Punnayya, J.
1. The first respondents filed to a petition, Crl.M.P. No. 10 of 1982 before the Judicial First Class Magistrate, Ghandhidham, Kutch, alleging that his wife. Usha Advani and daughter Shilpa, were under wrongful confinement of the petitioner, Ashok Thadani at Vijayawada, where he was carrying on business and they should therefore, be prayed for the issuance of search warrant under S. 97 Cr.P.C. The Magistrate issued warrant and disputed the Head constable, respondent No. 2 and the constable, respondent No. 3 of Ghandhidham Police station execute the warrant and to produce Usha Advani and Shilpa before him. Accordingly respondent 2 and 3 came to Vijayawada and took custody of Usha Advani and Shilpa Advani and brought then to Secunderabad Railway Station to the board the train, Minar Express at Secunderabad. The petitioner from whose custody Usha Advani and Shilpa were taken away by respondents 2 and 3 filed this writ petition under Article 226 of the constitution for the issuance of a writ of habeas corpus directing the first respondent, who is the husband of Usha Advani and respondents 2 and 3 to produce Usha Advani and Shilpa before the Court.
2. This Court issued Rule Nisi directing respondents 1 to 3 produce Usha Advani and Shilpa on 16-2-1982 at 10-30 a.m. before the court. The 4th respondent who is the Commissioner of Police was directed to take immediate steps to stop respondents 1 to 3 from taking usha Advani and Shilpa Advani by Minar Express from Secunderabad Railway Station. The 4th respondent was also stay of usha Advani and Shilpa in Home for the destitutes at Secunderabad or if that is not possible they may be kept in one of the retiring rooms at Secunderabad Railway Station with the necessary police guard and produce them on 16-2-1982 at 10-30 a.m. before the court. The 4th respondent got executed through the Assistant commissioner of police, Secunderabad. Maradepali Division, Secunderabad the orders of this court dated 15-2-1982 and places Usha Advani and Shilpa in the custody of the Station Secunderabad for production at 10-30 a.m. on 16-2-1982 before this court.
3. On 16-2-1982 at 10-30 a.m. the Assistant Commissioner of Police produced Usha Advani and Shilpa before this court.
4. Sri Balireddy the learned counsel for the petitioner narrated the circumstances under which Usha Advani and her daughter Shilpa had to take shelter in the house of the petitioner and his brother at Vijayawada. According to him the 1st respondent the husband of Usha Advani was illtreating and torturing his wife and beating his daughter, and she apprehended danger of their lives at the hands of the 1st respondent and hence went away with her daughter to her parents at Gandhidham. But the first respondent came to Gandhidham and beat his parents in law and also Usha Advani and forcibly brought her and their daughter Shilpa to Bombay and there he continued to illtreat and torture Usha Advani, and beat Shilpa. The petitioner who is the cousin brother of Usha Advani, came to know of her woeful plight and went to Bombay and meet her husband, the first respondent and requested him to take her and her daughter to Vijayawada so that she can live in safety and peace and the petitioner has therefore, brought usha Advani and her daughter Shilpa to Vijayawada where he and his brother have been carrying on business, they put Shilpa in Sai Public School. The petitioner also informed the parents of Usha Advani about her stay with them in Vijayawada, Usha Advani's parents came to Vijayawada and felt satisfied with the safety of Usha Advani and her daughter and they advised Usha Advani to stay with the petitioner at Vijayawada otherwise there will be danger to the life of Usha Advani at the hands of the first respondent. The learned counsel therefore, contends that Usha Advani and her daughter have not been in wrongful confinement of the petitioner and his brother at Vijayawada and Usha Advani is living voluntarily with her cousin brother, the petitioner and the first respondent made misrepresentation to the Judicial First Class magistrate, Gandhidham and obtained illegal warrant contrary to the provisions of S. 97, Cr.P.C.
5. We after hearing the counsel for the petitioner interviewed Usha Advani and her daughter Shilpa in camera in our Chamber. Usha Advani clearly stated that she is apprehending danger to her life at the hands of the first respondent as he was illtreating and torturing her at Bombay and she therefore, came away from Bombay with her daughter voluntarily to Vijayawada with her cousin brother to have safety or security to her life. Shilpa who is aged about 8 years also told us that her father the first respondent used to beat be and she therefore, does not like to be with her father, the first respondent, but she likes to be with her mother at Vijayawada and she mis studying in Sai Public School.
