ORDER
I.S. Tiwana, J.
1. In this petition for a writ of habeas corpus, I vide my short order dt. Aug. 12, 1987, had directed that Kashmir Singh who had been confined to the mental asylum at Amritsar, in the purported exercise of powers under the Indian Lunacy Act, 1912 (for short, the Act), be set at liberty forthwith as I was of the opinion that his detention there was “totally illegal and unwarranted”. Here are the reasons for the said order.
2. The fundamentals that (i) no person can be deprived of his life or personal liberty except according to the procedure established by law (Article 21 of the Constitution) and (ii) in case this Court is satisfied that the custody or detention of a person in a mental asylum is illegal or is in any way violative of the procedure established by law. i.e., the Act, then it is entitled to direct bis release, are not in dispute. Equally not in dispute is the fact that though as per Section 3(5) of the Act, a lunatic has been defined as an idiot or a person of unsound mind, yet the said words remain undefined. Both these terms, however, undoubtedly indicate an abnormal state of mind as distinguished from a weakness of mind or senility following old age. Indisputably a man of weak mental strength cannot be called an idiot or a man of unsound mind. Further it appears beyond dispute that no person can have direct experience of the mind of another and the proper test of insanity is his conduct, A person might conceivably have all kinds of mental unsoundness and all kinds of delusion, but if his conduct remains normal, there does not appear to be any power to deal with him under the Act. It to my mind deals with the conduct of the person concerned and the proper test for conduct is not the belief that another person may entertain. What appears material for purposes of the Act is the conduct exhibited by the alleged lunatic. It is this test which, to my mind, is to be kept in view by the Court while assuming jurisdiction under the Act. The Court is duty-bound to determine judicially keeping in view the distinction between mere weakness of intellect and lunacy as defined in Section 3(5) of the Act as to whether the person alleged to be lunatic deserves to be confined within the four walls of an asylum.
3. The undisputed factual matrix is as follows:
Kashmir Singh, the detenu, is brother of the petitioner. Besides others, they had another brother by the name of Jagir Singh who studied upto matriculation. He, however, became a Sadhu in the latter part of his life and has not been seen or heard of for the last many years. Though he was married four times, yet all his wives died issueless. Respondents to the petition, besides the official authorities, are Rajinder Singh and Manjit Singh, sons of Kashmir Singh. The family permanently resides in village Mohkamgarh, Tehsil Dasuya, District Hoshiarpur. Kashmir Singh also left the village about a decade ago and as per the stand of the petitioner, turned a Sadhu or a Nihang.
4. On Dec. 30, 1981, Kashmir Singh is alleged to have executed a general power of attorney in favour of his son, Rajinder Singh, respondent No. 3. In exercise of this power, the latter sold about 7 acres of land. He also filed a civil suit (Kashmir Singh as plaintiff), for declaration to the effect that the plaintiff was the owner in possession of the suit property being a legal heir of Jagir Singh who had to be assumed to be dead for having not been seen or heard of for the last more than seven years. In this suit the present petitioner, Dial Singh was amongst others a defendant. As a matter of fact the petitioner left for Iraq on July 10, 1982 and on return to his village on January 4, 1987, learnt about this family litigation. Thereafter he started searching for his brother Kashmir Singh and ultimately on Feb. 18, 1987, located him in a Gurdwara at Nangal Badhan, Tehsil and District Hoshiarpur. He brought him to the village on the same day. On the next day, i.e., Feb. 19, 1987, Kashmir Singh went to the office of the Sub Registrar at Desuya and cancelled the ‘ power of attorney, which his son Rajinder Singh had obtained on Dec. 30, 1981. On the same very day, i.e., Feb. 19, 1987, he also appeared in the Court of the Sub Judge where the above noted litigation between the family members was pending and made a statement that his suit be dismissed as withdrawn. The learned trial Judge after recording his statement passed the appropriate order dismissing the suit. Henceforth are the facts on which the parties are at variance.
