P.B. Mukharji, J.
1.This is a petition by Ranjit Kumar Ghosh under Article 227 of the Constitution and Section 491 of the Code of Criminal Procedure. The petition is directed for the release of a person called Sanat Chandra Bose, son of a well-known Solicitor of the City, Akshoy Chandra Bose, deceased. The main ground of the petition is that the said Sanat Chandra Bose was being unlawfully and illegally detained at a place called Lumbini Park said to be a Mental Hospital and Clinic run by the Indian Psycho-analytical Society, a Society registered under the Societies Registration Act. The main contention of the petitioner is that the said Sanat Chandra Bose is not a lunatic at all.
2. There are four respondents to this petition. The first two are respectively the Secretary of the Indian Psycho-analytical Society and the Superintendent of the Lumbini Park (respondents NOS. 1 and 2): the third respondent is Rabindra Nath Mitra alleged to be the guardian of the person of said Sanant Chandra Bose and the fourth respondent is Subodh Chandra Bose, elder brother of the said Sanat Chandra Bose.
3. The petition bears the title of 'Criminal Miscellaneous Jurisdiction' and not only makes specific reference to Article 227 of the Constitution of India and Section 491 of the Code of Criminal Procedure but also contains the general title 'In the matter of an application for an order and/or directions in the nature of Habeas Corpus.'
4. The petition was moved first before us on the 16th of February, 1962 when we issued a Writ of Habeas Corpus commanding the first three respondents to immediately produce the body of the said Sanat Chandra Bose alleged to be detained at the said Lumbini Park and to produce their respective warrants of authority to detain him there. We also directed a copy of that Rule to be served on the fourth respondent Subodh Chandra Bose. We also gave certain directions for the interim custody of the said Sanat Chandra Bose because of the serious allegations made in paragraph 21 of the petition stating the danger of application of harmful drugs to the said Sanat Chandra Bose. The Rule was made returnable on the 19th of February, 1962. On the 19th of February, 1962 all the parties appeared before the Court and the said Sanat Chandra Bose was also produced before the Court. Directions were issued for filing of affidavits and interim stay of the Lunacy proceedings and testamentary matters was also directed. The Court also gave directions for keeping the said Sanat Chandra Bose in a Nursing Home and beyond the access of either the petitioner or the respondents. The said Sanat Chandra Bose also wanted to make a statement in Court which he was allowed to do without oath. On that day a formal Rule under Section 491 of the Code of Criminal Procedure and under Section 227 of the Constitution was issued and kept on the record and all parties appearing expressly waived service of such rule.
5. The Rule which was finally issued on the 19th February, 1962, is as follows:
'Let a Rule issue calling upon the opposite parties to show cause why a Writ in the mature of Habeas Corpus should not issue directing them to produce Sanat Chandra Bose before this Court and the said Sanat Chandra Bose be set at liberty, or such other or further order or orders made as to this Court may seem fit and proper'.
'Let also the records of the lunacy proceedings be sent for and a Rule issue calling upon the opposite parties to show cause why the order passed in the said lunacy proceedings declaring Sanat Chandra Bose a lunatic and appointing respondent No. 3 as the guardian of the aforesaid Sanat Chandra Bose as referred to in the petition should not be set aside, or such other or further order or orders made as to this Court may seem fit and proper'
Pending the hearing of the Rule all farther proceedings relating to the lunacy matter were stayed.Both the Rules were ordered to come up for hearing on the 27th of February, 1962.
6. Mr. Deb, learned Counsel for the guardian Rabindra Nath Mitra, respondent No. 3, Mr. Gouri Mitter, learned Counsel for respondent No. 4 Subodh Chandra Bose and Mr. S. Banerjee, learned Counsel for respondent' Nos. 1 and 2 have conceded that the lunacy proceedings are illegal, improper and without jurisdiction and that the Rule in this case both for Habeas Corpus and Article 227 must be made absolute. These concessions are hereby recorded. They make any detailed discussion of the points involved in this case unnecessary. Nevertheless, having regard to the fact that a person has been alleged to be a lunatic and having regard to the fact that a public institution like the Indian Psycho-analytical Society and a public Hospital and Clinic like the Lumbini Park are involved, it is necessary to make some reference to the arguments made in this case on behalf of the petitioner and also the points raised in the petition as well as in the affidavits in opposition and to record our decision on them in order to indicate not only our finding and decision upon them but also to leave the parties in no doubt about the opinion the Court holds on the matters raised in this Rule. Besides we consider that Habeas Corpus petition and a petition also invoking this High Court's power of superintendence over all subordinate Courts under Article 227 of the Constitution, in a matter like this, should be disposed of with some reasons even though the parties may make a concession.
