Mansa Singh vs Zora Singh and others

Dua, J.—This is a petition u/s 491, Code of Criminal Procedure by one Mansa Singh for the production of one Smt. Gurmail Kaur and her daughter Kuldip Kaur alleging that the Respondents Zora Singh and his father Amar Singh are detaining them both illegally and against their will in their house in village Sidhuwal, Tehsil Patiala. The Respondents, according to the petition, intend to devour the property of Gurmail Kaur and the Petitioner also stales to be apprehensive lest the Respondents do away with Gurmail Kaur''s intant daughter in order to get the property belonging to Gurmail Kaur. It is asserted that Gurmail Kaur owns abouts sixty bighas of land and further that her father owning nearly three hundred bighas has no son with the result that Gurmail Kaur and her sister are entitled to inherit that property. In the petition however, Mansa Singh Petitioner has nowhere stated his interest in the detained persons. The petition opens with the allegation that Gurmail Kaur, daughter of Kishan Singh, of village Kadarpura, Sub tehsil Samana, was living with Kuldip Kaur aged about one year in village Rajgarh, Tehsil Patiala. It is then averred that one Zora Singh son of Amar Singh of village Sidhuwal obtained a warrant u/s 100, Criminal Procedure Code, from the Court of S. Joginder Singh Sekhon, Magistrate, for the production of Gurmail Kaur on the allegation that she was his legally wedded wife and was illegally confined against her will by one Nirmal Singh Patwari. In pursuance of these warrants when the lady with her daughter appeared before the Magistrate, she made a statement that she was unmarried and that she wanted to go to live with her father Kishan Singh. The Magistrate thereupon allowed her to go wherever she liked, but Zora Singh prevailed upon the Assistant Sub-Inspector Incharge of the Police Station to let him have the care and custody of Gurmail Kaur and her daughter which the Sub Inspector did. According to the Petitioner, the Assistant Sub-Inspector also obtained the thumb impression of Kishan Singh, father of Gurmail Kaur, on some paper but the lady was not handed over to her father.

A learned Single Judge of this Court issued notice on this petition on 21st September, 1962 and directed Gurmail Kaur''s production in this Court on 26th September, 1962. On the last mentioned date, Gurdev Singh J., before whom the case was listed for hearing, found that the notices had been received back unserved, with the result that 5th October, 1962, was next fixed for the production of Gurmail Kaur. On that date also, notices could not be served. The Court, however, expressed a surprise on the inability of the serving agency to effect service of this Court''s process. Fresh notices were, however, directed to be issued for 15th October, 1962, and a letter was also directed to be addressed to the Superintendent of Police, Patiala, to ensure service of the notices and submission of report to this Court before 15th October, 1962. It appears that the case could not be heard before 24th October, 1962, when Shri M.R. Sharma, Advocate for Zora Singh Respondent, stated that his client had been present at Chandigarh on 15th October, 1962 but since the counsel had not not been given a copy of the petition he had prayed for and secured adjournment. His client, however, did not care to contact him later with the result that the counsel was not in a position to put in any reply on behalf of his client. On behalf of the Petitioner, however my attention was drawn to the report of the Sub-Inspector (S.H.O. Police Station City Patiala) dated 4th October, 1962 from which it appears that Gurmail Kaur was with Zora Singh some time earlier. On Mr. Sharma''s assurance that both the Respondents would actually appear in Court on the next date of hearing, I adjourned the case to to-day.

Zora Singh and Amar Singh have both filed their replies supported by affidavits. The first plea is a preliminary objection questioning the locus standi of Mansa Singh Petitioner to approach this Court with a prayer for a writ of habeas corpus. He described to be no relation of Gurmail Kaur and, therefore, not entitled to file the present petition. On the merits, it is pleaded that Gurmail Kaur, was married to Zora Singh about twenty years ago when she was merely eight years old and that she had been living at his house as his wedded wife. Smt. Shero, sister of Gurmail Kaur, was also married to Ranjit Singh, a nephew of Zora Singh (his real uncle''s son), both the sisters having been married on the same day. Since Gurmail Kaur''s father Kishan Singh had no son, his daughters used to go and live with him quite frequently and about two years back Gurmail Kaur also went to live with her father. Nirmal Singh Patwari, who was friendly with Kishan Singh, father of Gurmail Kaur, developed illicit connections with her and abducted her away, and this in spite of the fact that he was a married man. Before a Magistrate 1st Class, whereas Gurmail Kaur admitted her friendly relations with the said Patwari from whose loins she had also got a daughter, the Patwal declined any connection with her. Both the Respondents, according to their reply had made various applications to various authorities against the improper conduct on the part of the Patwari but without any avail. It is this Patwari who, according to the reply, has put forth Mansa Singh Petitioner to apply to this Court for a writ of habeas corpus though the said Patwari himself also attended this Court on some of the dates of hearing.

Shri Sharma has during the course of hearing also pointed out that this very Patwari was outside the Court room in the beginning but later disappeared.

On behalf of the Petitioner Shri Mohinder Jit Sethi asked for time on the ground that he had just been handed over a copy of the reply and that he wanted to put in a counter affidavit asserting that Gurmail Kaur was not with her father and that she was still in the custody of the Respondents. He further prayed that I should summon Gurmail Kaur''s father to verify whether or not she was with him. In the circumstances of the case, however, I declined both the prayers and called upon the parties to address arguments.

