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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1353 OF 2008
1) MS. ASHA SHAMANDAS BAJAJ, )
Age 30 years, Occ.: Student. )
2) MRS. KAMLA SHAMANDAS BAJAJ )
Age: 62 years, Occ.: Housewife, )
Both residing at B-2/504, Powai
Vihar Complex, Opp. Powai Lake,
A. S. Marg, Powai, Mumbai.
)
)
).. .. .. Petitioners.
VERSUS
1) MRS. MEERAN BORWANKAR )
Special Inspector General of Police, )
Pune. )
2) DR. NATTO, )
Head of Department, Psychiatrist, )
Sasoon Mental Hospital, Pune. )
3) DR. AMIT TAK, )
Sasoon Mental Hospital, Pune. )
4) DEEPAK HUMBRE, )
Senior Police Inspector, )
Lashkar Police Station, Pune. )
5) DR. VILAS BHAILUME, )
Superintendent, )
Yerwada Mental Hospital, )
Yerwada, Pune. )
6) COMMISSIONER OF POLICE, )
Pune. )
7) DIRECTOR GENERAL OF POLICE, )
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Maharashtra, Mumbai. )
8) THE STATE OF MAHARASHTRA, )
(Through the Principal Secretary, )
Home Department, Mantralaya, )
Mumbai - 400 032.) ).. .. ... Respondents.
Mr. S. B. Shetye with Mr. Niranjan Mogre for the Petitioners.
Mr. Ravi Kadam, Advocate General with Mr. S. R. Borulkar,
and Mrs. P. H. Kantharia, Public Prosecutors for Respondents.
ig CORAM : BILAL NAZKI and
A. A. KUMBHAKONI, JJ.
RESERVED ON : 9TH SEPTEMBER, 2008.
DELIVERED ON: 22ND OCTOBER, 2008.
(At 4.30 P.M. in Court)
JUDGMENT (Per Bilal Nazki, J.) :
This petition was filed seeking quashing of Misc. Application No.
040/470 of 2008 pending before the Additional Chief Judicial Magistrate,
Pune. The petitioners have also sought quashing of the order passed by the
said Magistrate on 16th June, 2008, by which the Magistrate had directed
that the petitioner No.1 should be detained for treatment in Regional
Mental Hospital, Yerwada, Pune.
2. The petition was entertained by this Court and an order was passed
on 7th July, 2008. According to petitioner No.1 she had escaped from the
hospital and filed this writ petition. We recorded our prima facie findings
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that there was no need to send her to any mental hospital. Therefore, we
directed that the respondents should not interfere with the petitioner No.1′
s
life. Thereafter the notices were issued, counters were filed, record of the
trial court was summoned and we have recorded certain prima facie findings
by our order dated 23rd July, 2008.
3. Now coming to the facts of the case, the petitioner No.1 claims that
she had given a matrimonial advertisement in the Times of India. On the
basis of such advertisement one person contacted her and she started
meeting him and his family members. But the said person extracted money
from her and cheated her and she lodged report being F. I. R. No. 157 of
2005 dated 27th April, 2005 at Powai Police Station, Mumbai. While
pursuing this case, she also made application to respondent No.1, the then
Joint Commissioner of Police, Crime. On several occasions petitioner No.1
approached respondent No.1 for seeking her co-operation in the matter.
