M.P. Menon, J.@mdashThis petition is filed under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus directing Respondents 2 to 4, "or such of them having the custody of Ratnaprabha", to have her body produced before court and for a direction that she be set at liberty from illegal custody. The Petitioner is Krishna Raj aged 27, said to be assisting his father in the latter''s hotel business (Royal Lunch Home) at Cannanore. The first Respondent is the State of Kerala. Respondents 2 and 3 are the Circle Inspector and Sub Inspector of Police, Trichur. The 4th Respondent, Ratnakaran, is the father of the girl Ratnaprabha. He is also said to be a resident of Cannanore, though a Councillor of the Tellicherry Municipality, the President of the Jnanodaya Yogam at the same place, and also part-owner of the Prabha Talkies of Tellicherry.
2. The averments in the petition are the following: The 4th Respondent used to visit the Royal Lunch Home and a deep acquaintance developed between the families of the Petitioner and the 4th Respondent. The Petitioner''s car was being frequently used by the 4th Respondent for the travels and tours of himself and his family. The frequent contacts resulted in the Petitioner meeting Ratnaprabha, who was then a Pre-Degree student. The acquaintance developed into abiding affection and intimate love. The girl used to go about in the Petitioner''s car and on such occasions, photographs were being taken. The Petitioner''s mother and the mother of Ratnaprabha "were happy over a marriage alliance" between the boy and the girl. After the girl attained majority they married and the marriage was registered before the Executive Officer, Kuthuparamba Panchayat, on 17th January 1979. When the 4th Respondent heard about this he was annoyed; and therefore the Petitioner and his wife decided to live separately hoping that the misunderstanding would disappear in course of time. The Petitioner''s eldest brother was also about to be married. Krishnaraj and Ratnaprabha decided to wait till that was over. That marriage was celebrated on 19th April 1979. On 21st April 1979, well-wishers of both the families intervened and held talks to find out a happy solution, but the 4th Respondent remained unhelpful. The Petitioner and Ratnaprabha then decided to go to Guruvayoor Temple and pray for a happy married life. They accordingly went to Trichur on 22nd April 1979. They occupied room No. 5 of the Premier Lodge, Trichur and the Petitioner''s driver, Vijayan, occupied room No. 10. On the morning of the next day (23rd April 1979), at about 8 a.m., the 3rd Respondent, Sub Inspector of Police reached the room in Premier Lodge, accompanied by 8 Constables and the 4th Respondent. The Sub Inspector wanted Krishna Raj and Prabha to proceed to the Police Station. Prabha had with her an international passport showing her date of birth. The marriage certificate was also there. Still, the Sub-Inspector took them to the Police Station. In the Station, the Petitioner and Prabha answered all the questions. The documents were also shown. The Sub Inspector seemed to be satisfied that Prabha was a major and that the two had got married. By that time, however, the Circle Inspector came to the Station. He behaved "in a rough and unseemly way'''' to the Petitioner and his wife. The Petitioner was threatened with bodily injury unless he was willing to obey the Circle Inspector. In the meanwhile, driver Vijayan brought Advocate Sri Subramoniyam to the Police Station and the latter tried to convince the Circle Inspector that there was no justification for detaining the Petitioner or his wife. The Police Officer pretended to be convinced, and assured the Advocate that they would soon be released. But after the advocate left the Station with that assurance, the Circle Inspector changed his attitude, and started behaving in an extremely rough and cruel manner. He said that the girl would not be permitted to go with the Petitioner. The Petitioner objected and then the Circle Inspector adopted another device. He stated that the 4th Respondent would execute a Kychit agreeing to arrange for the solemnisation of his daughter''s marriage with the Petitioner on or before 29th April 1979. The Kychit was drafted and the Petitioner and his wife were coerced to sign it. Of course, the 4th Respondent also signed it. The Petitioner had to return from the Police Station alone, under the above circumstances. liver since that time, Ratnaprabha has been deprived of her personal liberty. All attempts by the Petitioner to see her failed. Though the 4th Respondent had given the undertaking in the Kychit, he was absconding from his house at Cannanore. There was reliable information that the girl was being kept under illegal restraint, deprived of her liberty. It was ''understood'' that the girl had had a fracture and that she was being subjected to violent and cruel treatment. She was not being permitted to see anyone or to have any contact with the outside world. The police had arranged to separate the girl from the Petitioner at the behest of the 4th Respondent. The girl had attained majority, and the Respondents had no right in law to restrain her. As there was doubt as to which among the Respondents 2 to 4 were having custody of the girl, the prayer was to issue the writ "directed to all the Respondents".
3. The petition was filed on 30th April 1979. It came up for admission on 2nd May 1979. Counsel took notice on behalf of the 4th Respondent. We felt that in view of the kychit executed by the 4th Respondent, and the circumstance that there was no dispute about the girl having attained majority, the 4th Respondent should be directed to produce her before Court on 4th May 1979. Rule 161 of the Rules of the High Court of Kerala, 1971 also permitted adoption of such a course at that stage itself. A direction was accordingly given, in the presence of counsel, to produce the girl in Court on 4th May 1979, and the case was adjourned for return of notice to some of the other Respondents, and also for the counter-affidavit of the 4th Respondent. On 4th May, however, Ratnaprabha was not produced. Counsel submitted that the 4th Respondent was away at Bombay and that further time was required. This request was conceded and the case was adjourned to 8th May 1979, again with a direction that the girl be produced on that day. But the 4th Respondent did not produce his daughter in Court on the 8th also. He filed a counter-affidavit that the daughter had gone out of the State, with his brother, on 27th April, 1979 and that her whereabouts were unknown. Counsel for the Petitioner wanted time to file a rejoinder, and the matter was adjourned to 15th May 1979. In the rejoinder, the Petitioner averred that the above version of the girl having left the State on 27th April 1979 was false, and false to the knowledge of the 4th Respondent himself. When the petition came up on 15th May 1979 counsel for the Petitioner requested that evidence be taken. The 4th Respondent opposed the request. We heard counsel on this question, somewhat at length, and passed an order on the 22nd of May, to the effect that:
the questions before us, namely, whether Ratnaprabha is in wrongful confinement and also whether she was in such confinement within the jurisdiction of this Court when the petition was filed, could only be decided after a detailed enquiry into the matter....
The case was accordingly posted for evidence. Eleven witnesses have been examined on the Petitioner''s side, and four on the other. Exts. A-1 to A-13 and B-1 to B-6 have also been marked.
4. The 4th Respondent, in his counter-affidavit, denied the allegation that he was frequently visiting the Royal Lunch Home and making use of the Petitioner''s car for the travels of himself aud. his family. "The reason, occasion and circumstances for the result of such relationship between the Petitioner and the said Ratnaprabha" were concocted, according to him. The fact that photographs were being taken with an automatic camera showed that there was no "mutual agreement" for taking them. The averments regarding marriage were vague; no marriage had been solemnised. The certificate from the Kuthuparamba Panchayat amounted to concoction of a document for being used later. The deponent was unaware of the document "before the same was mentioned when the Police questioned from Trichur". There was no occasion at all for others to intervene and try to persuade him to agree to the alliance. Having come to know that Prabha was missing and had gone to Trichur with the Petitioner under the pretext of seeing Pooram Exhibition, the deponent made enquiries at various places and found out that she was at the Premier Lodge at Trichur. He then filed a petition before the Police for her rescue. Since people gathered before the Lodge when the Police was questioning the Petitioner and Prabha, they were asked to proceed to the Police Station. At the Station they stated that they had "registered in the Panchayat", but they also admitted that no marriage had taken place. They were proceeding to Guruvayoor for that purpose. Prabha had also told him later that it was to save herself from the situation that "they told in this way and as is advised by the Petitioner". The Petitioner and Prabha had produced no documents before the Police. The Police was fair and they had used no threats or coercion. The Kychit was executed not to mislead, but with a view to see that the girl "was sent back with the proper guardian in the context, since no marriage has ever taken place, proved, admitted or marriage certificate produced". The Kychit was executed with the very honest intention of giving Prabha in marriage to the Petitioner according to the custom of the community, but "the mind of Prabha was changed" in the meanwhile. On 22nd April 79 while she was with the Petitioner, she had found a letter in his box addressed to him by a married woman. This had shocked her. The Petitioner returned alone from the Police Station because Prabha had preferred to go with her father. She had not been deprived of her liberty. The Petitioner had not attempted to see her afterwards; he knew that Prabha had realised his true colour. The Petitioner had not attempted to meet the deponent also, and he was in station during the time specified in the Kychit. Prabha had had no fracture. There was no violent or cruel treatment and she was never prevented from seeing any person or contacting others. She had come to know that the Petitioner was not of good character and she wanted to avoid him. After return from Trichur, other people at Cannanore had also told her stories current about the Petitioner. This aggravated her shock and she wanted to go away from the place. She went out of the State with Sreenivasan, brother of the deponent, on 27th April 1979 in order to avoid further troubles at the hands of the Petitioner. Ratnaprabha was a major and a father could only advise her. She had gone out of the State and she did not want to communicate her address to the father or any other member of the family. The petition itself was filed to malign Ratnaprabha. Rule 160 had not been complied with, and the petition was defective. The Court had also no territorial jurisdiction over a person who had gone out voluntarily.
5. In the 2nd Respondent''s counter-affidavit, sworn to on behalf of the third also, it was stated that the girl was not in their custody. The 4th Respondent filed a petition complaining about the disappearance of the girl. The Police only located her and brought her to the Station, along with the Petitioner, for questioning. The boy and the girl explained their position. According to them, they were en route to Guruvayoor "to conduct their marriage". They said that they had registered their marriage at Kuthuparamba Panchayat Office. As the girl was above 18 years of age, it was not possible to hand her over to the father. The 4th Respondent then suggested that he would conduct the marriage within a week, and the boy and the girl agreed to the suggestion on condition that the 4th Respondent gave an assurance. The father was willing to give such an assurance in writing. The agreement was then written down and all parties voluntarily and happily signed it. They went out of the station together. No coercion, threat or force was used.
6. A number of other affidavits have also been filed by the Petitioner and the 4th Respondent; but it is unnecessary to refer to them in detail, as they have both been examined as witnesses to speak in support of their case.