On behalf of the Respondents, my attention has been drawn to page ,59 of "Extraordinary Legal Remedies" by Ferris where it is said that a mere stranger, as a general rule, has no right to make an application for a writ of habeas corpus and that any parson having a special interest, right or authority to the custody or control of the party held, as the parent or guardian of a minor, may sue out the right in his behalf or may authorise another to do so. The Petitioner has, however, submitted that this rule has not been approved by this Court and has in this connection sought support from a Bench decision of this Court in Mr. Virendra Kumar Tripathi v. The Crown (1950) 52 P.L.R. 60. The first head-note on which reliance has been placed reads thus:

Section 491, Criminal Procedure Code, provides that any High Court may direct that a person illegally or improperly detained may be set at liberty. This language is very wide. It does not place any limit on the class of person or persons who may move the High Court to set at liberty a person illegally detained. Any stranger nay present a petition on behalf of a detenue. He need not be a relation or friend.

It is obvious that this decision does not go the length the learned Counsel for the Petitioner suggests. The learned Counsel for the Petitioner when told that according to this decision the Petitioner could only present this petition on behalf of the detenues, he asked for permission to amend the petition and make it on behalf of the detenue provided 1 ruled that it was legally so necessary. He, however, urged that since the Petitioner was a neighbour of the detained persons, this application must be presumed to have been made on their behalf but unluckily the petition was silent even on the question of the Petitioner being a neighbour of the detained persons. I may at this stage notice some of the decided cases of this Court and of the Supreme Court dealing with the question as to who should present petitions for writ of habeas corpus.

In In re Hardial Singh AIR 1949 E.P. 130, a Bench of this Court observed that to allow irresponsible persons to move petitions for habeas corpus on behalf of persons about whose affairs they had really no knowledge, merely on account of the existence between them of any political or other affinity, would be prejudicial to the proper and efficient administration of justice and otherwise undesirable. Falshaw J. (as he then was) was a party to this decision (the judgment having been prepared by Achhru Ram J.). I have mentioned this because the judgment in Tripathi''s case (1950) 52 P.L.R. 60 was prepared by the same learned Judge with whom Harnam Singh J., agreed. In Hardial Singh''s case AIR 1949 E.P. 130 a suggestion was made that some rules should be framed by the authorities concerned limiting the right to move such petitions to the detenue, their relations and at the most their friends because that would save a lot of judicial time and a good deal of unnecessary embarrassment to the authorities concerned. In Ramji Lal v. Rex AIR 1949 E.P 67, a decision by Full Bench, Mahajan J. (as he then was) in the course of his judgment after stating that Section 491, Criminal Procedure Code, was very widely worded observed that the Court may be moved by the prisoner or by some relation of his, or it may act suo motu if it acquires knowledge that a certain person has been illegally detained, and that the mode and manner in which the Judge has to be satisfied would not affect the jurisdiction conferred u/s 491 of the Code. Teja Singh J., however, did not express any opinion on the question whether a writ u/s 491 could be issued suo motu by a Judge sitting on the criminal side in Single Bench because that question having not been referred to the Full Bench full arguments were not addressed on it.

8 These cases appear to me to deal with the position before the enforcement of the Constitution which has since made a provision for a writ of habeas corpus along with other petitions under Article 226 of the Constitution. This Court has since made rules for writs of habeas corpus under Article 226 of the Constitution read with Section 491(2), Criminal Procedure Code, and the very 6rst rule lays down inter alia that an application for a writ of habeas corpus shall be filed with the Deputy Registrar and shall be accompanied by an affidavit of the person restrained, stating that the application is made at his instance and setting out the nature and circumstances of the restraint: provided that where the person restrained is unable owing to the restraint to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person, which shall also state the reason why the person restrained is unable to make the affidavit himself. There are also some observations in the well-known judgment of the Supreme Court in Universal Imports Agency and Another Vs. The Chief Controller of Imports and Exports and Others, , which suggests that an absolute stranger may not be entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberat-ing another from an illegal imprisonment: See paragraph 43, page 52 per Mukherjea J., and paragraph 8l, page 65 per S. R. Dass J. (as he then was).

9 In the light of the foregoing discussion and after considering the rival statement of facts disclosed on the present record, I am clearly of the opinion that the present petition by Mansa Singh does not deserve to be proceeded on the merits. It is for this reason that I declined permission to the Petitioner''s counsel to amend the petition. But then, even on the merits a further affidavit by the Petitioner would merely show conflicting sworn statements about the whereabouts of Gurmail Kaur. In such a state of the record I do not think it would be proper on my part to come to an affirmative conclusion that Gurmail Kaur and her daughter are being illegally detained by the two Respondents who must be directed to produce them in Court, for, in case such a direction is disobeyed I will have to proceed for disobedience of this Court''s order by hauling them up for contempt of Court. On the existing record, this, in my opinion, would not promote the ends of justice.

The contention raised by the Petitioner that I have full power suo motu to safeguard the liberty of a citizen need not detain me, for, unless I am satisfied of the reasonable likelihood of a violation of such a fundamental right I do not think I can embark on any investigation on this point.

My decision to dismiss this petition would, however, not disentitle a proper application for a habeas corpus by a person who really claims to be interested in the welfare of the detenues and who would be able to make out a case for interference on the writ side.

In the result, this petition fails and is dismissed.