Harsh Kumar, J.—Heard Sri Paritosh Kumar Malviya, learned counsel for the petitioners, learned A.G.A. for the State and perused the record.
2. Learned counsel for the petitioners contends that petitioner no.1 corpus is major aged about 19 years and petitioner no.2 after giving Talaq to his first wife about one year ago has made marriage with petitioner no. 1 on 30.10.2016,; that the petitioners filed Criminal Misc. Writ Petition No.25090 of 2016 before this Court for quashing the F.I.R. of Case Crime No.1182 of 2016, lodged by respondent no.4 against the petitioner no.2, his mother and brother at Case Crime No. 1182 of 2016, under Sections 363, 366, 506 I.P.C. and Section 3(i)(x) S.C./S.T. Act; that the above writ petition was disposed of by the Division Bench of this Court, vide order dated 13.12.2016 stating that :
"However, considering the submissions made by the learned counsel for the petitioners that the kidnapped girl shall be produced before the court concerned, it is directed that, in case the alleged kidnapped girl Km. Sheelam @ Rehana appears/produced before the court of learned C.J.M. concerned within 20 days from today and moves an application for her medical examination, recording her statement under section 161 Cr.P.C. and 164 Cr.P.C, the learned Magistrate concerned shall fix a date for the same purpose, on that date the first informant & officer in charge of the police station concerned shall be summoned, she shall be produced before C.M.O. concerned by the concerned police officer for her medical examination, thereafter she shall be produced before CJM concerned for recording her statement under section 164 Cr.P.C. the same shall be recorded on the application filed by the I.O./Officer in charge of the police station concerned, till then no coercive step shall be taken against the petitioners, in default of it, it shall be open to the police authority concerned to arrest the petitioners, if she is found major and does not support the FIR version, the petitioners shall not be arrested till submission of the police report under section 173(2) Cr.P.C. but the petitioners shall co-operate with the investigation. In case the alleged kidnapped girl appears to be minor or if she is major but supports the prosecution version, it shall be open to the police authority to arrest the petitioners. In case the petitioners approach the S.S.P. concerned to provide the security for the above mentioned purpose, the same shall be provided to them."
3. That in furtherance of order of Division Bench of this Court the corpus was produced before the Chief Judicial Magistrate, Siddharth Nagar, who has, vide impugned order dated 3.1.2017 at Annexure-4 handed over the custody of corpus, to her father-respondent no.4 holding her to be a girl between 13-14 years old; that C.J.M, Siddharth Nagar has acted wrongly and illegally in handing over the custody of corpus to her father by relying on the certificate of her date of birth to be 1.6.2003 and discarding the medical report according to which her age was determined at 18 years; that since the order passed by C.J.M., Siddharth Nagar is absolutely wrong and illegal so the writ petition has been filed with the prayer that the order dated 3.1.2017 passed by C.J.M., Siddharth Nagar delivering custody of corpus to her father is liable be quashed and an order and direction in the nature of mandamus be issued directing the respondents to produce the corpus before the Court and set her at liberty after recording her statement.
4. Learned counsel for the petitioner contended that in the judgement of Apex Court in the case of Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and others, 2013(1) SCC 314, it has been stated that "It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted." He argued that in view of the judgement of Apex Court in the case of Manubhai (supra) the writ of Habeas Corpus is to be allowed.
5. Per contra, learned A.G.A. submits that date of birth of corpus is 1.6.2003, as per school certificate as well as entry in family register, who was enticed away by petitioner no.2 on 18.10.2016 of which incident F.I.R. at Case Crime No.1182 of 2016 was lodged by her father, after making due search, stating that her 14 years old daughter has been enticed away by the petitioner no.2; that in her statement under Section 164 Cr.P.C. at Annexure-3 the corpus has specifically stated that she is educated only upto Class-Vth and so her Transfer Certificate of Class-VIII Annexure-5 stating her date of birth as 09.08.1997, suggesting her to be major on the day of incident, may not be considered to be correct and admissible; that when the education certificate of about date of birth of a person is available, the Court is not bound by the opinion of age given in radiological report and the Magistrate has rightly allowed the application of father of the minor, handing over her custody to the father; that if the petitioner is aggrieved with the impugned order dated 3.1.2017, he has remedy of filing revision under Section 397 Cr.P.C. before the Sessions Judge to challenge to correctness of legality of the order and the writ petition for Habeas Corpus for quashing order dated 03.01.2017 is legally not maintainable; that the custody of corpus the minor daughter of respondent no. 4 has been handed over to him by an order of court of law and neither her custody may be considered to be illegal nor the minor girl may be considered to be in wrongful confinement of her father and natural guardian. He also contended that the corpus is 14 years old minor girl and her alleged marriage with petitioner no. 2 is null & void.