7. On behalf of the alleged guardian the respondent Rabindra Nath Mitra an objection regarding the jurisdiction of the Court is taken in the affidavit although given up by his Counsel and although his Counsel has conceded that this Court has jurisdiction. It is said that there is no Criminal Miscellaneous Jurisdiction which is mentioned at the top of the petition and that an application under the Code of Criminal Procedure has to be made in its Criminal appellate or revisional jurisdiction. The objection is frivolous. The application was made to this Court when it was taking the Criminal appellate and revisional jurisdiction and it was clearly and expressly stated that it was made under Section 491 of the Code of Criminal Procedure and therefore, even if, the description 'Criminal Miscellaneous Jurisdiction' is inappropriate it is a misnomer at best. Then it is said that being also an application under Article 227 of the Constitution and as this Division Bench was taking Supreme Court matters relating to criminal cases, criminal business and applications under Article 227 of the Constitution regarding 'criminal matters' it could not issue a Rule under Article 227 of the Constitution in respect of lunacy proceedings which are to be regarded as civil proceedings. This again is a frivolous objection. The Bench taking Habeas Corpus under Section 491 of the Code of Criminal Procedure is competent to decide the legality of any proceeding which is put forward as a warrant in answer to the Writ of Habeas Corpus, otherwise a Writ of Habeas Corpus would be nullified in this Court by producing any kind of order of a civil nature as being a sufficient ground to resist the Habeas Corpus application. The legality of the lunacy proceeding is only incidentally arising because it is being put forward as an excuse fordetention and as an answer to the writ of Habeas Corpus under Section 491 of the Code of Criminal Procedure. In addition to this answer it must be emphasized that this petition is also generally described as in the matter of an application for an order or direction in the nature of a Habeas Corpus and this is a jurisdiction under Article 226 of the Constitution and this Bench was specially dealing with Habeas Corpus applications. The frivolity of the objection so taken is thirdly exposed by the answer that while the matter remained part heard when this Court was dealing with Habeas Corpus applications, it was further clothed with the jurisdiction to deal with applications under Article 227 of the Constitution regarding civil matters, from the 26th February, 1962, so that when regular hearing of the petition and the Rules began on the 6th of March, 1962, there was no question of any defect of jurisdiction. Equally frivolous is another objection that no formal prayer in the petition was asked for under Article 227 of the Constitution. There is no substance in this point either. The petition stated in no unmistakable terms in paragraphs 15 and 16 that the whole proceedings under the Lunacy Act were entirely illegal, improper and without jurisdiction. In the prayers the petitioner asked not only for the Writ of Habeas Corpus which, in our opinion, was enough but also for other orders that might appear to this Court fit and proper. The Court, therefore, was perfectly justified in issuing a Rule also under Article 227 of the Constitution. It is necessary to point out and to repeat what was said by the Allahabad High Court Full Bench in Aidal Singh v. Karan Singh : AIR1957All414 that the power under Article 227 can be exercised even suo motu by the Court as the custodian of all the justice within the limits of the territorial jurisdiction and for the vindication of its position as such. Similar observations were made by another Division Bench of the Allahabad High Court in S. Barrow v. State of U. P. 0043/1958 : AIR1958All154 .
8. For these reasons we overrule these objections which in the circumstances were wisely and appropriately given up and not pressed by all the Counsel appearing for the respondents.
9. The main objection on the merit has come from the third and the fourth respondents. The petitioner's case is that Sanat Chandra Bose is not a lunatic. The third respondent's case is that he is so. It is, therefore, necessary to examine the facts on this point and to record our decision. In order to do so it will be appropriate to divide the period of time under two heads, one prior to the alleged proceedings under the Lunacy Act and the other after such proceedings were instituted.
10. The period of time before the lunacy proceedings started is covered by what may be called the testamentary proceedings. By the last Will and Testament dated the 4th November, 1952 the said Akshoy Chandra Bose gave, devised find bequeathed all his properties at the time of his death to the petitioner and his brother Sanjit Kumar Ghosh. They applied for probate in the District Judge's Court, Alipore, 24 Parganas in the year 1953. It was ultimately registered as a suit and a contentious cause in the Second Court of the Subordiate Judge of Alipore. Respondent Subodh Chandra Bose and his brother Srish Chandra Bose contested the probate proceedings and one of the issues raised there in that Court was whether Sanat Chandra Bose was or was not a person of unsound mind. In fact that was the very first issue at that stage. The learned Judge who heard the probate proceeding took evidence on that issue and delivered a judgment holding that Sanat Chandra Bose was not a person of unsound mind and therefore probate was granted jointly to the petitioner and his brother Sanjit Kumar Ghosh on the 22nd May, 1956. The respondent No. 4 being dissatisfied with the judgment preferred an appeal to this Court. The said Sanat Chandra Bose also appeared in this appeal independently through an Advocate. The main contention of the appellants at that stage was that Sanat Chandra Bose was a person of unsound mind and, therefore, he not having been represented by a guardian, the decree was a nullity. On the 14th January, 1950, a Division Bench of this Court remanded a part of the appeal to the trial Court framing two formal issues for decision on evidence and recording the undertaking of respondent Subodh Chandra Bose to produce Sanat Chandra Bose before the trial Judge. The two issues which the order of remand made clear were:
(1) Is the defendant No. 5 Sanat Chandra Bose a person of unsound mind or is he mentally infirm?
