BHOLANATH GOSWAMI Vs. COMMISSIONER OF POLICE CALCUTTA

JUDGEMENT

(1.) This Rule for a direction in the nature of habeas corpus in respect of the body and person of one Sm. Saraswati Dasi was issued at the instance of the petitioner Bholanath Goswami who claims to be a friend of the lady. The present controversy is really concerned with the custody of the lady, the petitioner and the lady's husband claiming such custody adversely to each other. The circumstances which led to this petition disclose certain unhappy differences between this lady and her husband. In view of the pendency of a criminal proceeding under sections 363 and 365 of the Indian Penal Code against certain persons, it is only proper that we say nothing about the facts which may have any bearing upon the merits of the prosecution. It is, however, necessary to state that according to the lady she had been treated by her husband with great harshness and cruelty and that she, therefore, did not intend to return to him. It is not disputed that the lady is a little over 30 years old and that she is the mother of four children, the eldest of whom is about 14. When the criminal proceeding concerned was instituted by the husband the lady was in fact residing at the house of the present petitioner at Arambagh in the district of Hooghly. The petitioner is a lawyer by profession. In due course the husband asked for a warrant for the discovery of the lady and an appropriate warrant under section 100 of the Code of Criminal Procedure was issued by the learned Police Magistrate, Sealdah Pursuant to the said warrant the lady was discovered at the petitioner's house and was thereafter produced along with her children before the said learned Police Magistrate at Sealdah. A question then arose as to whether the husband should have custody of the lady or she should be allowed to go wherever she liked. It appears that the husband made an application and asked for the custody of his wife. The learned Magistrate, however, came to the conclusion that in view of the pendency of the criminal charge of kidnapping and wrongful detention it was only proper that the lady should be kept in some neutral custody, and accordingly the learned Magistrate directed that the lady be sent to Nari Kalyan Ashram at 22, Canal West Road, Calcutta. This was done on the 4th of June. 1953. While the lady was in detention at the Nari Kalyan Ashram the petitioner made diverse efforts to have access to her. It appears that he made an application to the learned Police Magistrate, Sealdah, seeking an interview with the lady. This application was allowed but the permission accorded to the petitioner to interview the lady was subsequently countermanded, as it transpired that the petitioner had been mentioned as one of the persons concerned in the commission of the offences under sections 363 and 365 of the Indian Penal Code It appears that during the time that the lady remained confined at the said Ashram her husband was allowed all facilities to interview her. After the petitioner had been finally refused access to this lady, he came up with an application in the nature of habeas corpus and obtained the present Rule, which was served not only upon the husband and the Secretary of the Nari Kalyan Ashram but also upon the State. Mr. Banerjee appearing on behalf of the State has intimated to us that the State is not really concerned with the domestic differences which have arisen between the husband and the lady. Mr. Banerjee has also stated with his usual frankness that the order complained of could not be supported. Learned Standing Counsel appearing on behalf of the Ashram has intimated that the Institution is only concerned with its good name and not concerned with the quarrels between the husband and the wife. Mr. Dutt on behalf of the petitioner has contended that his client is solely concerned with the welfare of the lady and her children and that he was obliged to make the present application in view of the inability on the part of the lady to move the Court herself. It is to be observed that the averments necessary in a petition for habeas corpus by a friend are wanting in the petition before us. Moreover, the materials placed before us are not in our view, sufficient for us to decide whether in fact the paramount consideration in making the application was either the welfare of the lady or the welfare of the children. We have, however, had the advantage of finding out from the lady herself her own wishes in the matter. After hearing learned Counsel appearing for the parties we ordered yesterday that the lady be produced before us this morning Pursuant to that order the lady as well her four children were produced this morning. Both my Lord and myself questioned the lady at some length. Her answers to our question were unambiguous and there is no doubt that she desires to be left alone with regard to her future. The foregoing observations indicate that we have had a certain amount of doubt as to whether the present application was competent. In our view, in the absence of necessary averments in a petition such as this, the present petition is not maintainable and it should be dismissed. True, we could give leave to the petitioner to amend his petition, but in view of the presence of the lady before us it is not necessary to do so, We must, however, reject the petitioner's application. That, however, does not dispose of the matter, as we think that the order of the learned Magistrate, dated the 4th June, 1953, ordering the lady's detention at the Ashram was without jurisdiction. In so far as the discovery of the lady was concerned, in our view the Magistrate had ample jurisdiction to issue a warrant under the provisions of section 100 of the Code of Criminal Procedure, provided the learned Magistrate, had reason to believe that the lady was wrongfully confined, or that her confinement appeared to the learned Magistrate to amount to an offence. After the lady had been discovered and produced, the learned Magistrate had to decide as to the next step in the proceeding. Sec. 100 of the Code of Criminal Procedure provides:--

(2.) The question for decision is whether the section empowers a Magistrate to order the detention of any person who is sui juris. The words "shall make such order as in the circumstances of the case seems proper" do not vest in the Magistrate any such jurisdiction. In our view, any order made in exercise of the discretion vested in the Magistrate is subject always to the implied proviso that the order is otherwise legal. In the case concerned the lady was not an accused and could not, therefore, be arrested and detained. As the person was not a minor, nor suffering from any other disability, requiring any special protection any order of detention would inevitably offend against one or more of the fundamental rights of the person concerned. A point similar to this arose in the case of Thakamani Debi Vs. Nepal Chandra Bhattacharyya & anr. (1) reported in 43 C.W.N. 363. Henderson J. speaking of the scope of section 100 of the Code of Criminal Procedure observed as follows:

(3.) In the case before us the lady might conceivably be on important witness for the prosecution. From that point of view, what the learned Magistrate could do was to call upon her to execute a bond to appear when called upon to do so to depose in the case. It is common case that the lady was not asked to do anything of the kind. The question, therefore, is under what provision of law could the Magistrate order the detention of the lady in any particular custody against the will of the lady? Questioned by us the lady stated that she did not desire to be sent to the Nari Kalyan Ashram, that she did not desire to stay there and that her detention had throughout been against her will. She also stated that she had no desire to return, to her husband in view of the treatment he had already meted out to her. Finally, she expressed her desire to be set free leaving her to decide her own future and that of her children.