By the Court.—Heard Shri Amit Kumar Singh, learned counsel for the petitioner, Shri Pradeep Kumar Shukla, learned counsel for respondent No. 6, Juber Ali, the brother of the petitioner and learned Additional Government Advocate.

Km. Ajra Khan has been produced before this Court today in pursuance of our order dated 9.7.2009.

2. By means of this writ petition the petitioner has challenged an order dated 9.4.2009 passed by the Sub Divisional Magistrate, Patiali, Kashiram Nagar whereby she was sent to the Nari Niketan, Kanpur Nagar.

3. This case was initiated on a report of the LIU, district Kanshiram Nagar dated 5.3.2009 which noted that Km. Ajra Khan had disappeared from her home and her family members were alleging that Rajdeep Pandey and others had taken her away. The LIU report further mentioned that although there was no report at any police station, but as there were rumours of some entanglement of Km. Ajra Khan with Rajdeep Pandey, the matter had acquired communal overtones in Kasba Sidhpura.

4. Ajra was produced before the SDM on 9.4.2009, along with a report of the S.O., P.S. Siddhpura. In the report, it was stated that Km. Ajra Khan had herself contacted the police station and pointed out that she had done her M.A. and she was major, her date of birth being 10.5.1982. As her family members were ill treating her she wanted to live independently and to earn her own livelihood. She denied any relationship with Rajdeep. She also made some allegation against her brother Zubair Ali and stated she was not willing to go to her house and that Rajdeep should not be harassed on that count.

5. However, the S.D.M. considering the matter to be communally sensitive, and also on account of the fact that no family member was willing to take her, sent her to the Nari Niketan, Kanpur Nagar by the impugned order.

6. We have also ourselves examined Km. Ajra Khan. She stated that she does not want to stay in the Nari Niketan and wants to live independently and she would like to be sent under police escort to Ghaziabad where she desires to reside.

7. Learned counsel for the petitioner has challenged the order of the S.D.M. on the ground that the S.D.M. has no authority whatsoever to order the detention of Km. Ajra Khan, who was admittedly major, her date of birth being 10.5.1982. He rightly pointed out that no provision has been mentioned under which she has been sent to the Nari Niketan. He pointed out that under Section 97, Cr.P.C. search warrant can be issued if the S.D.M. has reason to believe that any person has been confined under circumstances which amount to an offence and that after such a person is recovered, the Magistrate can pass an order as to appropriate custody. In the present case admittedly no FIR or complaint has been made against any person, and Km. Ajra Khan had herself approached the police station and expressed a desire that she be allowed to go where she pleases, but instead her confinement at the Nari Niketan was directed.

8. Likewise, Section 171, Cr.P.C. also cannot be utilised for placing her in the Nari Niketan. The proviso to the said section only mentions that if any complainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond. This is not the situation in the present case.

9. Learned counsel for the petitioner drew our attention to a Division Bench decision of this Court in Smt. Parvati Devi v. State of U.P. and others, 1982 (19) ACC for the proposition that a person cannot be compelled to stay in Nari Niketan against her wishes, and that Sections 97 and 171, Cr.P.C. cannot be utilized for that purpose.

10. Learned counsel also referred to the case of the Apex Court in Gian Devi v. Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234, for the proposition that when a person had crossed 18 years, no fetter can be place