(2) Is the defendant No. 5 by reason of unsoundness of mind or mental infirmity incapable to protect his interest in the probate proceedings ?
Sanat Chandra Bose appeared and was personally present before the learned Subordinate Judge on the 18th February, 1960 through his Advocate. Sanat Chandra Bose also filed a formal petition praying for his personal examination by the Court. Strangely enough Sanat Chandra Bose was not personally examined and it is said that respondent Subodh Chandra Bose committed a breach of his express undertaking to produce Sanat Chandra Bose at the trial. Subodh Chandra Bose's version was that Sanat was 'spirited away by the petitioner' but it is difficult to accept Subodh Chandra Bose's version because even if Sanat Chandra Bose was spirited away as alleged by Subodh Chandra Bose then he should have brought that fact to the notice of the Court to whom he had given the undertaking to produce and should have stated at once when Sanat Chandra Bose had left Subodh Chandra Bose's protection. That was not done by Subodh Chandra Bose.
11. The next stage in the probate proceedings is reached when after the unsuccessful remand the Division Bench of this Court themselves took the trouble of taking additional evidence on the two issues. The Division Bench here examined several witnesses both on behalf of the appellant as well as for the respondent who is the petitioner here. After examining all oral evidence and testimony of witnesses the Division Bench came to the following definite conclusions:
'We however, hold that Sanat Chandra Bose was not a lunatic when the case was instituted or heard in the Court below and the last contention advanced on behalf of the appellants having failed this appeal would be dismissed'.
This judgment of the Division Bench in appeal was delivered on the 3rd and 4th August, 1960. A copy of that judgment has been annexed to the petition. It was said by the Division Bench further:
'Having regard to the evidence recorded in the Court below, as also in this Court, we are not prepared to say that Sanat was a lunatic when the. case was instituted or heard in the trial Court, Even assuming that he was a lunatic, the proceedings would not be entirely vitiated. At best, that would be a ground for revocation of the grant, it anybody succeeds in future in establishing that Sanat was really a lunatic at the relevant time.'
12. There is, therefore, at this stage on the 3rd and 4th August, 1960, a definite finding by the Court of appeal here that Sanat Chandra Bose was not a lunatic in 1952 or 1953 when the probate proceedings were instituted.
13. The next chapter opens before the year 1960 is out. Respondent Subodh Chandra Bose having failed in his attempt to establish that Sanat Chandra Bose was a lunatic and having also failed to resist the grant of probate to the petitioner, toot the next step of putting Sanat Chandra Bose into the Lumbini Park on the 29th December, 1960. Prior to that he had him examined by Dr. Anadi Nath Ghosal, attached to Lumbini Park, at the joint family house of the Boses at 28. Nayan Chand Dutta Street, Calcutta-6. The certificate says that Dr. Ghosal examined Sanat Chandra Bose at 28, Nayan Chand Dutta Street which was described as 'his residence'. He expressed the view that Sanat Chandra Bose needed 'an active treatment in a. Mental Hospital as he is suffering from Schizophrenia of Paranoid type.' This certificate was given on the 27th December, 1960, the strength of which was to be utilized for getting him admitted to the Lumbini Park within two days thereafter and where the same Dr. Ghosal was the resident physician to admit him. This certificate is a breach of the spirit, if not the letter, of Rule 7 of Lumbini Park which prohibits such certificates by providing 'No medical certificate regarding any patient shall be granted by the institution under any circumstance.'
14. Then begins a strange career of the proceedings under the Lunacy Act while Sanat Chandra Bose was safely put away in the Lumbini Park. Steps were taken to build up a case under the Indian Lunacy Act. It is also significant to state that although respondent Subodh Chandra Bose had complained that Sanat Chandra Bose was spirited away by the petitioner from Subodh Chandra Bose's custody one finds that somehow Subodh Chandra Bose spirits him back to his own custody because this Court finds that Sanat Chandra Bose was being medically examined under the care of Subodh Chandra Bose at his own residence at 28, Nayan Chand Dutta Street. Why Sanat Chandra Bose should go back to Subodh Chandra Bose even though Subodh Chandra Bose had lost both on the issue of insanity of Sanat Chandra Bose as well as in resisting the grant of probate to the petitioner is not understood This consideration in fact is an indication to show that Subodh Chandra Bose deliberately broke the undertaking of pot producing Sanat Chandra Bose before the learned Subordinate Judge and therefore, his excuse that he was taken away by the petitioner has been rightly criticised as an after-thought.
