{"id":33782,"date":"2008-10-22T00:00:00","date_gmt":"2008-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-asha-shamandas-bajaj-vs-mrs-meeran-borwankar-on-22-october-2008"},"modified":"2018-03-12T21:23:54","modified_gmt":"2018-03-12T15:53:54","slug":"ms-asha-shamandas-bajaj-vs-mrs-meeran-borwankar-on-22-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-asha-shamandas-bajaj-vs-mrs-meeran-borwankar-on-22-october-2008","title":{"rendered":"Ms. Asha Shamandas Bajaj vs Mrs. Meeran Borwankar on 22 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ms. Asha Shamandas Bajaj vs Mrs. Meeran Borwankar on 22 October, 2008<\/div>\n
Bench: Bilal Nazki, A.A. Kumbhakoni<\/div>\n
                                            1\n\n\n\n\n                                                                               \n                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                         CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                       \n                    CRIMINAL WRIT PETITION NO.  1353  OF 2008\n\n\n\n\n                                                      \n    1) MS. ASHA SHAMANDAS BAJAJ,            )\n       Age 30 years, Occ.: Student.         )\n\n    2) MRS. KAMLA SHAMANDAS BAJAJ )\n\n\n\n\n                                           \n       Age: 62 years, Occ.: Housewife, )\n                            \n       Both residing at B-2\/504, Powai \n       Vihar Complex, Opp. Powai Lake, \n       A. S. Marg, Powai, Mumbai.\n                                            )\n                                            )\n                                            )..   ..    ..       Petitioners. \n                           \n                 VERSUS\n\n    1) MRS. MEERAN BORWANKAR                )\n       Special Inspector General of Police, )\n       \n\n       Pune.                                )\n    \n\n\n\n    2) DR. NATTO,                           )\n       Head of Department, Psychiatrist,    )\n       Sasoon Mental Hospital, Pune.        )\n\n    3) DR. AMIT TAK,                        )\n\n\n\n\n\n       Sasoon Mental Hospital, Pune.        )\n\n    4) DEEPAK HUMBRE,                       )\n       Senior Police Inspector,             )\n       Lashkar Police Station, Pune.        )\n\n\n\n\n\n    5) DR. VILAS BHAILUME,                  )\n       Superintendent,                      )\n       Yerwada Mental Hospital,             )\n       Yerwada, Pune.                       )\n\n    6) COMMISSIONER OF POLICE,              )\n       Pune.                                )\n\n    7) DIRECTOR GENERAL OF POLICE,  )\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:00:34 :::\n                                                2\n\n\n\n\n                                                                                    \n         Maharashtra, Mumbai.                  )\n\n    8) THE STATE OF MAHARASHTRA,               )\n\n\n\n\n                                                            \n       (Through the Principal Secretary,       )\n       Home Department, Mantralaya,            )\n       Mumbai - 400 032.)                      )..     ..     ...     Respondents. \n\n\n\n\n                                                           \n    Mr. S. B. Shetye with Mr. Niranjan Mogre for the Petitioners. \n    Mr. Ravi Kadam, Advocate General with Mr. S. R. Borulkar,\n    and Mrs. P. H. Kantharia, Public Prosecutors for Respondents. \n\n\n\n\n                                              \n                               ig       CORAM :   BILAL NAZKI  and\n                                                                 \n                                                  A. A. KUMBHAKONI, JJ.\n\n                                 RESERVED ON : 9TH SEPTEMBER, 2008.\n                             \n                                 DELIVERED ON: 22ND OCTOBER, 2008.\n                                               (At 4.30 P.M. in Court)\n       \n\n    JUDGMENT (Per Bilal Nazki, J.) : \n<\/pre>\n
           This   petition   was   filed   seeking   quashing   of   Misc.   Application   No.<\/p>\n
    040\/470 of 2008 pending before the Additional Chief Judicial Magistrate,<\/p>\n
    Pune. The petitioners have also sought quashing of the order passed by the<\/p>\n
    said Magistrate on 16th  June, 2008, by which the Magistrate had directed<\/p>\n
    that   the   petitioner   No.1   should   be   detained   for   treatment   in   Regional<\/p>\n
    Mental Hospital, Yerwada, Pune.\n<\/p>\n
    2.     The petition was entertained by this Court and an order was passed<\/p>\n
    on 7th  July, 2008. According to petitioner No.1 she had escaped from the<\/p>\n
    hospital and filed this writ petition. We recorded our  prima facie  findings<\/p>\n
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\n                                                3<\/span><\/p>\n
    that there was no need to send her to any mental hospital. Therefore, we<\/p>\n
    directed that the respondents should not interfere with the petitioner No.1′
\n                                                                               s<\/p>\n
    life. Thereafter the notices were issued, counters were filed, record of the<\/p>\n
    trial court was summoned and we have recorded certain prima facie findings<\/p>\n
    by our order dated 23rd July, 2008.\n<\/p>\n
    3.     Now coming to the facts of the case, the petitioner No.1 claims that<\/p>\n
    she had given a matrimonial advertisement in the Times of India. On the<\/p>\n
    basis   of   such   advertisement   one   person     contacted   her   and   she  started<\/p>\n
    meeting him and his family members. But the said person extracted money<\/p>\n
    from her and cheated her and she lodged report being F. I. R. No. 157 of<\/p>\n
    2005   dated   27th  April,   2005   at   Powai   Police   Station,   Mumbai.   While<\/p>\n