6. Then we have passed orders handing over Usha Advani and Shilpa to the custody of the petitioner, Ashok Thandani and his brother Raju Thadani, who had given undertaking to produce her and Shilpa whenever the court requires and to look after them with first respondent and posted the matter for hearing to 8th of March, 1982. As the writ petition is pending ordered for suspension of the execution of the warrant issued by the Judicial First Class magistrate, Ghandhidham, Kutch district, in Criminal Miscellaneous Petition No. 10 of 1982, until further orders.
7. The first respondent filed his counter and the matter came up for hearing on 8-3-1982. In the counter the 1st respondent denied all the against him. He contends that the petitioner, Ashok Thandani and his brother are not related to his wife, Usha Advani. He also contends that he married Usha Advani in the year 1971 and they were blessed in 1974 with a child, who is Shilpa. He secured a job at Bombay and he was working an an engineer in Maharashtra Housing Board. He kept his wife, Usha Advani and his daughter Shilpa at Bombay in the flat, which he had taken for their residential purpose. Later in the year 1976 the first respondent went to Abudhabi as the salary was very attractive there. But he left his wife, Usha Advani and his daughter shilpa at Bombay in the very flat. He was sending practically the entire salary to his wife and his wife was depositing the amounts in the banks per the understanding between them and the amounts so saved by way of banks deposit comes to nearly Rs. 3 lakhs. He also made a lot of Jewellary for his wife. Usha Advani and she was keeping the same with her. He used to come to Bombay every year and used to stay with his wife for a month or so and was again going to Abudhabi. They were leading a happy married life. After some time, taking advantage of his absence the petitioner's brother Raju Thandani become a permanent visitor and developed intimacy with her. When the first respondent returned to Bombay from Abudhabi, he came to his house where his wife and daughter were living. He could notice the petitioner's brother Raju Thandani visiting to his wife. One day the first respondent went to market and returned. But he could not find his wife and daughter in the house. He thought that they went in to the city and would return home. He was therefore, waiting for their return but they did not return home at all, then he went to his father-in-law's house at Gandhidham in search of his wife and daughter. The parents-in-law informed him that Usha Advani and her daughter did not come to their house. He could find the petitioner's brother. Raju Thandani missing in Bombay. Then he could know from his people that Raju Thandani left Bombay with the first respondent's wife and daughter for Vijayawada, where the petitioner was carrying on business. When he made enquiries about the bank deposits, he was informed that she had withdrawn the amount except the F. D. The first respondent was very much affectionate for his wife and daughter and he could (not ?) see that his wife and daughter have been in illegal custody of the petitioner and his brother at Vijayawada. He, therefore, filed Criminal Miscellaneous petition No. 10 of 1982 before the Judicial First Class Magistrate. Gandhidham, Kutch alleging that his wife and daughter have been in wrongful confinement of the petitioner at Vijayawada and he therefore, prayed for the insurance of search warrant under S. 97 Cr.P.C. so that his wife and daughter could be produced in the court and could be handed over him and enable his wife and daughter to live with him peacefully. The learned Magistrate issued the warrant under S. 97 Cr.P.C. and the Head-constable, the second respondent, and the constable the third respondent, who were deputed by the Magistrate, executed the warrant on the petitioner for the production of Usha Advani and her daughter, Shilpa before the court.