7. Before proceeding further, we think the Petitioner''s grievance against the police authorities can first be disposed of. 1 he Sub Inspector and Circle Inspector, have been examined as P.W. 4 and P.W. 5 respectively, and their version is this. On the morning of 23rd April 1979 the 4th Respondent approached the Sub inspector with a complaint that Prabha had left Cannanore with the Petitioner the previous day. He required Police assistance to locate her. The Sub Inspector asked him to submit a petition in writing and that was done (Ext. A-10). The Sub Inspector then contacted the various hotels and lodges at Trichur and found out that two persons answering the description of the boy and the girl were in the Premier Lodge. The 4th Respondent also mentioned that they were in that lodge. The Inspector and a few policemen proceeded to the lodge, accompanied by the 4th Respondent, and questioned the boy and the girl. By then, people began to gather and it was thought advisable to take them to the Police Station. At the Station, Ratnaprabha asserted that she had attained majority and that she had married the Petitioner. She produced her passport to show her date of birth. The "marriage certificate" from the Panchayat was also produced. The Sub Inspector felt that he could not do much under the circumstances and contacted his superior, the Circle Inspector, for further guidance. The Circle Inspector then came to the Station. The girl again held up the passport to show that she was a major; but on that, there was no dispute. She was not prepared to go with her father. Considering the entreaties of the father and the future of the two families, the Circle Inspector continued to discuss the matter with the parties, when the 4th Respondent made the suggestion that he himself would give the girl in marriage to the Petitioner, in accordance with the custom of the community. The girl remonstrated that her father had been promising it for three months, but was not doing any thing. The suggestion for a written assurance then surfaced and the girl ultimately agreed to return with the father, on condition that he undertook in writing to give her in marriage to Krishna Raj within a week. The father was agreeable to this course, and a Kychit was drafted on the above lines. The Petitioner, the 4th Respondent and Ratnaprabha then signed it (Ext. A-5) and all of them left the station. There was no threat, pressure or coercion. Ext. A-5 recites that the boy and the girl were in love for about a year, that they had lett Cannanore for getting married at Guruvayoor, and that the father was taking over the girl''s control on the assurance that their marriage would be celebrated on or before 29th April 1979. Though these two witnesses were declared hostile and cross examined, and a suggestion was also thrown on behalf of the 4th Respondent that they were attempting to help the Petitioner, we feel that by and large, their version is true. It may be that the 4th Respondent would not have been able to separate Ratnaprabha from Krishna Raj but for the intervention of the Police; that at least was the father''s impression, if one were to go by his conduct. But it is unnecessary in these proceedings to go into the legality or propriety of the part played by the police, when once it is admitted that the girl had ceased to be in their custody from 23rd April 1979. Counsel for the Petitioner attempted to argue that the police had taken the girl into custody without any authority of law and that her going with her father was only a continuation of such illegal custody; but we are not disposed to accept this argument. If the Petitioner had such a grievance, he would have approached this Court long before 30th April 1979. It appears that he too was having some faith in the father''s assurance and was expecting till the last moment (29th April 1979) to be joined in happy wedlock with the girl of his heart. Again, when examined as P.W. 1, he has clearly stated that Ratnaprabha was in the custody of the 4th Respondent from 23rd April 1979. The 4th Respondent cannot also be considered an agent of Respondents 2 and 3, illegally keeping the girl in detention on their behalf. Under these circumstances, it is fairly clear that no writ could issue to the two Police Officers for the production of the body of Ratnaprabha.
8. The two questions on which evidence has been adduced, namely, whether Prabha was within the jurisdiction of this Court and was also under wrongful confinement at the relevant time, are in a way connected. It had been vehemently argued on behalf of the 4th Respondent, at the initial stage itself, that the presence of the person said to be detained, within the territorial limit of this Court, was basic to the exercise of our jurisdiction under Article 226. But the decision subsequently cited Somanathan v. Umaithlal Shah 1976 KLT 249 does not appear to go to that extent. The prayer there was for a direction to release the first Respondent from the illegal custody of the third, and the averments in the affidavit were to the effect that both had left for the Gujarath State before the filing of the habeas corpus application. This Court held that when the person said to be holding another in illegal detention was admittedly outside the jurisdiction of the Court, no writ could issue to the former, notwithstanding Article 226(1A), as it then stood. The allegation in the present case is that the 4th Respondent is illegally keeping the girl under his control, and he is admittedly within the jurisdiction of this Court and has even submitted to it. We will be dealing with this question more fully at a later stage, in connection with a different contention; but since the issue has been raised, and a finding thereon seems to be mixed up with the question of illegal confinement itself, we shall proceed to evaluate the evidence on this point also.
9. There can be no serious dispute that Ratnaprabha was very much in love with the Petitioner. Her letters to Krishna Raj, marked as Ext. A-2 and Ext. A-3 series, show this. She had gone to the Panchayat Office with him to get the marriage registered. In Ext. A-5 Kychit, the 4th Respondent has himself stated that the girl was in love with the Petitioner for about a year, and in paragraph (7) of the counter-affidavit, it is stated that he executed the Kychit "with very honest intention of giving Ratnaprabha in marriage to the Petitioner". The Sub Inspector''s evidence as P.W. 4 is to the effect that the girl was prepared to go with her father only on condition that the marriage was celebrated as early as possible. P.W. 5, the Circle Inspector, has stated that "the girl was not willing to go with the father", till the written assurance was given. It is therefore evident that Ratnaprabha did not want to be separated from the Petitioner except for the short period required for a formal marriage. The 4th Respondent had approached the Police "to rescue the girl" and to see that she was "sent back with the proper guardian". He had also taken control of her on condition that the marriage would be solemnised within five or six days. When, therefore, the 4th Respondent says that she subsequently changed her mind and voluntarily left the State on 27th April 1979, this is a matter within his special knowledge, and the evidence adduced by him in support of this case has first to be examined. R.W. 1 is the driver of a taxi whose car is said to have been used for taking Ratnaprabha from Cannanore to the Olavakode Railwav Station on her way to Madras, on 27th April 1979. R.W. 2 is an Advocate of Karnataka State who had seen the girl at Bangalore on 1.1th May 1979. He has not spoken anything as to when and how Prabha had left this state before reaching Bangalore. R.W. 3 is the 4th Respondent. R.W. 4 has been examined to prove (or disprove) some other point. Thus the 4th Respondent''s case has to be tested, in the first instance, with reference to the testimony of himself and the taxi driver, and one or two relevant documents.
10. R.W. 1, Narayanan is the driver of a taxi at Tellicherry. Sreenivasan, brother of the 4th Respondent, wanted the car; and early morning on the 27th of April, witness took Sreenivasan to Cannanore. At Cannanore, Ratnaprabha and her younger sister Aparna got into the car. Proceeding from Cannanore, they reached Katampuzha by about 11 a.m. worshipped at the temple, and then proceeded to Palghat (via) Ottapalam. Reaching Palghat at about 1-30 p.m., they ate from a hotel, and proceeded to a house at Malampuzha Road. The house belonged to one Madhavan, who had retired from the Police Department. They spent the rest of the evening at that house, before proceeding to the Olavakode Junction (Railway) at about 11 p.m. The party had programmed to leave for Madras by the Madras Mail which usually reaches Olavakode junction by 9 p.m. But that day it was late, and Madhavan had ascertained that it was late. After reaching the Railway Station, witness purchased three tickets of the ordinary class (neither the 1st class, nor 2nd class, according to witness). Madhavan purchased only a platform ticket. The train arrived by about midnight and Sreenivasan, Prabha and Aparna left by that train. Witness and Madhavan saw them off. At about 1 a.m., witness started his return journey to Tellicherry, reaching it by about 7-30 a.m. The distance from Cannanore to Olavakode is 246 k.m. but the car had taken no petrol from any pump in the course of the 500 km. trip Witness was formerly the driver of Sreenivasan''s car. He knew Sreenivasan and the 4th Respondent very well. He had taken Ratnakaran to Coorg in Sreenivasan''s car. He knew that the Madras Mail comes to Olavakode via Tellicherry. There are also other trains by which a person could go from Cannanore or Tellicherry to Madras, without going to Olavakode by car. Witness is also known as "Nanno". Ext. B-1 is the trip sheet book, and Exr. B-1(a) is the sheet for 27th April. It is seen that the arrival and departure timings at Katampuzha, Palghat and Olavakode are entered therein; but there are no like entries regarding intermediate stations in most of the other sheets of Evt. B-1, though some of them relate to equally long journeys. In cross-examination, witness was unable to say to which place he had gone on 27th April; he was not sure of dates. He could not say who had travelled in his car to Mangalore the previous day. He could not say against which platform at Olavakode junction the Madras Mail had steamed in on the night of 27th April. The 4th Respondent had filed a case against the Railway Officials of Tellicherry in connection with the transport of cement for the construction of the Prabha talkies, and in the judgment (Ext. A-13), the Magistrate had referred to a "driver Nanoo". Though Ratnakaran at first stated in his evidence that the Nanoo was a lorry driver, he agreed that the reference in the judgment was to the "complainant''s driver". This is at least an indication that "driver Nanoo" (Narayanan) had been cited as Ratnakaran''s witness in an earlier case also. His close acquaintance with Ratnakaran and Sreenivasan, the admitted fact that he was formerly employed under the latter, the unusual manner in which entries are seen made in Exts. B-1 and B-1 (a), his version of having purchased tickets for the "ordinary class", the circumstance that the car had not been stopped at any filling station during the long journey, and the other circumstances noticed lend colour to the suggestion that the witness cannot be believed, without anything more. There is also the circumstance that the first indication about Ratnaprabha''s departure to Madras via Olavakode was given only in the witness schedule filed by the 4th Respondent on 24th May 1979 i.e. after the Petitioner had asserted in his Additional Reply affidavit dated 21st May 1979 that Prabha and Sreenivasan had been at Virajpet in Coorg during the first week of May.