    pursuing this case, she also made application to respondent No.1, the then<\/p>\n
    Joint Commissioner of Police, Crime. On several occasions petitioner No.1<\/p>\n
    approached   respondent   No.1   for   seeking   her   co-operation   in   the   matter.\n<\/p>\n
    Petitioner   No.1   also   got   mobile   number   of   respondent   No.1   and   started<\/p>\n
    sending   SMSs   to   respondent   No.1.   Respondent   No.1   got   irritated   and<\/p>\n
    warned  petitioner  No.1  of   penal  action  against  her.   Then  the  petitioner<\/p>\n
    No.1 claims that she saw the son of respondent No.1 and started liking him<\/p>\n
    and in the first week of November, 2007 she sent message to respondent<\/p>\n
    No.1 giving her residential address and expressed her liking towards the son<\/p>\n
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\n                                                4<\/span><\/p>\n
    of respondent No.1. In December, 2007 petitioner No.1 also sent SMS to<\/p>\n
    respondent No.1 seeking an alliance with her son. This was not liked by<\/p>\n
    respondent No.1 and petitioner No.1 started receiving threatening calls from<\/p>\n
    the P. A. of respondent No.1. On 9th June, 2008 two lady police personnel<\/p>\n
    approached the petitioners and asked petitioner No.1 to come along with<\/p>\n
                         Office. But she refused to go with them. Again on 12th
\n    them to the D. C. P’s<\/p>\n
    June, 2008 two lady police personnel came at the petitioners’
\n                                                                 residence and<\/p>\n
    asked them to hand over the medical report of Psychiatrist, if any, relating<\/p>\n
    to   petitioner   No.1.   Thereafter,   petitioner   No.1   decided   not   to   contact<\/p>\n
    respondent  No.1.  However,  since  she  wanted   to  apologize   to  respondent<\/p>\n
    No.1, on 14th  June, 2008 she went to the residence of respondent No.1 at<\/p>\n
    about 6.20 p.m. Respondent No.1 on seeing her, started beating petitioner<\/p>\n
    No.1. She  was mercilessly assaulted  by fist and kick blows and  was  also<\/p>\n
    abused in most filthy language. Respondent No.1 thereupon directed police<\/p>\n
    constables, who were present at the  residence  of respondent No.1, to take<\/p>\n
    petitioner No.1 into custody and prepare a case diary that petitioner No.1<\/p>\n
    was mentally ill person. The petitioner No.1 was taken to Lashkar Police<\/p>\n
    Station,   Pune,   wherein   respondent   No.4   detained   her,   prepared   the   case<\/p>\n
    diary and produced her before the Lady Magistrate at around 9.30 p.m. The<\/p>\n
    Magistrate passed some order on the application made before her by the<\/p>\n
    police. The petitioner No.1 was thereafter straightway taken to the Sasoon<\/p>\n
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\n                                                  5<\/span><\/p>\n
    Mental Hospital,  Pune and was admitted in the General Psychiatrist Ward.\n<\/p>\n
    She was kept under observation of respondent Nos.2 and 3. On 15th  June,<\/p>\n
    2008 the mother of petitioner No.1 visited the hospital. Since it was Sunday,<\/p>\n
    she   could   not   meet   respondent   No.2,   who   was   in-charge   of   the   Sasoon<\/p>\n
    Mental Hospital, Pune. The petitioner No.1  requested the Ward Boy of the<\/p>\n
    Hospital to allow her to call her mother. Accordingly, at 4.00 a.m. she called<\/p>\n
    up her  mother and informed her that she was forcibly detained in Sasoon<\/p>\n
    Mental Hospital, Pune. Thereafter, her mother, petitioner No.2 reached the<\/p>\n
    Sasoon Mental Hospital. On 16th June, 2008, petitioner No.2, the mother of<\/p>\n
    petitioner No.1, met the Doctor and explained that her daughter was well<\/p>\n
    and she was not suffering from any mental disorder. On 16th  June, 2008<\/p>\n
    itself, the Personal Secretary of respondent No.1 came to the Hospital and<\/p>\n
    met   petitioner   No.1   and   the   said   Personal   Secretary   Mr.   Vaidya   insisted<\/p>\n
    respondent  Nos.2 and 3 to prepare such a report that petitioner No.1 was<\/p>\n
    suffering from mental disorder so that she could be detained by the order of<\/p>\n
    the   Magistrate   in   the   mental   hospital.   The   mother   of   petitioner   No.1<\/p>\n
    personally   remained   present   in   the   mental   hospital   on   16th  June,   2008.\n<\/p>\n
    Again on 16th June, 2008 at 4.30 p.m. petitioner No.1 was produced before<\/p>\n
    the learned Additional Chief Judicial Magistrate, Pune. The application was<\/p>\n
    filed   by   the   Medical   Officer   of   the   Sasoon   Mental   Hospital,   Pune.   False<\/p>\n
    report about her alleged mental illness was submitted to the Magistrate. The<\/p>\n
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\n                                                   6<\/span><\/p>\n
    petitioner  No.1  personally tried to convince   the Magistrate   that it was a<\/p>\n
    conspiracy hatched against her at the behest of respondent No.1. Petitioner<\/p>\n
    No.2, who was present, also tried to convince the Magistrate that petitioner<\/p>\n
    No.1  was  not   suffering   from   any   mental   disorder   or   illness.   Both   the<\/p>\n
    petitioners apologized to the Magistrate and tried to assure that the mistake<\/p>\n
    committed   by   Petitioner   No.1   would   not   be   repeated.   The   Personal<\/p>\n
    Secretary   of   respondent   No.1   went   into   the   Chamber   of   the   learned<\/p>\n
    Magistrate and he was there for about 15 minutes and the Magistrate passed<\/p>\n
    an order directing detention of petitioner No.1 for 10 days in the Yerwada<\/p>\n
    Mental   Hospital,   Pune.   Thereafter,   on   17th  June,   2008   she   was   able   to<\/p>\n
