Hon'ble Narendra Kumar Johari,J.
(Delivered by Narendra Kumar Johari,J.)
1. Petitioner- Km. Shabana (Minor) approached this Court through her mother/natural guardian with following reliefs:
a. issue a writ, order or direction in the nature of Habeas Corpus commanding the opposite parties to immediately release the detenue, who is illegally detained by the police of Police station Mahila Thana, Kotwali, Hazratganj, District Lucknow and give her custody to her petitioner in pursuance of the order dated 25.06.2019, passed by the Child Welfate committee, Lucknow.
b. issue a writ, order or direction in the nature of mandamus commanding the opposite parties No. 1 to 3 to take necessary action against the guilty police personnel for illegally detaining the detenue in their custody.
2. The brief facts which are necessary for disposal of the petition are that the detenue is a minor. She was kidnapped and taken away to Mumbai about two years back by a person named Aliyar alias Aman. There she was forced into prostitution and undergone physical exploitation several times. The detenue, anyhow, managed to escape from the clutches of her kidnappers and came to Lucknow in June, 2019, where she lodged a First Information Report on 14.06.2019 vide Crime No. 120/2019 under Section 370 I.P.C. Police Station Mahila Thana District Lucknow.
3. After lodging the First Information Report, the detenue was sent to Women Shelter Home, Lucknow by the police personnel and her statement under Section 164 of the Code of Criminal Procedure was recorded. Subsequently, when the matter of detenue was referred to Child Welfare Committee, Lucknow, the mother/natural guardian of detenue claimed her custody, which was considered by the Child Welfare Committee and custody of detenue/minor was given to her mother vide order dated 25.06.2019.
4. After getting the custody of detenue her mother took away the detenue at her native place on 25.06.2019. On the next very date I.e.26.06.2019 the police personnel of Police Station Mahila Thana District Lucknow approached to her mother to bring the detenue at Police station. On 28.06.2019, some local police personnel of Police Station Bhinga, District Shrawasti came to the house of the petitioner and threatened her mother for taking away the detenue at Police Station Mahila Thana District Lucknow.
5. On regular pressure of police personnel, petitioner brought the detenue at Police Station Mahila Thana District Lucknow on 30.06.2019, where the custody of detenue was taken from her mother to the pretext that detenue will be asked some question regarding Crime No. 120/2019. Her mother was told to wait, but detenue was not released, rather her mother was told in the morning of 01.07.2019 to leave the place without detenue. When her mother asked about her daughter from police personnel then she was abused and threatened for false implication in criminal case.
6. On 02.07.2019, petitioner approached to the Director General of Police, U.P. Lucknow by way of giving application through registered post and requested to deliver the custody of detenue to her but nothing has been done.
7. Petitioner has further stated that police personnel of Police Station Mahila Thana District Lucknow has illegally detained the minor daughter of petitioner without any rhyme and reason.
8. It has been further stated that the statement of detenue under Section 164 Cr.P.C. has been recorded and custody of detenue has already been given to her mother in accordance with law. As such, no question arises to the opposite party No. 4 to detain the detenue in custody. There is no order of detention of any court of law and detention of detenue is illegal which is against the order of Child Welfare Committee, Lucknow. There is every apprehension of any mis-happening with the detenue. The police personnel of Police Station Mahila Thana District Lucknow have curtailed the personal liberty of detenue, which is violation of fundamental rights of the detenue.
9. The copy of First Information Report which got registered by the complainant- Shabana on 14.06.2019, which annexed as Annexure No. 1 to the writ petition. The brief averments mentioned in the said F.I.R. is that:-
"Complainant was sold by her father Niyaz and mother Bano to a Lady named Jiya, R/o Mumbai, who carried the complainant to Mumbai, where she was forced into prostitution and in that connection she was sent to Mumbai, Delhi, Chandigarh, Haryana etc. for prostitution without her will and consent. Before three months, the lady Jiya sold the complainant to Sarfaraz and Muskan who also forced her to prostitution. Anyhow, she managed to escape from the grips of above persons and met with S.D.M. Sihora Bhawana Bharavi who gave her shelter for some time and look after her, then after that she provided financial help to complainant to go to Lucknow."
