ORDER
1. The petitioner, Lalmani Devi, has filed Criminal Revision No. 98 of 1956 under Sections 435 and 439 of the Code of Criminal Procedure against orders of the Sub-divisional Magistrate of Gaya, directing the issue of a search warrant against the petitioner, refusing to recall that search warrant and remanding her to jail custody. Her prayer is that the orders of the learned Magistrate dated the 26th December, 1955, the 23rd January 1956 and the 31st January 1956 be set aside.
She has filed Criminal Miscellaneous No. 42 of 1956 under Section 491 of the Code of Criminal Procedure and Article 226 of the Constitution of India. Her prayer in this case is that she may be ordered to be set at liberty forthwith. Her father, Ramdeni Prasad, has to-day filed an application under Section 491 of the Code of Criminal Procedure and Article 226 of the Constitution. His prayer is that Lalmani Devi’s application for her release from jail custody should be dismissed, or she should be placed in his custody on her release. All these matters are connected and we are disposing of them all by this judgment.
2. It is necessary to mention some facts in order to appreciate the points which arise for consideration. Ramdeni Prasad is a resident of Daltonganj and Lalmani Devi is his younger daughter. She was living with her elder sister, the wife of Badri Nath Sinha, at Gaya, The date from which she was living there is disputed between the parties. In any case, Lalmani’s allegation is that she married Nawal Kishore Prasad Sinha secretly at Deoghar in December 1954 and that she left her sister’s house in December 1955 and went to different places with her husband.
On the other hand, Badri Nath Sinha filed a written report at the Civil Lines Police Station at Gaya on the 21st December 1955. In that report he alleged that Lalmani Devi disappeared from his house on the 15th December 1955 and that Nawai Kishore Prasad Sinha had enticed her away. He gave the girl’s age as being thirteen or fourteen years. He further stated in his report that Nawal Kishore’s elder brother Ram Ratan Sinha, who was employed as a Sub-Inspector of police met Mm on the 17th December
1955 and told him that he would get the girl returned to Badri Nath Sinha on the 19th December but this was not done. He prayed for action being taken against Nawal Kishore as the latter had kidnapped Lalmani Devi.
3. The Sub-divisional Magistrate of Gaya issued distress warrant against Nawal Kishore and a search warrant for the production of Lalmani Devi. On the 21st January, 1956 Nawal Kishore Prasad Sinha, the accused in the kidnapping case, was produced in custody before the Subordinate Magistrate. Lalmani Devi was neither found nor produced. A prayer for bail was made on behalf of Nawal Kishore, but the Sub-divisional Magistrate went on postponing the disposal of the application on the ground that he would consider it after the girl was produced.
An application for bail, was made before the Sessions Judge who passed an order on the 30th January, 1956 that it would be better if Lalmani Devi herself would come to his court and move the bail petition on behalf of Nawal Kishore on the 31st January, 1556. Lalmani Devi appeared before the Sessions Judge and produced a certificate granted to her by Dr. H. P. Sinha on the report of Dr. T. P. Sinha Professor of Anatomy at the Patna Medical College, to the effect that she was aged about twenty years or above. She also produced before the Sessions Judge an affidavit sworn by her before the Oath Commissioner of this Court.
On a consideration of all the matters then available the learned Sessions Judge directed the release of Nawal Kishore on bail of Rs. 4,000/ with two sureties of Rs. 2,000/- each. In pursuance of this order, Nawal Kishore has been released from custody. Lalmani Devi was, however, arrested when she came out of the Sessions Judge’s Court on the same date, i. e. the 31st January, 1956, She was produced before the Sub-divisional Magistrate on the same date.
A prayer was made before him that she would be released from custody but he remanded her to the Central Jail on three grounds. The
first ground was that she had to be detained because she should be medically examined by a lady doctor in order to find out her age. The second ground was that her statement had to be recorded after she had been in jail custody outside the influence of Nawal Kishore, the accused in the kidnapping case. The third was that there was an apprehension of a breach of the peace if she was released.
The learned Sub-divisional Magistrate fixed the 7th February, 1956 for further hearing of the matter. Nothing substantial appears to have occurred on that date but her statement was recorded under Section 164 of the Code of Criminal Procedure on the 11th February, 1956. In the meantime the application under Section 491 and Article 226 was placed before us on the 9th February, 1956. We then directed that the Sub-divisional Officer should get Lalmani Devi examined by a competent lady doctor and submit her report to this court. Accordingly a lady doctor examined Lalmani Devi on the 15th February, 1956 and her report has been forwarded to us.
4. The first question which has to be considered in this case is whether the detention of the petitioner Lalmani in Jail is illegal or improper within the meaning of Clause (b) of Section 491(1). The learned Advocate General who has appeared on behalf of the state, has not disputed that the Magistrate’s order remanding the petitioner to jail custody is improper. Appearing on behalf of Badri Nath Sinha. Mr. Hareshwar Prasad Sinha has urged that her detention is
neither illegal nor improper because it was open to the Sub-divisional Magistrate under Section 100 to direct her detention in jail custody if he considered that to be proper in the circumstances of this case.
In support of this argument he has drawn our attention to the case of State of Punjab v. Ajaib Singh, AIR 1953 SC 10 (A). In that case, the point which their Lordships considered was whether some provisions of the Abducted Persons (Recovery & Restoration) Act, 1949, were unconstitutional as being in violation of Article 22, Clauses (1) and (2) of the Constitution. In the course of the judgment, their Lordships have observed that recovering and taking into custody of the victims of kidnapping and abduction are not regarded as arrests at all within the meaning of the Code of Criminal Procedure and hence they do not come within the protection of Article 22(1) and (2).