Petitioner No.1 also got mobile number of respondent No.1 and started
sending SMSs to respondent No.1. Respondent No.1 got irritated and
warned petitioner No.1 of penal action against her. Then the petitioner
No.1 claims that she saw the son of respondent No.1 and started liking him
and in the first week of November, 2007 she sent message to respondent
No.1 giving her residential address and expressed her liking towards the son
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of respondent No.1. In December, 2007 petitioner No.1 also sent SMS to
respondent No.1 seeking an alliance with her son. This was not liked by
respondent No.1 and petitioner No.1 started receiving threatening calls from
the P. A. of respondent No.1. On 9th June, 2008 two lady police personnel
approached the petitioners and asked petitioner No.1 to come along with
Office. But she refused to go with them. Again on 12th
them to the D. C. P’s
June, 2008 two lady police personnel came at the petitioners’
residence and
asked them to hand over the medical report of Psychiatrist, if any, relating
to petitioner No.1. Thereafter, petitioner No.1 decided not to contact
respondent No.1. However, since she wanted to apologize to respondent
No.1, on 14th June, 2008 she went to the residence of respondent No.1 at
about 6.20 p.m. Respondent No.1 on seeing her, started beating petitioner
No.1. She was mercilessly assaulted by fist and kick blows and was also
abused in most filthy language. Respondent No.1 thereupon directed police
constables, who were present at the residence of respondent No.1, to take
petitioner No.1 into custody and prepare a case diary that petitioner No.1
was mentally ill person. The petitioner No.1 was taken to Lashkar Police
Station, Pune, wherein respondent No.4 detained her, prepared the case
diary and produced her before the Lady Magistrate at around 9.30 p.m. The
Magistrate passed some order on the application made before her by the
police. The petitioner No.1 was thereafter straightway taken to the Sasoon
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Mental Hospital, Pune and was admitted in the General Psychiatrist Ward.
She was kept under observation of respondent Nos.2 and 3. On 15th June,
2008 the mother of petitioner No.1 visited the hospital. Since it was Sunday,
she could not meet respondent No.2, who was in-charge of the Sasoon
Mental Hospital, Pune. The petitioner No.1 requested the Ward Boy of the
Hospital to allow her to call her mother. Accordingly, at 4.00 a.m. she called
up her mother and informed her that she was forcibly detained in Sasoon
Mental Hospital, Pune. Thereafter, her mother, petitioner No.2 reached the
Sasoon Mental Hospital. On 16th June, 2008, petitioner No.2, the mother of
petitioner No.1, met the Doctor and explained that her daughter was well
and she was not suffering from any mental disorder. On 16th June, 2008
itself, the Personal Secretary of respondent No.1 came to the Hospital and
met petitioner No.1 and the said Personal Secretary Mr. Vaidya insisted
respondent Nos.2 and 3 to prepare such a report that petitioner No.1 was
suffering from mental disorder so that she could be detained by the order of
the Magistrate in the mental hospital. The mother of petitioner No.1
personally remained present in the mental hospital on 16th June, 2008.
Again on 16th June, 2008 at 4.30 p.m. petitioner No.1 was produced before
the learned Additional Chief Judicial Magistrate, Pune. The application was
filed by the Medical Officer of the Sasoon Mental Hospital, Pune. False
report about her alleged mental illness was submitted to the Magistrate. The
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petitioner No.1 personally tried to convince the Magistrate that it was a
conspiracy hatched against her at the behest of respondent No.1. Petitioner
No.2, who was present, also tried to convince the Magistrate that petitioner
No.1 was not suffering from any mental disorder or illness. Both the
petitioners apologized to the Magistrate and tried to assure that the mistake
committed by Petitioner No.1 would not be repeated. The Personal
Secretary of respondent No.1 went into the Chamber of the learned
Magistrate and he was there for about 15 minutes and the Magistrate passed
an order directing detention of petitioner No.1 for 10 days in the Yerwada
Mental Hospital, Pune. Thereafter, on 17th June, 2008 she was able to
escape from the Hospital and filed this petition.
