IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1214 of 2010 ANUPAM KUMARI @ MINU Versus STATE OF BIHAR & ORS ----------- 3. 30.11.2010. Heard both the sides. Like so many petitions of the same nature, the present writ application has been filed by the petitioner Anupam Kumari @ Minu challenging her remand to the judicial custody, i.e., to the after Care Home, Gaighat by the order passed on 23.9.2010 by S.D.J.M., Masaurhi in Dhanrua P.S.Case No.150 of 2010. The case was registered under Sections 363, 366A etc IPC on the written information given by one Maya Kumari who claims herself to be the mother of the present petitioner. The allegation fundamentally was that her daughter, that’s, with the present petitioner, who was about 14 years of age, had been taken or enticed away by the accused persons named in the FIR. It is not disputed that the girl was found out by the police and was produced before the learned S.D.J.M., Masaurhi. She appears being sent to the doctor for being medically examined and it appears from the order passed by the learned S.D.J.M., Masaurhi on 23.9.2010 that the doctor assessed her age somewhere in between 15- 2 16 years. The petitioner is a young lady who was produced before a Magistrate for her statement under Section 164 Cr.P.C. A copy of the statement is annexed as Annexure-2 to the present petition. She has stated that while she was going with her mother to Masaurhi from her village, the mother of one Pappu Paswan started having some verbal exchanges with that of the petitioner’s mother and while they were engaged in such verbal duel, the lady petitioner slipped out with one Pappu Paswan to Gujrat where he was working in some company. She lived there with him. While she was away in Gujrat in the company of Pappu Paswan, she claims herself getting married to him on the 23rd of July, 2010 and thereafter coming down to Khushrupur to tenant a house so as to living there with Pappu Paswan. It appears that she was located there and was brought to the court where several questions were put to her by the learned Magistrate who recorded her statement under Section 164 Cr.P.C., according to which, the lady could not be said to be taken away or enticed away rather she was a willing partner to get away from a lawful guardian. We are not expressing our opinion on the merits of the police case, which could either be in 3 investigation or which could have reached a finality as regards its investigation. What we are mainly concerned about is the dispute raised by the two learned counsel before us. The objection, firstly, is regarding the maintainability of the present petition which was seriously raised by the learned counsel appearing for the State and secondly, the vires of the order passed by the learned Sub Divisional Judicial Magistrate, Masaurhi was questioned who, after expressing his opinion as to what could be the approximate age of the petitioner, remanded her to the protective custody into Remand Home. It is not unknown in the realm of law that the orders of courts could be brought into question under Article 226 of the Constitution of India. It might be a legal position that such orders may also be challenged before the superior criminal courts but when the order, from its very inception, suffers from lack of jurisdiction or appears passed in complete derogation of established principles of law, then it could be giving rise to a situation where this Court should intervene by exercising its power of superintendence on the judicial side of it. We 4 believe that the petition was maintainable and as such appropriate order could be passed on it. As regards the disputed question of age of the victim, there are various documents placed on record so as to impress upon us that she might be above or around 17 years of age or at least she was approaching 18 years of age. The medical opinion on the age of the petitioner indicates that she was assessed in between 14-16 years. We may look up to Jaya Mala Vrs. Secretary, Government of J & K reported in AIR 1982 SC 1297 It was a case of illegal detention but the legal detention was challenged in another context. It was an order of detention passed for observing the public order and in that case the age of the detenue was brought into question. It was held after considering the opinion of the medical man that after ascertainment of the age of a person which is judicially to be considered, two years have to be added up so as to approximately considering the age of such a person. In the present case, the doctor was of the opinion that the petitioner might be aged about 16 years. As per Jaya Mala (Supra), We add two years and that brings her age to 18 years. When in a case, it appears from the factual 5 records that it might not be a case of enticing away or taking away and if the girl brings herself out of her own lawful guardian and it appears that she might be at the verge of majority as we are of the view, then she could be held legally fit to take some of her own decisions in respect of her life. The learned S.D.J.M., Masaurhi while passing the order on 23.9.2010, was not considering this aspect of the matter and the question of personal liberty of the petitioner and was unnecessarily directing her protective custody in the After Care Home, Gaighat. We, as such, quash the order dated 23.9.2010 passed by the learned S.D.J.M., Masaurhi in Dhanarua P.S.Case No.150 of 2010. The petitioner is free to go wherever she likes. If she chooses to go with accused Pappu Paswan we cannot hinder her movement and liberty. She shall be released forthwith from the After Care Home, Gaighat after completion of the formalities which could be necessary. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)