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1971 Supreme(Bom) 129
BOMBAY HIGH COURT
KAMAT, J.
Lokumal Kishinchand Manghnani and others, Accused-Petitioners
versus
Vivek Arya and another, Respondents.
Criminal Revn. Appln. Nos. 854 and 880 of 1971,
Decided on : 4 -10 -1971.
J. C. Bhatt with R. W. Adik, P. R. Vakil, J. Ramchandani and K. G. Menon, i/b. M/s. Jamshedji Rustomji and Devidas and Jani and Merchant. Attorneys for Accused Petitioners in both the Applications:A.P. Gandhi, for Respondent No. 1 and V. T. Gambhirwarla, Asstt. Govt. Pleader for the State in Appln. No. 854 of 1971.
The Magistrate's authority under Section 100 of the Code of Criminal Procedure is limited and cannot be used to detain a sui juris individual who has not committed or is not likely to commit any offence. Such detention would violate the individual's fundamental right to personal liberty under Article 21 of the Constitution.
Headnote:
CRIMINAL REVISION - Section 100 of the Code of Criminal Procedure - Scope and Applicability - Detention of a Sui Juris Individual - Fundamental Rights - Personal Liberty - Legality and Propriety of Detention Order - Interpretation of Section 100 - Limits of Magistrate's Authority.
Fact of the Case:
Kamini, a young woman, married Ellis, a Jewish man, after converting to Hinduism. Their parents opposed the marriage and filed a civil suit for annulment. Ellis filed a complaint alleging wrongful restraint of Kamini by her parents. The Magistrate issued a search warrant under Section 100 of the Code of Criminal Procedure and ordered Kamini's detention in a Rescue Home for 14 days.
Finding of the Court:
The Court held that the Magistrate's order was illegal and unsustainable. It found that there was no evidence of wrongful restraint or confinement of Kamini and that she was sui juris and had expressed her desire to stay with her parents. The Court also held that Section 100 of the Code of Criminal Procedure does not empower the Magistrate to order the detention of a sui juris individual who has not committed or is not likely to commit any offence.
Issues: 1. Whether the Magistrate had jurisdiction to issue a search warrant under Section 100 of the Code of Criminal Procedure based on the complaint of wrongful restraint. 2. Whether the Magistrate had the authority to order the detention of Kamini in a Rescue Home after she denied being wrongfully restrained or confined and expressed her desire to stay with her parents. 3. Whether the detention order violated Kamini's fundamental right to personal liberty under Article 21 of the Constitution.
Ratio Decidendi: 1. Section 100 of the Code of Criminal Procedure empowers the Magistrate to issue a search warrant if he has reason to believe that a person is confined under circumstances amounting to an offence. 2. The Magistrate's authority under Section 100 is subject to the implied proviso that the order is otherwise legal and does not violate any fundamental rights. 3. In the case of a sui juris individual who has not committed or is not likely to commit any offence, the Magistrate cannot order their detention under Section 100. 4. The detention of Kamini violated her fundamental right to personal liberty under Article 21 of the Constitution.
Final Decision: The Court set aside the Magistrate's order and directed Kamini's immediate release. It also cancelled the bond she had executed for her appearance in Court.
2. The first petitioner Lokumal and the second petitioner Laxmibai are the parents and the third petitioner Kishinchand is the paternal grandfather of a young lady by name Kamini, who is now aged about nineteen years. The first respondent Ellis is a handsome young man aged about twenty-one years and by birth he is a Jew,
Kamini and Ellis were studying in Hill Grange High School, Bombay and during the years 1966 to 1968, they were in the same class. Being classmates they, became acquainted with each other and their acquaintance soon developed into close friendship. Their mutual attraction became so strong that they eventually decided to marry and live together as husband and wife. Both of them passed the Secondary School Certificate. Examination held in March or April 1968. Kamini thereupon joined Sophia College. Bombay and in January 1969. Ellis was sent by his parents to Canada for further studies. After going to Canada, Ellis pursued his studies and he also took up some employment. Kamini and Ellis were writing letters to each other and their correspondence shows that they did not give up their original idea of getting married and living together as husband and wife. Ellis, ultimately came to Bombay on a short leave on October 17, 1970 for the purpose of marrying Kamini and taking her with him to Canada.
3. After he came to Bombay Ellis came to know that being a Jew he could not marry Kamini who was a Hindu. Ellis got over this difficulty by getting himself converted to Hinduism and on November 2, 1970, he and Kamini went through a form of marriage according to Vedic rites at Arya Samaj Mandir, Vithalbhai Patel Road Bombay 4. After the marriage. Ellis and Kamini stayed together at some friend's place. Kamini's parents and other relations, however, did not know anything about these developments, they having been kept completely in the dark about these things from the very beginning. After having stayed with Ellis for six days after the marriage. Kamini returned to her parents. Ellis made arrangements to go back to Canada and took out a Passport for Kamini. He was, however, persuaded by one of Kamini's relations not to take her to Canada immediately and, therefore. Ellis alone went to Canada on November 18, 1970. He was seen off at the air-port by Kamini, her father Lokumal, sister Meeta and her husband Ghanshyam. After Ellis went to Canada leaving Kamini with her parents at Bombay, he and Kamini continued writing letters to each other us before. During this period Ellis's parents also went to Canada and stayed there for some time. They, however, decided to return to India. Ellis also came along with them to Bombay on April 22, 1971.
4. According to Ellis on his arrival in Bombay the petitioners did not allow him to meet Kamini or talk to her even on telephone and he found that Kamini was not allowed to go out of the house of her parents or to have communication with him in any manner and she had been made a virtual prisoner. A Civil Suit, bearing No. 5959 of 1971 also came to be filed in the City Civil Court, Bombay seeking a declaration that the alleged marriage between Kamini and Ellis was null and void and some other ancillary reliefs. Therefore, on May 12, 1971 Ellis filed Miscellaneous Petition No. 440 of 1971 in this Court for a writ of Habeas Corpus under Article 226 of the Constitution and Sec. 491 of the Code of Criminal Procedure. That petition was, however, withdrawn on July 9, 1971 and Ellis thereupon filed a complaint in the Court of the Presidency Magistrate, Girgaum, Bombay on August 4, 1971 alleging that the petitioners had wrongfully restrained the movements of Kamini and she had been ille