10. Copy of the statement of detenue under Section 164 Cr.P.C. is annexed as Annexure-2 to the writ petition, wherein she narrated the version of her First Information Report alleging her father, Jiya, Muskan and Sarfaraz.
11. The custody order (Supurdaginama) of detenue dated 25.06.2019 is annexed as Annexure-3 to the writ petition. Annexure-4 if is the complaint letter dated 02.07.2019 given by Bano (mother of the detenue) to Senior Superintendent of Police, Lucknow alongwith four original registered letter receipts to Principal Secretary (Home) U.P. Lucknow, Station House Officer, Police Station Mahila Thana District Lucknow, S.S.P. Lucknow and Director General of Police, U.P.. In the complaint letter, it has been mentioned that Police Station Mahila Thana District Lucknow has taken away the custody of her daughter and she was forced to leave the place without her daughter. The police personnel also snatched the custody memo/order pased by the Juvenile court. In complaint letter Bano has also apprehended that the police personnel have perhaps acted in the high handed manner at the behest of her daughter's abductor. She prayed that her daughter be protected from the clutches of Police Station Mahila Thana District Lucknow.
12. The petition was heard by the Court for the first time on 06.08.2019, the Court has passed an order on 06.08.2019 as under:
"Heard Mohd. Tabrez Iqbal, learned Counsel for the petitioner and learned Government Advocate.
This petition has been filed by Km. Shabana aged about 16 years through her mother.
It is alleged by the petitioner that she has moved an application to the Senior Superintendent of Police, Lucknow, vide annexure-4, that her daughter, namely, Km. Shabana, has been illegally detained by the police personnel of Mahila Thana, Kotwali Hazratganj, Lucknow. The said application was given on 02.07.2019.
Let the respondent no.4 produce the petitioner, namely, Km. Shabana, before this Court on 17.08.2019."
13. On 17.08.2019, the detenue was produced by the police personnel of Police Station Mahila Thana, District Lucknow. Mother of detenue was also present in the Court. On being asked the detenue replied that police personnel of Police Station Mahila Thana District Lucknow detained her at premises of Police Station Mahila Thana for 4 to 5 days, then after that they sent her to Women Shelter Home, Lucknow. She further expressed her wishes that she wants to go with her mother. Court has also observed that the detenue was appearing some fearful.
14. Court also asked to police personnel why she was detained at the premises of Mahila Thana Lucknow for 4 to 5 days and subsequently why she had been sent to Women Shelter Home, Lucknow by police without any order of competent Court. The police personnel could not replied. Actually, they failed to show any reason or order of Magistrate.
15. Learned counsel for the petitioner argued that the detenue was detained by the police at Police Station Mahila Thana District Lucknow illegally. When the statements of detenue was already been recorded under Section 161 & 164 of Cr.P.C, there was no need to detain her at Police Station Mahila Thana District Lucknow or send her to Women Shelter Home, Lucknow. There was an order of competent court regarding custody of detenue to her mother but the same was flouted by police personnel. Moreover, Women Shelter Home, Lucknow is not the proper place to send such detenue. This is apparently high handiness of police personnel, which is against the provisions of Article 21 of the Constitution of India.
16. We have heard the argument of learned counsel for the petitioner, gone through the record and inquired detenue and police personnel who brought the detenue in court.
17. Article 21 of the Constitution of India says that- "No person shall be deprived of his life and personal liberty except according to the procedure established by law."
18. Hence it cannot be too often emphasize that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from disadvantage of the person affected.
19. Article 21 of the Constitution of India which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. It is an inbuilt guarantee.
