The Judgment of the Court was as follows:—
Bartley, J.:— In this case one Nepal Chandra Bhattacharjee, a Police constable, lodged a complaint in the Court of the Sub-Divisional Officer of Alipore against four persons charging them with an offence under sec. 497 of the Indian Penal Code. The gist of the complaint was that they were carrying on an intrigue with his wife who is the Petitioner in the present matter.
On receipt of that complaint, the learned Magistrate issued a warrant under sec. 100 of the Criminal Procedure Code against the wife and when she had been arrested under that warrant, he proceeded to make an order consigning her to a certain Asram in Calcutta and directing her to be produced from there on the next day fixed for the case. The wife Thakamani Debi has moved this Court against that order.
It seems perfectly clear that the order made by the learned Magistrate is without jurisdiction. There was no allegation in the complaint that the woman was confined under circumstances in which that confinement would amount to an offence. Without such an allegation in the complaint there was no jurisdiction to issue a warrant under sec. 100 and the subsequent order directing what amounted to detention in custody of the person arrested under that warrant was clearly also without jurisdiction.
In this view of the matter, we set aside the order complained of and direct that Thakomani Debi be set at liberty immediately.
Henderson, J.:— I agree. The Opposite Party is the officer-in-charge of the Asram in which the Petitioner is confined. He informs us that he is anxious to keep her in the Asram; but he relies solely upon the order of the learned Magistrate.
I entirely agree with my learned brother, that the order was without jurisdiction. It purports to have been passed under the provisions of sec. 100 of the Code of Criminal Procedure. That section forms part of Chapter VII and is headed “Discovery of persons wrongfully confined.” It is only necessary to read the section in order to see that before a warrant can issue, a Magistrate must have reason to believe that the person is confined under such circumstances that the confinement itself amounts to an offence. The information before the Magistrate was that the Petitioner was living in her mother's house and there was not even a suggestion that she was being detained by her mother against her will. That is sufficient to show that this warrant is entirely illegal.
The section provides that a Magistrate on the person being produced, shall make such order as in the circumstances of the case seems proper. I am bound to say that, in my opinion, this order was both ill-advised and indiscreet; nor was her name included in the list of twenty-seven witnesses. She was as much entitled to her liberty as any body else. The effect of the Magistrate's order is to deprive her of that liberty and to sentence her to a sort of irregular imprisonment for no reason whatever.
P.C