11. Ratnakaran''s evidence as R.W. 3 can now be summarised. Prabha was found missing on 22nd April, and he made enquiries at Cannanore and Guruvayoor before locating her at Trichur at about 5-45 a.m. on 23rd April 1979. He informed the Police. The Sub Inspector wanted a written complaint and he dictated what was to be written down. After the search at Premier Lodge, the Petitioner and Prabha were taken to the Police Station. Krishnaraj stated at the Police Station that the marriage had been registered and that Prabha was a major. Witness asserted that no marriage had taken place. The boy and the girl had not shown any document to the Police. The Circle Inspector came to the Station at about 9-45 a.m. Krishnaraj and Prabha told him that they were on their way to Guruvayoor to "tie the tali". The Circle Inspector advised both sides. He told witness that he could take away the girl after executing a Kychit. It was accordingly executed and he took the girl to Cannanore, and they stayed there. On the way back, the girl had told him that Krishnaraj had advised her that she should tell everyone that they had been married. In the car, father and daughter talked about the proposed marriage, but Prabha was not willing for the alliance. She showed him Ext. B-3 letter she had found in Krishnaraj''s suitcase, and said that Krishnaraj was not of good character. He had some connection with his brother-in-law''s sister. At Cannanore, many people were seeing the girl and she was talking and moving about freely. She left Cannanore with witness''s brother Sreenivasan on 27th April. She was not happy at Cannanore, and she told Sreenivasan that she wanted to go outside. On the morning of the 27th, Sreenivasan came and took her away in a tourist taxi. Aparna, younger sister, also went with Prabha. Thereafter, till notice of this petition was received from Court, witness was not aware where Prabha was. At the time of filing the counter-affidavit (on 8th May) also he was unaware of her whereabouts. Long after that, the Circle Inspector, Trichur had received a letter from her and it was from that letter that witness came to know that she was in Madras. Subsequently, Ext. B-2 affidavit of Ratnaprabha was received at the Prabha Talkies, Tellicherry. Ratnaprabha is not under his custody. Sreenivasan has independent income; he is not an employee of the theatre. Witness had not seen Sreenivasan after 27th April. Prakash (P.W. 6) was not his friend. His statement that witness had taken him to the house of R.W. 4 on 27th April and 2nd May was false. P.W. 8 and witness were in opposite camps in the dispute regarding Jagannath Temple. P.W. 7 Balakrishnan was formerly a marxist, but had later switched over to the R.S.S. R.S.S. people had attempted to assault witness. On the 5th May, he was in Bombay. In cross-examination, he stated that he was residing at Cannanore with his wife, father-in-law and mother-in-law. His brother Jayadevan was married but not Sreenivasan. R.W. 4 Bhaskaran is his uncle and is residing in a house at Vallikunnu in Tellicherry, about 100 yards away from the main road. Bhaskaran has a car. Witness might have travelled in it; but he could not recollect its number. Prabha''s sisters Jyothi and Deepa are studying in the Kotagiri School. Aparna was a student at Bangalore for three years. R.W. 1 was Sreenivasan''s driver when the latter was having a car. The building of Victoria Hotel at Tellicherry belongs to his wife and Sreenivasan; but the hotel as such is now being run by lessees. The building was purchased 6 years ago; before that, his father was running the hotel as a lessee. After the father''s death, Sreenivasan was running it. Witness knows Krishnaraj, but he had never gone to his house. Some five years ago, Krishnaraj''s father had approached witness to get the boy released from the Police, following a raid of the Royal Lunch Home and this was his only acquaintance with the Petitioner. Prabha was studying at Gannanore from 1962. The families of Krishnaraj and himself had never met, not even at a social function. It was at about 2.15 p.m. on 22nd April that he got information at Tellicherry that Prabha was missing. His wife had telephoned him from Gannanore. He rushed back to Gannanore in a taxi, made enquiries, and coming to learn that Krishnaraj had taken the girl away to Guruvayur, he proceeded to that place. It was only in March or April that he had come to know that Prabha and Krishnaraj had become "very close''''. In the Police Station at Trichur, he did not see Prabha''s passport and the marriage certificate. The passport was with him in his safe all the while, and it was impossible for Prabha to have produced it at the Police Station. Ext. A-10 complaint was in his handwriting; but it was taken down to the dictation of the Sub Inspector. Witness returned to Tellicherry from Bombay on 7th May. Witness has nothing to say about the evidence of the Sub Inspector and the Circle Inspector that the passport and marriage certificate were shown at the Station. He had also not read Ext. A-5 Kychit before signing it; it was drafted by someone in the Police Station. He came to know of this case from a phonogram received by his friend Patel, while he was at Bombay. He instructed counsel for preparation of the counter-affidavit on 8th May. He had left for Bombay on the 27th April. He first went to Bangalore by bus and met Patel. He left for Bangalore by the 8.15 p.m. bus from Cannanore. In the afternoon, he proceeded from Bangalore to Bombay, also by bus. He reached Bombay on the 29th and stayed with his friend Roopchand. Vakafath for this case was executed at about 6 or 6.30 p.m. on 27th April. There was a rumour about a possible search, and his Advocate at Tellicherry advised that a second vakalath in favour of an Advocate at Ernakulam would be useful. He also contacted counsel at Ernakulam at about 7 p.m. on 27th April, over the phone, to give the details. The Bombay trip was to purchase a film, and all throughout, he stayed with Roopchand. The deal did not come off; there was no agreement on the terms. Roopchand has no telephone. While at Bombay, witness had not contacted Cannanore or Tellicherry. His wife knew that he was away in Bombay; but she did not know his Bombay address. His father-in-law however knew where he would be. He stayed in Bombay for ten or eleven days and met many people, but he could name only Patel, Roopchand and one Menon. He returned from Bombay also by bus. He was in the bus for about 24 hours, but could not recall the name of the bus service. After return from Bombay, his father-in-law told him that counsel from Ernakulam had enquired about him. There was no talk about Ratnaprabha. No one at Cannanore or Tellicherry had talked to him about the case. During the sojourn at Bombay no letter or other communication had reached him from his people at Cannanore and Tellicherry. He had tried to contact Ernakulam and Cannanore over the S.T.D. phone but could not succeed. He did not book a trunk call. Neither the manager of the theatre nor anyone else at Tellicherry had known that he had gone to Bombay. He had not seen Sreenivasan after 27th April. Prabha''s mother had come down to Tellicherry on 30th May to take Aparna to the Bangalore School. Sreenivasan had told witness that he was going to Madras with Prabha. He had seen Sreenivasan leaving on 27th April, along with Prabha and Aparna. Witness has relatives in Madras, including three uncles of his wife. Sreenivasan however had not told him where in Madras he was going to stay. Witness also did not ask him. He does not also know whether his wife or any other member of his family had enquired as to where Sreenivasan and Prabha were staying. Witness did not ask his wife whether she herself had enquired. After coming to know about the letter written by Prabha to the Circle Inspector, witness did not ask the officer about it. It was the father-in-law who had told him for the first time that the children were staying at Madras with one of the wife''s uncles. Witness does not remember when that was; and he did not also ask the father-in-law about the source of his information. Even after all these, he had not attempted to contact Madras. He has not been writing to Madras. There is only one bed room at the Madras house of Sidharthan, his wife''s uncle. Sidharthan has many relatives at Tellicherry and at Cannanore. During the early part of May, witness had no knowledge that Prabha was in Madras. He knows P.W. 3 Nanayya, a big planter of Coorg, residing about 3 km. away from Virajpet. Nanayya''s brother is at Bangalore. The brother has two daughters, Pushpa and Subha. Mandanna, a retired I.A.S. Officer and relative of Nanayya, is also known to him. Nanayya is an old family friend. Even after coming to know from Ext. B-2 affidavit that Prabha was at Bangalore, witness had made no attempt to contact her. Contacting her would have created "a difficult situation", and therefore, he refrained from doing so. Sreenivasan had never written to him after 27th April. Witness has not told his wife about Ext. B-2 affidavit; but he had informed the father-in-law. Sreenivasan is aged 60 and is healthy. Since the girl had left with him, there was no need to make any enquiry. Sreenivasan did not ask for any money while leaving with the girl, and witness did not give him any. In April and May, there were telephone calls between Tellicherry and Virajpet. The calls were from Mandanna, an old family friend. They discussed family matters. They might have talked about Ratnaprabha also. Withness had talked only with Mandanna, and not with Nanayya. He last visited Nanayya''s house some two years back. He used to go to Nanayya''s place during the vacations. Neither himself nor Sreenivasan had gone to Virajpet in Car No. KLZ 2294 belonging to R.W. 4. Summons to his wife was returned because she was sometimes living at Tellicherry with her uncle. Deepa and Jyothi came to Cannanore during the vacation, but stayed only for two days. He had not visited the Petitioner''s father for a discussion in January last. The Petitioner''s people had not gone over to Victoria Hotel on 5th May for a discussion; but his father-in-law had told him about some talks. Ext. B-2 affidavit of Prabha was not obtained with the influence of Nanayya and Mandanna.
12. Various aspects of the above evidence can be reserved for consideration at a later stage; but it is important to notice here itself that even Ratnakaran does not corroborate R.W. 1 that Prabha was taken by car to Olavakode and then by train. The stand in chief examination was that even the destination was unknown upto the 8th of May, though this was given up in cross-examination. Will not a father, when told that two of his children were leaving for Madras, be it with his own brother, at least enquire of them whether they were going by car or by train? Will he not ask them where they were going to stay, and for how long? R.W. 3 would have none of it apparently because he wants to make out that he had had nothing at all to do with the alleged departure of Ratnaprabha. Sreenivasan has not been examined. Madhavan of Malampuzha Road has also not been cited. Suffice it to say that we find it difficult to believe R.W. 1''s uncorroborated testimony that Ratnaprabha had left the State on 27th April, in the manner indicated by him.
13. Much of the Petitioner''s evidence as P.W. 1 is devoted to the narration of the incidents which led to his separation from the girl on 23rd April. But he said that on 12th May, he came to learn that Sreenivasan and Prabha were at Virajpet in Coorg, 60 miles away from Tellicherry, and that he filed a petition before the police. A search was made by the Virajpet Police. P.W. 2 Basappa is a Head Constable of the Virajpet Police Station. The Sub Inspector was on leave on 14th May, and he was in charge of the Station. On 14th May 1979, he searched the house of Nanayya and recorded the statements of K.V. Gopalan alias Sreenu, and of Nanayya. Ext. A-8, is Nanayya''s statement. When the Head Constable went to Nanayya''s place, car No. KLZ 2294 was seen there. Nanayya stated that Ratnakaran, his wife and daughter Prabha had been to his place some 15 days back, that they had lived there for two days and had then proceeded to Bang lore. Nanayya had also stated that Gopalan alias Sreenu, brother of Ratnakaran, had come to the place some four days back to take rest, that he had come with Babu, and that Babu had returned the same day, leaving Sreenivasan there. When cross-examined, witness stated that the date originally indicated in Ext. A-8 was 14th May and this was subsequently corrected as 16th May. Nanayya had accompanied the witness to the Police Station after the search, but he obtained leave from the Circle Inspector to return later on the 16th and sign the statement. Entries were made in the Station Diary regarding the search. Witness totally denied the suggestion that he had taken a signed blank paper from Nanayya "in order to create evidence of a search". D.W. 3 Nanayya however gives a different version. He is a planter. Mandanna who was in the I.A.S. is his mother''s sister''s son. He knew Ratnakaran from childhood. They are family friends. His son is a trainee at Tellicherry, but witness has not been going to Tellicherry for some time. Ratnakaran has a brother by name Sreenu. Sreenu was suffering from rheumatism when witness saw him at Tellicherry, two or three years ago. He knows Ratnaprabha. The Police had searched his house on 14th May. The Sub Inspector, the Asst. Sub Inspector and one Head Constable had come without a warrant. He could have objected, but he did not do so. The Head Constable was the same person seen in Court. No visitors had come to his house on that day. After the search he went to the Police Station, but could not see the Circle Inspector as he was not there. The Head Constable got his signature on a blank paper saying that he would write there that nothing was found as a result of the search. Witness was then treated as hostile and he proceeded to state that his house number was shown in Ext. A-8, but he could not say who had given the number to the Head Constable. It was there in front of his house. He also did not give his age to the Head Constable, but the latter could have guessed from the grey hairs. He had told the Head Constable that Ratnakaran was a family friend, but that owing to some misunderstanding with his brother, they were not seeing each other. He had not told the Head Constable that Ratnakaran, his wife and daughter had come there. He had also not told him that Sreenivasan had come. His signature is there in Ext. A-8, but the correction of the date was not by him, though the pen and ink appeared to be the same. He had gone to Tellicherry in January 1979 and had met Ratnakaran at the Victoria Hotel; but they had talked only for five minutes. The daughters and brothers-in-law of witness are at Bangalore. He had never before given a signed blank paper to any other officer. Himself and brothers are influential persons of the locality. He has not been helping Ratnakaran to conceal the girl or by attempting to go back upon his recorded statement. Cross-examined by counsel for the 4th Respondent, he stated that the correction of the date in Ext. A-8 was with a different ink.