They have further observed that the recovered victims of wrongful confinement and abduction are produced before the Magistrate by reason of the provisions of Sections 100 and 552 of the Code. In our opinion, the decision has no bearing on the question which we have to decide in this case, namely, whether the detention of the petitioner in jail custody in the circumstances of this case was illegal or improper.
5. The fundamental 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 a 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.
We do not think that the learned Magistrate could order the detention of Lalmani in jail custody in the circumstances of this case. Section 552 applies specifically to a case of abduction or unlawful detention of a female. It provides that a Presidency Magistrate or District Magistrate, upon a complaint being made to him on oath of the abduction or unlawful detention of a woman, or of a female child under the age of eighteen years, for any unlawful purpose may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child.
It seems clear from the provisions of this section that a Magistrate can put a female child under eighteen years of age in the custody of any of the persons mentioned in the section but, if the alleged victim is a woman above the age of eighteen years, he has to direct her to be set at liberty,
6. For the reasons given above, we are of the opinion that the Sub-divisional Magistrate’s order remanding the petitioner to jail custody was both illegal and improper. Besides, the petitioner has already been examined by a lady doctor. Her statement has also been recorded under Section 164 of the Code of Criminal procedure. Thus, two of the grounds mentioned by the Magistrate for the petitioner’s detention are no longer in existence. The third ground is that there is an apprehension of a breach of the peace if petitioner Lalmani is released but we do not think that a person ought to he deprived of his or her personal liberty on such a ground.
If parties are likely to commit a breach of the peace, those parties can be proceeded against under Section 107 of the Code of Criminal Procedure, or any other suitable provision of the Code. If the Magistrate desired to prevent a breach of the peace, he should have taken action against the parties who were likely to commit it, instead of directing the remand of the petitioner to jail custody. As the petitioner’s detention — and certainly her continued detention — is undoubtedly illegal and improper, she must be released from jail custody.
7. The question that now arises is whether she should be made over to some particular person, or party for keeping her in safe custody, or she should be set at liberty. The learned Advocate General has vehemently urged that the kidnapping case against Nawal Kishore Prasad will have no chance of success at all if the petitioner is allowed to go with him.
8. We directed the petitioner to be produced in this Court, and she was produced before us yesterday. Her statement was also recorded in this Court. She stated that she wanted to go with Nawal Kishore whom she had married in December, 1954. Her father was present in Court, and we asked her whether she would like to go with him. Her answer was that she would like to go with the man whom she had married, even if there was any danger to her life on that account. She has, therefore, clearly expressed her desire to go with Nawal Kishore.
9. The case against Nawal Kishore is one of kidnapping. The success, or failure of that case would depend upon whether the petitioner is found
to be under, or above eighteen years of age. We have perused Dr. T. P. Sinha’s report as well as the lady doctor’s report. Dr. Sinha has on examination of epihysical union of her bones, “come to the conclusion that she is aged not less than twenty years.
On examination of the different parts of the petitioner’s body, the lady doctor has given the opinion that she is aged about seventeen to twenty years. The petitioner herself has stated that her age is twentytwo years. Her father has sworn on affidavit to the effect that she is aged about fifteen years and he has also produced a horoscope in order to show the date on which she was born.
The Sub-divisional Magistrate, while recording her statement under Section 164 of the Code of Criminal Procedure, has given his own estimate of her age to be eighteen years. It is, therefore, neither desirable, nor possible at this stage to come to a definite conclusion about the petitioner’s age. It will be for the Magistrate trying the kidnapping case to come to his own conclusion on this point after examination of the doctors concerned and the persons who are expected to know the petitioner’s age, and after her alleged horoscope is proved before him, and such other evidence is adduced as the parties may like to give before him.
In the absence of these materials, we can only come to a prima facie conclusion about her age for the purpose of deciding only the matter before us. As we find that Dr. T.P. Sinha’s opinion is that the petitioner is aged twenty years and as the lady doctor’s opinion also does not show that she must necessarily be aged below eighteen years, it seems to us prima facie that she is above eighteen years of age. That being so, she is perfectly entitled to go where she likes, and with whomsoever she likes. As she has expressed her desire to go with Nawal Kishore, we do not see any good reason to direct that she should not go with him.
As we have already mentioned, the case of kidnapping against Nawal Kishore is not likely to suffer on account of any statement made by the petitioner in future because its success or failure will mainly depend upon what is found to be her age. We must repeat that our observations on the question of her age will not be binding upon the Magistrate who tries the kidnapping case and he should not be embarrassed by it. He will come to his own conclusions on this point on the materials before him.
10. In the circumstances mentioned above, It is not possible for us to direct the petitioner to be made over to her father as prayed for by him. As provided in Section 552 of the Code of Criminal Procedure, she has to be set at liberty. Ramdeni Prasad’s application must, therefore, be dismissed. The petitioner is now detained in Bankipur jail. It is directed that she should forthwith be released and set at liberty.
If she likes at the time of release to go with Nawal Kishore Prasad Sinha, no objection should be made or hindrance put in her following that course. If, however, she changes her mind and wishes to go with her father at the time of her release no hindrance should be put in her following even that course.
11. Criminal Miscellaneous No. 42 of 1956 is
thus allowed. Criminal Revision No. 98 is dismissed because it has become infructuous.