15. The proceedings under the Lunacy Actstarted by the presentation of a petition under Section 63 of the Indian Lunacy Act by respondent Rabindra Nath Mitra on the 8th February, 1961, for holding an inquisition concerning the state of mindof the alleged lunatic Sanat Chandra Bose andthereafter for appointing the said respondent Rabindra Nath Mitra as guardian of the person andManager of the properties of the said lunatic. Theorder-sheet of the District Judge shows that thepetition was registered and an affidavit and two medical certificates were also filed in support of theapplication. This petition by Rabindra Nath Mitraunder Section 63 of the Lunacy Act makes strange reading. It quoted that part of the judgment ofthe Division Bench where it stated:
'Even assuming that he was a lunatic, the proceedings would not be entirely vitiated. At best, that would be a ground for revocation of the grant, if anybody succeeds in future in establishing that Sanat Chandra Bose was really a lunatic at the relevant time'.
16. The attempt was to use that part of the Division Bench judgment to give the impression to the District Judge in the lunacy proceedings that Sanat Chandra Bose was really a lunatic. But this petition is entirely misleading and in fact did mislead the District Judge into taking a course underthe Lunacy Act entirely irregular, without jurisdiction and in complete violation of every conceivable section and rule under the Lunacy Act. It is necessary to emphasize that the Division Bench did not say that lunacy proceeding under the Lunacy Act should be taken to declare him a lunatic at 'the relevant time'. The 'relevant time' as mentioned in the Division Bench judgment is 1952-53. The Lunacy Act does not contain any procedure or permit any procedure by which a man today can be declared to be a lunatic ten years ago in the past. What the Division Bench suggested was that if in appropriate proceeding if anyone 'succeeded in establishing him to be a lunatic at the relevant time' then at best that would be a ground for revocationof the probate. The Division Bench did not suggest that the Lunacy Act should be used ten years after to find a past lunacy of ten years ago.
17. The petition of Rabindra Nath Mitra forinquisition also represents the story that Sanat was kept away and prevented from appearing in Courtor being examined by Medical Expert, but significantly adds
'After the disposal of the appeal his whereabouts became known and he was found and hasbeen sent for detention and treatment to Lumbini Park, a Mental Hospital and Clinic at 115, Bediadanga Road, Calcutta, Police Station Tollygunge, 'District 24-Parganas, within the jurisdiction of this 'Court where he has been staying since December, 1960'.
How he was found immediately the appeal was over, where he was found and when he was found ofcourse were not informations vouchsafed to the District Judge. If Sanat Chandra Bose was residingat 28, Nayan Chand Dutta Street on the 27th December, 1960 and if he was then being certified by a Doctor as suffering from 'Schisophrenia of Paranoid type' and if that was the only ground for lunacy then why was not the proceeding begun thenin lunacy? The answer is to avoid jurisdiction of the High Court because, for if the lunacy proceeding had to start in December, 1060, then in that case the Court having jurisdiction in lunacy would be this Court and naturally this High Court having disposed of the appeal earlier that year stating that Sanat was not a person of unsound mind was the first Court to be avoided. Therefore, jurisdiction of the District Court was invented and found by pleading residence of Sanat Chandra Bose at Lumbini Park in 24-Parganas.
18. Another significant feature of this petition is that two certificates from registered Medical Practitioners were annexed and referred to but neither of them was recent and they were those which were taken before the admission of Sanat Chandra Bose into the Lumbini Park in December, 1960. It is significant and strange why no fresh certificate at the time when the petition was being filed on the 8th February, 1961, was taken or filed.
19. The last significant feature of this petition of inquisition is that notice of the application was suggested to be given only to the brothers without even stating that Sanat Chandra Bose had sistersequally entitled to such notice.
20. Upon this follows the strangest inquisition proceeding that I have ever come across. The District Judge by his order No. 3 dated 23rd February, 1961, says that he perused the original application, the affidavit and the medical certificates and the letter from the Deputy Superintendent of the Lumbini Park Hospital and Clinic and at once comes to the conclusion -
'It appears that the alleged lunatic is of unsound mind and is incapable of managing himself and his affairs. I am satisfied that no further evidence should be taken at present and that an interview with the alleged lunatic is not desirable at this stage and that an inquisition concerning the state of his mind should be held. Let there be an inquisition held as prayed for, Issue usual notice in form (P) 62.'