14. Some controversy was raised about Ext. A-8, counsel for the 4th Respondent contending that its contents cannot be looked into, as P.W. 3 had disowned them. He relied on Sections 145 and 146 of the Evidence Act, but those provisions only regulate cross-examination of witnesses and do not deal with relevancy and proof of the contents of a document. Ext. A-8 is in the handwriting of P.W. 2 and he has proved his handwriting. It is signed by P.W. 3 and the signature is admitted. Whether the signature was affixed before or after the writing depends upon the credibility of the two witnesses. We see no reason to disbelieve P.W. 2''s statement that P.W. 3 had affixed his signature to Ext. A-8 after the statement was recorded. A suggestion was made that P.W. 2 was not in charge of the Station on 14th May; but witness denied it. The endorsement of the Sub Inspector on the summons issued from this Court is to the effect that he was on leave on that day and that he was deputing P.W. 2 to produce the documents called for, since it was he who was in charge on 14th May and had conducted the search. The signature of P.W. 3 on Ext. A-8 is almost at the top right-hand corner of the paper; and it is inconceivable that a blank paper was signed and given in that fashion. Nanayya knew that he could have objected to the search. He gave his evidence in English. Admittedly, he is an influential person of the locality, influential enough at least to go direct to the Circle Inspector of Police. The correction of the date in Ext. A-8 appears to be with the same pen and ink, and in the same hand, though P.W. 3, said otherwise in re-examination. His time-honoured family friendship with Ratnakaran and the relationship with Mandanna, and the fact that Ratnakaran had talked with Mandanna over the telephone are also relevant in the context. On a careful reading of the testimony of the two, and a consideration of the circumstances disclosed, we are inclined to accept the version of P.W. 2 in preference to that of P.W. 3. If that be so, Ext. A-8 shows that Ratnaprabha was taken by Ratnakaran and her mother to Virajpet sometime during the 1st week of May. The case that Sreenivasan had taken her by car to Olavakode, and then by train to Madras, on 27th April, thus becomes more suspect.
15. P.W. 6 Prakash states that he had seen Ratnaprabha at Tellicherry on 27th April and 2nd May. He claims to have been a staunch supporter of Ratnakaran till about the 8th of May. Witness knew Krishnaraj and that he was in love with Prabha. He had been requesting Ratnakaran to give her in marriage to the Petitioner; his sympathies were with the two, as his also was a love-marriage. On 27th April, he had accompanied Ratnakaran to the residence of Bhaskaran (R.W. 4), and he saw Ratnaprabha there in the company of Bhaskaran''s wife and Mrs. Ratnakaran. On 2nd May also, he had seen the girl there more or less under similar circumstances. On 8th May, Ratnakaran told witness somewhat rudely that he should not interfere in matters concerning Prabha, and thereafter his loyalties became different. He accompanied Krishnaraj to Virajpet, and was thence forward helping him. This witness happens to be the only person who claims to have seen the girl at Tellicherry between 27th April and 2nd May; and we have to exercise extreme caution before accepting his version. He had become a staunch supporter of the Petitioner by the time of his examination. He had deposed that he had seen Ratnakaran, his wife, Ratnaprabha, Mrs. Bhaskaran and one Babu leaving together in a car at 8 a.m. on 2nd May; but when the transcribed copy of the deposition was made available to him for signature, he wanted the time to be corrected as 8 p.m., apparently to make out that the girl was taken away after the Writ Petition was admitted at 1.45 p.m. on 2nd May. Even after his defection on 8th May, he did not tell Krishnaraj till about the 16th that she had been at Bhaskaran''s house, although in the meanwhile he had accompanied Krishnaraj to Virajpet and returned; On 2nd May, when he saw the girl being taken away, he was on good terms with Ratnakaran; still he did not ask him where they were going. These are circumstances which create doubt; and we do not propose to place much reliance on such a doubtful story.
16. Balakrishnan, P.W. 7, is a taxi driver of Tellicherry, and a follower of the Marxist Party. According to him, he had taken Sreenivasan in his car from the Victoria Hotel of Tellicherry to the Prabha Talkies, on 28th April. He was paid Rs. 7, though the minimum prescribed charge was only Rs. 3. Witness knows Sreenivasan and Ratnakaran and they were hiring his taxi for the publicity of the films exhibited in the theatre. The car belonged to one Achuthan of Cannanore and collections from the taxi stand on his behalf were being taken by one Padmanabhan. In spite of the strenuous cross-examination, we do not find anything to discredit him on material particulars. Counsel argued that the colour of the car''s number plate, as spoken to by Balakrishnan, indicated that it was not a taxi, and a number of other circumstances were also pointed out to suggest that he was not a taxi driver at all. But the 4th Respondent had no such case as R.W. 3, or in the affidavit he had filed on 14th May, wherein he had traversed the allegations in this regard. Ext. B-5 is the Registration Certificate of the car wherein it is described as a motor car of 1966 make, converted into a motor cab in October, 1977. A motor cab is a "public service vehicle" under the Motor Vehicles Act, and not a private car. P.W. 7 had stated that the car had a taxi permit and that it was with its owner; this was not challenged by calling for its production. Ext. B-5 was obtained by the 4th Respondent on 26th May 1979 from the office of the Registering Authority; he could as well have obtained authentic information from the same office as to whether the car had a permit or not. P.W, 7 offered to produce the "tax disc" for his taxi; but this challenge was also not taken up. The circumstance that more" than the minimum charge was levied for Sreenivasan''s trip of 28th April cannot also be of any surprise to those who have hired taxis in this State. A suggestion was of course made to witness that he was an R.S.S. man, opposed to Ratnakaran; and his reaction was very sharp. He impressed us as an unsophisticated, honest worker; and on his evidence, the story that Sreenivasan had left the State with Ratnaprabha and Aparna on 27th April, falls to the ground.
17. P.W. 8 is a dealer in automobile spares at Tellicherry, and his evidence is to the effect that he had been seeing Sreenivasan every day, from the 25th of April to the 1st of May, in the portico of Prabha Talkies, on his way to the spare parts shop from his residence at Chennakara. Apart from the inherent improbability of a person trying to recall the presence of another at a given place for a number of days, and that too, with reference to dates this witness is admittedly in the opposite camp of Ratnakaran in many matters. We do not attach much significance to his testimony.
18. P.W. 9 is an Advocate of Trichur examined to show what had transpired at the Trichur Police Station on 23rd April; and in view of our conclusion in paragraph (7) above, his evidence need not detain us. P.W. 10 Kesavan has been in hotel business at Ernakulam for about 30 years. He was present in the Court on 4th May when a suggestion for settling the matter was made. Counsel for the 4th Respondent told him that the boy''s people had taken no initiative at all in the matter, and requested him to do something. He contacted the Petitioner''s father, Mr. Krishnan, over the telephone the same day, and on the next day, Krishnan telephoned back for fixing a date and time for a meeting with the other side. Witness then contacted counsel at Tellicherry and arranged for a discussion to take place at 3 p.m. at the Victoria Hotel. P.W. 11 is the younger brother of Krishnan. On the latter''s request, witness had gone to the Victoria Hotel, accompanied by others, at 3 p.m. on 5th May, for a compromise talk with the other side. The talk was with Ratnakaran''s counsel and the father-in-law of Ratnakaran. They said that there could be no compromise talk for two months. Ratnakaran''s father-in-law also said that they had to contact and consult many others. Ratnakaran was in the adjoining room, but witness did not see him. The evidence of P.W. 10 and P.W. 11 show at best that there was some attempt on 5th May for settling the matter, and this by itself is not very important. Ratnakaran might have been at Tellicherry on that day, but P.W. 11 had admittedly not seen him.
19. R.W. 2 is Advocate Mr. S.G. Bhagavan of Bangalore. According to him Ratnaprabha had gone to his office on the morning of 11th May for his assistance to get an affidavit sworn to. She had brought a sketchy affidavit; witness redrafted it. They went to the society belonging to the High Court staff to purchase stamp paper. After typing, they went to the Court of the Metropolitan Magistrate (Traffic), where Prabha signed Ext. B-2 affidavit in open court, before the Magistrate. The girl had come in a car along with Sreenivasan and Mandanna. Witness belongs to Virajpet. His brother had a press at Virajpet and Ratnakaran had been visiting it frequently, in the company of Mandanna. He was acquainted with Ratnakaran from 1968 or 1969. He had met Prabha for the first time in 1974 or 1975. Aparna was a student at Bangalore and witness had been meeting her once in a way. He knows Nanayya; and Nanayya''s brother was staying at "Murugesh Palaya" at Bangalore, the place named in Ext. B-2. Witness had had no occasion earlier to see Prabha''s handwriting or signature. He must have seen her and Sreenivasan six or seven times before the 11th of May. Ratnaprabha appeared to be normal, neither depressed nor jovial, on that day. Sreenivasan only told him that he had come to Bangalore "for this business". He did not tell witness about the pendency of the habeas-corpus petition. Witness denied the suggestion that it was Prabha''s sister who had been taken to him for being identified as the deponent of the affidavit, though the sister Ratnajyothi might have become a mature girl by that time.