    escape from the Hospital and filed this petition.\n<\/p>\n
    4.     Counter affidavit has been filed by respondent No.1. She has given a<\/p>\n
    long history of her  acquittance  with the petitioners. She stated that while<\/p>\n
    she was trying to help petitioner No.1, but the petitioner No.1 was taking<\/p>\n
    undue  advantage  by sending obscene and vulgar SMSs at odd hours. She<\/p>\n
    has also written various letters to various authorities against her. She has<\/p>\n
    also   submitted   copies   of   certain   letters   and   copies   of   certain   SMSs.   She<\/p>\n
    further stated that petitioner No.1 was also referred for counselling. She had<\/p>\n
    time and again threatened to commit suicide. Petitioner No.1 had tendered<\/p>\n
    her apology for her behaviour. But instead of that she had continued to send<\/p>\n
    messages to her. Since behaviour of petitioner No.1 continued unabated and<\/p>\n
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\n                                                  7<\/span><\/p>\n
    due to constant threats of committing suicide, she was left with no option<\/p>\n
    and therefore she filed a complaint. She further stated that it would be clear<\/p>\n
    that she was subjected to an undue harassment by petitioner No.1 and she<\/p>\n
    had   been   creating   nuisance   and   respondent   No.1   has   relied  on  certain<\/p>\n
    letters written by petitioner No.1 to her. One of the letters being letter dated<\/p>\n
    28th  January, 2008. She has contended that on 14th  June, 2008 petitioner<\/p>\n
    No.1  was   called   by   the   Social   Service   Branch,  Chembur,   Mumbai   for<\/p>\n
    counselling. The case of petitioner No.1 was that since she started liking son<\/p>\n
    of respondent No.1 she got irritated and sent her to mental hospital. The<\/p>\n
    case   of   respondent   No.1   was   that   she   was   the   victim   of   harassment   of<\/p>\n
    petitioner No.1 and she had nothing to do with the petitioner No.1 being<\/p>\n
    sent to the mental hospital. She denied having sent any police officials to the<\/p>\n
    house   of   the   petitioners   to   threaten   her.   However,   with  respect  of   the<\/p>\n
    incident on 14th June, 2008, respondent No.1 has stated that petitioner No.1<\/p>\n
    had created nuisance at her residence and Lashkar Police Station had taken<\/p>\n
    her into custody and produced her before the Magistrate, who referred her<\/p>\n
    for medical treatment.  Now it is an  admitted fact that on 14th  June, 2008<\/p>\n
    the petitioner No.1 had been detained at the residence of respondent No.1<\/p>\n
    when according to respondent No.1 she had created nuisance.\n<\/p>\n
    5.     In the light of these facts, now this Court will have to see whether<\/p>\n
    action taken under the Mental Health Act, 1987 was justified or not. Before<\/p>\n
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\n                                                   8<\/span><\/p>\n
    addressing   this   question,   we   will   have   to   look   at   the   record   of   the<\/p>\n
    proceedings before the learned Magistrate.\n<\/p>\n
    6.     An application was moved on 14th June, 2008 by the Police Inspector<\/p>\n
    before   the   Magistrate   complaining   that   at   6.30   p.m.   on   the   same   day<\/p>\n
    petitioner No.1 had gone to the residence of respondent No.1 and created<\/p>\n
    some  inconvenience  and   for   this   act   a   phone   had   been   received   from<\/p>\n
    respondent No.1 at the Police Station and he also recorded it in Police Diary.\n<\/p>\n
    The police constables were sent there and she was taken into custody. On<\/p>\n
    making inquiry with petitioner No.1 she stated that she wanted to marry<\/p>\n
    respondent No.1. Later on she stated that she wanted to marry the son of<\/p>\n
    respondent No.1. Since petitioner No.1 had gone to the residence of a high<\/p>\n
    official, therefore they apprehended that she may cause some danger to her<\/p>\n
    and he felt that she suffers from mental disorder and therefore she should<\/p>\n
    be  sent to mental hospital. Now, this application in  itself does not show<\/p>\n
    anything to come to the  conclusion  that petitioner No.1 was  mentally  ill.\n<\/p>\n
    The Magistrate wrote an interesting order  in the following terms :\n<\/p>\n
         “Alleged lunatic produced before me at 10.30 p.m. Perused record
\n         and asked question to her about her name, job, etc. Perused letter
\n         attached   with   report.   I   am   of   the   view   that   she   required   to   be
\n         examined   by   civil  surgeon   or   Medical   Officer   appointed   for   two
\n         days   i.e.   till   16.06.2008.   The  concerned  Police   Officer   to   obtain
\n         report and produce alleged lunatic before concerned Court on 16th
\n         June, 2008.”\n<\/p><\/blockquote>\n
    On 16th  June, 2008 the Magistrate has passed two orders according to the<\/p>\n
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\n                                                 9<\/span><\/p>\n
    record. One is in English and another is in Marathi. The Marathi order is a<\/p>\n
    brief order, which speaks that the Lunatic was produced before him. When<\/p>\n
    the Magistrate asked some questions to the Lunatic, she gave inappropriate<\/p>\n
    answers. From that, he formed opinion that the said Lunatic requires mental<\/p>\n
    treatment. He, thereafter, ordered that she be sent and kept for 10 days as<\/p>\n
    in-patient in Regional Mental Hospital, Yerwada, Pune for treatment and<\/p>\n
    observation. Another order passed on 16th June, 2008 in English reads thus:\n<\/p>\n
                “1) Shri   B.   M.   Mule,   API,   Lashkar   Police   Station   has
\n        produced Miss Asha Bajaj R\/o. Pawai, Mumbai u\/s 23 of Mental<\/p>\n