8. After hearing the arguments of the counsel on both sides, we interviewed the wife and the husband in our Chamber. The first respondent who is the husband of Usha Advani expressed his willingness to take his wife and daughter and assured that he will not give any room to Usha Advani to make complaint against him. But Usha Advani refused to live with the first respondent and she apprenhended danger to her life at the hands of the first respondent if she was sent along with him or made to live with him against her will. She also stated that the petitioner is her cousin and she is living with him of her own accord in the interests of the safely to her life, and the allegation that she is wrongful confinement of the petitioner is false. She also expressed her willingness to continue to live with the. When we asked Shilpa whether she is willing to go to her father, she told us that she was being beaten by her father and she therefore, is not willing to go to her father and she preferred to live with her mother at Vijayawada. Sri Sitaramayya, the learned counsel for the first respondent contends that the habeas corpus petition itself is not maintainable since Usha Advani was not under the illegal custody of the police of Gandhidham, who took her into their custody in execution of the warrant issued by the magistrate under S. 97 Cr.P.C. According to him as the Magistrate has issued search warrant issued by the satisfied prima facia with the petition for the issuance of search warrant and Usha Advani and her daughter, Shilpa were thus taken into custody of the Gandhidham, Police in execution of the warrant issued by the Magistrate Gandhidham, the custody of Usha Advani and Shilpa by the police under such circumstances cannot be treated as illegal and hence a writ of habeas corpus cannot be issued. He, therefore, contends that the writ petition itself is not maintainable. He further contends that Usha Advani can appear before the Magistrate and can satisfy the Court that she was not in wrongful confinement of the petitioner at Vijayawada and that the first respondent made false averments in the affidavit and the order should, therefore, be cancelled. That being the procedure it is not open to the petitioner or Usha Advani to approach this court through the writ of habeas corpus. In support of his contentions he relies up on the decision of Supreme Court in Kanu Sanyal v. Magistrate, Darjeeling : 1974CriLJ465 and also the decision of the Calcutta High Court in Raja Bahadyr v. Legal Remembrancer, : AIR1953Cal522 .
9. Sri T. Bali Reddy the learned counsel for the petitioner on the other hand contends that Usha Advani and Shilpa are not in wrongful confinements of the petitioner at Vijayawada and unless the Magistrate has reason to believes that they are in wrongful confinements of the petitioner, he has no jurisdiction to issue search warrant under S. 97 Cr.P.C. and as the Magistrate without following the provisions of S. 97 Cr.P.C. has issued the warrant on the basis of false averments made in the petition filed by the first respondent before him and as the order of itself illegal the custody of Usha Advani and Shilpa by the police of Gandhidham becomes illegal and hence the petitioner is justified in approaching this court and seeking for the issuance of a writ of a habeas corpus.
10. Before we advert to the decisions cited before us, we would like to examine the scope and effect of the provision S. 97 Cr.P.C. which read as follows :
'Search for persons wrongfully confined : If any District Magistrate Sub-Divisional Magistrate or Magistrate of First Class has reason to believe that any person is confined under such circumstances that the confinements amounts to an offence he may issue a search warrant and the person to whom such warrant and the person to whom warrant is to directed may search for the person so confined and such search shall be immediately taken before a Magistrate who shall make such order as in the circumstances of the case seems proper.'
A careful reading of the provisions of S. 97 Cr.P.C. makes it abundantly clear that the Magistrate is not empowered to issue search warrant under this section on the mere allegations made in the affidavit field along with the petition before him. The expression has reason to believe that any person is confined under such circumstances that the confinements amounts to an offence, requires the Magistrate on guard before he issues search warrant.
11. It is true that this Section is a provision of emergency but this does not mean that a warrant for search may be issued automatically without application of a judicial mind to the allegations made in the application moved for the purpose and some other material as may be placed before the Magistrate ... The expression 'reason to believe' implies a belief the in judicial mind, arrived at after consideration of the available material with a sense of responsibility and effort of mind without ignoring as far as possible the other side of controversy. But before issuing a warrant for search the Magistrate must have reasonable grounds to believe that the confinements in question is such that it amounts to an offence. The words 'so confined' should be understood 'believed to be also confined'. It is for the magistrate to find whether there are reason for believing that any person is in wrongful confinements and if he is so satisfied, then he can issue search warrant. If a person is not in wrongful confinement, then the Magistrate has no jurisdiction to issue search warrant. Magistrate should, therefore, exercise due caution and circumstances in issuing a warrant under Section 97 Cr.P.C. even on a petition filled by a husband making an allegation that his wife is in a wrongful confinement and that she should therefore, be produced before the Court. But the Magistrate has no jurisdiction to issue a search warrant under this Section, if he by a husband making an allegation that his wife is in wrongful confinements, it cannot be said that the magistrate can issue a search warrant for the examining the circumstances whether she was really in wrongful confinement or not. It is true that when a husband makes an allegation that his wife is in wrongful confinement it may touch the sentiment of the Court. In order to avoid such sentimental considerations, the Legislature has employed the expression 'has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence'. There is no presumption under law that or a wife stays elsewhere away from the husband it should be deemed that she is in wrongful confinement and the husbands entitled to obtain search warrant under section 97 Cr.P.C. There may be so many reason as to why a wife is living elsewhere and does not like to live with her husband. It is open to the husband to pursue the remedies available under Matrimonial Law. But he is not entitled to resort to the provisions of S. 97 Cr.P.C. The Magistrate is, therefore, required to exercise high amount of caution before issuing a search warrant when a petition is filed by a husband under this Section.