4. Counter affidavit has been filed by respondent No.1. She has given a
long history of her acquittance with the petitioners. She stated that while
she was trying to help petitioner No.1, but the petitioner No.1 was taking
undue advantage by sending obscene and vulgar SMSs at odd hours. She
has also written various letters to various authorities against her. She has
also submitted copies of certain letters and copies of certain SMSs. She
further stated that petitioner No.1 was also referred for counselling. She had
time and again threatened to commit suicide. Petitioner No.1 had tendered
her apology for her behaviour. But instead of that she had continued to send
messages to her. Since behaviour of petitioner No.1 continued unabated and
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due to constant threats of committing suicide, she was left with no option
and therefore she filed a complaint. She further stated that it would be clear
that she was subjected to an undue harassment by petitioner No.1 and she
had been creating nuisance and respondent No.1 has relied on certain
letters written by petitioner No.1 to her. One of the letters being letter dated
28th January, 2008. She has contended that on 14th June, 2008 petitioner
No.1 was called by the Social Service Branch, Chembur, Mumbai for
counselling. The case of petitioner No.1 was that since she started liking son
of respondent No.1 she got irritated and sent her to mental hospital. The
case of respondent No.1 was that she was the victim of harassment of
petitioner No.1 and she had nothing to do with the petitioner No.1 being
sent to the mental hospital. She denied having sent any police officials to the
house of the petitioners to threaten her. However, with respect of the
incident on 14th June, 2008, respondent No.1 has stated that petitioner No.1
had created nuisance at her residence and Lashkar Police Station had taken
her into custody and produced her before the Magistrate, who referred her
for medical treatment. Now it is an admitted fact that on 14th June, 2008
the petitioner No.1 had been detained at the residence of respondent No.1
when according to respondent No.1 she had created nuisance.
5. In the light of these facts, now this Court will have to see whether
action taken under the Mental Health Act, 1987 was justified or not. Before
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addressing this question, we will have to look at the record of the
proceedings before the learned Magistrate.
6. An application was moved on 14th June, 2008 by the Police Inspector
before the Magistrate complaining that at 6.30 p.m. on the same day
petitioner No.1 had gone to the residence of respondent No.1 and created
some inconvenience and for this act a phone had been received from
respondent No.1 at the Police Station and he also recorded it in Police Diary.
The police constables were sent there and she was taken into custody. On
making inquiry with petitioner No.1 she stated that she wanted to marry
respondent No.1. Later on she stated that she wanted to marry the son of
respondent No.1. Since petitioner No.1 had gone to the residence of a high
official, therefore they apprehended that she may cause some danger to her
and he felt that she suffers from mental disorder and therefore she should
be sent to mental hospital. Now, this application in itself does not show
anything to come to the conclusion that petitioner No.1 was mentally ill.
The Magistrate wrote an interesting order in the following terms :
“Alleged lunatic produced before me at 10.30 p.m. Perused record
and asked question to her about her name, job, etc. Perused letter
attached with report. I am of the view that she required to be
examined by civil surgeon or Medical Officer appointed for two
days i.e. till 16.06.2008. The concerned Police Officer to obtain
report and produce alleged lunatic before concerned Court on 16th
June, 2008.”
On 16th June, 2008 the Magistrate has passed two orders according to the
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record. One is in English and another is in Marathi. The Marathi order is a
brief order, which speaks that the Lunatic was produced before him. When
the Magistrate asked some questions to the Lunatic, she gave inappropriate
answers. From that, he formed opinion that the said Lunatic requires mental
treatment. He, thereafter, ordered that she be sent and kept for 10 days as
in-patient in Regional Mental Hospital, Yerwada, Pune for treatment and
observation. Another order passed on 16th June, 2008 in English reads thus:
“1) Shri B. M. Mule, API, Lashkar Police Station has
produced Miss Asha Bajaj R/o. Pawai, Mumbai u/s 23 of MentalHealth Act, 1987 on the allegation that the mental health of Miss
Asha Bajaj is not proper and she will cause hurt to Superior Police
Officer o to herself and for that he produced ample evidence on
record and SMS sent by Miss Asha to Superior Police Officer. I
personally talked with Asha Bajaj and her mother. From her talk itappears that she appear normal, but she has admitted that she sent
messages to the Superior Police Officer. The report of MedicalOfficer also shows that she became violent when she was taken to
Sasoon General Hospital. Doctor eaxamined her and opined that
patient is suffering from psychological disorder. She required
further observation and treatment. Mother of Mis Asha Bajaj statedthat she will take care of her daughter, but Shri Mule, API
submitted that such type of assurance was given by her mother
previously also, but Miss Asha and her mother committed breach of
those assurance and if Miss Asha is left free then there is possibility
of threat to the life of Asha and also the life of other Police officer.
So to protect her he requested to send Miss Asha for medical
treatment.
