Jammo v. Superintendent, Govt. Protective Home Meerut
1962-01-09
JAGDISH SAHAI, T.RAMABHADRAN
body1962
DigiLaw.ai
JUDGMENT : JAGDISH SAHAI, J. : Jammo, the petitioner, is the father of Km. Mushtari. and Km. Akhtari who are detained in the Government protective Home, Meerut. The prayer in the petition is that a writ of habeas corpus be issued commanding the respondents to produce Km. Mushtari and Km. Akhtari in Court and to set them at liberty. 2. The facts giving rise to this petition in short are that the Deputy Superintendent of Police, .Meerut (Special Police Officer) Sri. M. C. Rawat, received information that Km. Mushtari and Km. Akhtari were below the age of 21 years and were made to carry on prostitution in house No. 509, Kabari Bazar, Meerut which is situated at a distance of 200 yards from a mosque. Sri Rawat, after satisfying himself by making enquiries, searched house No. 509 (hereinafter referred to as the house) and rescued Km. Mushtari and Km. Akhtari. He has stated in the counter-affidavit sworn by himself that he did not wait to obtain a warrant from a Magistrate because he feared that by the time he did so, the, girls might be removed from the house. After arresting Km. Mushtari and Km. Akhtari he produced them before the City Magistrate Meerut at 5.10 P.M. on 5th of December, 1961, the day he arrested them. The City Magistrate passed the following order with regard to Km. Akhtari : "Km. Akhtari was produced before me with this report today. Let her be medically examined and produced before me on 13-12-1961. For interim custody she will remain in Government Protective Home, Meerut." Sd/- Ranjit Singh City Magistrate and Magistrate I Class, Meerut. D/-05-12-1961 - 5.10. P.M." 3. He passed a similar order with regard to Km. Mushtari. 4. It appears that on the 6th of December, 1961 a bail application was moved on behalf of these two girls before the learned City Magistrate who passed the following order on that application : "Km. Akhtari and Km. Mushtari have already been sent up to the Government Protective Home, Meerut for interim custody. Put up after their medical examination. Sd/- Ranjit Singh, Magistrate I class, Meerut. D/-06-12-61." No further proceedings have taken place in respect of Km. Akhtari and Km. Mushtari. The present application was moved in this Court on the 21st of December, 1961. 5. We have heard Mr. S. R. Kacker for the petitioner and Mr.
Put up after their medical examination. Sd/- Ranjit Singh, Magistrate I class, Meerut. D/-06-12-61." No further proceedings have taken place in respect of Km. Akhtari and Km. Mushtari. The present application was moved in this Court on the 21st of December, 1961. 5. We have heard Mr. S. R. Kacker for the petitioner and Mr. Bhatt, the learned Deputy Government Advocate for the respondents. Mr. Kacker has contended that in the present case the Deputy Superintendent of police purported to act under the provisions of Sec. 15 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereinafter referred to as the Act) and that inasmuch as that section does not provide as to what would happen after the girl arrested under that section is produced Defore a Magistrate under sub-sec. (5) of Sec. 15, the proceedings started by the search terminated and thereafter the person arrested was entitled to be set at liberty, it is not necessary for us to enquire what proceedings the Magistrate would take in respect of these two girls some whether or not a complaint would be lodged against some persons for the breach of any of the provisions of the Act. That is for the Magistrate and the prosecution agency to decide. A certified copy of the complaint in respect of Km. Akhtari filed in this case has been placed before us by Mr. Kacker, the learned counsel for the petitioner. We have also been informed that a similar complaint has been made in respect of Km. Mushtari. The relevant potions of the complaint in respect of Km. Akhtari read as follows : "Sir, Whereas credible information had been received and on inquiry thereupon there is every reason to believe that Kumari Akhtari, d/o Jammo who is apparently below the age of 21 years was being made to carry on prostitution in house No. 509 owned by Seth Shiv Charan Dass occupied by Fayyazi and which is within a distance of 200 yards from a mosque in mohalla Kabari Bazar, Meerut, P. S. Kotwali, The said Kumari Akhtari had been rescued by me on 4-12-1961 from the above noted house. She may kindly be medically examined to ascertain that she is below 21 years of age and that whether she is addicted to sexual intercourse.