5. According to the petitioner, respondents Nos. 3, and 4, in connivance with their mother and sister, abducted Kashmir Singh to some unknown place and later got a power of attorney executed from him on Mar. 10, 1987, again in favour of respondent No. 3, under duress and threat. In the light of this authority, Rajinder Singh respondent again sold about 10 Kanals of land on May 6, 1987 and filed a fresh suit for the partition of the land, belonging to Jagir Singh, brother of the petitioner and the detenu. The petitioner claims to have learnt about this power of attorney for the first time on Aprl. 4, 1987 when he put in appearance in Court as a defendant. According to him the respondents and the other family members of Kashmir Singh referred to above, kept his whereabouts a guarded secret. In spite of his best efforts he failed to trace his brother. It was on April 23, 1987 that he received a letter from one Avtar Singh Gill of village Mahalpur District Hoshiarpur, wherein the latter intimated that his brother Kashmir Singh alias Nikka alias Lakhmir Singh was detained in the Mental Hospital at Amritsar and was crying to meet him, i.e., the petitioner. The petitioner received this letter on May 8, 1987 and as a result of that visited the hospital on May 16, 1987. He, however, as per his stand, was not allowed to meet his brother though he was told that Kashmir Singh had been got admitted there by respondent No. 3 and his sister Ranjit Kaur who is a nurse by profession. He further learnt that the particulars and address of Kashmir Singh were fake and the false record had been prepared with a view to keep his identity a secret. In the records of the hospital Kashmir Singh was described as son of Ami Singh resident of Ajnala Road, Amritsar. In a nut shell, the stand of the petitioner is that Kashmir Singh is not a lunatic at all and his confinement in the Mental Hospital was the result of a conspiracy between his family members including respondents Nos. 3 and 4 hatched with a view to deprive him of his liberty and property and to appropriate it to their own use. As against this the stand of respondents Nos. 3 and 4 is that Kashmir Singh is of unsound mind and suffers from schizophrenia. Though he was in a fit state of mind when he executed the power of attorney in favour of his son Rajinder Singh in the year 1981, yet he suffered from a fit of insanity when he got the said power of attorney cancelled on Feb. 19, 1987 and also got the suit dismissed then pending in the Court of Sub Judge at Dasuya. Kashmir Singh was described in the records of the hospital as son of Ami Singh through a sheer mistake. His Amritsar address was given with a view that the person concerned could be contacted easily by the authorities in case of need. Kashmir Singh was admitted to the hospital in his own interest under the orders of the Magistrate and in the light of the certificates issued by the doctors testifying his insanity. According to them, Kashmir Singh is still insane and the present petition has been filed with a view to grab the property belonging to Jagir Singh, brother of the petitioner and the detenu by misleading the latter as he is under the influence of the petitioner.
6. The stand of Dr. H. L. Sharma, Medical Superintendent, Mental Hospital, Amritsar, is that Kashmir Singh was admitted to the Mental Hospital in pursuance of the Reception Order, Annexure R.1, passed by the Sub Divisional Magistrate, Amritsar, on Mar. 20, 1987, and it was founded on two certificates issued by Dr. P. D. Garg and Dr. Yadvinder Singh, certifying Kashmir Singh to be an insane person. He denied that any false record was prepared by the hospital authorities with any ulterior motive or that friends and relatives of Kashmir Singh were , not being permitted to see him in the hospital. He also testified in this affidavit dt. May 30, 1987 that as per the medical reports, “Kashmir Singh was excited and dangerous at the time of admission. However, after treatment for over two months, his condition has improved considerably and was shifted to the New Ward on 4-4-87 which is an open ward. However on 25-5-87, Kashmir Singh aforesaid was shifted to the closed ward as the Medical Officer of the open ward was of the opinion that Kashmir Singh has escaping tendency. At present, he is not dangerous to be at large, however, he is still insane.” The Reception Order, Annexure R. 1 purported to have been passed under Section 7(3) of the Act, reads as follows:
Form-2
Reception order on petition. See Section 7, 10.
To
The Medical Superintendent,
Punjab Mental Hospital,
Amritsar.
No. SDM/Reader/308 dated 20-3-1987.
I the undersigned Bir Inder Paul Singh Kahlon, PCS being the Sub Divisional Magistrate, Amritsar specially empowered by Govt. to perform the functions of a Magistrate under Act IV of 1912 upon the petition of Ranjit Kaur daughter of Kashmir Singh resident of c/o Gurnam Singh Lakha A.No. 66 Police Quarters, Ajnala Road, Amritsar in the matter of patient Kashmir Singh son of Ami Singh r/o c/o Gurnam Singh Lakha Q.No. 66 Police Quarters, Ajnala Road, Amritsar lunatic accompanied by the Medical Certificates of:
1)Dr. P. D. Gargand
2) Dr. Yadvinder Singh both Medical Officers of Punjab Mental Hospital, Amritsar.
Under the said Act hereto annexed hereby authorise you to receive the said patient Kashmir Singh into your asylum and I declare that I have not personally seen the said patient Kashmir Singh before making this order.
(Seal) Sd/- Sub Divisional Magistrate,
Amritsar. 20/3.
This order, as indicated earlier, led to the confinement of Kashmir Singh in the Mental Hospital.
