MOHAMMAD IKRAM HUSSAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This judgement will govern the disposal of Criminal Appeals Nos. 227 and 228 of 1960. In both these appeals the appellant is one Mohammad Ikram Hussain an advocate of the Allahabad High Court residing in 49, Zero Road, Allahabad. The second respondent in these appeals is one Mahesh Prasad, a resident of 4, Gujrati Mohalla, Allahabad City but who has not appeared in this Court. The other two respondents are the State of U.P. on whose behalf a belated appearance was made by Mr. C. P. Lal, Advocate and the Station House Officer, Kotwalli, Allahabad who was not represented at the hearing. The two appeals are in a sense connected and impugn two orders of the High Court of Allahabad made respectively on August 26,1960 and September 16,1960. They were passed in a proceeding initiated by Mahesh under S. 491, Criminal Procedure Code and Art. 226 of the Constitution for a writ , order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima @ Sheela from unlawful detention by the appellant and for delivery of the said Kaniz Fatima to him. The first order was made by the High Court, overruling the objections of the appellant, directing him to bring before the Court the said Kaniz Fatima alleged to be held in unlawful confinement. By that order the High Court gave the appellant 10 day's time to obey the direction. As the direction was not complied with and Kaniz Fatima was not brought into the Court, the High Court passed the second order committing the appellant for contempt and sentencing him to simple imprisonment for 3 months and to pay the costs. The High Court was moved for a certificate but declined it by its Order dated October 14, 1960. The present appeals have been filed by special leave granted by this Court.

(2.) On July 28, 1960, Mahesh Prasad filed a petition in the High Court of Allahabad against the Station House Officer, Kotwali Allahabad and Ikram Hussain , the appellant. This petition purported to be under S. 491, Criminal Procedure Code and Art. 226 of the Constitution. Mahesh Prasad stated therein that sometime in October 1959 he made the acquaintance of Kaniz Fatima, the daughter of the appellant and a marriage between them took place on December 25, 1959 according to Vedic rites after Kaniz Fatima had embraced Hinduism. Mahesh stated that they used to meet clandestinely and Kaniz Fatima became pregnant. She left home in early June 1960 and went to live with him at his house No. 4, Gujrati Mohalla, Allahabad but on June 23, 1960, the Station House Officer, Kotwali Allahabad searched the house and arrested Mahesh and took away Kaniz Fatima in spite of protests on her part as also on his, Mahesh further stated that he was 23 years of age and that Kaniz Fatima's age, according to the record of the Allahabad municipality was 21 years and according to the medical examination at Dufferin hospital immediately after she was taken away from his house. 19 years. He further stated that prosecution was started against him under Ss. 363, 366, 368 and 376, Indian Penal Code and that, after he was released on bail on July 15, 1960, he searched for his wife but could not find her and learnt that the appellant was keeping her confined against her wishes at Jaunpur. He asked for a writ for the production of Kaniz Fatima in Court and for her release and swore an affidavit in support of his petition. In answer to the notice which was issued by the High Court on July 29, 1960, the Station House Officer, and the appellant appeared before the High Court and put in their affidavits. Before we deal with those affidavits in detail we shall set down the version of the appellant in regard to the disappearance of Kaniz Fatima.

(3.) Kaniz Fatima according to the appellant was a student at the Hamidia Girls' College, Allahabad where she had enrolled herself in July 1958. She appeared for the High School Examination of 1959 but was unsuccessful. The result was announced about the 17th June 1960 and on June 20, 1960 Kaniz Fatima disappeared. The appellant then filed a report in the police station house to the following effect: