IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.823 of 2011 Gangajali Devi w/o Pawan Sahni, daughter of Vineshwar Sahni, resident of village-Jhitkahiya, P.S. Lakhaura (Muffasil),District- East Champaran. Versus 1.The State Of Bihar through the Secretary, Department of Personnel and Home, Patna, Bihar. 2. The Secretary, Ministry of Social and Welfare, Patna, Bihar. 3. The Director General of Police, Bihar, Patna. 4. The I.G.(Prison),Patna, Bihar. 5. The District Magistrate, Patna. 6. The S.S.P.,Patna. 7. The Superintendent, Nari Niketan, Gaighat, Patna. 8. Vineshwar Sahni son of late Manshi Sahni, resident of village- Jhitkahiya Bichha Tola, P.S. Lakhaura, District- East Champaran. 9. Pawan Sahni s/o Bherkhi Sahni, resident of village – Jhitkahiya, P.S. Lakhaura, District- East Champaran. --------- 2 19.8.2011 We have heard learned counsel for the petitioner. The petitioner is an illiterate. She claims with reference to her statement, as recorded by the Magistrate under Section 164 Cr.P.C., that she is about nineteen years of age. By this writ application she prays for her release from Nari Niketan (After Care Home), Gaighat, Patnacity where she is lodged pursuant to the order of learned Chief Judicial Magistrate, Motihari. On her behalf it is submitted that she being a major cannot be kept in Nari Niketan (After Care Home). Prima facie, the submission is legal and attractive but on closer scrutiny we find that it is totally misconceived. In the writ petition, in support of her age, the only document that has been annexed is her statement under Section 164 Cr.P.C. where she claims to be nineteen years of age and allegedly her age is 2 assessed at nineteen years by the Magistrate. It appears that the father of the petitioner lodged Lakhaura (Muffasil)P.S.Case no. 72 of 2010 on 26.4.2010 under Section 366A/34 of the Indian Penal Code, inter alia, alleging that in the night they found the petitioner missing. They learnt that probably she has eloped with one Pawan Sahani. In the writ petition it is stated that she was recovered and brought before the Magistrate for recording her statement under Section 164 Cr.P.C. where, as noticed above, her age was assessed at nineteen years but notwithstanding that she was remanded to by the learned Chief Judicial Magistrate to Nari Niketan (After care Home), Gaighat, Patnacity. Her further case is that she was in love with Pawan Sahni and both of them being major had ran away from their home and got married. They were living their conjugal life peacefully, which has been interrupted by the case lodged by her father. It may be noticed that in the FIR lodged by her father he has disclosed petitioner’s age to be about fourteen years. Upon questioning by the Court as to how and from where they were arrested, was she ever medically examined and what were the orders of learned Chief Judicial Magistrate, nothing was pleaded nor brought on record. Learned counsel for the petitioner fairly produced a copy of the police case diary. He fairly submits the fact thereafter. He pointed out that the girl and the boy were recovered by the police from Motihari. The boy was remanded 3 to judicial custody and as per his instruction, he has now been released on bail which is the said boy Pawan Sahni, who has sworn affidavit in the present case. The girl after getting her statement recorded under Section 164 Cr.P.C was produced in the Court of learned Chief Judicial Magistrate, who ordered for medical examination. A Medical Board was constituted and she was duly examined and the Board found her age to be 15-16 years. In our view that closes the case. We have seen the photographs of the girl and boy. Without giving any finding we may just record our view in the matter. We feel that both are minors. The boy looks younger than the girl. Both are illiterate. The girl is obviously illiterate because every where it is her thumb impression that is being used as her signature including the Vakalatnama, as filed before this Court. We may refer to Rule 22 of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 and in particular Rule 22(5) as well as Rule 12 of the Juvenile justice (Care and Protection of Children)Rules, 2007, as framed by the Central Government, to show that legislature have provided that a margin of one year has to be given for the benefit of juvenile when the age is determined by Medical Board. Taking that statutory provision, the age of the girl would not make her major by any sense. In that view of the matter we are unable to accede to the request of the petitioner. Even the writ petition would not be maintainable by a minor without it being represented by her 4 guardian. In our view, she can only be released to the custody aof natural parents, if she so wants but so long the minority continues she cannot be released to her so called husband or to his parents. The writ petition is accordingly disposed of. Let a copy of this order be sent to the Superintendent, After Care Home, Gaighat, Patnacity and to the Court of learned Chief judicial Magistrate, Motihari. Singh ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J)