She may kindly be medically examined to ascertain that she is below 21 years of age and that whether she is addicted to sexual intercourse. The Court is therefore moved to cause an enquiry into the allegations as mentioned above and issue orders for the detention of Km. Akhtari as provided under S. 17 of the Suppression of Immoral Traffic in Women and Girls Act, 1956." 6. Mr. Kacker's contention is that provisions of S. 17 of the Act are not attracted in the present case. Section 17 reads as follows : "17 (1) When the Special police officer removing a girl under sub-sec. (4) of S. 15 or rescuing a girl under sub-sec. (1) of S. 16, fails to produce her immediately before the magistrate as required by sub-sec. (5) of S. 15 or sub-sec. (2) of S. 16, he shall forthwith produce her before the nearest magistrate of any class, who shall pass such orders as he deems proper for her safe custody until she is produced before the appropriate magistrate. (2) When the girl is produced before the appropriate magistrate he shall, after giving the girl an opportunity of being heard, cause an enquiry to be made as to the, correctness of the information received under sub-sec. (1) of S. 16 and the age of the girl and if satisfied that the information received is correct and the girl is under the age of twenty one years, he may, subject to the provisions of the next sub-section, make an order that such girl be detained for such period as may be specified in the order, in a protective home or such other custody as he, for reasons to be recorded in writing, shall consider suitable : Provided that such custody shall not be that of a person, or body of persons, of a religious persuasion different from that of the girl. (3) In discharging his functions under sub-sec, (2) a magistrate may summon a panel of five respectable persons, three of whom shall wherever practicable be women, to assist him; and may for this purpose keep a list of experienced social welfare workers, particularly women, social welfare workers, in the field of suppression of immoral traffic in women and girls. (4) Against every order under sub-sec. (2) an appeal shall lie to the Sessions Judge whose decision on such appeal shall be final." Mr.
(4) Against every order under sub-sec. (2) an appeal shall lie to the Sessions Judge whose decision on such appeal shall be final." Mr. Kacker has contended that the words "cause an enquiry to be made as to the correctness of the information received under sub-sec. (1) of S. 16 and the age of the girl, and if satisfied that the information received is correct and the girl is under the age of twenty-one years, he may, subject to the provisions of the next sub-section, make an order that such girl be detained for such period as may be specified in the order" show that it is only in respect of a girl who is rescued under S. 16 that an order of detention in a protective home can be passed. Learned counsel has laid stress on the words "of the correctness of the information received under sub-sec. (1) of S. 16" and contended that in the present case the girls were not rescued under Sec. 16 but were arrested under S. 15 or the Act. That S. 15 does not deal with preventive detention but with offences. The argument is that an action under S. 15 can be taken only if the police has reasonable grounds to believe that an offence punishable under the Act has been committed and not otherwise. To supplement the argument, it is further submitted that a minor girl can commit no offence under the Act and the only action that can be taken in regard to her is that she can be put in a protective home. In our judgment this interpretation is not correct, it is not possible to read either S. 15 or S. 16 as self contained sections. Section 15 only confers on a police officer the power to search without a warrant under certain circumstances which power he otherwise has not got. Similarly S. 16 confers on a Magistrate the power to direct a police Officer to rescue a girl. These sections are, therefore, enabling sections which confer certain powers upon certain officers. They do not contain the procedure by which an enquiry will be made or completed. In cases where there is a fear that the time taken in obtaining warrants may be utilised by the girls kept in a brother to escape the police officer has been given the power to arrest without a warrant.