20. A controversy was raised regarding the admissibility of the contents of Ext. B-2 also. The Petitioner had disputed the genuineness of Ext. B-2 from the very beginning, and we had referred to this aspect in our order dated 22nd May 1979. An affidavit is a declaration affirmed before a person competent to administer oath, and it is not generally evidence within the meaning of Section 3 of the Evidence Act. It could be regarded as a statement in writing u/s 32, if the deponent belongs to the class of persons referred to therein, and even then, only to prove the facts set out in Sub-sections (1) to (7) thereof. These conditions are not satisfied here. Affidavit evidence is not permitted except when there is an agreement between parties, or when there is an order by the Court under Order 19 Rule 1 of the Code of Civil Procedure, Marneedhi Satyam v. Masimukkula Venkataswami AIR 1949 Mad 689. When a person swears to an affidavit to be produced as evidence in a court, he only offers himself as a witness, and without cross-examination, its contents cannot be accepted as evidence. In Hazel Arnone v. Robert Arnone 1965 KLT 915 a Full Bench of this Court has held that affidavit evidence is rarely admissible except in interlocutory matters, and that even in such proceedings, regular proof should be given if there is contest. The safeguard for truth in an affidavit is the power of the court to require the deponent to be produced for cross-examination and the fear of prosecution for giving false evidence. It may be possible to make use of affidavit evidence, but with caution, when there are specific rules permitting it. Rules 72 to 84 in Chapter VI of the Kerala High Court Rules, 1971 deal only with the form, contents, mode of authentication etc. of affidavits and not with their relevancy or admissibility. Rule 160 dealing with "affidavit in habeas corpus" covers only affidavits to be filed in support of such applications. Rule 147 provides for an affidavit by the Petitioner, in proceedings under Article 226, for verifying the facts set out in the petition. Rule 153 permits a Respondent to file objections in the form of a counter-affidavit. Ext. B-2 is not also within the fold of these Rules. Section 14 of the Evidence Act, relied on by counsel, only speaks of the relevancy of certain facts. Section 296 of the Code of Criminal Procedure conceiveso affidavit evidence of a formal character, which can be tested by summoning and examining the deponent. Singh on Habeas Corpus Law of Habeas Corpus in India--By Bir Bhadra Pratap Singh--pp. 130--132 refers to a number of decisions, including those of the Supreme Court and High Courts, holding that even in proceedings under Article 226 of the Constitution, it may sometimes be advisable or even the duty of the court to take evidence of a deponent and cross-examine him. Under these circumstances, we do not think that it is permissible, or at least advisable, to rely on the contents of Ext. B-2 whose deponent is not admittedly available for cross-examination.
21. It is true that the Petitioner has not established by direct evidence that Ratnaprabha is being physically kept under custody or wrongful confinement at a specified place. But in a case where one tries to conceal another in an unknown place, it will be idle to search for such evidence. Is this then a case where there is evidence to infer that Ratnakaran is keeping the girl under his control and power, wherever she be, denying her the freedom to go wherever she wants, or exercise her other rights as a free citizen?
22. We have seen, from what had transpired at the Police Station, that left to herself, Ratnaprabha would have preferred to remain with the Petitioner and not to go and live with her father. She agreed to go with the father only on condition that she would be returned to Krishnaraj within one week, as his wife. It is said that the moment she got out of the Trichur Police Station on 23rd April she abruptly changed her mind. This, it is claimed, was because of Ext. P-3 letter which she had found in the Petitioner''s suitcase on 22nd April 1979. That is a letter dated 30th December 1978 said to be written by a married woman, also known as Ratna. But Ext. A-3 (d) letter of Ratnaprabha dated 26th March 1979 shows that she was aware of the aforesaid relationship and that she was not disposed to change her mind, or her attitude to Krishna Raj, because of that. Counsel suggested that while Ext. A-3(d) had referred only to rumours, Ext. B-3 was proof positive which had fallen into Prabha''s hands on 22nd April. Firstly, the reference in Ext. 3 (d) is not to any rumour. Secondly, it was after seeing this letter on 22nd April that she had been taken to the Police Station on 23rd April. There, she fought tooth and nail against being separated from Krishnaraj. The evidence of the police officers is to the effect that she was not prepared at all to leave Krishnaraj, except with the written assurance of an almost immediate marriage. Obviously, she had not changed her mind, in spite of Ext.A-3(d) till she was taken away by the 4th Respondent. It is therefore impossible to believe that she had become disgusted with the Petitioner on or by 22nd April, or even 23rd April. The only reason advanced by the 4th Respondent for his daughter''s sudden change of mind and voluntary departure from the State on 27th April, thus fails, and fails miserably.
23. Again, the 4th Respondent had executed the vakalath in this case on 27th April. Between 7 and 7.30 p.m. of the same day, he had also furnished to counsel the "details" of the case. If Prabha had gone out of the State on the morning of that day, as is now alleged, that fact would certainly have been conveyed to counsel who in turn, would have brought it to our notice on 2nd May or 4th May, when we ordered production of the girl in Court. This was not done, and in our view, this is another strong circumstance to think that Ratnaprabha had not voluntarily left for Madras or any other place on 27th April.
24. Ratnakaran''s case that his daughter had attained majority and that he was not in a position to control her wishes or movements, if she wanted to go out, comes ill from the mouth of one who had rushed up to the Trichur Police and made frantic efforts to secure her "release" so that she could be "sent back with her natural guardian".
25. It is again inconceivable that such a solicitous father, keen on asserting his rights as a natural guardian, would cease to show any interest in the "ward" the moment she had expressed a desire to go out. He did not ask the girl where she was going and how. He did not provide her with any funds. Even after coming to know that she was in Bangalore, he did not enquire, about her. Aparna, the younger daughter who had gone with Prabha on 27th April, had returned to Tellicherry in May; still he did not bother to enquire where she and Prabha had been. He did not ask his wife about Prabha''s whereabouts, even though she had come down to Tellicherry with Aparna after the latter''s return. The wife also was not making any enquiries as to where Prabha was. In short, the 4th Respondent wants us to believe a story which is against normal human conduct, and opposed to the solicitousness he himself had earlier displayed.
26. His sojourn in Bombay from 29th April to 7th May also appears to be a story built up to bide time. He knew on 27th April that this habeas corpus application was about to be moved. His counsel was also ready with the "details" of the case on 2nd May. But on 4th May it was put forward that the 4th Respondent was away in Bombay. It is possible that he was waiting to know whether the Court would issue a direction for the girl''s production on 2nd May, and then having g known about it, he disappeared with her, with the story of the Bombay trip conveyed to counsel as a mere front. Except his assertion, there is nothing to show that he had left for Bombay on 27th April and returned only on 7th May. He had spent more than a week in that city abounding with people from Kerala; but the only people he had met were Patel (who had kept him company from Bangalore itself), Roopchand and "one Menon". He did not write any letters to Cannanore or Tellicherry during the period. He did not also contact these places by telephone. He could not recollect by which bus service he had travelled, though he was in the vehicle for 24 hours. Even his wife did not know his Bombay address. No letter or other communication from his people at Gannanore and Tellicherry had reached him in Bombay. Even the phonogram said to have been received is not available. His departure was at a time when a search of his premises and the filing of this petition were being awaited. The whole thing does not inspire confidence. On the other hand, there is the indication in Ext. A-8 that he had gone to Virajpet, in the company of his wife, during the beginning of May. The summons issued to her was returned as she was not available at Cannanore for about a month.
27. For other reasons also, we find out it difficult to place any reliance on the evidence of the 4th Respondent. As already noticed, he had started by saying that he was ignorant as to where Sreenivasan had taken the girl on 27th April, though in cross-examination, he conceded that Sreenivasan had told him that they were proceeding to Madias. In the counter-affidavit dated 8th May 1979 he had no case, as later developed in the course of his test mony, that Ext. A-10 was written at the dictation of the Sub Inspector and that he had signed Ext.A-5 without even reading it. On the other hand, he had clearly gone on record that the Kychit had been executed with "honest intention" to give away the girl in marriage. According to the counter-affidavit, the "police was very fair"; but when P.W. 4 and P.W. 5 stated in Court that Prabha had produced the passport and marriage certificate for their inspection, the allegation was immediately made that the officers were trying to favour the Petitioner and the owner of the Premier Lodge. Advocate Subramoniam, the Circle Inspector and the Sub Inspector were all positive that the passport was with Prabha at Trichur on 23rd April; but Ratnakaran asserts that it was with him, in his safe at Tellicherry, all throughout. He said in evidence that it was only in March or April 1979 that he had come to know about the relationship between Krishnaraj and Prabha; but in Ext. A-5 dated 23rd April, his statement is that the two were in love for a year.