2) Considering the evidence brought on record and the
opinion of medical officer, Sassoon General Hospital, it will be not
safe to give the custody of Miss Asha to her mother who is old and
not able to control her daughter. Miss Asha requires medical
treatment and hence she be sent to Mental Hospital, Yerawada,
Pune for observation and treatment for 10 days with direction to::: Downloaded on – 09/06/2013 14:00:34 :::
10produce her for further order with the opinion of Supt. Medical
Officer, Yerawada, Pune. The Supt. Medical Officer is authorized to
retain Miss Asha for 10 days for observation and treatment. Issueretention order accordingly.”
7. There was the Indian Lunacy Act of 1912 which was repelled by the
Mental Health Act, 1987 and the statement of objects and reasons of the
1987 Act were the following:
“The attitude of the society towards persons afflicted with mental
illness has changed considerably and it is now realised that no
stigma should be attached to such illness as it is curable,
particularly, when diagnosed at an early stage. Thus the mentallyill persons are to be treated like any other sick persons and the
environment around them should be made as normal as possible.
The experience of the working of the Indian Lunacy Act, 1912 has
revealed that it has become outmoded. With the rapid advance ofmedical science and the understanding of the nature of the
malady, it has become necessary to have fresh legislation withprovisions for treatment of mentally ill persons in accordance with
the new approach. Hence this Bill.”
The word “lunatic” was defined in 1912 Act under sub-section (5) of section
3 to mean an idiot or person of unsound mind and “criminal lunatic” was
defined in sub-section (4) of section 3 to mean any person for whose
detention in, or removal to any asylum, jail or other place of safe custody an
order has been made in accordance with the provisions of Section 466 or
Section 471 of the Code of Criminal Procedure, 1898. These words and
terms were given a go-by in the 1987 Act. We do not find a term of
“Lunatic” in the 1987 Act. On the other hand this Act defines “mentally ill
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person” under sub-section (l) of section 2 as a person who is in need of
treatment by reason of any mental disorder other than mental retardation.
So in the first instance, the Police and the Magistrate concerned were under
the impression that the petitioner No.1 was a lunatic. Now scheme of the
Act under 1987 Act is altogether different then the scheme under 1912 Act.
Even if it is accepted that the petitioner was mentally ill even then in our
view the course adopted by the respondents and the Magistrate concerned
could not have been adopted. Although we will deal with the question as to
whether the petitioner No.1 could have been declared to be mentally ill or
not in terms of 1987 Act separately.
8. Chapter IV of the Mental Health Act deals with admission and
detention in psychiatric hospital, or psychiatric nursing home. Section 15 of
the Act mentions, request by major for admission as voluntary patient.
Under Section 16 a request can be made for admission of a ward by
guardian when a minor is sought to be admitted at the request of the
guardian. On receipt of request under Section 15 or Section 16, the Medical
Officer in-Charge is supposed to conduct an inquiry under Section 17 to get
himself satisfied that the applicant or the minor as the case may be needs
treatment as an in-patient. So the law is very strict for admission into the
psychiatric hospital or psychiatric nursing home. Section 18 deals with the
discharge. Section 19 deals with admission of mentally ill person under
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special circumstances. Under Part III of Chapter IV, under Section 20
application for reception order can be made. Section 20 lays down the
procedure for reception. Section 22 deals with the procedure upon
application for reception order. Section 23 deals with powers and duties of
the police officers in respect of certain mentally ill persons. It is under this
section that the police claims to have acted in the present case. This section
is reproduced below:
“23. Powers and duties of police officers in respect of certain
mentally ill persons.-
(1) Every officer in charge of a police station, –
(a)may take or cause to be taken into protection any person
found wandering at large within the limits of his station
whom he has reason to believe to be so mentally ill as to beincapable of taking care of himself, and
(b)shall take or cause to be taken into protection any person
within the limits of his station whom he has reason to
believe to be dangerous by reason of mental illness.
(2) No person taken into protection under sub-section (1) shall
be detained by the police without being informed, as soon as may
be, of the grounds for taking him into such protection, or where, in
the opinion of the officer taking the person into protection, such
person is not capable of understanding those grounds, without hisrelatives or friends, if any being informed of such grounds.