The petition and the medical certificates we have discussed above. The letter of the Deputy Superintendent to which reference was made by the District Judge in Order No. 3 dated 23-2-61 is a letter addressed to respondent Subodh Chandra Bose and it concludes by saying that 'Sanat is suffering from Schizophrenia of Paranoid type and the disease is chronic'. Nothing is shown either in that letter or in the original application or in the affidavit which could justify the District Judge to dispense with further evidence as he seemed to think and he acted most improperly in expressing the view that interview with the alleged lunatic was not desirable. The learned District Judge apparently forgot the salutary provisions of Section 41 of the Lunacy Act which gives the Court power to require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or by any person from whom the Court may desire to have a report of the mental capacity and condition of such alleged lunatic. He should have been all the more on his guard when he knew from the petition that in the probate proceedings this very question had been agitated and that there wereother persons interested who contended that Sanat was not at all a lunatic. In such a context we consider that it was his duty either to personally examine the lunatic or to have him examined or reported upon by an independent person as provided for in Section 41 (1) and (2) of the Lunacy Act. He had no materials and not an iota of evidence on which he could come to the conclusion that it was not desirable to have an interview with the lunatic.
21. In this respect the learned District Judge has disregarded the law and directions so carefully laid down by Rankin, C. J., in Saroj Basini Debi v. Mahendra Nath Bhaduri : AIR1927Cal636 . There also the very order of inquisition and the procedure for inquisition followedwere bitterly criticised by the learned Chief Justice. At pages 847 and 848 of that report (ILR Cal.) : (at p. 638 of AIR) Rankin, C.J., observed as follows :
'The whole thing is bottomed upon the previous order directing an inquisition and if there is no such order, then, in my judgment, the officer purporting to hold the inquisition is not holding an inquisition at all. He is merely a worthy gentleman wasting his own time and other people's. The proceedings in such a case, so far as I can see, have no validity or effect. When the inquisition proceeds. it may be true that the petition which resulted in the order directing the inquisition may be a matter upon which the deponent can be cross-examined or other people can be cross-examined; but the evidence taken at the inquisition is evidence to be given by people in the ordinary way coming as witnesses before the Court. It is not a proceeding by which everything on the file is evidence straightway. It is a proceeding of special solemnity and importance, and the learned Judge has to deal with it from the point of view that he is now charged with the duty of looking after the interest of some body who may be entirely unable to look after his own interest. When that inquisition terminates, it terminates in a judgment which finds or does not find that the person is of unsound mind and, upon that finding, the jurisdiction arises to give orders as to the custody of the lunatic and to the management of the estate'.
22. The learned District Judge apparently here thought that the original application was good enough evidence and the old medical certificates equally good and a mere letter from the Deputy Superintendent of the Lumbini Park enough to and that Sanat was incapable of managing himself and his own affairs.
23. The next order of the District Judge --Order No. 4 dated 1-3-61 -- says:
'Issue notices in form (P) 82 upon the alleged lunatic and the near relations.'
It is inconceivable how the District Judge having considered that it was not desirable that the lunatic should be interviewed should yet give a notice to him and without bothering to enquire how he should be notified. Worse still is his order to serve notices on 'near relations' without specifying who the near relations were. He made no enquiries whatever by even an examination of the respondent Rabindra Nath Mitra on his petition as to who werehis other relations apart from his brothers whomight be interested in it. It should also have struck him that the most interested persons in receiving the notice and in opposing the lunacy proceedings would be the persons who propounded the Will of Akshoy Kumar Bose and who in the probate proceedings contested the proceedings of mental incapacity of Sanat and who won on the point that Sanat was mentally capable. The learned District Judge disregarded all principles of natural justice and statutory requirements in failing to specify to whom notices should be given and particularly in failing to specify notices to most interested persons in opposing the lunacy of Sanat Chandra Bose. Naturally the next Order No. 5 of the District Judge dated 24-3-61 finds no objection forthcoming. How could objection be forthcoming because those who were likely to object were not notified at all? Only those persons who are interested in making him a lunatic had notice and none else. It appears that even the alleged notice to Sanat Chandra Bose was not properly served. The notice described Sanat as a lunatic before he was declared to be a lunatic. We have examined that original notice. It describes -
'To Sanat Chandra Bose, son of late Akshoy Chandra Bose, lunatic patient No. 5356 through the Superintendent of Lumbini Park, a Mental Hospital and Clinic.'