28. To sum up, the evidence of P.W. 7 shows that Sreenivasan had not (sic) Ratnaprabha to Madras on 27th April. The testimony of P.W. 2 and the contents of Ext. A-8 not only support the above view, but also suggest that the girl had been taken to Virajpet by Ratnakaran and his wife sometime in the first week of May. As noticed, it is impossible to believe that she wanted to go out because she had become disgusted with the Petitioner. The evidence of P.W. 4 and P.W. 5, considered along with Exts. A-1 series (supported by Ext. A-6), Ext. A-2, Ext. A-3 series, Ext. A-4 and Ext. A-5, indisputably establish that the girl was deeply in love with the Petitioner and that she was not willing to leave him, till she was persuaded, on the promise of an immediate marriage, to do so for a couple of days. The 4th Respondent''s case that she had voluntarily left the State on 27th April consequent on a change of mind, appears to be a mere pretence. She had left, if at all, only because the father wanted to keep her away from the State in order to defeat any final order this Court may pass in the present proceedings. The plea that the girl had left without any desire to keep in contact with her parents cannot be accepted. It is also not possible to believe that she had left voluntarily. We had made it clear to counsel for the 4th Respondent, more than once at the initial stage itself, that we were not concerned with the girl''s marriage or her relationship with the Petitioner, and that if she was brought to Court, we would put only one question to her, namely, whether she was a free agent or not. When Ext. B-2 affidavit was filed, we again indicated that if the girl could go to an Advocate at Bangalore, she could as well tell a senior counsel of this Court, appointed as Commissioner for the purpose, that she was free. Such a course seems to have been adopted by this Court in similar circumstances; and we even suggested that the girl could meet the Commissioner in the presence of counsel only. These suggestions fell on deaf ears and we are in no way prepared to believe Ratnakaran that he has lost contact with, or control over, his daughter. Sreenivasan has apparently made himself scarce. Ratnaprabha might have been present in Banglore on 11th May to swear to Ext. B-2 affidavit. R.W. 2 has (sic) signature, though the Petitioner has a case that the signature, in Ext. B-2 and in the letters produced are dissimilar, and that Ratnajyothi might have been produced for identification as Ratnaprabha. But even according to R.W. 2, she was in the company of Sreenivsan and Mandanna, people on whom the 4th Respondent could rely. When we suggested to counsel in the course of arguments that R.W. 1 did not appear to be very reliable, the answer was he was one person whom the 4th Respondent could have naturally trusted to lake his daughter away from Cannanore, as he was a former employee of Sreenivasan. It appears that the 4th Respondent is permitting his daughter to see only people whom he could rely on. He is apparently still not sure as to what stand she would take if produced in Court. On the materials available, it will not be unreasonable to think that Ratnakaran had himself removed the girl to Virajpet, and that such removal was with something more than moral pressure. We have already rejected the story that she had changed her mind; and there is no other suggestion as to why she had suddenly decided to disappear. The letters produced in evidence and the testimony of the Police Officers do not present the picture of a girl who would give in without a fight. In Ext. A-2 dated 3rd February 1978, Prabha makes mention of a ring the Petitioner had given her and of her determination to keep it, though mother was asking for it, and "daddy" also had phoned up. In Ext. A-3, she tells Krishnaraj not to worry and assures him that everything would be all right as she was determined not to leave him. In Ext. A-3(a), she says "I will never never never leave you". The same is the theme of Ext. A-3(b), except that there is a warning to Krishnaraj that if he attempted to "escape", she would go about spreading a lie making it impossible for him to do so. In Ext. A-3(c), she refers to the story of Romeo and Juliet, and declares that she is prepared to undergo a lot of troubles. She assures him that "mummy" had told her that everything would work out all right "when the time comes". In Ext. A-3(d), she tells him not to worry about the "damn things" daddy had said, and reiterates her determination to "fight" for her love and her lover. The evidence of P.W. 4 and P.W. 5 indicates that she was continuing the fight, even in their presence. When once change of mind is ruled out, the inference becomes irresistible that she had been taken away from Cannanore in the face of strong objection from her and her determination to fight. Ratnakaran may not now be holding her within the confines of a building or restricting her movements to one place alone, but he is keen that the girl is not anywhere within the territorial jurisdiction of this Court, or its reach. He has adopted the method of backseat driving, if that phraseology could be used, to ensure that she dues not exercise her right to go wherever she wants, or to keep in contact with whomsoever she wants. He does not want her to see even an Advocate from this Court. The 4th Respondent has no acceptable case that it is impossible for him to locate the girl and produce her; his case is that he did not enquire, and does not want to enquire because of an apprehended "difficult situation". We therefore conclude that Ratnaprabha was within the limits of this State when the present proceedings had commenced. She was not a free agent at that time, and we think the position continues to be same now also.
29. The question is whether on the above findings we could or should make the rule absolute. It was suggested that the burden was on the Petitioner to show, beyond reasonable doubt, that the girl was, and still is, under confinement and in the custody of the 4th Respondent. This led to an argument as to whether the present proceedings are civil or criminal in nature. In Green v. Secretary of State for Home Affairs (1942) A.C. 284 the House of Lords held that where a prisoner sought to impugne a ministerial order, the burden was on him to establish the facts which vitiated it. But in Regina v. Governor of Brixton Prison, Ex parte Ahsan and Ors. (1969) 2 Q.B. 222 the Divisional Court distinguished it and held that the legal burden was upon the party called upon to justify the imprisonment. In the present case, there is no order of imprisonment by a public authority, and no imprisonment as such, if that term is to be understood as confining a person within the four walls of a prison. Is habeas corpus excluded, if there be no imprisonment or evident physical constraint? Any curtailment of personal freedom amounting to control or restraint of a grave nature, such as when a person is required to be within a given city, district or even a country, has been held, in certain cases, to be sufficient for invoking the remedy. Ferris on "Extraordinary Legal Remedies" says:
Actual physical restraint, as confinement in jail, is not necessary. Obviously the extent and character of the restraint which justifies issuance of the writ must vary according to the nature of the control which is asserted.
English Courts have granted habeas corpus in bail cases because bail theoretically constitutes custody of the sureties. Qualitative restraint, as distinct from incarceration, was the basis of the application in Regina v. Board of Control Ex parte Rutty (1936) 2 Q.B. 109 where a person, said to be mentally deficient, had been released from a hospital on condition that she should not go out of the house alone. Habeas corpus has also been used to secure the release of apprentices from their indentures in olden times; and it is the modern practice to resort to this remedy in deportation and immigration cases. Habeas corpus has been issued to restore a child to the person entitled to its custody even when it is not under physical restraint. Is the law different in our country where Article 19 of the Constitution protects the fundamental right to move about freely, and Article 21 safeguards personal liberty?
30. Some of the authorities cited at the bar require consideration in this context, and for other purposes also. In Queen v. Barnardo (Tye''s case) 23 Q.B.D. 305 the mother of a child, aged 13, had given her to the Defendant to be placed in one of the houses established by him for destitute children. Some time later, the mother wanted the child back, but it was contended that by that time, the child had been entrusted to someone else, to be taken to the continent. A writ of habeas corpus was issued, on the mother''s application, but the child was not produced, and a motion for attachment was then made to compel the Defendant to obey the writ. The Court of Appeal unanimously rejected the Defendant''s appeal against the Divisional Court''s order for attachment. Lord Esher, M.R., held that the Defendant had given up the child after the mother had asked for her return, that after the mother''s request he had no authority in law either to keep the child with him or to give her to another, and that an illegal act could never be a proper explanation for his failure to produce the child, even if the child had by that time been taken out of the country and it was not within the Defendant''s power to comply with the writ. Cotton, L.J. concurred; and Lindley, L.J. was more emphatic:
As a matter of law I think that it is no valid excuse for not producing a child or other person in obedience to a writ of habeas corpus to state inability to obey, if such inability is the result of the previous illegal conduct of the person to whom the writ is addressed.
A similar question arose before the Court of Appeal in another case, Queen v. Barnardo (Cossage''s case) 24 Q.B.D. 283 where the bead of an institution for destitute children had handed over the child to another for being taken out of the country, before the proceedings had commenced. The Defendant pleaded that he did not know the address of the person or the child; but the Divisional Court granted the writ. On appeal, Lord Evershed, M.R. found no difficulty in dismissing the appeal by holding that the facts of the case did not show that it was absolutely impossible for the Defendant to produce the child, and that having parted with its custody, the Defendant still continued responsible for its production. Fry, L.J. struck a different note and thought that in a case of absolute impossibility the writ ought not to issue, because the scope of habeas corpus was only to compel the production of the person. But on the facts, Fry, L.J. felt that the child had been made over to another only to evade process, and agreed that the appeal be dismissed, as there was some possibility of the child being produced, if the Divisional Court''s order was permitted to stand. It was observed:
I think, therefore, that the circumstances of this case were such as to have made it incumbent on the Appellant to repel the inference to which the circumstances themselves naturally give rise, that this child was handed over to Mr. Norton for the purpose of avoiding process that was expected to be issued. He has in my judgment, not sustained the burden so cast upon him. I think, therefore, that the true conclusion upon the materials now before us is that the child was made over in order to evade process, and that if the process goes it is highly probable that the Appellant may yet be able to produce the child. For these reasons I concur in dismissing the appeal.
31. The decision of the Court of Appeal in the Cossage''s case was challenged before the House of Lords in Thomas John Barnardo v. Mary Ford (1892) ACC 326 and the House affirmed it without expressing any opinion as to the circumstances under which the child had been sent to Canada, as that was a matter which could more conveniently be disposed of after a return was made to the writ. Lord Halsbury, L.C. however disapproved of the view that a writ could issue to vindicate the authority of the Court even after it was satisfied that illegal detention had ceased before the application for the writ was made. In such a case, the Court would not be enforcing the remedy, but punishing the Defendant for his conduct. But this statement was also qualified by the following observation:
Of course, where a counterfeited release has taken place, and a pretended ignorance of the place of custody or of the identity of the custodian is insisted on, a Court may and ought to examine into the facts by the writ of habeas corpus, because the detention is in fact being continued by someone who is really the agent of the original wrong-door to continue and persist in the unlawful detention. But, assume the fact that the detention has ceased, then the writ of habeas corpus is, in my judgment, inapplicable.
Lord Watson also expressed the opinion that there was no justification for the writ to issue when once it was shown to the Court''s satisfaction that the Defendant had ceased to have de facto "custody or control", though he would be liable in contempt if the custody or control was given up alter service of process or with notice that habeas corpus proceedings would be taken. Lord Herschell hinted that it could probably be a good return to the writ that the person to whom it related was not at the time of its issue in the "custody, power and control" of the person upon whom it was served; but where a tribunal had issued the writ believing that a person was in unlawful custody, an appellate court ought not lightly interfere. The position was explained thus:
If, for example, in the present case it had been an admitted fact that before notice of the application for the writ the Appellant had ceased to have custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen''s Bench Division. But when the court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it.
Lord Macnaghten agreed with Fry, L.J., of the Court of Appeal that the writ ought not to be used as an instrument to punish, but felt that a further enquiry into the circumstances under which the Defendant had parted with the child has necessary, because part of what had been put forward was "uncandid and misleading". Lord Morris completely endorsed the views of the Queen''s Bench Division and the Court of Appeal, while Lord Hannon was content to adopt the opinion of Lord Herschell.
32. The facts of the King v. Secretary of State for Home Affairs Ex parte O brien 1923 (2) K.B. 361 another case decided by the Court of Appeal, are simple so far as they are relevant for present purposes. O''brien was suspected to be the ring leader of an organisation which was acting in conjunction with certain forces in Ireland in rebellion against the Irish Free State. Purporting to act under the Restoration of Order in Ireland Regulation, 1920, the Home Secretary made an order that O''brien be interned in the Irish Free State in such a place as its Government might determine; and in pursuance of this order, O''brien was arrested at London and taken to a prison in Dublin. About a month later, he applied for habeas corpus, challenging the validity of the Home Secretary''s Order. The divisional Court refused to grant a rule, but on appeal, the Court of Appeal issued a rule nisi, and the matter was fully argued. Bankes, L.J. held that the Home Secretary''s Order was not lawful; but the question then arose whether the rule could be made absolute in view of the contention that the applicant was in a prison in Dublin and that the Home Secretary had no power or control over him. Bankes, L.J. thought that the question could not be satisfactorily disposed of unless the rule was made absolute giving an opportunity to the Home Secretary to make the position clearer. The decision of the House of Lords in the Gossage''s case was relied on for the purpose. Scrutton, L.J. agreed that the internment order was illegal; and on the question whether the writ should issue, it was stated:
...it appears to me quite doubtful whether or not, if an order is made for the production of the body, the Home Secretary can or cannot produce that body. Under these circumstances the proper course to follow is that affirmed by the House of Lords in Barnardo v. Ford.