(3) Every person who is taken into protection and detained
under this section shall be produced before the nearest Magistrate
within a period of twenty-four hours of taking him into such
protection excluding the time necessary for the journey from the
place where he was taken into such protection to the court of the
Magistrate and shall not be detained beyond the said period
without the authority of the Magistrate.”
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Sub-Section(1)(a) of Section 23 lays down that the person can be taken into
protection by a police officer when he has reason to believe that the person
was mentally ill as to be mentally incapable of taking care of himself. He
should have found him wandering at large within the limits of his
jurisdiction under sub-section (1)(b) of Section 23, the person can be taken
into protection if the Officer has reasons to believe that the person was
dangerous by reason of his mental illness. Sub-Section (2) of section 23 lays
down that the Officer who takes such person into protection should inform
him of the grounds and if that person is incapable of understanding the
grounds to his relatives or friends. And sub-section (3) of section 23 lays
down that he should be produced before the Magistrate within twenty four
hours. After analysing these sections and trying to connect it with the
record as produced before us and which has been mentioned hereinabove,
the following things become clear:
1) That the petitioner No.1 was not found wandering at large;
2) That there was no material before the Police Officer to believe that
the petitioner No.1 was incapable of taking care of herself;
3) There was no material also to suggest that there was any reason for
the Police Officer to believe that petitioner No.1′
s presence wasdangerous by reason of her mental illness;
4) The record does not show that the grounds of taking into protection
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14were communicated to the petitioner No.1 or her mother, the
petitioner No.2 herein.
Therefore, the taking petitioner No.1 into protection under Section 23 of the
Mental Health Act, 1987 by the Police Officer was itself illegal.
9. Now coming to the procedure after application of Section 23, Section
24 of the Act for production of mentally ill person has to be followed.
Section 24 reads thus:
24.
Procedure on production of mentally ill person.-
(1) If a person is produced before a Magistrate under sub-section (3)
of section 23, and if, in his opinion, there are sufficient grounds for
proceeding further, the Magistrate shall –
(a) examine the person to assess his capacity to understand,
(b) cause him to be examined by a medical officer, and
(c) make such inquiries in relation to such person as he may deem
necessary.
(2) After the completion of the proceedings under sub-section (1),
the Magistrate may pass a reception order authorising the detention of
the said person as an inpatient in a psychiatric hospital or psychiatricnursing home,-
(a) if the medical officer certifies such person to be a mentally ill
person, and
(b) if the Magistrate is satisfied that the said person is a mentally ill
person and that in the interests of the health and personal safetyof that person or for the protection of others, it is necessary to
pass such order.
Provided that any relative or friend of the mentally ill person
desires that the mentally ill person be sent to any particular licensed
psychiatric hospital or licensed psychiatric nursing home for treatment
therein and undertakes in writing to the satisfaction of the Magistrate
to pay the cost of maintenance of the mentally ill person in such
hospital or nursing home, the Magistrate shall, if the medical officer in::: Downloaded on – 09/06/2013 14:00:34 :::
15charge of such hospital or nursing home consents, make a reception
order for the admission of the mentally ill person into that hospital or
nursing home and detention therein;
Provided further that if any relative or friend of the mentally ill
person enters into a bond, with or without sureties for such amount as
the Magistrate may determine, undertaking that such mentally illperson will be properly taken care of and shall be prevented from
doing any injury to himself or to others, the Magistrate may, instead of
making a reception order, hand him over to the care of such relative or
friend.
10. We have also quoted the order passed by the Magistrate. The
Magistrate’
s first order merely states that the Magistrate perused record,
asked questions and then states that she was required to be examined by
civil surgeon. So the first requirement of Section 24 of the 1987 Act to form
an opinion for examination of the person to assess his capacity to
understand was not met by the learned Magistrate. Second requirement
under Section 24(1)(b) is for the protected person to be examined by the
medical officer. This power can be exercised by the Magistrate only if he is
satisfied under sub-section (a) of sub-section (1) of section 24 of the Act
after examining the person and assessing his capacity to understand.