12. When a search warrant is issued under Section 97 Cr.P.C. against a wife who is living elsewhere away from the husband of her own accord, but is not wrongful confined amounting to an offence, it is open to her to question the illegality of the issuance of such a warrant.
13. It is true that she can question the illegality of the order of the Magistrate on the ground that she is living voluntarily away from her husband unable to live with him due to torturing and harassment caused by him and is also apprehending danger to her life at the hands of her husband, as proclaimed in this case by Usha Advani against her husband the first respondent and the warrant issued is therefore, illegal and in such a case the Magistrate has got the power on being satisfied with the fact that she is not in wrongful confinements to set aside the illegal order. But such a course is open only after she is taken into custody by the police deputed by the Magistrate in execution of the warrant and produced before the Magistrate.
14. But without following this ordeal, she has also got the right to approach under Art. 226, the High Court within whose jurisdiction she is residing and explain to the Court that she is residing willfully and voluntarily away from her husband, but not under circumstances amounting to wrongful confinements and seek for these assurance of a writ of habeas corpus against the illegal custody taken by the police in pursuance of the illegal order passed by the Magistrate. It is preposterous and even absurd to say that the custody of the person taken by the police in pursuance of the order of the Magistrate became lawful even though the order of the Magistrate issuing warrant is contrary to these mandatory provisions of Section 97 Cr.P.C. When once an illegal order is passed by the Magistrate the custody of the person taken by the police in pursuance of such an illegal order becomes illegal and such a person should be deemed to be in unlawful confinement and as such she is entitled to invoke the jurisdiction of the concerned High Court for the issuance writ of habeas corpus. The case of Usha Advani exactly comes within the purview of this legal position and she is therefore, justified under the law to approach this Court through her cousin brother. Ashok Thandani. The writ petition is therefore, maintainable.
15. In Raj Bahadur v. Legal Remembrancer (1953 Cri LJ 1187) (cal) (supra) a girl aged between 16 1/2 and 17 years was recovered by the Inspector of Police from premises No. 43/1, Bow Bazar Street, Calcutta, which was a brother house. In consequences of the recovery of the girl the police sent up a woman by name Tara Bai and one Md. Siddiq for trial under Sections 8 and 9 of the Bengal Suppression of Immoral Traffic Act, 1933 on the allegation that the offences punishable under the said section had been committed by them in respect of the said girl. The learned Magistrate before whom the girl should be detained at the rescue home for 9 of a writ of habeas Corpus was filed in the High Court. The learned counsel appearing for the petitioner in that case contended that the removal of the girl under Section 13 of the Bengal Act amounts to her arrest and that therefore, the person concerned should be entitled to the protection afforded by Article 22 of the Constitutions. The learned counsel pointed out that the word 'arrest' as used in Article 22 is wide enough to include any kind of restraint.
16. The learned Judges rejected this contention and observed that Section 13 was concerned with the removal of the minor girl from brother or from premises which are used as brother and does not in terms authorises the arrest of any such girl. The word 'arrest' in Article 22 has a much restricted meaning and does not include the removal of a minor girl from a brother or from premises which are used as a brother under S. 13 of the Bengal Act. The learned counsel for the petitioner in that case next argued that the girl's removal from the brother and her subsequent detention at the rescue home were in breach of the provisions of Art. 21 of the Constitution. Even this contention was not accepted by the learned Judges. They observed that the Bengal Act 6 of 1938 was intended to provide for salvages of such likely to be exploited or are likely to be exploited for immoral purposes. Hence there is nothing in the Bengal Act that can be said to infringe either Art. 21 or Art. 22 of the Constitution. As the Court took into consideration the welfare of the girl and her future custody, the court is justified in. Placing the girl in suitable custody until she attains the age of 18 years.
