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2014 DIGILAW 250 (UTT)

Vashila v. State of Uttarakhand

2014-06-03

U.C.DHYANI

body2014
Judgment U.C. Dhyani, J. 1. By means of present application under Section 482 Cr.P.C., the applicant has assailed the impugned orders dated 15.07.2013 and 21.05.2014, passed by learned Sub Divisional Magistrate, Rurdrapur and learned Sessions Judge, Udham Singh Nagar respectively. 2. Shorn of unnecessary details, it may be said here that one Smt. Manisha wife of Dinesh Kumar, resident of Lalpur, PS Kichha, is detained in Nari Niketan, Haldwani and is in the supervision of Superintendant of such reformatory home. 3. Detenue Smt. Manisha is undoubtedly a major. She is having her husband, uncle, aunty and grandmother, but none came forward to move an application for her release from Nari Niketan, Haldwani. She was detained there on the pretext that there is likelihood of communal disharmony, if she is released from there. She was detained there on the ground of her security also. 4. The question is- can a major woman be detained in a Nari Niketan against her wishes? Whether the respondent no. 2, in exercise of it’s powers under Section 97/98 Cr.P.C., compel an adult woman to stay in a Government Protection Home against her wishes? 5. It was held by Hon’ble Allahabad High Court in Ajra Khan vs. State of U.P., 2010 (1) Crimes 977(All.), that no adult woman can be compelled to stay in a Government Protection Home against her wishes. No woman can be kept in a Protection Home unless she is required to be kept there either in pursuance of the Immoral Traffic (Prevention) Act, 1986 or under some other law permitting her to be kept in such home. 6. It will be useful to reproduce herein paras 13 and 14 of the judgment rendered by Hon’ble Allahabad High Court in Ajra Khan’s case (supra). “13. 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 quite 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. We must make it quite 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. 14. 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.” 7. This Court is not going into the locus standi of the present applicant to file application under Section 98 Cr.P.C. or petition under Section 482 Cr.P.C. Suffice will it be to say that an adult woman cannot be compelled to stay in a Government Protection Home against her wishes. 8. It is accordingly provided that learned Sub Divisional Magistrate, Rudrapur shall call the inmate in his Court and inquire from her as to whether she wants to be released from the Government Protection Home or wants to stay there? If the adult-detenue does not want to stay in the Government Protection Home for any reason, then she shall be released and set at liberty forthwith. If the adult-detenue does not want to stay in the Government Protection Home for any reason, then she shall be released and set at liberty forthwith. Learned Sub Divisional Magistrate is required to keep in mind the law laid down by the Hon’ble Allahabad High Court in the case of Ajra Khan (supra) while passing such an order. 9. The application under Section 482 Cr.P.C. is thus summarily disposed of.