H.R. Khanna, J.
1. This is a petition under Section 491 of the Code of Criminal Procedure filed by Raghbir Singh praying that Smt. Gurdev Kaur be set at liberty.
2. The facts giving rise to the present petition are that on 17th December, 1962, Smt. Gurdev Kaur was taken into custody by Assistant Sub-Inspector Hamir Singh of Police Station Kotwali Bhatinda when there was a dispute between her brothers Tidda, Relu and Malla on one side arid Raghbir Singh petitioner on the other regarding Smt. Gurdev Kaur. The Assistant Sub-Inspector then produced Smt. Gurdev Kaur before learned Magistrate 1st Class, Bnatinda, with a report that Smt. Gurdev Kaur had fallen into evil hands and that she might be sent to the Protective Home. The learned Magistrate then recorded the statements of the three brothers, mother and husband of Smt. Gurdav Kaur who all stated that Smt. Gurdev Kaur was leafing and immoral life.
Smt. Gurdev Kaur's statement was then recorded and according to her she did not want to go to her husband or to her brothers and wanted to live alone. It was also stated by her that she sought the protection of the Government because her brothers wanted to hill her. She prayed that they might be bound down. The learned Magistrate thereupon passed an order under Section 19 of the Suppression of Immoral Traffic in Women and Girls Act, 1956, that Smt. Gurdev Kaur be detained in the Protective Home at Jullundur for a period of two years.
3. I have heard Mr. Bindra, learned counsel for the petitioner, and Mr. Jagga, learned Assistant Advocate-General, and am of the view that the order for detention of Smt. Gurdev Kaur passed by the learned Magistrate is contrary to taw and that Smt. Gurdev Kaur be set at liberty. Section 19 of the Suppression of immoral Traffic in Women and Girls Act 1956, reads as under:
'19. (1) A Woman or girl who is carrying on, or is being made to carry on, prostitution may make an application to the Magistrate within the local limits of whose jurisdiction she is carrying on or is being made to carry on, prostitution, for an order that she may be kept in a protective home.
(2) If, after hearing the applicant and making such enquiry as he may consider necessary, the Magistrate is satisfied that an order should be made under this section, then, he shall make an order, for reasons to be recorded, that the applicant be kept in a protective home for such period as may 6e specified in the order.'
Bare reading of the section shows that an order under it can be made only on an application made by the girl. Admittedly no application in writing was made by Smt. Gurdev Kaur to the Magistrate for that purpose. The reply of the [earned Magistrate, to whom the notice of the petition was sent, shows that from the statement of Smt. Gurdev Kaur that she sought protection of the Government he Inferred that an oral request had been made by her for her detention in the Protective Home. This inference of the learned Magistrate was not well founded because that statement was made in the context that Smt. Gurdev Kaur apprehended danger to her life because according to her, her brothers were threatening to kill her with kirpans. She, therefore, requested that they might be bound down, in order to pet the matter clarified Smt. Gurdev Kaur was sent for and she has made a statement in this Court that she is being kept in the Protective Home against her wishes. According to her she never applied for being kept in the Protective Home and she wants that she might be set at liberty and lead a life according to her volition.
Smt. Gurdev Kaur is aged about 23 years and as according to her she does not want to stay in the Protective Home and no provision has been referred at the hearing under which she can be forced to stay there, eyen though she hasnot been convicted under the Suppression of Immoral Traffic in Women and Girls Act, 1956, there is no escape but to set her at liberty. E accordingly quash the impugned order and direct that Smt. Gurdev Kaur be set at liberty.