Unless the notice intended to describe the deceased father as lunatic it can only be read that Sanat was declared a lunatic before he was found to be a lunatic. The affidavit of Tarun Chandra Sinha, the Secretary of the Indian Psycho-analytical Society and Superintendent of Lumbini Park, Mental Hospital and Clinic in paragraph 7 says that this notice was served in the office of the hospital on 18-3-61 and the patient Sanat Chandra Bose was immediately thereafter informed about it and the patient's elder brother Subodh Chandra Bose was also informed forthwith about this notice by a letter datel 18-3-61. The return of the serving peon tells a different tale. It bears the signature -- 'Received a copy -- A. Chakravarti, 18-3-61, for Superintendent Lumbini Park'. Therefore, this notice was received not by the Superintendent but by a clerk by the name of Sri Chakravarti. What is worse the peon's return sent by the peon shows -
(1) the patient was not there,
(2) the Superintendent was shown the notice and
(3) instead of the Superintendent receiving the notice he asked his clerk as aforesaid to receive the notice. Again the so-called letter of the 18th March, 1961, which is said to be the information sent by the Lumbini Park to respondent Subodh Chandra Bose, does not say a word that the contents of this notice were at all explained to Sanat Chandra Bose. This letter has been produced by the respondent Subodh Chandra Bose and he was directed to file it with the records of this case. It only says that the Lumbini Park had received a notice of the time and place of inquisition and Subodh Chandra Bose was requested to do the needful in the matter. Not a word is said in this letter, which was signed by the Deputy Superintendent, that Sanat was at all shown the notice. Again in this connection reference may be made to the judgment delivered by Rankin, C.J., in : AIR1927Cal636 where the learned Chief Justice observed:
'Still it is indubitable that an order directing an inquisition into a man's state of mind is a very serious thing and that such an order is intended by the Statute to be a judicial determination carefully made upon adequate materials. J do not understand how it can in general be wise to make such an order without at all events serving some sort of notice upon the lunatic first, and I should think that in this country a certain amount of care and attention in a matter of this sort is in no case thrown away.' The learned District Judge in this case has thrown all such caution to the wind.
24. Finally this strange lunacy proceeding wound up its miserable course by Order No. 9 dated 10-4-61, when the District Judge disposed of the matter ex parte by examining Anadinath Ghosal, the resident physician who had given the earlier certificate and the respondent Rabindra Nath Mitra and records a finding:
'It has been found that Sanat Chandra Bose is a lunatic and that he is incapable of managing his own affairs. The petitioner seems to be a fit and proper person to be appointed guardian of the person and manager of the estate of the lunatic.
He is to furnish security.'
Finally by Order No. 13 dated 31-5-61 respondent Rabindra Nath Mitra was appointed guardian of the person and manager of the properties of Sanat Chandra Bose.
25. The learned District Judge in making these orders never paw and never examined the alleged lunatic Sanat Chandra Bose whom he was declaring to be a lunatic. He never got any independent evidence and he relied solely on the persons who were interested to make Sanat a lunatic. He knew that there were persons who were contending that he was not a lunatic and yet he never gave notice to those persons. He never enquired who were the other existing relations like the sisters of the alleged lunatic Sanat Chandra Bose. We can only end this sorry and miserable procedural illegality of the grossest kind by quoting the Division Bench observations of the Allahabad High Court in Mahomed Yaqub v. Nazir Ahmad reported in AIR 1920 All 80 at p. 81:
'An inquiry of that sort once started must be prosecuted to the bitter end and has all the attributes of an ordinary trial on an issue of fact, and therefore when a person is alleged to be insane, before his or her family are cast into an elaborate proceeding of that sort, there ought to be a careful and thorough preliminary inquiry and the Judge ought to satisfy himself that there is a real ground for an inquisition.
It is impossible to lay down any hard and fastrule, but in the first place it is essential that theperson making the application should support itordinarily by affidavit or by tendering himself forexamination to the Judge on oath in support of theallegations in his application. The learned Judgewould naturally want to know what relationshipexisted, what previous association had existed between the appellant and the alleged insane person,how long the illness was supposed to have lasted.why no previous steps had been taken and what were the present symptoms and actual cause which had induced the applicant to make the application as and when he did.'
26. Again at p. 81 the learned Judges in that case observed:
'In many cases, and we think that this case is probably one, it would be very desirable that the Judge should seek some personal interview with the alleged insane, not with a view to forming a final opinion as to her real condition, but to satisfy himself in the ordinary way, in which a layman can do, that there is a real ground for supposing that there is something abnormal in her mental condition which might bring her within the Lunacy Act.'
