Kulwant Kaur vs State of Punjab and Another

A.S. Nehra, J.—Kulwant Kaur has filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) for

quashing the order dated 29th October, 1993 passed by Shri Dharam Dutt, Sub-Divisional Magistrate, Amritsar, by which order the petitioner has

been ordered to be detained in State Protective Home, Basti Gujan, Jalandar. Briefly stated the facts of the case are that one Kashmir Singh filed

an application u/s 97 of the Code for the search of Kulwant Kaur stating that Kulwant Kaur had been wrongly detained by Pappu S/o Sunder

Singh Comrade resident of Shaheed Udham Singh Nagar, Amritsar. On the application of Kashmir Singh, search warrants were issued u/s 97 of

the Code. Kashmir Singh applicant, Mohanjit Singh alias Pappu and Kulwant Kaur petitioner, who was in police custody appeared before Sub-

Divisional Magistrate, Amritsar, on 29th October, 1993. All the parties present were heard and it was admitted by all the parties that Kulwant

Kaur petitioner is wife of Mohanjit Singh alias Pappu and Kashmir Singh has filed a false application claiming that Kulwant Kaur is his wife. After

hearing learned counsel for the parties, it was held by the Sub-Divisional Magistrate, Amritsar, that Kashmir Singh was not entitled to get search

warrants issued as Kulwant Kaur is the legally wedded wife of Mohanjit Singh alias Pappu. Petitioner Kulwant Kaur charged her husband

Mohanjit Singh with cruelty and ill treatment and refused to accompany him. The application filed by Kashmir Singh was held to be false and the

same was filed and Kulwant Kaur was sent to State Protective Home, Jalandhar.

Mr. D. S. Pheruman has contended that Section 97 of the Code does not empower the Magistrate to order detention of a person who is Sui

Juris, if that person has neither committed nor is likely to commit offence. In support of his argument, he has relied upon Lokumal Kishinchand

Manghnani v. Vivek Arya, 1972 Cri LJ 1564 (Bombay), where in it has been held that the words ""shall make such order as in the circumstances

of the case seems proper"" in Section 100 do not vest in the Magistrate any such jurisdiction, and that 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.

This very point came up for consideration before a Division Bench of Calcutta High Court in Bholanath Goswami v. The Commr. of Police

Calcutta 61 CWN 330 In that case, a lady by name Saraswati Dasi was residing at the house of Bholanath Goswami, who was a lawyer by

profession. Her husband asked for a warrant for the discovery of the lady and a search warrant u/s 100 of the Code of Criminal Procedure was

issued by the Police Magistrate, Sealdah. Pursuant to the said warrant the lady was discovered at the house of Bholanath Goswami and she was

produced before the Magistrate along with her children. The lady refused to go to her husband on the ground that he had treated her with great

harshness and cruelty. The learned Magistrate 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 neutral custody and accordingly, he directed that the lady be sent to Nari

Kalyan Ashram at 22, Canal West Road, Calcutta. When the matter came up before the High Court, it was held that the order of learned

Magistrate directing the lady to be kept in detention was wholly without jurisdiction and her detention at the Nari Kalyan Ashram was in the nature

of an irregular imprisonment which was not warranted by any provision of law. Their Lordships quoted with approval the following observations of

Henderson J, in regard to the scope of Section 100 of the Code of Criminal Procedure.

The section provides that a Magistrate on the person being produced, shall make such order as in the circumstances of the case seems proper. I

am bound to say that in my opinion this order was both ill-advised and indiscreet; nor was her name include in the list of twenty seven witnesses.

She was as much entitled to her liberty as anybody else. The defect of the Magistrate''s order is to deprive her of that liberty and to sentence her to

sort of irregular, imprisonment for no reason whatever.

In Lalmani Devi Vs. The State, . Their Lordships of the Patna High Court also took the same view. It was held that ""the fundatnentl right of

personal liberty is guaranteed to a citizen under Article 21 of the Constitution which, provides that a person cannot be deprived of this right except

in accordance with procedure established by law Section 100 applies, in a case where a person is wrongfully confined irrespective of whether that

person is or is not the victim of kidnapping or abduction. It gives power to the Magistrate to pass such order as he considers proper in the

circumstances of the case but that does not mean that he can lightly and without good cause deprive a person of his or her personal liberty when no

accusation is made that the person has committed or is likely to commit any offence.

From the above discussion, it is clear that the impugned order dated 29th October, 1993 passed by the learned Magistrate is wholly

unsustainable both on merits and also in law. The impugned order is set aside and Kulwant Kaur be set at liberty forthwith and she may go

wherever she likes.