17. Relying upon the above ruling Sri Sitaramayya, the learned counsel for the first respondent contends that a writ of habeas corpus cannot be issued against the police who took custody of Usha Advani and Shilpa in pursuance of the warrant issued by the Magistrate under Section 97 Cr.P.C. as the custody of Usha Advani and Shilpa taken by the police cannot be said to be illegal custody. We find it difficult to accept the contention of Sri Sitaramayya. The facts in the above cited calcutta case clearly show that as a result of the orders of the Magistrate the girl was rescued from brother house and was sent to the rescue home under the provisions of Section 13 of the Magistrate under Section 13 are not illegal and the custody of the girl as provided for by the orders of the Magistrate is not wrongful or illegal. Hence the Division Bench felt illegal. Hence the Division Bench felt that provision of Art. 21 or Art. 22 are not attracted and a writ of habeas corpus, therefore does not lend any support to the contention of the learned counsel for the first respondent.
18. As stated above the orders of the Gandhidham Magistrate for the production of Usha Advani and Shilpa are illegal, as they are not in illegal, confinement and hence Usha Advani is entitled to seek the issuance of a writ of habeas corpus from this Court within whose jurisdiction she is residing voluntarily for safety and security to her life.
19. Sri Sitaramayya also relies upon the decision of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling (1974 Cri LJ 465) (supra) In that case the petitioner Kanu Sanyal was arrested by the police along with some of his associates on 19th August, 1970 and a case was registered against him prior to it another case P.S. Case No. 28 was registered against the petitioner on 29th June, 1970. That case was under investigation. When the petitioner was arrested on 19th August, 1970, he was produced before the Sub-Divisional Magistrate, Siliguri. The learned Magistrate passed order of remand directing that the petitioner be detained in the District Jail. Darjeeling and that he should be produced before the Sub-Divisional Magistrate, Darjeeling. The petitioner was accordingly produced before the Sub-Divisional Magistrate, Darjeeling at the interval of every 14 days since the investigation in the P.S. Case No. 3 dated 19th August, 1970 was not complete. On 16th January, 1970 first information report (F.I.R.) in respect of certain criminal offences alleged to have been committed by the petitioner and a large number of other co-conspirators was lodged in Paravathipuram Police Station and after the completion of the investigation, two charge sheet were filed against the petitioner and 139 accused in the Court of the Special Magistrate, Visakapatnam, on 12th October, 1970 charging them with various offences. The offences charged under these two charge sheet were triable exclusively by the Court of Session and therefore, enquiry proceedings under Chapter XVIII of the Code of Criminal Procedure were initiated by the Special Magistrate, Visakhapatanam. Since the petitioner who was accused No. 138 in these two criminal cases which were numbered as P. R. C. Nos. 1 and 2 of 1971 was under remand in the District Jail, Darjeeling, pending investigation of the two Phansidewa P.S. Case the special Magistrate, Visakhapatanam issued on 30th May, 1972 a warrant for production of the petitioner on his court under the petitioner in his court under S. 3 sub-section (2) of the Prisoners (Attendance in Courts) Act 1955. The officer uncharged of the District Jail. Darjeeling in obedience to his warrant for production sent the petitioner to the court of the special Magistrate, Visakhapatanam on the 14th June, 1972 and immediately on arrival the petitioner was produced in the court of the Special Magistrate. Visakhapatanam on 17th June, 1972. The petitioner was remanded by the special Magistrate, Visakhapatanam from time to time pending the disposal of the committal proceedings and pursuant to the order of remand the petitioner was detained in the Central Jail, Visakhapatanam on 6th January, 1973 while under detention in the central Jail. Visakhapatanam the petitioner preferred a writ from the time of his detention right from the legality of his detention right from the times of his detention right from the time may be set free by issuing a writ if habeas corpus. One of the grounds that the petitioner's counsel urged was that the Special Judge, Visakhapatanam in pursuance of the production warrant and his detention in the Central Jail, Visakhapatanam, wee without the authority of law and as such are illegal. Their Lordship, therefore, examined the question whether the detention of the petitioner in the central Jail, Visakhapatanam is illegal. The learned counsel for the petitioner contended that by reason of Section 6 of the Prisoners (Attendance in Courts) Act, 1955 the Officer-in-charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the special Magistrate, Visakhapatanam and was, therefore, not entitled to send the petitioner to the court of the special magistrate. Visakhapatanam, in compliance with such warrant for production.