27. Not one of these courses was adopted by the learned District Judge in this case. Ho knew that a Division Bench of this Court only a few months before Sanat Chandra Bose was admitted to the Lumbini Park, had held that Sanat Chandra Bose was not a person of unsound mind; he knew from the evidence of the respondent Rabindra Nath Mitra before him that he was alleging Sanat Chandra Bose to have been insane 'for the last 20 years'. We consider that it was the bare duty of the learned Judge to inquire why was not any step taken to have his inquisition for 20 years and why was it that a Division Bench of this Court upon evidence had thought only recently that Sanat was not a person of unsound mind. If he had so inquired, as the learned Judges of the Allahabad High Court had indicated, then he would have found that this respondent Rabindra Nath Mitra was himself a trustee under a registered deed of trust executed by Sailojini Dasi, wife of Akshoy Kumar Bose dated the 7th February, 1945. This Rabindra Nath Mitra accepted that trust, acted as a trustee and this document did not describe Sanat Chandra Bose as a lunatic or as a person of unsound mind. This Rabindra Nath Mitra who applied for the inquisition of Sanat Chandra Bose and whose application the learned District Judge was entertaining, in his application under Section 47 of the Indian Trust Act in the Original Side of this Court in 1949 relinquishing his trusteeship and in the proceedings for relinquishment, never suggested a word that Sanat Chandra Bose was a lunatic. Respondent Subodh Chandra Bose was also a party to that application under the Indian Trust Act, yet this Rabindra Nath Mitra goes to the District Judge under the Indian Lunacy Act years after in 1961 and solemnly takes oath and tells him 'Sanat is insane for the last 20 years.' By normal standard this would be plain perjury but the unfortunate part of the proceeding is that the learned Judge by utter disregard of all statutory provisions and procedure of the Lunacy Act, acted ex parte on such perjured evidence when he had ample notice and opportunity of petting all 'adequate materials' as indicated by Rankin, C. J. If he had taken the trouble he could have found out that neither the respondent Rabindra Nath Mitra nor the respondent Subodh Chandra Bose took any steps against the other brother Sunil Chandra Bose who is admittedly said to be a lunatic. He would have also found out from the admission form filled up for putting Sanat Chandra Bose into the Lumbini Park Hospital that Subodh Chandra Bose signed as his guardian appointing the other brother Srish Chandra Boss as the local guardian. When both Subodh Chandra Bose and Srish Chandra Bose are of Calcutta the subtle distinction that one becoming the guardian and the other becoming the local guardian seems peculiar. A local guardian is appointed only where the guardian is outside or in mofussil. Then how was Subodh Chandra Bose the guardian when Srish Chandra Bose is older than Subodh Chandra Bose in the family of Akshoy Kumar Bose's sons; the eldest son is Sudhir who is supposed to be living in England but the next one is Srish and he as the next eldest should be the guardian and it is not understood how Subodh Chandra Bose figures as a guardian for the purposes of admitting Sanat Chandra Bose into the Lumbini Park Hospital. All these defects the District Judge could have found out by the slightest enquiry.
28. The lunacy proceeding is challenged before us as being completely without jurisdiction. The jurisdiction of the Lunacy Court depends on normal residence of the alleged lunatic and not on his temporary residence except in the cases of the High Courts of Calcutta, Madras and Bombay where different rules are applicable under the Charters and Letters Patent. The principles of residence are clearly laid down by a Bench of three learned Judges of Sir Ashutosh Mookerjee, Acting Chief Justice, and Fletcher and Richardson, JJ., in Anila Bala Choudhurani v. Dhirendra Nath Saha, reported in AIR 1921 Cal 309. That decision is an authority on the proposition that Section 38 of the Lunacy Act does not define the test to be applied to determine whether a person is or is not subject to the jurisdiction of the High Court for the purpose of judicial inquisition as to lunacy. But the proceedings are directed primarily against the person and only secondarily against his property. Such authority over the person may, unless otherwise directed by statute, be ordinarily exercised in the case of residents within the local limits of the jurisdiction of the Court. No doubt it may also be exercised over non-residents, if there is statutory provision to that effect. The third proposition laid down by this decision is that before a District Court can institute inquisition of a person possessed of property and alleged to be a lunatic, it must be established not merely that such person is residing within the jurisdiction of that Court but also that he is not subject to the jurisdiction of any of the High Court's mentioned in Section 37 of the Lunacy Act. Therefore, in a case where an alleged lunatic is subject to the jurisdiction of a High Court under Section 37, the District Court has no jurisdiction under Section 62, even though the person may reside within the local limits of the jurisdiction of the District Court. In other words the jurisdictions of the High Court and the District Court are not concurrent, but the jurisdiction of the High Court excludes that of the District Court; although if the alleged lunatic resides in two Districts, the jurisdictions of the two Courts are concurrent and not mutually exclusive.