As to whether the Home Secretary had actual control over the internee, his Lordship observed:
I do not wish to tie myself to the exact degree of power over the body which justifies the issue of a writ, for various high authorities have used different words. Lord Herschell''s Language is ''custody, power or control''; Lord Macnaghten''s ''under control or within reach''; Lord Halsbury''s, ''wrongful detention by himself or his agents''.
Atkin, L.J, also concurred, and went on to state that a British subject resident in England should be ex-posed to summary arrest, transport to Ireland and imprisonment there without any conviction or order of a Court of Justice was an occurrence the Minister responsible had to justify. The rule had to be made absolute, because physical custody was not essential, and also because:
In this case it is plain that the applicant was at one time in the custody and control of the Home Secretary by an order which we have held to be illegal. There is, to say the least, grave doubt whether he is not still in the custody or control of the Home Secretary. The case of Bernardo v. Ford appears to me to afford ample ground for the conclusion that this Court should order the writ to go addressed to the Home Secretary in order that he may deal fully with the matter, and if he has in fact parted with the control show fully how that has come about.
The rule was accordingly made absolute and the Home Secretary was required to have the body of O''brien produced on 16th May, 1923. The prisoner was accordingly produced, and he was thereupon discharged.
33. The Supreme Court decision in
In these circumstances, we are of opinion that when the Court did make an order for the production of Kaniz Fatima even if another court would have taken some other steps it had to be carried out unless it was impossible for the Appellant to comply with it. In our opinion the High Court''s commitment for contempt was justified because the High Court rightly reached the conclusion that the Appellant having the knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wilfully and deliberately disobeying the direction of the Court.
The Court also held that habeas corpus was available for release of a person from private detention, as at common law the writ was being used by the husband to regain the custody of the wife The order of the High Court was inexpedient, because before issuing the writ, it should have satisfied itself at least prima facie that the Petitioner was the girl''s husband, and more so because there was legal evidence in the case to show that the girl was a minor, and Mahesh Prasad himself was an accused in the criminal case. But inexpediency was not irregularity and the High Court had acted within its jurisdiction.
34. The case of Eachara Varier v. Secretary to the Ministry of Home Affairs and Ors. 1977 KLT 335 is also of considerable assistance. The Petitioner there was one Eachara Varier, and his case was that his son Rajan had been arrested by the Police from the hostel of the Regional Engineering College, Calicut, and was not heard of at any time thereafter. The Police had no authority in law to keep Rajan in detention for an endless period, and the prayer was to call upon the Respondents to produce him in Court and to order his release. The Respondents took up the stand that Rajan had never been arrested and kept in detention. The Court was thus faced with "an unusual situation" where it had to undertake the task of finding out the truth or otherwise of the plea of detention itself. Our learned brothers (Poti and Khalid, JJ.) did not shirk the responsibility. The Principal of the College was examined as a witness, and the deponents of various affidavits filed in the Court were also allowed to be cross examined. After examining the evidence, the Court came to the conclusion that Rajan had been arrested by the Police on 1st March 1976 and taken to Kakkayam on 2nd March 1976. The question was then posed w hether in the absence of evidence as to whether the boy was still in custody, a writ could be issued for the production of his body. The Court then proceed to hold that on the finding that the boy had been arrested, he should be deemed to have been continuing in police custody unless it was shown by the police that they had subsequently released him or that he had escaped from custody, or that he had died while in custody. The rule was therefore made absolute and the Respondents were directed to produce the boy before the Court on 2nd April 1977, or if they were not able to do so, to furnish to the Court detailed information as to the steps taken by them to locate him. Reference was made to the Supreme Court decision in Jage
Personal freedom and liberty is the most cherished fundamental right of an (sic) and when we find as in this case that the authorities who have the backing of the police force of the State have infringed that freedom by taking a person into illegal custody we will not be satisfied unless it is shown that it is not possible for this Court to exercise its power to set the person at liberty. The very vehement plea by the Additional Advocate General that any direction would result in finding the Respondents guilty of something for which they are not shown to be personally responsible and therefore we should desist from issuing any writ does not impress us at all. We repeat that our objective is not to impose any punitive actions for the improper conduct of any official but invoke and exercise the authority placed in this Court to protect the citizens'' freedom, solemnly remembering the obligation of the Higher Judiciary of the land to act as sentinels of human liberty whenever and wherever there is serious threat to it.
The rest is history. Rajan was not produced, but the Government admitted before the Court that he had been arrested and that he had died while in police custody.
35. The Supreme Court has dealt with the rights of a girl over 18 years of age in
...the fact remains that she is at present more than 18 years of age. As the Petitioner is sui juris no fetters can be (sic) upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The Court or the relatives of the Petitioner can also not substitute their opinion or preference for that of the Petitioner in such a matter.
36. We shall now proceed to examine the various contentions raised on behalf of the 4th Respondent. The first is that the Petitioner''s affidavit in this case does not satisfy the requirements of Rule 160. The rule requires that the nature and circumstances of the restraint complained of should be disclosed in the affidavit accompanying the habeas corpus application; and the objection is that in the present case, the place of restraint, its nature and the name of the person exercising it have not been clearly speeded out. But on a careful reading of the Petitioner''s affidavit, we find that the 4th Respondent is named at least as one of the persons exercising the restraint. The nature of the restraint is also specified, namely, the girl is not being permitted to see anyone or to have contract with others. In a case like the present where the girl is being taken from place to place in order to be out of the reach of others, it may not be possible for the Petitioner to specify the place where she is kept and the place where the restraint is imposed. We are satisfied that the requirements of the rule have been substantially complied with; and we may also recall that in
37. Incidently, we may record that counsel for the 4th Respondent did not contend for the position that without a finding on the alleged marriage between the Petitioner and Prabha, no writ could issue. He fairly conceded that the present case can be treated as an application by "some other person" within the meaning of the proviso to Rule 160.
38. The second point urged is that the present proceedings are of a criminal nature and that it is for the Petitioner to establish, beyond reasonable doubt, that the girl is even now under illegal restraint. The text books cited show that the preponderance of opinion is in favour of the view that it is a civil proceeding. The Supreme Court has observed in
39. Counsel then argued that if Ratnaprabha is now free and is no longer under restraint, the circumstance that she had been taken away from Cannanore against her will at an earlier stage may not justify the making of the rule absolute. There can be no quarrel with this proposition; the court cannot make the rule absolute unless at the time of doing so, the person concerned continues to be under illegal restraint. But what is the position here? It is said that R.W. 2 had seen the girl at Bangalore on the 11th of May and that at that time she was free. R.W. 2 had not stated so in so many words, or in a different language. In answer to a leading question in chief examination, he stated that the girl had signed Ext. B-2 affidavit voluntarily. The girl was all the time accompanied by Sreenivasan and Mandanna and R.W. 2 had no idea where from she had come or to which place she was going. He did not ascertain where she was staying at Bangalore, and under what circumstances, or whether she was staying at all. He did not even enquire as to who had drafted the sketchy affidavit she had brought. At one place, witness stated that Mandanna had told him that the girl required some professional assistance. Mandanna is admittedly a close friend of the witness, and Sreenivasan and Ratnakaran are common friends and acquaintances; still witness did not say in chief examination that they had discussed the family matters of Ratnakaran or the details of this habeas-corpus case. Witness did not even say that he had gathered the impression that Prabha was a free agent, free to go wherever she wanted. And we are not certainly prepared to substitute his impression even if he had formed one, for the impression we thought of getting by questioning the girl, on her production.
40. The decision of this Court in Sadanandan v. Raghava Kurup 1974 KLT 650 was also relied on to contend that courts have recognised parental authority or control over girls who have attained majority. The decision no doubt refers to certain rulings where parental control of infants were involved. As regards the case on hand, what was held was that it was not a fit case for the exercise of the court''s discretion in favour of the Petitioner therein. The Petitioner''s case was that he had married the 3rd Respondent, a girl aged 21. There were criminal proceedings between the parties, and in one of them, the 3rd Respondent had herself filed a petition repudiating the marriage. She had stated that she was staying with her parents of her own tree will. And as already noticed, the Supreme Court has held, in
41. The argument that nothing short of visible physical restraint or actual incarceration can sustain a plea for habeas corpus is practically answered by the Supreme Court decision in
42. The next point and obviously an important one, is that where the victim of the restraint is shown to be outside the territorial jurisdiction of this Court, no order for the production of the person could be made. Enough has been said elsewhere to indicate that no one except perhaps the 4th Respondent, knows where Prabha is at present. Her appearance at Bangalore on 11th May 1979 may not by itself be sufficient to establish that she is still away from this State; but since the Petitioner has not been able to show that she is now within our jurisdiction, we will have to proceed on that basis. Counsel referred to certain decisions, all arising u/s 491 of the Code of Criminal Procedure, 1898. These pose no problem, because u/s 491 no action could have been taken except in regard to persons detained within the limits of the court''s appellate criminal jurisdiction. The statute is clear on the subject, but the provisions of Article 226 are not similar. It is true that our writ cannot run beyond the geographical area for which this Court has been established. But the 4th Respondent is within our jurisdiction, and if he has removed the girl for the purpose of evading our process, should we hold our hands, even if it is not impossible for him to produce her? In O''brien''s case (1923) 2 K.B. 361 the writ was issued with full knowledge that the prisoner was in Dublin, a place beyond the jurisdiction of English Courts. He was not admittedly in the custody of the Home Secretary but the court had doubt as to whether O''brien was under the control or power or within the reach of the Home Secretary. And that doubt was considered sufficient for making the rule absolute. In the Gossage''s case 1892 A.C. 326 Lord Halsbury, L.C., said that "counterfeited" and continued restraint by the agents of the person hauled up was an exception to the rule that impossibility of production was a good return. We have already held that the 4th Respondent is still exercising illegal control over Ratnaprabha and that the story of her voluntary departure is a smokescreen to cover up a counterfeit release. And we entertain little doubt that the whole thing has been done to evade the process of this Court. This is not a case where as Lord Herschell had pointed out, loss of custody or control before notice of the application is admitted; and in case of doubt, the "pressure of the writ" is always available. It is not stated that Ratnaprabha has left her parents for ever. Nor is there any case that she has taken up employment elsewhere or has joined any educational institution outside the State. She has not been provided with funds for the entire future. At best, she has left only as a temporary arrangement. We think that the 4th Respondent, on his own testimony, is in a position to find her out and produce her in court, if he is so disposed to do. Where a girl residing in this State at the commencement of the proceedings is removed by her father beyond its limits with a view to prevent her from returning and doing what she likes, the effect is to restrain her freedom of movement, if not other freedoms, within this State itself. Remote control and its insidious effects are as obnoxious as direct and open denial of freedom. De facto control and its effect are the tests, and not subterfuges and pretended innocence.