7. At the initial stages of the case when I directed the issuance of notice to the respondents I also appointed an officer of this Court “to go and meet the alleged detenu Kashmir Singh son of Nand Singh in the asylum for lunatics at Amritsar” and to record his statement, if possible, after making sure about his identity as according to the petitioner a deliberate effort had been made to record wrong entries in this regard in the hospital records. In pursuance of this order, Mr. Jai Singh Petial, reached the hospital and after fixing the identity of the detenu in the light of the hospital records and on identification by the petitioner, recorded the statement of Kashmir Singh on May 21, 1987 at 9 AM. in the presence of Dr. Ravinder Mohan Sharma and one Didar Singh, who have also witnessed this recorded statement. The English rendering of the statement runs as follows:
My name is Kashmira Singh. The name of my father is Nand Singh and not Ami Singh. I am resident of village Mohkimgarh, Tehsil Dasuya, District Hoshiarpur. During the month of Phagan, my sons, namely Rajinder Singh and Manjit Singh together with another person, resident of village Vodal, forcibly put me in a car from Gurdwara Garna Sahib, Tehsil Dasuya and took me to Hoshiarpur. Next day, I was taken to Tanda and kept there for 3-4 days/Thereafter, I was taken to Jalandhar in a car. They got me medicine from a hospital. Thereafter, they brought me to Amritsar in the same car and forcibly got me admitted in the medical hospital (Lunatic Asylum) Amritsar. My son, Rajinder Singh gave me severe beating at Tanda. I have not put my signature on any paper. I only intend to go with my real brother, Shri Dial Singh, since I apprehend danger to my life at the hands of my sons, Rajinder Singh and Manjit Singh, my daughter Ranjit Kaur and brother-in-law (wife’s brothers) Niranjan Singh and Harbans Singh.
8. As has been noticed in the earlier part of the judgment, the whole case of the. petitioner is that Kashmir Singh, his brother, has been put under restraint and confinement as a result of some sort of a conspiracy on the part of his family members and as a result of the casual and mechanical working of the authorities, and more particularly of the Sub Divisional Magistrate, Amritsar. They succeeded in lodging him in the mental asylum even though his mental condition in the light of facts and circumstances of the case did not justify any such confinement. Having given my thoughtful consideration to the entire matter in the light of the records, I find much merit in this stand of the petitioner. The facts and factors which stand out prominently from the above detailed narration of events and the records produced before me are as follows:
i) Prior to the filing of the application by Ranjit Kaur daughter of Kashmir Singh (this application bears no date and in the light of the Reception Order, Annexure R. 1, is taken to have been filed on that very day, i.e., Mar. 20, 1987), no conduct has been attributed to Kashmir Singh which could even remotely indicate that he was suffering from any unsound ness of mind or was in any way violent or dangerous to be at large. Therefore, the test of lunacy as envisaged by the Act and as noticed in the earlier part of the judgment is not satisfied.
ii) Though in the “Statement of Particulars” mentioned in this printed form it is stated that he was violent at times and was previously under the care and treatment of E.CT. at Phagwara, yet neither any particulars of that violent conduct nor the particulars or duration of the treatment received at Phagwara have been mentioned in this form. In the affidavit of respondent No. 3, the only insanity attributed to Kashmir Singh is that he got the power of attorney executed in favour of respondent No, 3, cancelled and got his suit dismissed on Feb. 19, 1987.
iii) In the column meant for disclosing the information “Whether this is first attack of lunacy. Age (if known), on first attack”, all that is mentioned is “before 15 years”. No other particulars of this alleged attack of lunacy have been disclosed.
iv) The allegation of the petitioner that Kashmir Singh was deliberately shown to be son of Ami Singh and his particulars or address had wrongly been mentioned so that it may not be possible to trace him out there in the hospital, is fully borne out from this application. It is beyond comprehension as to why should a daughter give the wrong parentage of her father unless there is a motive behind it.
v) Similarly it is not disclosed or explained anywhere as to why the permanent or residential address of Kashmir Singh was mentioned as “Quarter No. 66, Police Quarters, Ajnala Road, Amritsar”.
vi) In the column meant for “names of any near relatives to the patient who are alive” all that is mentioned is “S. Her bans Singh Dhillon, V. & P.O. laid, District Jullundur”. Who is this Harbans Singh and how is he related to Kashmir Singh, is not explained anywhere. Why none of the relations of the petitioner-though there are many who are residents of his ancestral village, Mohkamgarh has been mentioned in this application?
vii) Further, the statement of Kashmir Singh recorded by the Warrant Officer on May 21, 1987, fully supports the case of the petitioner that respondents Nos. 3 and 4 and other members of his family are out to harm him. This statement as reproduced above can by no stretch of imagination be taken to be the deposition of an unbalanced mind.