Therefore, the Magistrate from very inception was wrong to refer petitioner
No.1 for examination by a medical officer. After the medical examination, if
the Magistrate was satisfied that the person was mentally ill and that in the
interest of health and personal safety of that person he finds it necessary to
pass an order, he may authorise the detention of said person as an inpatient
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in a psychiatric hospital or psychiatric nursing home. So even after getting
medical report suggesting the person to be mentally ill person, the
Magistrate has to record a satisfaction that in the interest of his health and
personal safety of such person the detention of such person in a mental or
psychiatric hospital or psychiatric nursing home was necessary. Even after
these requirements are met, still there are two proviso. One of the proviso
to the section is, “Provided further that if any relative or friend of the
mentally ill person enters into a bond, with or without sureties for such
amount as the Magistrate may determine, undertaking that such mentally ill
person will be properly taken care of and shall be prevented from doing any
injury to himself or to others, the Magistrate may, instead of making a
reception order, hand him over to the care of such relative or friend.” The
learned Magistrate has noted in his order dated 16th June, 2008, “Mother of
Ms. Asha Bajaj stated that she will take care of her daughter, but Shri Mule,
API, submitted that such type of assurance was given by her mother
previously also, but Miss Asha and her mother committed breach of those
assurance and if Miss Asha is left free then there is possibility of threat to
the life of Asha and also to the life of other police officer.” There was no
record before the Magistrate compelling her not to grant request of the
mother of Petitioner No.1, who was present before the Magistrate. At best
the Magistrate could have demanded a bond from the mother of petitioner
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No.1. It appears that the Magistrate was performing formalities and the
decision was taken even prior to medical report.
11. Now let us come to the medical examination which was conducted.
Even after two days of admission the doctor concerned was not able to make
a final diagnosis. But he only stated that Miss Asha Bajaj was suffering from
a psychiatric disorder and according to him she required further
observation, evaluation and treatment at the psychiatric hospital urgently.
What abnormality he had found were that her talks were irrational and
illogical. She was preoccupied to meet the Inspector General of Police and
occasionally gave suicidal threats. Her insight and judgment was lacking.
Seeing the sequences of events in this case, we have serious doubts about
this certificate as well. But we are not going in this proceeding to decide
whether the petitioner No.1 needed medical treatment or not because that is
a subject which is left to the Doctor. But the fact of the matter is that
respondent No.1 had some grudge against the petitioner No.1 and we do
not want to judge the issue as to whether the petitioner No.1 was wrong or
respondent No.1 was wrong. Respondent No.1 might have had reason to
feel harassed, embarrassed by petitioner No.1. The letters and the SMSs
which have been placed on record by respondent No.1, if are true, could
have been a reason for anybody to feel harassed and embarrassed. But that
does not mean that the whole machinery could be used to send to petitioner
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No.1 to a mental hospital. Therefore, we are of the view that the whole
exercise was done to send petitioner No.1 to the mental hospital with a
preconceived plan in which the main role has been played by respondent
No.1 and unfortunately by a Magistrate. If respondent No.1 had any
grievance she could have taken recourse to law and petitioner No.1 could
have been booked for the offences she might have committed. But the
course taken by respondent No.1 was absolutely wrong and was not
expected of an Officer of the cadre of respondent No.1. However, in the
facts and circumstances of the case, we do not think it appropriate to pass
any order in this regard. The respondent No.1 is at liberty to take recourse
to law, if any, available to her for redressal of her grievances.
