Civil Misc. Habeas Corpus Writ Petition No. 24382 of 2009
Kumari Ajra Khan............................................................Petitioner
State of UP and others.................................................Respondents
Hon'ble Amar Saran, J.
Hon'ble D.R. Azad, J.
Heard Shri Amit Kumar Singh, learned counsel for the petitioner, Shri Pradeep Kumar Shukla, learned counsel for respondent No. 6, Juber Ali, the brother of the petitioner and learned Additional Government Advocate.
Km. Ajra Khan has been produced before this Court today in pursuance of our order dated 9.7.2009.
By means of this writ petition the petitioner has challenged an order dated 9.4.2009 passed by the Sub Divisional Magistrate, Patiali, Kashiram Nagar whereby she was sent to the Nari Niketan, Kanpur Nagar.
This case was initiated on a report of the LIU, district Kanshiram Nagar dated 5.3.2009 which noted that Km. Ajra Khan had disappeared from her home and her family members were alleging that Rajdeep Pandey and others had taken her away. The LIU report further mentioned that although there was no report at any police station, but as there were rumours of some entanglement of Km. Ajra Khan with Rajdeep Pandey, the matter had acquired communal overtones in Kasba Sidhpura.
Ajra was produced before the SDM on 9.4.2009, along with a report of the S.O., P.S. Siddhpura. In the report, it was stated that Km. Ajra Khan had herself contacted the police station and pointed out that she had done her M.A. and she was major, her date of birth being 10.5.1982. As her family members were ill treating her she wanted to live independently and to earn her own livelihood. She denied any relationship with Rajdeep. She also made some allegation against her brother Zubair Ali and stated she was not willing to go to her house and that Rajdeep should not be harassed on that count.
However, the S.D.M. considering the matter to be communally sensitive, and also on account of the fact that no family member was willing to take her, sent her to the Nari Niketan, Kanpur Nagar by the impugned order.
We have also ourselves examined Km. Ajra Khan. She stated that she does not want to stay in the Nari Niketan and wants to live independently and she would like to be sent under police escort to Ghaziabad where she desires to reside.
Learned counsel for the petitioner has challenged the order of the S.D.M. on the ground that the S.D.M. has no authority whatsoever to order the detention of Km. Ajra Khan, who was admittedly major, her date of birth being 10.5.1982. He rightly pointed out that no provision has been mentioned under which she has been sent to the Nari Niketan. He pointed out that under section 97 Cr.P.C. search warrant can be issued if the S.D.M. has reason to believe that any person has been confined under circumstances which amount to an offence and that after such a person is recovered, the Magistrate can pass an order as to appropriate custody. In the present case admittedly no FIR or complaint has been made against any person, and Km. Ajra Khan had herself approached the police station and expressed a desire that she be allowed to go where she pleases, but instead her confinement at the Nari Niketan was directed.
Likewise, section 171 Cr.P.C. also cannot be utilised for placing her in the Nari Niketan. The proviso to the said section only mentions that if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond. This is not the situation in the present case.
Learned counsel for the petitioner drew our attention to a division bench decision of this Court in Smt. Parvati Devi Vs. State of UP and others, 1982 (19) ACC for the proposition that a person cannot be compelled to stay in Nari Niketan against her wishes, and that sections 97 and section 171 Cr.P.C. cannot be utilized for that purpose.
Learned counsel also referred to the case of the Apex Court in Gian Devi Vs. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234 for the proposition that when a person had crossed 18 years, no fetter can be placed upon her choice of the person with whom she wants to stay and that the Court or the relations of the petitioner cannot substitute their own opinion or preference for that of the petitioner in such a matter. The fact that such a petitioner has been cited as a witness in a case is no valid ground for her detention in Nari Niketan against her wishes. When the petitioner has stated unequivocally that she does not want to stay in Nari Niketan, her detention therein cannot be held to be in accordance with law.
Learned counsel for the petitioner also referred to the case of Idrish Mohd. Vs. Memam and another, (2000)10 SCC 333, where again the Apex Court has emphasised that as the documents in that case indicated that the petitioner had attained majority and that High Court's order indicated that the detenu wanted to go with the appellant, hence the authorities of the Nari Niketan were directed to release her forthwith.
From a perusal of the cases, it is apparent that the present case stands even on a better footing than the aforesaid cases so far as the petitioner, who is admittedly over 26 years in age, and who has unequivocally expressed her wish to live independently, and who has not even been recovered in connection with any crime and has in fact appeared before the police herself and made the prayers as above.
Learned Additional Government Advocate, however, contended that sometimes such an order directing that a female be detained in the Nari Niketan is passed by a Magistrate because the matter has become communally sensitive or the issue may give rise to law and order problems. We must make it quiet clear here, that no absolute power or absolute discretion is vested in any authority, whether he be a Magistrate or any superior officer or Court to act as per its own ipse dixit. They are all bound by the "Rule of Law'' which according to Prof. Dicey in contradistinction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. It is imperative therefore for the Magistrate to act within the four corners of the law and a woman cannot be detained interminably because her natal family members are not coming forward to take her home, if she happens to be major and has expressed her wish to live independently.
Learned AGA has also drawn out attention to section 98 Cr.P.C. This provision deals with complaints made on oath of the abduction or unlawful detention of a woman or a female child under eighteen years for any unlawful purpose before a District Magistrate, SDM or other Magistrate of the 1st Class. The concerned Magistrate may order immediate restoration of such woman to her liberty, or of such female child to her husband, parent , guardian or other person having lawful charge of such child. It is obvious that the aid of this provision could also not have been taken by the Magistrate for ordering the detention of Ajra in the Nari Niketan. Notably, this section itself provides that in the case of a major woman she has to be restored "to her liberty."
One other case cited before us: Smt. Raj Kumari Vs. Superintendent, Women Protection House, Meerut and others, 1997(35 ACC 1, lays down that no adult woman can be compelled to stay in a Government Protection House against her wishes.
In another Division Bench case, Mrs. Kalyani Chaudhari Vs. State of UP and others, 1978 Cri.L.J 1003 it was mentioned that no person can be kept in a protective Home unless she is required to be kept there either in pursuance of the Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home.
In view of what has been indicated hereinabove, the writ petition succeeds and is allowed. The order of the SDM, Patiali dated 9.4.2009 is hereby set aside and the detention of Km. Ajra in the Nari Niketan is quashed.
Km. Ajra Khan is set at liberty forthwith. She is free to go where she pleases. As she has expressed some anxiety that her relations and others may forcibly try to take her against her wishes, we direct the police constables Smt. Shimla Devi and Pawan Kumar, who have brought her from the Nari Niketan, Kanpur Nagar to drop Km. Ajra Khan at her destination at Ghaziabad where she has expresses her desire to be escorted.
A copy of this order shall be given to the learned Additional Government Advocate within two days for compliance.