        Health Act, 1987 on the allegation that the mental health of Miss
\n        Asha Bajaj is not proper and she will cause hurt to Superior Police
\n        Officer o to herself and for that he  produced  ample evidence on
\n        record   and   SMS   sent   by   Miss   Asha   to   Superior   Police   Officer.   I
\n        personally talked with Asha Bajaj and her mother. From her talk it<\/p>\n
        appears that she appear normal, but she has admitted that she sent
\n        messages   to   the   Superior   Police   Officer.   The   report   of   Medical<\/p>\n
        Officer also shows that she became violent when she was taken to
\n        Sasoon General Hospital. Doctor eaxamined her and opined that
\n        patient   is   suffering   from   psychological   disorder.   She  required
\n        further observation and treatment. Mother of Mis Asha Bajaj stated<\/p>\n
        that   she   will  take   care  of   her   daughter,   but   Shri   Mule,   API
\n        submitted   that   such   type   of   assurance   was   given   by   her   mother
\n        previously also, but Miss Asha and her mother committed breach of
\n        those assurance and if Miss Asha is left free then there is possibility
\n        of threat to the life of Asha and also the life of other Police officer.\n<\/p><\/blockquote>\n
        So   to   protect   her   he   requested   to   send   Miss   Asha   for   medical
\n        treatment.\n<\/p><\/blockquote>\n
               2)      Considering  the   evidence  brought   on  record  and   the
\n        opinion of medical officer, Sassoon General Hospital, it will be not
\n        safe to give the custody of Miss Asha to her mother who is old and
\n        not   able   to   control   her   daughter.   Miss   Asha  requires  medical
\n        treatment   and   hence   she   be   sent   to   Mental   Hospital,   Yerawada,
\n        Pune  for observation and treatment for 10 days with direction to<\/p>\n
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\n                                                   10<\/span><\/p>\n
          produce  her   for  further   order with  the  opinion  of  Supt. Medical
\n          Officer, Yerawada, Pune. The Supt. Medical Officer is authorized to
\n          retain Miss Asha for 10 days for observation and treatment. Issue<\/p>\n
          retention order accordingly.”\n<\/p><\/blockquote>\n
    7.     There was the Indian Lunacy Act of 1912 which was repelled by the<\/p>\n
    Mental Health Act, 1987 and the statement of objects and reasons of the<\/p>\n
    1987 Act were the following:\n<\/p>\n
          “The attitude  of the society towards persons afflicted with mental<\/p>\n
          illness   has   changed   considerably   and   it   is   now   realised   that   no
\n          stigma   should   be   attached   to   such   illness   as   it     is   curable,
\n          particularly, when diagnosed at an early stage. Thus the mentally<\/p>\n
          ill persons are to be treated like any other sick persons and the
\n          environment around them should be made as normal as possible.\n<\/p><\/blockquote>\n
          The experience of the working of the Indian Lunacy Act, 1912 has
\n          revealed that it has become outmoded. With the rapid advance of<\/p>\n
          medical   science   and   the   understanding   of   the   nature   of   the
\n          malady,   it   has  become  necessary   to   have   fresh   legislation   with<\/p>\n
          provisions for treatment of mentally ill persons in accordance with
\n          the new approach. Hence this Bill.”\n<\/p><\/blockquote>\n
    The word “lunatic” was defined in 1912 Act under sub-section (5) of section<\/p>\n
    3 to mean an idiot or person of unsound mind and “criminal lunatic” was<\/p>\n
    defined   in   sub-section   (4)   of   section   3   to   mean   any   person   for   whose<\/p>\n
    detention in, or removal to any asylum, jail or other place of safe custody an<\/p>\n
    order has been made in accordance with the  provisions  of Section 466 or<\/p>\n
    Section   471   of   the   Code   of   Criminal  Procedure,  1898.   These   words   and<\/p>\n
    terms   were   given   a   go-by   in   the   1987   Act.   We   do   not   find   a   term   of<\/p>\n
    “Lunatic” in the 1987 Act. On the other hand this Act defines “mentally ill<\/p>\n
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\n                                                  11<\/span><\/p>\n
    person” under sub-section (l) of section 2 as a person who is in  need  of<\/p>\n
    treatment by reason of any mental disorder other than mental retardation.\n<\/p>\n
    So in the first instance, the Police and the Magistrate concerned were under<\/p>\n
    the  impression  that the petitioner No.1 was a lunatic. Now scheme of the<\/p>\n
    Act under 1987 Act is altogether different then the scheme under 1912 Act.\n<\/p>\n
    Even if it is accepted that the petitioner was mentally ill even then in our<\/p>\n
    view the course adopted by the respondents and the Magistrate concerned<\/p>\n
    could not have been adopted. Although we will deal with the question as to<\/p>\n
    whether the petitioner No.1 could have been declared to be mentally ill or<\/p>\n
    not in terms of 1987 Act separately.\n<\/p>\n
    8.     Chapter  IV   of   the   Mental   Health   Act   deals   with   admission   and<\/p>\n
    detention in psychiatric hospital, or psychiatric nursing home. Section 15 of<\/p>\n
    the   Act   mentions,   request   by   major   for  admission  as   voluntary   patient.\n<\/p>\n
    Under   Section   16   a   request   can   be   made   for   admission   of   a   ward   by<\/p>\n
    guardian   when   a   minor   is   sought   to   be   admitted   at   the   request   of   the<\/p>\n
    guardian. On receipt of request under Section 15 or Section 16, the Medical<\/p>\n
