1. Jardan Singh, the applicant has made this application for the issue of a writ under Clause (1) of Article 226 of the Constitution of India read with Section 491, Criminal P.C. alleging that the petitioner's father Gyan Singh and uncle Dwarka Singh have been served with orders from the Madhya Bharat Government that they should proceed to any place in the District of Jhabua, Dhar, Mandsaur, Ratlam and Ujjain and that they should not enter or remain in any other District of Madhya Bharat except with the previous permission in writing from the District Magistrate concerned. Further they have been also asked to report at least once a week to the officer in charge of Police Station in whose jurisdiction they reside permanently or temporarily.
2. On 19th May 1B50 Mr. Dey, learned Counsel for the petitioner, desired that the application for issue of a writ under Article 226 of the Constitution of India be postponed until the decision of the Full Bench of this Court at Indore and that application under Section 491 of the Criminal P.C. should be taken up immediately.
3. Mr. Dey on that day was asked by me to show whether on the facts mentioned in the application a petition under Section 491 is competent. Mr. Dey wanted time to show some rulings on the point and time was given. To-day, Mr. Jagannath Prasad Gupta has appeared on behalf of the petitioner and has argued that the word 'detention' as well as the word 'custody' are very wide and as Gyan Singh and Dwarka Singh have been asked to remain within 5 Districts of Madhya Bharat it should be taken that there is physical restraint and an infringement of their personal liberty. Hence, according to Mr. Gupta, an application under Section 491 lies.
4. There is no doubt that the word 'detention' is susceptible of many shades of meaning. Section 491 of the Criminal P.C., however, refers in Sub-clause (b) to detention in public or private custody and in Sub-clause (c) in jail. I am quite clear in my mind that to bring a case within the purview of Section 491, it must be established that there is detention either in jail or in public custody or in private custody. In my opinion the word 'custody' implies confinement or imprisonment with an idea to prevent escape, and, every sort of physical restraint or restraint on movements will not come within the purview of Section 491. In my judgment, therefore Section 491 applies only to cases where persons are deprived of their personal liberty and confined to some custody.
5. In the present case, the movements of the two persons have, of course, been restricted but they have not been confined to any custody. And I am not satisfied that the non-applicant in this case has the custody of the two persons mentioned above in any sense sufficient to entitle the petitioner to get a direction to the Chief Secretary that he should produce the body of the said two persons before this Court. I, therefore, do not see sufficient reason to issue a rule nisi against the non-applicant.
6. I, therefore, reject the application under Section 491. Put up after a week for consideration of the application under Article 226 of the Constitution of India.