Maintainability of successive applications.

JAGADISAN, J.:- The petitioner, P. Ramakrishna Sastri, prays for the issue of a writ in the nature of habeas corpus for the rescue and release of his daughter, Kumari Girija Sastri, alleged to be a minor, from the improper detention and wrongful custody of her by the respondents and for the restoration of her custody to him. The petitioner avers that his daughter was living with him at Madras, and that on 12-4-1961 taking advantage of his absence from town at Masulipatam, the respondents kidnapped her from his lawful custody, and that she is now leading a shameful life having illicit intimacy with the first respondent and living a life of prostitution for his benefit and on his compulsion. The respondents are not in any way related to the petitioner or his daughter. The first respondent is described by the petitioner in his affidavit in support of the application as an "unemployed vagrant" and the second respondent is stated to be "a make up man" employed in the motion picture industry. The petitioners story, if true, is indeed a borrowing tale sufficient to cause any parent great mental anguish and pain.

2. The petitioner filed in this court Cri.M.P. No.736 of 1961 invoking the aid of S.491 Cri.P.C. and praying for the issue of a writ of habeas corpus for the custody of his daughter Kumari Girija from the same respondents, alleging the same grounds alleged by him in this petition. This petition was heard by a Division Bench of this court, consisting of Anantanarayanan and Kunhamed Kutti, JJ. and was dismissed by order dated 1-5-1961. The ground of dismissal , was that a writ of habeas corpus is a special remedy available to an aggrieved person only under circumstances of urgency and inability to resort to the ordinary remedies available in law. Anantanarayanan, J. delivering the judgment of the Bench observed thus:

"It is sufficient for us to state that the present is not at all such a case, and that it is perfectly open to the petitioner to apply to a magistrate of competent jurisdiction for restoration to custody of his alleged minor daughter under S.100 Crl.P.C. and S.552 Crl.P.C. Since this is not a case of urgency and since the remedies statutorily provided for have not been exhausted, we dismiss this petition."

It is obvious that the Division Bench did not go into the merits of the application in the view which the learned Judges took that the petitioner must exhaust other statutory remedies open to him before resorting to an application under S.491 Crl.P.C. But nevertheless the teamed Judges expressed the opinion that the daughter of the petitioner was not a minor but an adult perhaps 20 years old. They satisfied themselves that she was not detained against her will. The opinion regarding age is really an obiter and not a finding; it was not necessary for the learned Judges to determine the age of the petitioners daughter as the petition was practically dismissed in limine, though after the issue of a rule nisi.

3. The petitioner then filed Crl.P. No.856 of 1961 again praying for the issue of a writ of habeas corpus to obtain the custody of his daughter from the same respondents. In the first instance this application came on before one of us and notice was issued to the respondents by order dated 30-5-1961. In view of the fact that there was no authentic record or documentary evidence relating to the age of the petitioners daughter at the time when the previous application Crl.M.P. No.736 of 1961 was dismissed a direction was given for the radiological examination of the petitioners daughter, by an expert attached to the Madras General Hospital. This was done and the Assistant Professor of Medical Jurisprudence attached to the Madras Medical College forwarded a report based upon radiological and physical examination of Miss. Girija, stating that she was aged; about 20 years. The petition came on for final disposal before Division Bench consisting of Anantanarayanan and Veeraswami JJ. but unfortunately on the date