    Officer in-Charge is supposed to conduct an inquiry under Section 17 to get<\/p>\n
    himself  satisfied  that the applicant or the minor as the case may be needs<\/p>\n
    treatment as an in-patient. So the law is very strict for admission into the<\/p>\n
    psychiatric hospital or psychiatric nursing home. Section 18 deals with the<\/p>\n
    discharge.   Section   19   deals   with   admission   of   mentally   ill   person   under<\/p>\n
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\n                                                  12<\/span><\/p>\n
    special   circumstances.   Under   Part   III   of  Chapter  IV,   under   Section   20<\/p>\n
    application   for   reception   order   can   be   made.   Section   20   lays   down   the<\/p>\n
    procedure   for   reception.   Section   22   deals   with   the   procedure   upon<\/p>\n
    application for reception order. Section 23 deals with powers and duties of<\/p>\n
    the police officers in respect of certain mentally ill persons. It is under this<\/p>\n
    section that the police claims to have acted in the present case. This section<\/p>\n
    is reproduced below:\n<\/p>\n
         “23. Powers and duties of police officers in respect of certain
\n         mentally ill persons.-\n<\/p><\/blockquote>\n
         (1)     Every officer in charge of a police station, –\n<\/p><\/blockquote>\n
               (a)may take or cause to be taken into protection any person
\n                  found   wandering   at   large   within   the   limits   of   his   station
\n                  whom he has reason to believe to be so mentally ill as to be<\/p>\n
                  incapable of taking care of himself, and<\/p>\n<\/blockquote>\n
               (b)shall take or cause to be taken into protection any person
\n                  within   the   limits   of   his   station   whom   he   has   reason   to
\n                  believe to be dangerous by reason of mental illness.\n<\/p><\/blockquote>\n
          (2) No person taken into protection under sub-section (1)  shall
\n          be detained by the police without being informed, as soon as may
\n          be, of the grounds for taking him into such protection, or where, in
\n          the opinion of the officer taking the person into protection, such
\n          person is not capable of understanding those grounds, without his<\/p>\n
          relatives or friends, if any being informed of such grounds.\n<\/p><\/blockquote>\n
          (3) Every   person   who   is   taken   into   protection   and   detained
\n          under this section shall be produced before the nearest Magistrate
\n          within   a   period   of   twenty-four   hours   of   taking   him   into   such
\n          protection excluding the time necessary for the journey from the
\n          place where he was taken into such protection to the court of the
\n          Magistrate   and   shall   not   be   detained   beyond   the   said   period
\n          without the authority of the Magistrate.”\n<\/p><\/blockquote>\n
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\n                                                  13<\/span><\/p>\n
    Sub-Section(1)(a) of Section 23 lays down that the person can be taken into<\/p>\n
    protection by a police officer when he has reason to believe that the person<\/p>\n
    was mentally ill as to be mentally incapable of taking care of himself. He<\/p>\n
    should   have   found   him  wandering  at   large   within   the   limits   of   his<\/p>\n
    jurisdiction under sub-section (1)(b) of Section 23, the person can be taken<\/p>\n
    into protection if the Officer has reasons to believe   that the person was<\/p>\n
    dangerous by reason of his mental illness. Sub-Section (2) of section 23 lays<\/p>\n
    down that the Officer who takes such person into protection should inform<\/p>\n
    him   of the   grounds  and if that person  is  incapable of  understanding the<\/p>\n
    grounds to his relatives or friends. And sub-section (3) of section 23 lays<\/p>\n
    down that he should be produced before the Magistrate within twenty four<\/p>\n
    hours.     After   analysing   these   sections   and   trying   to   connect   it   with   the<\/p>\n
    record as  produced  before us and which has been mentioned hereinabove,<\/p>\n
    the following things become clear:\n<\/p>\n
          1) That the petitioner No.1 was not found wandering at large;\n<\/p><\/blockquote>\n
          2) That there was no material before the  Police Officer to believe that<\/p>\n
             the petitioner No.1 was incapable of taking care of herself;\n<\/p><\/blockquote>\n
          3) There was no material also to suggest that there was any reason for<\/p>\n
             the   Police   Officer   to   believe   that   petitioner   No.1′
\n                                                                             s   presence   was<\/p>\n
             dangerous by reason of her mental illness;\n<\/p><\/blockquote>\n
          4) The record does not show that the grounds of taking into protection<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                   14<\/span><\/p>\n
             were  communicated  to   the   petitioner   No.1   or   her   mother,   the<\/p>\n
             petitioner No.2 herein.\n<\/p><\/blockquote>\n
    Therefore, the taking petitioner No.1 into protection under Section 23 of the<\/p>\n
    Mental Health Act, 1987 by the Police Officer was itself illegal.\n<\/p>\n
    9.     Now coming to the procedure after application of Section 23, Section<\/p>\n
    24   of   the   Act   for   production   of   mentally   ill   person   has   to   be   followed.\n<\/p>\n
    Section 24 reads thus:\n<\/p>\n
          24.<\/p>\n
                  Procedure on production of mentally ill person.-\n<\/p><\/blockquote>\n