6. It is settled principle of law that illegal or unauthorized detention or confinement of corpus is sine qua non for entertaining a petition for writ of habeas corpus and the custody of a person in pursuance of judicial order cannot be termed as illegal. The fact of the case law relied by the petitioner as follows that the corpus was arrested on 16.7.2012 for the offences punishable under sections 467, 468, 471, 409 and 114 IPC, was produced before the Judicial Magistrate at 4 p.m. on 17.7.2012 and the remand of accused to police custody was granted by Magistrate upto 2 p.m. on 19.7.2012. On 17.7.2012 on application under section 482 Cr.P.C., notices were issued with grant of interim relief to stay further proceedings in respect of investigation. On 19.7.2012 application for bail was moved, which was rejected by the Magistrate and, thereafter, the Sessions Judge also rejected the prayer for bail. Feeling aggrieved, the accused preferred a Habeas Corpus petition before the High Court of Gujarat contending that on account of order of stay passed by High Court in proceedings under section 482 Cr.P.C., the detention was absolutely illegal and non est in law, upon which the High Court narrating the chronology of events, "that arrest of petitioner was affected on 16.7.2012, quashing petition filed on 17.7.2012, stay order was granted at about 4:30 p.m. on 17.7.2012, and remand of accused petitioner to police custody was granted on 17.7.2012 till to 2 p.m. on 19.7.2012 and also noting that the order passed by Magistrate has not been challenged anywhere and has attained finality and also that the stay order passed in proceedings under section 482 Cr.P.C. was served on police authority on 17.7..2012 at 9:30 p.m. and the petitioner himself had preferred an application for bail on 19.7.2012, which came to be rejected and the accused was remanded to judicial custody held that the magistrate had rightly observed that the High Court has stayed further investigation only in above case."
7. The Apex Court further held that "It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal and as has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted."
8. In view of the facts of the case, I find that the above case law being based on different facts, is not applicable in this case and does not support the case of petitioner to any extent. It is not disputed that the respondent no.4 had lodged F.I.R. against petitioner no.2 and others under sections 363, 366, 506 IPC and 3 (i) (x) S.C./S.T. Act for enticing away his 14 years old minor daughter (the corpus) on 18.10.2016. In the order dated 13.12.2016 passed in Writ Petition No.25090 of 2016, the question of minority/majority of the victim has been left to be decided by the Magistrate and the learned Magistrate upon considering the entries in family register, showing the date of birth of corpus as 1.6.2003 and school certificate to the same effect holding the victim (corpus) to be around 14 years old has found that medical certificate is not to prevail and has handed over her custody to her parents. In this way, the corpus is in custody of respondent no.4 under orders of Court dated 15.12.2016 passed by the Magistrate. It is not disputed that the correctness or legality of the order of Magistrate may be assailed by filing criminal revision before the Sessions Judge under section 397 Cr.P.C. and the revisional court if finds it wrong or illegal, may set it aside the validity of above order. However, the petitioner has not challenged the validity of impugned order by filing revision rather has assailed the correctness of order through this writ petition for habeas corpus. It is settled principle of law that if an efficacious alternative remedy is available to a party, the relief may not be granted under writ jurisdiction.
9. Upon hearing learned counsel for the parties and perusal of record and in view of discussions made above, I find that the order passed by C.J.M., Siddharth Nagar is based on evidence on record and may not be termed as based on gross illegality and error. In view of facts on record, the custody of corpus with her father, under order of Magistrate dated 03.01.2017 may not be considered to be illegal and she may not considered under unlawful confinement of her father and the writ petition for quashing the order is misconceived. Since as per material on record the corpus is minor and has been handed over in the custody of father by the court order the writ petition of habeas corpus is misconceived and is liable to be dismissed and is dismissed, accordingly.
10. However, the petitioner no.2 will be at liberty to seek his remedy by filing revision against the impugned order dated 3.1.2017, under Section 397 Cr.P.C., or as advised. Any observation made in the body of order will not adversely affect either party.