20. Their Lordships observed that this ground is wholly without substances. It overlooks the Provision to Section 6 of the Acts. In order to arrive at a proper interpretation of Section 6 with the Provision it is necessary to have a look at Sections 3 and 5 as well. The warrant for production in the present case was under section 3, sub-section (2) as the petitioner was admittedly required to be produced before the special Magistrate, Visakhapatanam for answering the charges against him. Now, when an order of production is made under Sub-section (1) or sub-section (2) of Section 3, what is to be happen That is provided in Section 5 which says that upon delivery of such order of production to the Office in charge of the prison that officer shall cause the person named in the order to be taken to the court in which his attend be taken to the court in which his attendance is required so as to be present in the court at the time mentioned in the order. The officer-in-charge of the District Jail Darjeeling was, therefore bound to send the petitioner to the court of the special Magistrate, Visakhapatanam in compliance with the warrant for production and he acted according to law in doing so. Production of the petitioner before the special Magistrate could not, therefore, be said to the Central jail. Visakhapatanam pursuant to the order made by the special Judge, Visakhapatanam pending trial must be held to the valid.
21. Their Lordships further observed that 'this Court pointed out in : AIR1971SC2197 that a writ of habeas corpus cannot be granted'where a person is committed to jail custody by a competent court by an order prima facie which does not appear to be without jurisdiction or wholly illegal'.
22. Their Lordships also observed that the present case is clearly covered by these observations and the petitioner is not entitled to a merit of habeas corpus to free him from detention.
23. Relying upon the observation of their Lordships, Sri Sitaramayya contends that a writ of habeas corpus does not lie as Usha Advani and Shilpa were taken into custody by the Police of Gandhidham in pursuance of an order passed by the Judicial First Class Magistrate, Gandhidham under S. 97 Cr.P.C. this decision also does not leaned any support to the contention of the learned counsel.
24. The above cited decision in fact clearly states that a writ of habeas corpus cannot lie if a person is committed to judicial custody by a proper order of a competent court. It follows that a writ can lie if the order of the Court in pursuance of which the permission is committed to Jail by an illegal order of a court such a custody should be deemed to be illegal and hence the person who is taken into illegal custody by an illegal order, is entitled to a writ of habeas corpus to free him from detention.
25. The order passed by the Judicial First Class Magistrate, Gandhidham, for the production of Usha Advani and Shilpa and deputing respondents 2 and 3 to execute the warrant issued by him under S. 97, Cr.P.C. for taking custody of Usha Advani and Shilpa is patently not apply his judicial mind whether with the petitioner at Vijayawada of their own accord or against their will. When Usha Advani herself states unequivocally before this court that she is living with the petitioner of her own will and volition, she is not in wrongful confinement of the petitioner. As she also apprehends danger to her first respondent, that she is in wrongful confinement of the petitioner, cannot therefore, be accepted. Hence the custody of if taken by respondents 2 and 3 in pursuance of the illegal order of the Magistrate becomes illegal and as such Usha Advani and Shilpa are entitled to issuance of a writ of habeas corpus and the habeas corpus petitioner filed by her cousin, who is the petitioner herein, is therefore, maintainable.
26. The custody of Usha Advani and Shilpa taken by respondents 2 and 3 is, therefore, quashed. It is open to the first respondent to pursue legal remedies available under Matrimonial Laws either for restitution of conjugal rights or for divorce and be can also approach the appropriate Court for the custody of his daughter if he is so interested in the welfare of his daughter.
27. In the result the writ petition is allowed but in the circumstances, no costs, Advocates fee Rs. 250/-.
28. Petition allowed.