20. In the case of Seema Devi through her husband vs. State of U.P. through Principal Secretary (Civil Secretariat) and others Habeas Corpus Petition No. 10006 of 2016; a Bench of this Court has observed that:-
23." 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit legal justification. The negative right constitutes the essence of personal liberty.
24. It is very difficult to define the term 'liberty'. It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term 'liberty' may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three facts, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.
25.It can be found that 'liberty' generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to 'liberty' and freedom is lost. At the same time, 'liberty' without restraints would mean liberty won by one and lost by another. So 'liberty' means doing of anything one desires but subject to the desire of others.
26. Life and liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.
27. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of a right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why 'liberty' is called the very quintessence of a civil existence. (Vide Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others : (2011) 1 SCC 694."
21. In present case the petitioner has approached to this Court with a writ of Habeas Corpus. It is for the Court to decide in the exercise of its Constitutional power of judicial review whether deprivation of life and personal liberty in given case is by procedure which is reasonable fair and just or is otherwise.
22. The writ of Habeas Corpus is a prerogative writ, by which the cause and validity of detention of a person are investigated by summary procedure and if the authority having his custody does not satisfy the court that the deprivation of his personal liberty is according to the procedure established by law. The person is entitled to for his liberty.
23. In case of Smt. Seema Devi (Supra) it has been held by this Court that:-
"19.A writ of Habeas Corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English Courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The due process for such petition is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not to do something.
20. A writ of Habeas Corpus is known as "the great and efficacious writ in all manner of illegal confinement", being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that the prisoner be taken before the court, and that the custodian to present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.
21.There can be no doubt that personal liberty is a precious right, therefore, the writ of Habeas Corpus provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the detenue before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention of liberty or freedom of the prisoner or detenu."
24. There can be no doubt that personal liberty is a precious right therefore a writ of Habeas Corpus provides a prompt and effective remedy against the illegal detention of a citizen. By this writ the Court directs the authority, who has detained a person to bring the corpus of detenue before the Court so as to enable the court to consider the validity, jurisdiction and justification for such detention. The principle aim of the extraordinary remedy is to ensure swift judicial review of alleged unlawful detention of member or freedom of detenue.
25. In present case the detenue is a minor girl. Her custody to her mother has already been handed over by Women Shelter Home, Lucknow on 25.06.2019 in pursuance of order of authority having competent jurisdiction (Child Welfare Committee, Lucknow) which is apparent by annexure-3 to the writ petition. It has been argued by learned counsel for the petitioner that before delivery of custody the statement of detenue had already been recorded under Section 161 & 164 Code of Criminal Procedure, therefore there was no occasion to detain the detenue at Police Station Mahila Thana District Lucknow. As according to the statement given by detenue in court, the police personnel detained her in the premises of Police Station Mahila Thana District Lucknow for 4 to 5 days. Then after that they shifted her to Women Shelter Home instead of her mother from whose custody they had taken her.
26. Opposite party No. 4, Station House Officer, Police Station Mahila Thana District Lucknow did not consider the mental condition of detenue as she was sufferer from prostitution traders. Opposite party No. 4 has also failed to show any procedural requirement under Code of Criminal Procedure for such detention or any order of competent court, justifying her detention at the premises of Police Station Mahila Thana District Lucknow or sending her in Women Shelter Home, Lucknow.
27. It has been held by Hon'ble Apex Court that in Case of Icchu Devi Choraria Vs. Union of India AIR 1980 SC 1983 that- ".....Vide Nazamuddin vs. State of West Bengal [1975] 2 SCR 593 Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law."
28. It has further held by Hon'ble Apex Court in the case of Icchu Devi Choraria (Supra) that "....the burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority."
29. The burden of proof regarding lawful detention of detenue was on opposite party No. 4 i.e. Station House Officer, Police Station Mahila Thana District Lucknow, but the opposite party No. 4 failed to establish that the detention of detenue at Police Station Mahila Thana District Lucknow and at Women Shelter Home, Lucknow was just, proper and according to law.