12. Learned Advocate General who is appearing in the matter has
submitted that psychiatric disease have many many manifestations and one
of the manifestation is of being `stalker’
. He submitted that a stalker is
usually one who pursue the victim for a variety of reasons and according to
him the experts define five categories of stalkers to facilitate diagnosis and
management. He has produced some material before us and one of such is
an extract from a magazine `Psychiatric News’
. Another publication is based
on an issue of March of the British Journal of Psychiatry, which has
concluded that stalkers are a group of people whose behaviour is motivated
by different forms of psychopathology, including psychosis and severe
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personality disorder. Both stalkers and their victims are in urgent need of
the development of specific treatments. Learned Advocate General
submitted that it appears to him that the petitioner No.1 was a victim of
stalker and because of her psychiatric condition she was a reason for
personal suffering of respondent No.1 as an expert believe that stalking is
causing pervasive and intense personal suffering and is an area of psychiatry
that is currently overlooked. The experts defined stalking as “the wilful,
malicious and repeated following or harassing of another person that
threatens his or her safety”. Typical staling behaviour includes the intrusive
following of a `target’,
for example, by placing one’
s self in front of the
target’
s home. Stalkers most often persecute their targets by unwanted
communications, like frequent telephone calls, letters, e-mail, graffiti, notes
or packages. We appreciate the assistance provided by the learned Advocate
General. But as we have said that it may not be possible for us to decide
whether the petitioner was a psychiatric patient or not and even if the
doctors were of the opinion that she needed hospitalisation or assistance
under law, the Magistrate was bound to give her custody to her mother who
was willing to take her. Learned Advocate General submitted that in some of
these cases in United Nation stalking has been made punishable and in the
State of Massachusetts stalking has been defined and punishment has been
prescribed. We have our own doubt that if stalking has been made
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punishable in the States of United Nation. Section 43 of Chapter 265 :
Crimes against the Person, which has been produced before us, lays down
the following :
“Section 43: (a) Whoever (1) wilfully and maliciously engages in
a knowing pattern of conduct or series of acts over a period of time
directed at a specific person which seriously alarms or annoys that
person and would cause a reasonable person to suffer substantial
emotional distress, and (2) makes a threat with the intent to placethe person in imminent fear of death or bodily injury, shall be
guilty of the crime of stalking and shall be punished byimprisonment in the state prison for not more than five years or by
a fine of not more than one thousand dollars, or imprisonment in
the house of correction for not more than two and one-half years orboth. Such conduct, acts or threats described in this paragraph shall
include, but not be limited to, conduct, acts or threats conducted by
mail or by use of a telephonic or telecommunication device
including, but not limited to, electronic mail, internet
communications and facsimile communications.
(b) Whoever commits the crime of stalking in violation of a
temporary or permanent vacate, restraining, or no-contact order or
judgment issued pursuant to sections eighteen, thirty-four B, or
thirty-four C of chapter two hundred and eight; or section thirty-
two of chapter two hundred and nine; or sections three, four or fiveof chapter two hundred and nine A: or sections fifteen or twenty of
chapter two hundred and nine C or a protection order issued by
another jurisdiction; or a temporary restraining order or
preliminary or permanent injunction issued by the superior court,
shall be punished by imprisonment in a jail or the state prison fornot less than one year and not more than five years. No sentence
imposed under the provisions of this subsection shall be less than a
mandatory minimum term of imprisonment of one year.”
13. In any case, we do not have any such law in this country. But we
agree with the learned Advocate General that if a person is continuously
harassed by SMSs and letters of the nature of which the petitioner was
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allegedly writing to respondent No.1, there should be some law against such
behavior. But in that connection the learned Advocate General would be of
more helpful than this Court as we cannot legislate and it is only the
legislatures that can legislate such a law.
14. With the observations that the Magistrates should treat themselves to
be the custodian and protector of the rights of the people and if police fail in
their duty the Magistrates should not fail and should ensure that the person
is not sent to a mental hospital without strict compliance of the provisions of
the Act.
15. For the reasons mentioned above, we allow the writ petition and
quash and set aside the entire proceedings and the orders passed by the
learned Additional Chief Judicial Magistrate, Pune in Misc. Application No.
040/470/2008.
16. We also make it clear that any reference made to any allegations
levelled by petitioners against respondent No.1 or any allegation made by
respondent No.1 against the petitioner has only been made for deciding the
present petition and should not be taken as an expression of opinion with
regard to any of the allegations.
Sd/-
(BILAL NAZKI, J.)
Sd/-
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(A. A. KUMBHAKONI, J.)
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