BHOLA NATH BISHAN DASS Vs. DISTRICT MAGISTRATE JULLUNDUR

JUDGEMENT

(1.) THIS is a petition under Section 491 of the Code of Criminal Procedure praying that this Court may issue a writ of habeas corpus against the respondents and for the production in this Court of Smt. Mangri alias Veena and Smt. Nirmala alias vinod minor daughters of the petitioner, now alleged to be under illegal detention in the Rescue Home at Jullundur. The petitioner has alleged that his two daughters are minors and they were abducted from his place at Amritsar by Suriit Kaur, devki Rani, her mother, and Deva in the month of October 1956. After the abduction they were taken to various places and subjected to sexual intercourse against their will. They were recovered by the police from the house of Surjit Kaur in Adarsh Nagar, Jullundur. Prosecutions were registered against several accused persons as the alleged abductors under Sections 363/366, B68/376/109, Indian Penal Code. After the recovery of the girls from the house of Surjit Kaur on 3rd of November, 1956, they were sent to the Rescue Home at Jullundur and they are still there. It is stated that the girls have been writing letters to their father to obtain their release from the Rescue Home as the police was putting pressure on them presumably as to the nature of their evidence in the cases mentioned above. It was further alleged that in order to stop the girls from asking for their release from the Rescue Home a false case under Section 309, Indian Penal Code, was instituted by the police in July 1957, and under the threat of this prosecution the petitioner and his daughters made statements on 4th of July 1957 that the girls might be kept in the Rescue Home. These girls were discharged towards the end of 1957 in the case under Section 309, Indian Penal Code. The petitioner also alleged that after the Order of their discharge he applied to the police for restoration of the girls to him, but the police refused to do so. He then applied to respondent No. 4, Mr. Isa Dass Magistrate for their restoration who sent the application to the Assistant Sessions Judge for disposal, as in the latter Court the cases were committed for trial. The Assistant sessions Judge sent the application back to respondent No. 4 for disposal who dismissed it. The appeal from this order was dismissed by the Sessions Judge on 28-4-1958.