          (1) If a person is produced before a Magistrate under sub-section (3)
\n          of section 23, and if, in his opinion, there are sufficient grounds for
\n          proceeding further, the Magistrate shall –\n<\/p><\/blockquote>\n
          (a) examine the person to assess his capacity to understand,\n<\/p><\/blockquote>\n
          (b) cause him to be examined by a medical officer, and <\/p>\n<\/blockquote>\n
          (c) make such inquiries in relation to  such  person as he may deem
\n               necessary.\n<\/p><\/blockquote>\n
          (2) After the completion of the proceedings under sub-section (1),
\n          the Magistrate may pass a reception order authorising the detention of
\n          the said person as an inpatient in a psychiatric hospital or psychiatric<\/p>\n
          nursing home,-\n<\/p><\/blockquote>\n
           (a) if   the  medical  officer   certifies   such   person   to   be   a   mentally   ill
\n               person, and\n<\/p><\/blockquote>\n
           (b) if the Magistrate is satisfied that the said person is a mentally ill
\n               person and that in the interests of the health and personal safety<\/p>\n
               of that person or for the protection of others, it is necessary to
\n               pass such order.\n<\/p><\/blockquote>\n
                 Provided that  any  relative  or friend  of  the  mentally ill  person
\n          desires that the mentally ill person be sent to any particular licensed
\n          psychiatric hospital or licensed psychiatric nursing home for treatment
\n          therein and undertakes in writing to the satisfaction of the Magistrate
\n          to  pay   the  cost   of   maintenance   of  the   mentally  ill   person   in   such
\n          hospital or nursing home, the Magistrate shall, if the medical officer in<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                 15<\/span><\/p>\n
          charge of such hospital or nursing home consents, make a reception
\n          order for the admission of the mentally ill person into that hospital or
\n          nursing home and detention therein;\n<\/p><\/blockquote>\n
                 Provided further that if any relative or friend of the mentally ill
\n          person enters into a bond, with or without sureties for such amount as
\n          the   Magistrate   may   determine,   undertaking   that   such   mentally   ill<\/p>\n
          person   will   be   properly   taken   care   of   and   shall   be   prevented   from
\n          doing any injury to himself or to others, the Magistrate may, instead of
\n          making a reception order, hand him over to the care of such relative or
\n          friend.\n<\/p><\/blockquote>\n
    10.    We   have   also   quoted   the   order   passed   by   the   Magistrate.   The<\/p>\n
    Magistrate’<\/p>\n
              s   first   order   merely   states   that   the   Magistrate   perused   record,<\/p>\n
    asked questions and then states that she was required to be examined by<\/p>\n
    civil surgeon. So the first requirement of Section 24 of the 1987 Act to form<\/p>\n
    an   opinion   for   examination   of   the   person   to   assess   his   capacity   to<\/p>\n
    understand   was   not   met   by   the   learned   Magistrate.   Second   requirement<\/p>\n
    under Section 24(1)(b) is for the protected person to be examined by the<\/p>\n
    medical officer. This power can be exercised by the Magistrate only if he is<\/p>\n
    satisfied under sub-section (a) of sub-section (1) of section 24 of the Act<\/p>\n
    after   examining   the   person   and   assessing   his   capacity   to   understand.\n<\/p>\n
    Therefore, the Magistrate from very inception was wrong to refer petitioner<\/p>\n
    No.1 for examination by a medical officer. After the medical examination, if<\/p>\n
    the Magistrate was satisfied that the person was mentally ill and that in the<\/p>\n
    interest of health and personal safety of that person he finds it necessary to<\/p>\n
    pass an order, he may authorise the detention of said person as an inpatient<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                     16<\/span><\/p>\n
    in a psychiatric hospital or psychiatric nursing home. So even after getting<\/p>\n
    medical   report   suggesting   the   person   to   be   mentally   ill   person,   the<\/p>\n
    Magistrate has to record a satisfaction that in the interest of his health and<\/p>\n
    personal safety of such person the detention of such person in a mental or<\/p>\n
    psychiatric hospital or psychiatric nursing home was necessary. Even after<\/p>\n
    these requirements are met, still there are two proviso.  One of the proviso<\/p>\n
    to   the   section   is,   “Provided   further   that   if   any   relative   or   friend   of   the<\/p>\n
    mentally   ill person  enters   into a  bond, with   or  without  sureties  for  such<\/p>\n
    amount as the Magistrate may determine, undertaking that such mentally ill<\/p>\n
    person will be properly taken care of and shall be prevented from doing any<\/p>\n
    injury   to   himself   or   to   others,   the   Magistrate   may,   instead   of   making   a<\/p>\n
    reception order, hand him over to the care of such relative or friend.” The<\/p>\n
    learned Magistrate has noted in his order dated 16th June, 2008, “Mother of<\/p>\n
    Ms. Asha Bajaj stated that she will take care of her daughter, but Shri Mule,<\/p>\n
    API,   submitted   that   such   type   of   assurance   was   given   by   her   mother<\/p>\n
    previously also, but Miss Asha and her mother committed breach of those<\/p>\n
    assurance and if Miss Asha is left free then there is possibility of threat to<\/p>\n
    the life of Asha and also to the life of other police officer.” There was no<\/p>\n
    record   before   the   Magistrate   compelling   her   not   to   grant   request   of   the<\/p>\n
