PRABHA SHARMA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) IN this application under Article 226 of the Constitution of India the petitioner Prabha Sharma states that she was born on 10-9-1935 that after the death of her mother, when her father contracted a second marriage, her maternal uncle Prem Narain Kanongo brought her to Dewas and reared her up; that Prem Narain wanted her to marry a relation of his wife, whom she did not like; that, therefore, she asked one Moolchand With whom she was deeply in love to take her away from her uncle's residence and to marry her immediately; that accordingly after informing the police at Dewas she left Dewas with Moolchand on 9-2-1954 and arrived at Gwalior, where she was married to Moolchand on 10-2-1954 according to Vedic rites; that she gave information of the marriage to her father, her uncle Prem Narain and to the Additional District Magistrate of Dewas; that after the solemnisation of this marriage one Ram Narain Kanoongo, Inspector, Civil Supplies, Shajapur, who is not well disposed towards the petitioner, made a report to the police at Dewas against Moolchand of having kidnapped the petitioner; that acting on this report the police registered a case against Moolchand arrested him on 25-2-1954 and later on he was released on bail by the Additional District Magistrate of Dewas; that the District Magistrate of Dewas has also issued a search warrant for the recovery of the petitioner. On these allegations the petitioner claims that the proceedings taken by the District Magistrate Of Dewas and the police violate the fundamental rights of the petitioner and her husband under Articles 19 (d) and (e) and 20 of the Constitution of India. She prays that a direction in the nature Of certiorari or prohibition or of any other appropriate nature may be issued to the non-applicants prohibiting them from proceeding with the investigation or filing of any challan against Moolchand and restraining the District Magistrate from having the search warrant issued by him executed.

(2.) THIS petition was first filed in Gwalior and) oame up for hearing at Gwalior before me and my learned brother Chaturvedi J. At that time Mr. Harihar Niwas learned Counsel for the applicant informed us that the petitioner was in Gwalior and that the District Magistrate of Dewas had issued a warrant Under Section 100, Criminal P. C. executable in Lashkar for the recovery of the petitioner and for her being restored to her uncle. As the District Magistrate of Dewas had no power to issue a warrant Under Section 100, Cripc executable outside the limits of the District of Dewas. I was inclined to admit the petition after satisfying myself that the District Magistrate of Dewaa The petition then came up for hearing tot-fore a Division Bench consisting of my learned brothers Abdul Hakim Khan and Chaturvedi JJL It then transpired that the District Magistrate of Dewas had in fact issued a warrant for the recovery of the petitioner from a certain house in Delhi and that the warrant was to be executed in Delhi with the aid of the District Magistrate of Delhi. My learned brothers, therefore, came to the cosclusion that the petition could not be entertained by the Gwalior Bench and that the applicant should present the petition before the Indor Bench. It is in these circumstances that the petition has come up for hearing before us at Indore

(3.) AFTER hearing Mr. Bhargav learned Counsel for the applicant, I have reached the conclusion that this application is thoroughly misconceiycd and must be dismissed. I think by now it is well-settled that the High Court should not take action under Article 226 unless it is first satisfied that the petitioner has a legal right which has been infringed or is about to be infringed or some illegal wrong has been inflicted upon him or is about to be inflicted upon him; and that the jurisdiction under Article 226 cannot be exercised for the purpose of granting merely declaratory relief. In the present case the petitioner has not been detained by any one in Madhya Bharat and the District Magistrate has not issued any warrant Under Section 100, Criminal P. C. for Use recovery of the petitioner from any place in Madhya Bharat. It is true that the District Magistrate of Dewas has issued a warrant under S. W0, Criminal P. C. to the Station House Officer of police station Dewas directing him to search for and recover the petitioner from the house of one Dr. Jayadayal Singh Chisti, Eye Hospital, Daryaganj, Delhi and to restore her to her uncle at Dewas; and the District Magistrate has no power to issue such a warrant executable in Delhi. But as the petitioner is on her own admission not in Delhi but in Madhya Bharat, execution of the warrant in Delhi would be abortive and no question of granting any relief to the petitioner consequent on the execution of the warrant in Delhi can arise. It cannot therefore, be maintained that the petitioner's right to move freely throughout India or to reside and settle in any part of India haa bed infringed or is about to be infringed. It is not the function of this Court to exercise its jurisdiction under Article 226 for the mere purpose of granting a declaration that the warrant issued by the District Magistrate Of Dewas for the recovery of the petitioner from a house in Delhi is without jurisdiction, if the declaration cannot be followed up by the grant of any relief. If in spite of the patent delect of the jurisdiction in. the warrant, the Station House Officer of Dewat is permitted by the authorities in Delhi to execute bad, in fact, issued such a warrant and that it the warrant and if the petitioner at any future time happens to be in the place named in the warrant, the petitioner' can move the appropriate Court for having the execution of the warrant stayed