30. The fact brought before the Court indicates that the detenue was sent to Women Shelter Home, Lucknow from Police Station Mahila Thana District Lucknow after her illegal detention for 4 to 5 days at the premises of Police Station Mahila Thana District Lucknow, Women Protection Home, is not the proper place permitted by law to keep detenue there. Such protective homes find place in Section 2(g) of The Immoral Traffic (Prevention) Act, 1956, which reads as under:-
Section 2(g) "protective home" means an institution, by whatever name called (being an institution established or licensed as such under section 21), in which persons, who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipment and other facilities have been provided, but does not include--
(i) a shelter where undertrials may be kept in pursuance of this Act, or
(ii) a corrective institution;
Further the Act makes provision under Section 17 as follows:-
"Section 17. Intermediate custody of persons removed under section 15 or rescued under section 16.--(1) When the special police officer removing a person under sub-section (4) of section 15 or a police officer rescuing a person under sub-section (1) of section 16, is for any reason unable to produce him before the appropriate magistrate as required by sub-section (5) of section 15, or before the magistrate issuing the order under sub-section (2) of section 16, he shall forthwith produce him before the nearest magistrate of any class, who shall pass such orders as he deems proper for his safe custody until he is produced before the appropriate magistrate, or, as the case may be, the magistrate issuing the order:
Provided that no person shall be--
(i) detained in custody under this sub-section for a period exceeding ten days from the date of the order under this sub-section; or
(ii) restored to or placed in the custody of a person who may exercise a harmful influence over him.
(2) When the person is produced before the appropriate magistrate under sub-section (5) of section 15 or the magistrate under sub-section (2) of section 16, he shall, after giving him an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under sub-section (1) of section 16, the age, character and antecedents of the person and the suitability of his parents, guardian or husband for taking charge of him and the nature of the influence which the conditions in his home are likely to have on him if he is sent home, and, for this purpose, he may direct a probation officer appointed under the Probation of Offenders Act, 1958 (20 of 1958), to inquire into the above circumstances and into the personality of the person and the prospects of his rehabilitation.
(3) The magistrate may, while an inquiry is made into a case under sub-section (2), pass such orders as he deems proper for the safe custody of the person:
Provided that where a person rescued under section 16 is a child or minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act, for the time being in force in any State for the safe custody of children:
Provided further that, no person shall be kept in custody for this purpose for a period exceeding three weeks from the date of such an order, and no person shall be kept in the custody of a person likely to have a hurmful influence over him. (4) Where the magistrate is satisfied, after making an inquiry as required under sub-section (2),--
(a) that the information received is correct; and
(b) that he is in need of care and protection, he may, subject to the provisions of sub-section (5), make an order that such person be detained for such period, being not less than one year and not more than three years, as may be specified in the order, in a protective home, or in such other custody as he shall, for reasons to be recorded in writing, consider suitable:
Provided that such custody shall not be that of a person or body of persons of a religious persuasion different from that of the [person] and that those entrusted with the custody of the person including the persons in charge of a protective home, may be required to enter into a bond which may, were necessary and feasible, contain undertakings based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the person as well as supervision by a person appointed by the court, which will be in force for a period, not exceeding three years.
(5) In discharging his functions under sub-section (2), a magistrate may summon a penal of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons.
(6) An appeal against an order made under sub-section (4) shall lie to the Court of Session whose decision on such appeal shall be final."
31. In all these cases when the offences are committed under the Act (The Immoral Traffic (Prevention) Act, 1956) in respect of women or girls living in any premises, which are searched, such woman or girl or person in respect of whom such offences are committed and who is not involved in those offences, the proper course for the magisterial Court under Section 17(4) is to make an inquiry as contemplated therein and if the information received is found to be correct and the Magistrate is satisfied that the woman or girl or other person in whose respect the offence is committed is in need of care and protection, he may make order of detention in a protective home.