    mother of Petitioner No.1, who was present before the Magistrate. At best<\/p>\n
    the Magistrate could have demanded a bond from the mother of petitioner<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                      17<\/span><\/p>\n
    No.1.   It   appears   that   the   Magistrate   was   performing   formalities   and   the<\/p>\n
    decision was taken even prior to medical report.\n<\/p>\n
    11.     Now let us come to the medical examination which was  conducted.\n<\/p>\n
    Even after two days of admission the doctor concerned was not able to make<\/p>\n
    a final diagnosis. But he only stated that Miss Asha Bajaj was suffering from<\/p>\n
    a   psychiatric   disorder   and  according  to   him   she   required   further<\/p>\n
    observation, evaluation and treatment at the psychiatric hospital urgently.\n<\/p>\n
    What   abnormality   he   had   found   were   that   her   talks   were   irrational   and<\/p>\n
    illogical. She was preoccupied to meet the Inspector General of Police and<\/p>\n
    occasionally gave suicidal threats. Her insight and judgment was  lacking.\n<\/p>\n
    Seeing the sequences of events in this case, we have serious doubts about<\/p>\n
    this certificate as well. But we are not going in this proceeding to decide<\/p>\n
    whether the petitioner No.1 needed medical treatment or not because that is<\/p>\n
    a   subject   which   is   left   to   the   Doctor.   But   the   fact   of   the   matter   is   that<\/p>\n
    respondent No.1 had some grudge against the petitioner No.1 and we do<\/p>\n
    not want to judge the issue as to whether the petitioner No.1 was wrong or<\/p>\n
    respondent No.1 was wrong. Respondent No.1 might have had reason to<\/p>\n
    feel   harassed,  embarrassed  by  petitioner   No.1.  The   letters   and   the   SMSs<\/p>\n
    which have been placed on record by respondent No.1, if are true, could<\/p>\n
    have been a reason for anybody to feel harassed and embarrassed. But that<\/p>\n
    does not mean that the whole machinery could be used to send to petitioner<\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                   18<\/span><\/p>\n
    No.1 to a mental hospital. Therefore, we are of the view that the whole<\/p>\n
    exercise  was  done  to send petitioner  No.1  to  the  mental  hospital  with  a<\/p>\n
    preconceived plan in which the main role has been played by respondent<\/p>\n
    No.1   and   unfortunately   by   a   Magistrate.   If   respondent   No.1   had   any<\/p>\n
    grievance she could have taken recourse to law and petitioner No.1 could<\/p>\n
    have   been   booked   for   the   offences   she   might   have   committed.   But   the<\/p>\n
    course   taken   by   respondent   No.1   was   absolutely   wrong   and   was   not<\/p>\n
    expected of an Officer of the cadre of respondent No.1.   However, in the<\/p>\n
    facts and circumstances of the case, we do not think it appropriate to pass<\/p>\n
    any order in this regard. The respondent No.1 is at liberty to take recourse<\/p>\n
    to law, if any, available to her for redressal of her grievances.\n<\/p>\n
    12.    Learned   Advocate   General   who   is   appearing   in   the   matter   has<\/p>\n
    submitted that psychiatric disease have many many manifestations and one<\/p>\n
    of   the   manifestation   is   of   being   `stalker’
\n                                                         .   He   submitted   that   a   stalker   is<\/p>\n
    usually one who pursue the victim for a variety of reasons and according to<\/p>\n
    him the experts define five categories of stalkers to facilitate diagnosis and<\/p>\n
    management. He has produced some material before us and one of such is<\/p>\n
    an extract from a magazine `Psychiatric News’
\n                                                . Another publication is based<\/p>\n
    on   an   issue   of   March   of   the   British   Journal   of   Psychiatry,   which   has<\/p>\n
    concluded that stalkers are a group of people whose behaviour is motivated<\/p>\n
    by   different   forms   of   psychopathology,   including   psychosis   and   severe<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                  19<\/span><\/p>\n
    personality disorder. Both stalkers and their victims are in urgent need of<\/p>\n
    the   development   of   specific   treatments.   Learned   Advocate   General<\/p>\n
    submitted that it appears to him that the petitioner No.1 was a victim of<\/p>\n
    stalker   and   because   of   her   psychiatric   condition   she   was   a   reason   for<\/p>\n
    personal suffering of respondent No.1 as an expert believe that stalking is<\/p>\n
    causing pervasive and intense personal suffering and is an area of psychiatry<\/p>\n
    that   is   currently   overlooked.   The   experts   defined   stalking   as   “the   wilful,<\/p>\n
    malicious   and   repeated   following   or   harassing   of   another   person   that<\/p>\n
    threatens his or her safety”. Typical staling behaviour includes the intrusive<\/p>\n
    following  of  a  `target’,
\n                               for  example,  by  placing  one’
\n                                                              s  self  in front  of  the<\/p>\n
    target’
\n          s  home.  Stalkers   most   often   persecute   their   targets   by  unwanted<\/p>\n
    communications, like frequent telephone calls, letters, e-mail, graffiti, notes<\/p>\n
    or packages. We appreciate the assistance provided by the learned Advocate<\/p>\n
    General. But as we have said that it may not be possible for us to decide<\/p>\n
    whether   the   petitioner   was   a   psychiatric   patient   or   not   and   even   if   the<\/p>\n
    doctors were of the opinion that she needed hospitalisation or assistance<\/p>\n