They do not contain the procedure by which an enquiry will be made or completed. In cases where there is a fear that the time taken in obtaining warrants may be utilised by the girls kept in a brother to escape the police officer has been given the power to arrest without a warrant. Similarly, in order to avoid the consequences of the girls being removed from a brothel, before action can be taken, it was necessary to confer on the Magistrates the power to issue an order directing the police officer to rescue a girl. But as we have already said above, these sections do not provide the procedure under which an enquiry is to be made or is to be completed. That is contained in sab-sec. (2) of Sec. 17 of the Act. It is well established that the various provisions of an Act must be read in a harmonious manner so that none of those provisions may be rendered incapable of being administered. The argument of Mr. Kacker that the Act does not provide for any further proceeding after a police officer has produced before a Magistrate the girl or girls who have been arrested under sub-sec. (1) of Sec. 15 of the Act, if accepted, would lead to the result that the law cannot be administered at all because according to him, there is a vaccum in the Act after the production of the girl and consequently even though she is produced before the Magistrate, no orders can, in her respect, be passed. It is not possible for us to accept an interpretation which would lead to such an absurd result. Production of an arrested girl before a Magistrate would be meaningless if he can pass no orders in respect of her. Mr. Kacker does not suggest what would be done after the girl has been produced. She cannot be allowed to go back from where she was arrested for there would be no meaning in arresting her only in order to be made free to go back from where she was arrested. In our judgment the words "as to the correctness of information received under sub-sec.
She cannot be allowed to go back from where she was arrested for there would be no meaning in arresting her only in order to be made free to go back from where she was arrested. In our judgment the words "as to the correctness of information received under sub-sec. (1) of Sec. 16" only mean that the Magistrate shall enquire as to whether or not the girl is apparently under the age of 21 and is living or is carrying on or is being made to carry on prostitution in a brothel. The legislature has put the words "under sub-sec. (1) of Sec. 16" only for reasons of convenience in drafting. There would be no difficulty in the interpretation or administration of Section 17(2) if the same were read in the following manner : "When the girl is produced before an appropriate Magistrate, he shall, after giving the girl an opportunity of being heard, cause an enquiry to be made if she is under the age of twenty one years, is living, or is carrying on, or is being made to carry on prostitution, in a brother, and if satisfied, that it is so and the girl is under the age of twenty one years, he may, subject to the provisions of next sub-section, make an order that such girl may be detained for such period as may be specified, in a protective home, or such custody as he, for reasons to be recorded in writing, shall consider suitable :" It appears to us that instead of bodily lifting and placing the words of Sec. 16(1) in Sec. 17(2) the legislature for the sake of brevity and convenience used the shorter expression of saying "cause an enquiry to be made as to the correctness of information received under sub-sec. (1) of Sec. 16." 3.0After a recovery has been made under Sec. 15 of the Act, it is open to the authorities either to prosecute the persons against whom there is evidence of the commission of an offence punishable under the Act or to apply for the detention of the persons in the protective home. As we have already said above, it is a mistake to read Sec. 15 as a self contained section, it is only a provision which confers a power of search without a warrant on a police officer which he otherwise has not got. Therefore, Secs.
As we have already said above, it is a mistake to read Sec. 15 as a self contained section, it is only a provision which confers a power of search without a warrant on a police officer which he otherwise has not got. Therefore, Secs. 15 and 16 have got to be read along with Sec. 17 and it is for this reason that the legislature stopped short in Sec. 15(5) of the Act after the words "shall forthwith produce her before the appropriate magistrate." It was necessary to do so because after she was produced before a Magistrate, the Magistrate had to decide whether he shall proceed for her detention, under the provisions of Sec. 17(2) of the Act or that an enquiry would be made in respect of a criminal offence. By its very nature Sec. 15 (5) had to stop short at those words. It would be noticed that is exactly the position in Sec. 16 as well because there also the section ends with the words "to remove therefrom such girl and produce her before him (the Magistrate). 8. Having, therefore, given our anxious consideration to the submissions made by Mr. Kacker, we feel satisfied that no illegality attaches to the proceedings which are pending before the Magistrate in respect of Km. Akhtari and Km. Mushtari. We may also state that the law is well established that if proceedings are being taken under some provisions of law, a petition for habeas corpus would not lie (see Janardhan v. State of Hyderabad. 1951 SCR 344 : ( AIR 1951 SC 217 ).) in the present case, it is clear that proceedings are pending against these two girls for action under Sec. 17(2) of the Act for being sent to a protective home, in our view, therefore no question of issuing a writ of habeas corpus arises in this case. We accordingly dismiss this application. Petition dismissed.