksha Griha at Gayghat, Patna on the basis of illegal order, passed by CJM, Saharsa, dated 13.05.2010. The CJM, Saharsa has passed order in connection with Saharsa Sadar P. S. Case No. 279 of 2009, instituted for the offence, punishable under section 364A/34 of the Indian Penal Code. The informant of this case is the mother of Anjali Kumari @ Anjali Bharti and the accused are friends and sister of the petitioner. As per the allegation in the FIR, the accused persons have abducted the minor daughter of the informant forcibly for some illegal purposes. The petitioner and Anjali Kumari @ Anjali Bharti were apprehended after a considerable long period of institution of the FIR. In the meantime, Anjali Kumari @ Anjali Bharti has solemnized his marriage with the petitioner and she also gave birth to a 2 child at the time of her production before the Chief Judicial Magistrate, Saharsa. She had a baby of 5-6 months in her lap. On production of Anjali Kumari @ Anjali Bharti before C.J.M., Saharsa, she was produced before the Medical Board for ascertaining her age and she was found to be aged about 17-19 years as per the report of Medical Board. The statement of Anjali Kumari @ Anjali Bharti was also recorded under section 164 Cr.P.C., where she disclosed her age about 20 years. She also disclosed that the allegations made in the FIR are incorrect. She had not been forcibly abducted by the petitioner or any other person, rather she left her parents’ house as per her own sweet-will, because she wanted to get married with the petitioner. The Chief Judicial Magistrate must have noticed that the Anjali Kumari @ Anjali Bharti, who as per medical report is aged about 17-20 years, now have a child of six months and she had shown her willingness to live with her husband in stead of her parents, sent her to the Remand Home. It is very surprising that under which judicial provision, Anjali Kumari @ Anjali Bharti, who is major, a married lady, having a child of six months, could have been sent to Remand Home, since she was not an accused and not required to be kept in custody, as no criminal case was pending against her in any Court. 3 Considering all these facts, when the present case was heard by us, we found it to be a fit case in which immediately a release order should be issued in favour of the petitioner so that his legally wedded wife and child could accompany him. However, counsel appearing for the State has raised objection regarding the maintainability of the habeas corpus application, stating that Anjali Kumari @ Anjali Bharti was kept under detention as per the judicial order, the petitioner in stead of filing this writ application for issuance of habeas corpus, should have filed an application for quashing of that order within the appropriate provision, i.e., Section 397 of the Cr.P.C. Without discussing the merit of the judicial order, passed by the Chief Judicial Magistrate, we find that the detention of Anjali Kumari @ Anjali Bharti is patently illegal and she can not be kept now in the Remand Home, even for a single hour. Accordingly, she is directed to be released and directed to accompany her husband from the Court itself. If any legal formalities are there, the Superintendent, Remand Home will comply it and for that the petitioner along with his wife will also cooperate. SKM (Mridula Mishra, J.) (Dharnidhar Jha, J.)