32. Accordingly, the detenue was not involved herself in prostitution. On the other hand, she was forced without her will and consent into prostitution. She was victim of offence (under the Immoral Traffic (Prevention) Act 1956) committed by other persons with respect of her. She was neither found in search of any place like brothel house nor was rescued by the Magistrate. She was a minor victim of some cruel persons against whom she dared to lodge First Information Report in search of justice, therefore, inapplicability of Section 17 of the Immoral Traffic (Prevention) Act and in absence of order of other competent court, she was not entitled to send in Women Shelter Home. Moreover, until the order of delivery of custody passed by Child Welfare Committee was effective then in that case the detention of detenue in Women Shelter Home was illegal and non-application of mind.
33. Reality of conditions prevailing in Women Shelter Home also cannot be ignored such protection homes are not being maintained under the ideal conditions. There is every likelihood of abused of girls in such homes, confinement in such circumstances is likely to torments the elements mentally and emotionally. This is never permissible in the eyes of law.
34. This is a matter of great surprise that the complaints were already been sent by the mother of detenue on 02.07.2019 to higher officers of the State through registered post but no body paid any heed, which is against the humanity and responsibility towards citizen.
35. In the case Ram Narain vs. State of Delhi and others 1953 SCR 652 it has been observed by Hon'ble Apex Court:
"This court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law."
That has not found place in present case.
36. In a Habeas Corpus petition where allegations are made that a citizen of this country is in illegal custody it is the duty of the Court to safeguard the freedom of citizen, which has been guaranteed to him by our Constitution and to immediately take such action as would ensure that no person however high or low acts in contravention of the law or in a high-handed, arbitrary or illegal manner. While, no doubt it is the duty of the Court to safeguard against any encroachments on the life and liberty of individuals, at the some time we recognize that the authorities, who have the responsibility to discharge their functions vested in them under the law of the country should not be impeded or interfered with, without justification.
(Emphasize taken by judgement dated 18.11.1971; Jage Ram Inspector of Police vs. Hans Raj Midha; AIR 1972 SC 1140).
37. In the case of Bheem Singh vs. State of J & K and others; AIR 1986 SC 494 it has been observed by Hon'ble Apex Court that ".....Police Officer who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct."
38. The Hon'ble Apex Court has also observed that in such a case adequate compensation may be awarded.
39. Considering the illegal detention of the petitioner and her mental agony and suffering, we feel it just and proper to award a sum of Rs. 3000/- per day as compensation for curtailment of liberty of detenue who was detained illegally, firstly in premises of Police station Mahila Thana, Lucknow and secondly in Women Shelter Home, Lucknow. The period shall be counted from 30.06.2019 to actual date of release from Women Shelter Home, Lucknow. Although, we are conscious to the fact that liberty of a person cannot be calculated in terms of money. No actual recompense can be fixed for liberty of a person, however, the compensation awarded by us, will certainly act as dew.
40. Let the amount of compensation be paid to petitioner by the State of U.P. through Principal Secretary (Home) (opposite party No.1) to the Registry of this Court within fifteen days. The amount so received shall be transmitted in the Bank account of the petitioner by Registry immediately. However, O.P. No. 1 is free to recover the said compensation amount from the salary of the persons so responsible for illegal detention.
41. Considering the averments made in the First Information Report we also direct to District Probationary Officer, Shrawasti to visit at the resident of detenue/petitioner once in a month and the District Probationary Officer shall give his report to the Chief Judicial Magistrate concerned where the case Crime No. 120/2019 is pending. The report of District Probationary Officer shall be kept in the record of the case regularly till the case is finally decided.
42. The detenue has been released by the order of this Court dated 17.08.2019.
43. Writ petition is accordingly allowed.
Order dated :-22.08.2019 Reena/-