It is a matter of regret that the Sub Divisional Magistrate has dealt with this application too casually and in a mechanical manner,
viii) As per the requirements of Section 6(1) of the Act, the application for obtaining a Reception Order has to be presented by the husband or the wife of the alleged lunatic and it is only if the husband or the wife is prevented by reason of insanity, absence from India or otherwise from making such presentation that any other close relative of the alleged lunatic may present it. The Sub Divisional Magistrate chose to ignore this aspect of the matter altogether in spite of the fact that it had been disclosed in the application form that Kashmir Singh was a married man.
ix) In spite of the fact that law Section 7(2) of the Act) has made it imperative for the Magistrate to personally examine the alleged lunatic unless for reasons to be recorded in writing he finds it unnecessary or inexpedient so to do, he not only failed to examine Kashmir Singh at the time of the passing of the Reception Order, but has rather on the contrary recorded in his order that he had not personally seen him at all.
x) He even appears to be oblivious of his jurisdiction in the matter. As is well indicated by the Reception Order reproduced above, he appears to have passed it on account of his having been “specially empowered by the Government” to pass such an order under the Act. The fact of the matter is that he being a Sub Divisional Magistrate was fully competent to pass such an order under the Act. ‘Magistrate’ has been defined in Clause (6) of Section 3 of the Act to say “Magistrate” means a Presidency Magistrate, District Magistrate, Sub Divisional Magistrate or a Magistrate of the first class specially empowered by the State Government to perform the functions of a Magistrate under the Act”. It is amply clear from this definition that every Sub Divisional Magistrate is competent to pass such an order qua any alleged lunatic ordinarily residing within the local limits of his jurisdiction. In view of the above definition neither there was any necessity to specially empower this Sub Divisional Magistrate to deal with the alleged lunatics under the Act nor had any notification been brought to my notice specially empowering this Sub Divisional Magistrate to perform the functions of a Magistrate under the Act.
xi) Further he has nowhere recorded his satisfaction about the unsoundness of mind of Kashmir Singh. It appears that either he was too willing in passing this Reception Order or was totally ignorant of the requirements of law which have to be complied with before passing any such order. It can hardly be over emphasised that the passing of such an order entails far-reaching consequences and before passing the same, the Magistrate is duty bound to form his own judicial opinion on the question of lunacy in the light of the material avaliable before him. It is obvious that if such a safeguard is lost sight of by the Magistrate, then designing or scheming people are likely to exploit or misuse the Court’s process against the alleged lunatic for nefarious purposes. The instant case appears to be one such example. The records do not indicate that Kashmir Singh, the alleged lunatic, was even present somewhere nearabout the Court of the Magistrate,
xii) It appears that a deliberate effort has been made in mentioning the wrong particulars and residential address of Kashmir Singh in the application form with a view to bring the matter within the local limits of the jurisdiction of this Sub Divisional Magistrate. In the normal course the application under Section 5 of the Act should have been filed in the Court of Sub Divisional Magistrate, Dasuya, within the local limits of whose jurisdiction the alleged lunatic Kashmir Singh and his family concededly resided.
xiii) So far as the two medical certificates annexed to the application filed by Ranjit Kaur (issued by Dr. P. O. Garg and Dr. Yadvinder Singh) are concerned, these appear to be two copies of the same thing. Both the doctors claim to have examined Kashmir Singh on the same very date, i.e., Mar. 17,. 1987, and probably at the same time and formed the same opinion about his mental condition. Even the diagnosis or the facts recorded for the formulation of their opinions have been stated in the same words and in the same order. This virtually reduces the two certificates to one opinion instead of two.
9. Above all this and as has been noticed earlier, the stand of Dr. Sharma, Medical Superintendent of the Mental Hospital, Amritsar, is that condition of Kashmir Singh had improved considerably and he was no more dangerous to be at large though clinically speaking he was still insane. As per the opinion of the doctor, Kashmir Singh had to be shifted to the closed ward from the open ward as he had shown some ‘escaping tendency’. To my mind, any normal person put in that situation would have that tendency and would not quietly relish his enclosure within the four walls of the asylum. Moreover, this opinion was expressed by the medical officer of the open ward wherein Kashmir Singh was lodged, on May 25, 1987, i.e., four days after the Warrant Officer of the Court had recorded the statement of Kashmir Singh on May 21, 1987, i.e., by the time the pendency of these proceedings in this Court was a well-known fact.
10. I, therefore, was satisfied at the time of directing the release of Kashmir Singh vide my order dt. Aug. 12, 1987, that he was not the type of lunatic who deserved to be confined to the asylum or it was ever intended by law that persons of his mental capacity be lodged in a mental hospital. It is a different matter that he might have needed some treatment or medicines to tone up his mental faculties.
11. This petition thus stands allowed as indicated above with costs which shall be paid by Rajinder Singh and Manjit Singh, respondents 3 and 4, jointly and severally. The costs are determined at Rs. 1000/-.