(2.) THE petitioner states that there is no order, executive or judicial, under which his daughters were sent to the Rescue Home and are being detained there from 3rd of November, 1956. The girls did not want to be kept in the Rescue Home and desired to live with their father. Mangti alias Veena the elder daughter, made a statement to that effect in the Court of the Sessions Judge, Jullundur on 23-41958. The petitioner in this application has prayed that the detention of his daughters in the Rescue Home is illegal, mala fide and beyond the jurisdiction of the Courts, and has prayed for the issuance of a writ in the nature of habeas corpus for their being produced in this Court and then being set at liberty. This petition is being opposed by the counsel for the respondents on two grounds. Firstly, it is contended before me that the petition under Section 491 is not competent as the girls are not being detained in public or private custody and are not deprived of their liberty. In the affidavit of the respondent No. 2 who is the superintendent of Police at Jullundur, it is stated that, after the rescue of the girls by the police, they were sent to the Rescue Home, Jullundur, 'since their guardian could not be known at the time they were recovered. ' this Rescue Home is being maintained by the Central Social Welfare Board in co operation with the Central and the State Governments. They fire receiving education there and "their movements are not restricted except to the extent it may be neces-sary in their own interest so that they do not fall into evil habits or in the hands of the undesirable persons. Thus, there is no physical restraint on the movements of Shrimati Mangti and Nirmala and the restraint on their movements is essentially of a moral character. "the learned counsel for the respondents admitted that there is no provision of law under which the girls are being detained there and also conceded that the provisions of the Punjab Suppression of Immoral Traffic Act, 1956, has no applicability. What is argued before me is that in order that such an application under Section 491 should lie, there must be actual physical confinement of a total character. I have been referred to an American case Wales v. Whitney (1885) 114 u. S. 564, where it was stated that something more than moral restraint is necessary to make a case for habeas corpus and that there must be an actual confinement. In that case the person said to be detained had received an order to the effect that a general Court martial had been ordered to be convened, and that he should appear and report himself to the Presiding Officer of the Court for trial and he was ordered to confine himself to the limits of the City of Washington. It was held on the facts of that case that that did not amount to actual confinement. The point arising in the American case is of no assistance in determining the question before me. My attention, was also drawn to a decision of a Single Bench in Hazur Ara Begum v. Deputy Commissioner, Gonda, AIR 1934 Oudh 301. for the proposition that the words "detained" and "custody" in Section 491, Criminal Procedure Code, imply some sort of confinement or physical restraint on the liberty of movement of the detenu and that the use of the words "be set at liberty" also support this construction. There is no quarrel with the above proposition. The girls are, to my mind, under a physical restraint and they have not the liberty to leave the Rescue Home it they so desire or if the petitioner, who is their legal and natural guardian, wishes to take them from that institution. It is well known that the writ of habeas corpus is frequently resorted to by Courts at the instance of a guardian -- be be a father or a husband --for the custody of his ward. Ordinarily, no doubt, the basis of the issuance of the writ of habeas corpus is an illegal detention, but in the case of the writ issued in respect of the wife or the child the law is not so much concerned about the illegality of the detention as the welfare of the person detained. "the term 'imprisonment' usually imports a restraint contrary to the wishes of the prisoner, and the writ of habeas corpus was designed as a remedy for him, to be invoked at his instance, to set him at liberty; not to change his keeper. But in the case of infants, an unauthorised absence from the legal custody has been treated, at least for the purpose of allowing the writ to issue, as equivalent to imprisonment, and the duty of returning to such custody is equivalent to a wish to be free; and proceedings in habeas corpus have so frequently been resorted to, to determine the right to possession of a minor, that the question of physical restraint need be given little or no consideration where a lawful right is asserted to retain possession of the child. The writ may not only issue without the privity of the child, but even against its express wishes; and it may issue although the person in whose custody a child is, denies, that he is restraining or preventing the child from returning to his parents, if it appears that he harbours the child and refuses to permit the parents to exercise parental authority to enforce A return" : vide 12 r. C. L. page 1214. The writ of habeas corpus lies where the subject is ft child notwithstanding the fact that the child is not held in actual physical restraint. The scope of the writ of habeas corpus is wide. In the language of Wharton -"besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement from a public prison, it also extends its influence to remove every unlawful restraint of personal freedom in private life, availing for instance, to restore children to the lawful custody of their father, unless he is leading a vicious life" : Vide Wharton's Law Lexicon, 14th edition, page 462. The keeping of the minor girls in a home in this case amounts to imposition of a physical restraint, and that would be so, even if, the minors were agreeable to remain in the Rescue Home through their own inclination. The unauthorised absence from the legal custody of the father at least for purposes of allowing the issuance of the writ is equivalent to imprisonment, and the right to have a minor returned to legal custody is equivalent to being set at liberty. "the unlawful detention of a child, from the person who is legally entided to its custody, is for the purpose of the issue of writ, regarded as equivalent to an unlawful imprisonment of the child. " : Vide Halsbury, 3rd Edition, Volume XI, page 34. Where a person is legally entitled to the custody of a minor, the detention of the minor by any other against the will of the guardian is illegal. In the case of a minor, in order to determine whether the detention is legal or illegal, should depend not upon the consent or the minor but on that of the lawful guardian.

(3.) THE next question is whether this Court has a discretion in issuing the writ. . Mr. Ved Kumar Ranade maintained that the Court is bound to issue the writ at all events, without exercising its discretion, once it is established, that the petitioner is the father and his daughters, who are kept in the Rescue. Home, are minors. The power of this Court in granting writs is not unqualified, but is to be used in the exercise of a sound discretion. The writ of habeas corpus is, no doubt, a writ of right but not a writ of course. It is a constitutional right of a person to demand the writ, but that does not necessarily imply that the writ must issue in all cases. The issuance of the writ of habeas corpus is within the judicial discretion of this Court. This Court may grant a writ "whenever it thinks fit". The provisions of Section 491 make it abundantly clear, that the power is discretionary. The paramount consideration in all such cases must be the welfare of the minor. Courts will be justified in refusing to give the custody of the child to the father -although the father is ordinarily entitled to the custody of his minor children --if he is otherwise an unsuitable person and if the interest of the child would suffer dv the change of the custody. The rule is thus stated by Story : "for, although, in general, parents are entrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that me children will be properly taken care of, and will be brought up with a due education and literature, and morals, and religion, and that they will be treated with kindness and affection. But, whenever this presumption is removed, whenever for example, it is found that a father is guilty of gross ill-treatment or cruelty towards his infant children, or that he is in constant habits of drunkenness or blasphemy or low or gross debauchery or that he professes atheirtical or irreligious principles, pr that his domestic associations are such as tend to the corruption and contamination of bis children, or that he otherwise acts in a manner injurious to the morals or interests of his children -never in such case the Court of Chancery will interfere and deprive him of the custody of his children, and appoint a suitable person to act as guardian and to take care of them and to superintend their education" : vide Story on Equity 3rd Edition page 563, paragraph 1341. I am therefore, of the view that the question whether this petition under Section 491, Criminal Procedure Code, should be granted or refused depends upon the judicial discretion of this Court.