43. The last two contentions are based on the 42nd Amendment to the constitution, which has made substantial changes in the language of Article 226. (The 44th Amendment is yet to be brought into force, as regards this Article.) Before the amendment, the High Courts had power to issue writs for the enforcement of fundamental rights and for "any other purpose". The words "for any other purpose" are no more thereafter the 42nd amendment; and the argument is that no writ could issue to a private person as matters now stand. The second argument is that availability of an alternative remedy is now a constitutional bar to exercise of power by the court, by reason of Article 226(3), and what was formerly a matter of discretion is no longer so, except in the case of enforcing fundamental rights. These two contentions require careful consideration.
44. Even after the 42nd amendment, Article 226 provides for the issuance of directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to "any person or authority"; and even when the seat of the authority or the residence of such person is not within the territorial jurisdiction of the court the powder can be exercised if the cause of action, wholly or in part, arises within such jurisdiction. But the power can now be exercised only for enforcement of fundamental rights, the redressal of injuries arising from violation of other constitutional provisions or other enactments, and also for redressal of injuries arising from illegality in proceedings before any authority. There is thus no power to issue writ for "any other purpose"; the power is confined to the three classes specified. And no petition for the redress of an injury can lie "if any other remedy for such redress" is provided for by law.
45. As to the class of persons to whom a writ can issue, the wordings of Article 226 as it stood before the amendment are still retained. It can issue to any Government authority or person even now; the words "residence of such person", appearing in Article 226(2), in contra distinction to "the seat of such authority", are as wide as they originally were. Even so, what could be issued are directions, orders or writs "in the nature of" certain well known writs which the courts in England have been issuing. The range of persons or authorities against whom a writ could issue under Article 226 is thus determined by the practice of those courts in the matter of the named writs. Mandamus is a command to do a thing in the nature of a public duty. Prohibition is an order to an inferior tribunal against continuing pending proceedings. Certiorari goes to a like tribunal and requires the record of its proceedings to be transmitted to the High Court to be dealt with there. Generally speaking, these writs are directed against public authorities and tribunals; and therefore such writs are not normally available under Article 226 also, against private acts or persons, even though on the language, any writ could issue to any person. Quo warranto goes against usurpation of office, i.e., a public office of a substantive character. But habeas corpus was always available against detention by a public authority as also by a private person. If the nature of the writ and the authorities and persons specified in Article 226 are alone taken into account, the 42nd amendment cannot be said to have altered the law in this regard.
46. But the argument advanced is more subtle, and it is to the effect that fundamental rights are rights enforceable only against State action, and not against private persons, so that invasion of a person''s freedom under Article 19(1) by a private individual is outside the fold of Article 226(1)(a). Assuming that the 4th Respondent is imposing restraints over his daughter in the matter of exercising her freedom under Article 19(1), it is still not possible for this Court to enforce her rights, as those rights are enforceable only against the State: so runs the argument. The main authorities cited are
47.
48. Pausing here for a minute, it has to be noticed that the decision is authority only for the proposition that the fundamental rights under Article 19(1)(f), Article 21 and Article 31(1) are unavailable against private persons. The decision does not refer to the other rights or freedoms at all.
49. It is well known that the highest court of the land has since done a lot of re-thinking about the formulations in
...Secondly, even the fullest compliance with the requirements of Article 21 is not the journey''s end because, a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty guaranteed by Article 21 has still to meet a possible challenge under other provisions of the Constitution like, for example, Articles 14 and 19. It the holding in
The law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ''personal liberty'' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.
Beg, C.J. observed in the same case:
As has been pointed out by any learned brother Bhagwati, by detailed references to cases, such as
* * *
Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice (social, economic and political). Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups, and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which our Constitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.
50. In paragraph (61) of the judgment in
Articles 17, 23 and 24 postulate that fundamental rights can be violated by private individuals and that the remedy under Article 32 may be available against them.
The broad view taken in the earlier cases that all fundamental rights are intended to interdict State action, and State action alone, is thus no more valid; and if that is so, its application in
51. Take, for example, Article 15. Clause (1) of that Article prohibits discrimination by the State against citizens on grounds only of religion, race, caste, etc. But Clause (2) is not addressed to the State; it lays down that no citizen shall be subject to any disability, liability and the like in the matter of access to shops, restaurants, hotels and places of public entertainment on grounds of religion, race or caste. Clauses (3) and (4) enable the State to make special provision for women, children and for the advancement of backward classes, notwithstanding Clauses (1) and (2). One and the same Article thus contains injunctions against the State, recognition of rights where the State does not come into the picture at all, and also provisions merely enabling the State to do certain things. If this be the position with one Article, how can anyone safely characterise all the Articles of Part III as barriers against State action only?
52. Nor could it easily be assumed that the words "for any other purpose", which were originally there in Article 226, were the repository of the High Court''s power to issue writs against private individuals. If this were so, writs other than habeas corpus could also have been issued against private persons when those words were there. We have not been referred to a single decision where the power to issue habeas corpus against private detention has been held to be referable only to those words. The persons who could apply for a writ and the persons to whom it could issue are ordinarily matters to be decided by taking note of the particular remedy sought for its character and history. In
The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person--even a private individual--and he available for any (other) purpose, even one for which another remedy may exist The amendment to Article 226 in 1963 inserting Article 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a chinashop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large been the people''s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226 although this power must be kept in severely judicious leash.
We are here called upon to define the scope and ambit of the writ power the Constitution has conferred on the High Courts of the land. And in this, our attempt shall not be to whittle them down; and more so, in the case of habeas corpus which has inspired the writing of glorious chapters into the history of the English people determined to secure personal liberty. We think that the writ was issued in
53. The Petitioner has also an alternative case that the control exercised by the 4th Respondent over his daughter Rathnaprabha amounts to ''wrongful restraint'' within the meaning of Section 339 of the Indian Penal Code, and that this injury, still being suffered by her, requires redressal at least under Article 226(1)(d), irrespective of any question regarding fundamental rights and their unforceability against private individuals. This contention also seems to be well founded. On the findings we have recorded, the 4th Respondent is wrongfully restraining his daughter, which is an injury of a substantial nature arising from the contravention of an enactment, and for the redressal of which habeas corpus could issue at the instance of her next friend. This is countered by suggesting that Section 97 of the Code of Criminal Procedure, 1973 provides a remedy, and that Clause (3) of Article 226 is therefore attracted. Section 97 of the Code empowers a magistrate to issue a search warrant where a person is "confined under such circumstances that the confinement amounts to an offence". The person to whom the warrant is issued may search for the "person confined", and if found, take him before the magistrate. Confinement amounting to an offence is the basis of proceedings under this section, and not mere restraint. Assuming that recourse could be had to Section 97 Code of Criminal Procedure even in cases of wrongful restraint falling short of wrongful confinement, we still think that the aforesaid remedy can only be illusory in this case. The Petitioner does not know where Rathnaprabha now is; she may be at Bangalore, Madras or elsewhere. A search warrant cannot be effectively issued without knowing where the person is, even it such a warrant can be equated to a warrant for the arrest of the person restrained, within the meaning of Section 79. An illusory remedy is not a remedy in law. Clause (3) of Article 226 is thus out of the way, and the writ could issue under Clause (1)(b) also.
54. There remains C.M.P. No. 8651/79 moved by learned Counsel Sri Bhaskaran Nambiar, on behalf of the Rathnaprabha, at the fag end of the proceedings when the hearing was about to be closed. Counsel himself has signed the application and the prayer is to be heard on the basis of an affidavit annexed to the petition as Ext. C-1 This purports to be an affidavit sworn to by Ramaprabha on 14th June 1979 before the Consular Attache of the Indian High Commission at Kuala Lumpur. It is stated in the petition that counsel received a vakalath horn Rathnaprabha on 8th June 1979 and Ext. C-l affidavit by registered post, on 20th June 1979. The affidavit itself states that the girl had sent another affidavit to Sri Nambiar "to do the necessary thing in Court". No such second affidavit is forthcoming. Counsel submitted that the reference was probably to the vakalath; but he fairly clarified that he had not met the girl and had not received any other in tructions from her. The vakalath is seen attested at Madras on 1st June 1979 by an Advocate of that place. The Consular Attache has identified the girl with her photograph in the 1974 passport. This may not satisfy the requirement of Rule 79, and counsel for the Petitioner raised serious objections regarding the admissibility of the affidavit and even the entertainment of the petition. We however permitted Sri Nambiar to argue his point in full, and this was done. He made it clear that the purpose of the petition was only to bring to the notice of the Court the contents of the affidavit, wherein the deponent has affirmed that she is not under restraint or confinement. We have already held in connection with Ext. B-2 that in a case where evidence has been elaborately taken, it is inadvisable and risky to rely on an affidavit of this kind. In the case of Ext. B-2, the Advocate in whose presence the deponent had affixed her signature was examined, and her signature identified; even that has not been done with the present. The 4th Respondent had stated before us on oath, on the 8th of last month, that Prabha''s passport was still with him in his safe. If this is true, she must have gone to Malayasia only thereafter, with his knowledge and assistance, i.e. long after we had ordered her production in Court. The affidavit discloses an attempt, when taken along with Ext. B-2. to support the 4th Respondent''s case that the girl had left Cannanore for Madras on 27th April Such inspired affidavit can only strengthen our conclusion that the girl had initially been taken out of Kerala, and then probably out of India also, by the 4th Respondent and his agents, in order to defeat the process of this Court. Mr. Nambiar was unable to refer to a single reported case where affidavit of this type have been held to be a permissible alternative for the production of the person concerned. The unreportrd decision of this Court in O.P. No. 2239 of 1958, pressed into service as a desperate measure, also does not appear to lay down any such proposition.
55. From beginning to end--if this be the end--this has been a fight with no holds barred, the court-room confrontation producing enough heat to dissuade the contestants from silting back and pondering over the human problem involved. But the life of law has not all been logic and syllogism; it has been experience. And experience, we trust and hope will enable the parties to whether the storm and reach the serenity of a useful port before it is too late. We have sympathies for the 4th Respondent who should know better than us where and with whom his daughter should or should not stay. But in law the daughter who is sui juris knows best. It is her choice that matters, it is her freedom we are bound to enforce. We therefore make the rule absolute and direct the 4th Respondent to produce his daughter Rathnaprabha in Court on the 10th of August, 1979.
