It was held by Hon’ble Allahabad High Court in Ajra
Khan vs. State of U.P., 2010 (1) Crimes 977(All.), that
no adult woman can be compelled to stay in a
Government Protection Home against her wishes. No
woman can be kept in a Protection Home unless she is
required to be kept there either in pursuance of the
Immoral Traffic (Prevention) Act, 1986 or under some
other law permitting her to be kept in such home.
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 566 of 2014
(Under Section 482 Cr.P.C.)
Smt. Vashila
.............. Applicant
versus
State of Uttarakhand and others
U.C. Dhyani, J.
Citation; 2014 CRLJ(NOC)491 UTTARAKHAND
By means of present application under Section 482
Cr.P.C., the applicant has assailed the impugned orders
dated 15.07.2013 and 21.05.2014, passed by learned Sub
Divisional Magistrate, Rurdrapur and learned Sessions
Judge, Udham Singh Nagar respectively.
2.
Shorn of unnecessary details, it may be said here that one
Smt. Manisha wife of Dinesh Kumar, resident of Lalpur,
PS Kichha, is detained in Nari Niketan, Haldwani and is
in the supervision of Superintendant of such reformatory
home.
3.
Detenue Smt. Manisha is undoubtedly a major. She is
having her husband, uncle, aunty and grandmother, but
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none came forward to move an application for her
release from Nari Niketan, Haldwani. She was detained
there on the pretext that there is likelihood of communal
disharmony, if she is released from there. She was
detained there on the ground of her security also.
4.
The question is- can a major woman be detained in a
Nari Niketan against her wishes? Whether the respondent
no. 2, in exercise of it’s powers under Section 97/98
Cr.P.C., compel an adult woman to stay in a Government
Protection Home against her wishes?
5.
It was held by Hon’ble Allahabad High Court in Ajra
Khan vs. State of U.P., 2010 (1) Crimes 977(All.), that
no adult woman can be compelled to stay in a
Government Protection Home against her wishes. No
woman can be kept in a Protection Home unless she is
required to be kept there either in pursuance of the
Immoral Traffic (Prevention) Act, 1986 or under some
other law permitting her to be kept in such home.
6.
It will be useful to reproduce herein paras 13 and 14 of
the judgment rendered by Hon’ble Allahabad High Court
in Ajra Khan’s case (supra).
“13. Learned Additional Government Advocate,
however, contended that sometimes such an order
directing that a female be detained in the Nari
Niketan is passed by a Magistrate because the
matter has become communally sensitive or the
issue may give rise to law and order problems. We
must make it quite clear here, that no absolute
power or absolute discretion is vested in any
authority, whether he be a Magistrate or any
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superior officer or Court to act as per its own ipse
dixit. They are all bound by the "Rule of Law''
which according to Prof. Dicey in contradistinction
to the rule of man, includes within its wide
connotation the absence of arbitrary power,
submission to the ordinary law of the land, and
the equal protection of the laws. It is imperative
therefore for the Magistrate to act within the four
corners of the law and a woman cannot be
detained interminably because her natal family
members are not coming forward to take her
home, if she happens to be major and has
expressed her wish to live independently.
14. Learned AGA has also drawn out attention to
section 98 Cr.P.C. This provision deals with
complaints made on oath of the abduction or
unlawful detention of a woman or a female child
under eighteen years for any unlawful purpose
before a District Magistrate, SDM or other
Magistrate of the 1st Class. The concerned
Magistrate may order immediate restoration of
such woman to her liberty, or of such female child
to her husband, parent, guardian or other person
having lawful charge of such child. It is obvious
that the aid of this provision could also not have
been taken by the Magistrate for ordering the
detention of Ajra in the Nari Niketan. Notably, this
section itself provides that in the case of a major
woman she has to be restored to her liberty.”
7.
This Court is not going into the locus standi of the
present applicant to file application under Section 98
Cr.P.C. or petition under Section 482 Cr.P.C. Suffice will
it be to say that an adult woman cannot be compelled to
stay in a Government Protection Home against her
wishes.
8.
It is accordingly provided that learned Sub Divisional
Magistrate, Rudrapur shall call the inmate in his Court
and inquire from her as to whether she wants to be
released from the Government Protection Home or wants
to stay there? If the adult-detenue does not want to stay
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in the Government Protection Home for any reason, then
she shall be released and set at liberty forthwith.
Learned Sub Divisional Magistrate is required to keep in
mind the law laid down by the Hon’ble Allahabad High
Court in the case of Ajra Khan (supra) while passing
such an order.
9.
The application under Section 482 Cr.P.C. is thus
summarily disposed of.
(U.C. Dhyani, J.)
03.06.2014
Kaushal
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