    under law, the Magistrate was bound to give her custody to her mother who<\/p>\n
    was willing to take her. Learned Advocate General submitted that in some of<\/p>\n
    these cases in United Nation stalking has been made punishable and in the<\/p>\n
    State of Massachusetts stalking has been defined and punishment has been<\/p>\n
    prescribed.   We   have   our   own   doubt   that   if   stalking   has   been   made<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                   20<\/span><\/p>\n
    punishable   in   the   States   of   United   Nation.   Section   43   of   Chapter   265   :\n<\/p>\n
    Crimes against the Person, which has been  produced  before us, lays down<\/p>\n
    the following :\n<\/p>\n
          “Section 43: (a) Whoever (1) wilfully and maliciously engages in<\/p>\n
          a knowing pattern of conduct or series of acts over a period of time
\n          directed at a specific person which seriously alarms or annoys that
\n          person and would cause a reasonable person to suffer substantial
\n          emotional distress, and (2) makes a threat with the intent to place<\/p>\n
          the   person   in   imminent   fear   of   death   or   bodily   injury,   shall   be
\n          guilty   of   the   crime   of   stalking   and   shall   be   punished   by<\/p>\n
          imprisonment in the state prison for not more than five years or by
\n          a fine of not more than one thousand dollars, or imprisonment in
\n          the house of correction for not more than two and one-half years or<\/p>\n
          both. Such conduct, acts or threats described in this paragraph shall
\n          include, but not be limited to, conduct, acts or threats conducted by
\n          mail   or   by   use   of   a   telephonic   or   telecommunication   device
\n          including,   but   not   limited   to,   electronic   mail,   internet
\n          communications and facsimile communications.\n<\/p><\/blockquote>\n
          (b) Whoever  commits  the   crime   of   stalking   in   violation   of   a<\/p>\n
          temporary or permanent vacate, restraining, or no-contact order or
\n          judgment   issued   pursuant   to   sections   eighteen,   thirty-four   B,   or
\n          thirty-four C of chapter two  hundred  and eight; or section thirty-
\n          two of chapter two hundred and nine; or sections three, four or five<\/p>\n
          of chapter two hundred and nine A: or sections fifteen or twenty of
\n          chapter two hundred and nine C or a protection order issued by
\n          another   jurisdiction;   or   a   temporary   restraining   order   or
\n          preliminary or permanent injunction issued by the superior court,
\n          shall be punished by imprisonment in a jail or the state prison for<\/p>\n
          not less than one year and not more than five years.  No sentence
\n          imposed under the provisions of this subsection shall be less than a
\n          mandatory minimum term of imprisonment of one year.”\n<\/p><\/blockquote>\n
    13.    In any case, we do not have any such law in this country. But we<\/p>\n
    agree with the learned Advocate General that if a person is continuously<\/p>\n
    harassed   by   SMSs   and   letters   of   the   nature   of   which   the   petitioner   was<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n                                                   21<\/span><\/p>\n
    allegedly writing to respondent No.1, there should be some law against such<\/p>\n
    behavior. But in that connection the learned Advocate General would be of<\/p>\n
    more   helpful   than   this   Court   as   we   cannot   legislate   and   it   is   only   the<\/p>\n
    legislatures that can legislate such a law.\n<\/p>\n
    14.    With the observations that the Magistrates should treat themselves to<\/p>\n
    be the custodian and protector of the rights of the people and if police fail in<\/p>\n
    their duty the Magistrates should not fail and should ensure that the person<\/p>\n
    is not sent to a mental hospital without strict compliance of the provisions of<\/p>\n
    the Act.\n<\/p>\n
    15.    For   the   reasons   mentioned   above,   we   allow   the   writ   petition   and<\/p>\n
    quash and set aside the entire proceedings and the orders passed by the<\/p>\n
    learned Additional Chief Judicial Magistrate, Pune in Misc. Application No.<\/p>\n
    040\/470\/2008.\n<\/p>\n
    16.    We   also   make   it   clear   that   any   reference   made   to   any   allegations<\/p>\n
    levelled by petitioners against respondent No.1 or any allegation made by<\/p>\n
    respondent No.1 against the petitioner has only been made for deciding the<\/p>\n
    present petition and should not be taken as an expression of opinion with<\/p>\n
    regard to any of the allegations.\n<\/p>\n
                                                                  Sd\/-\n<\/p>\n
                                                           (BILAL NAZKI, J.)<\/p>\n
                                                                  Sd\/-\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>
\n            22<\/span><\/p>\n
                (A. A. KUMBHAKONI, J.)<\/p>\n
                     ::: Downloaded on – 09\/06\/2013 14:00:34 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ms. Asha Shamandas Bajaj vs Mrs. Meeran Borwankar on 22 October, 2008 Bench: Bilal Nazki, A.A. Kumbhakoni 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-33782","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMs. Asha Shamandas Bajaj vs Mrs. Meeran Borwankar on 22 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-asha-shamandas-bajaj-vs-mrs-meeran-borwankar-on-22-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ms. Asha Shamandas Bajaj vs Mrs. Meeran Borwankar on 22 October, 2008 - 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