29. Admittedly the residence and the normal and the permanent residence of Sanat Chandra Bose is 28, Nayan Chand Dutta Street, Calcutta within the jurisdiction of this High Court. His temporary residence at the Lumbini Park where he was put by the respondent Subodh Chandra. Bose cannot, in the circumstances and in the facts of this case,grant the District Court of 24-Parganas -- jurisdiction over him. That appears to us to be incontestable on the interpretation of Section 37 and Section 38 of the Lunacy Act. We, therefore, hold that the District Court at Alipore has no jurisdiction to take any proceedings under the Lunacy Act over Sanat Chandra Bose. It is, therefore, understandably clear why these points have been conceded by the learned Counsel appearing for the respondents Rabindra Nath Mitra and Subodh Chandra Bose. The other Calcutta case of Radharani Debi v. Nibaran Chandra Mukherji another Division Bench decision reported in : AIR1929Cal512 , is also appropriate on the point not merely on the law but also on the fact because there also an attempt was made to find jurisdiction on the basis of temporary residence in a Mental Hospital but which attempt failed. In that case it is held that where a lunatic is a permanent resident within the jurisdiction of a particular District Court and has properties in that district and his wife applies to the District Court for the appointment of a person as manager of his properties, that District Judge has jurisdiction to take cognizance of the application, and to direct inquisition under Section 62, notwithstanding the fact that the lunatic temporarily resides in a mental hospital outside the jurisdiction of that Court. We are, therefore, bound to hold that in this case the District Court of 24-Parganas has no jurisdiction to entertain any proceeding under the Lunacy Act, The whole proceedings are, therefore, null and void and without jurisdiction and therefore, must be quashed.
30. Even then the illegalities under the Lunacy Act are not exhausted in this case. Almost every relevant and conceivable Rule made under the Act has been violated in this case. Certain Rules are framed under Section 91 (1) of the Indian Lunacy Act for regulating the procedure to be followed by the District Court in respect of the application made under Section 62 of this Act. They are published in paragraphs 327 and 328 in Volume 1 of the Civil Rules and Orders issued by the authority of the Appellate Side of this High Court. By Rule 2 (a) of paragraph 328 the application is required to state the domicile of the alleged lunatic. That was not done in this case. By Rule 2 (c) the names and addresses of all 'near relatives of and persons interested in' the alleged lunatic, are Some of the particulars required to be stated. This was not done. In the present petition only selected brothers were chosen as the favoured persons for the notice. Then again Rule 328 (3) specially requires that such applications shall be accompanied by the certificates of two registered medical practitioners who had reasonable opportunity of seeing and observing the alleged lunatic. Now this Rule requires
'Such certificates shall be to the effect that in the opinion of the writers the person in question is insane or incapable of managing himself or his affairs.'
Not one of the two Medical Certificates here given the first dated the 26th December, 1960, by Dr. Nemai Chand Boral, M.B. and the second dated the 27th December, 1960, by Dr. Anadi Nath Ghosal, uses the words that Sanat Chandra Bose is 'insane' or 'incapable of managing himself' or 'his affairs'. This Sub-rule (3) proceeds to lay down arequirement which is also not complied with by the present medical certificates on which the District Judge purported to act. This second portion of Sub-rule (3) runs as follows:-
'Such certificates shall also state whether or not, in the opinion of the medical practitioners, service of notice of the proceedings on the alleged lunatic would be ineffectual by reason of his state of mind and whether or not it is undesirable on medical grounds that he should be required to attend for the purpose of being personally examined.' Not one of these medical certificates satisfies any part of this particular requirement. Neither of the two doctors states that service of notice of the proceedings on the alleged lunatic Sanat Chandra Bose would be ineffectual by reason of his state of mind nor did anyone say that whether it was undesirable on medical grounds that he should be required to be present for the purpose of being medically examined. These Medical certificates also are in violation of Sub-rule (4) which provides as follows:
'The Court, if satisfied by the affidavit and the medical certificates and by any further evidence which it may deem fit to take and by personal interview with the alleged lunatic, where such interview seems possible and desirable, that an inquisition should be held, shall record an order stating that such inquisition will be held and fixing a time and place thereof.' This Rule indicates to the Court clearly that it has to be satisfied (1) by affidavit (2) by medical certificates, (3) by any further evidence and (4) by personal interview. This shows how great a care has to be taken by the Court before making an order for inquisition. The affidavits in this case were of interested persons and particularly of a person like respondent Rabindra Nath Mitra about whom no further comment is necessary than what has been already made elsewhere in this judgment. Similarly the medical certificates were all improper and inadequate and not in conformity with the rules. Again no further or independent evidence as required by the rule was taken by the District Judge, Sub-rule (7) requires that notices shall be served upon 'such relatives of the alleged lunatic and on such other person as the Court may direct.' Therefore, the Court has to direct and specify the relatives and other persons who are to be notified. The District Judge has not done any of these things in the present proceedings. He has not named the relatives and certainly he has not given notice to the persons who are most interested to present the other side of the picture contending that Sanat Chandra Bose was not a lunatic at all.
31. The form of the Medical certificate is given in Form 3 of Schedule I of the Lunacy Act. The form expressly enjoins that the doctor must state that he has come to the 'conclusion that the said A. B. is a lunatic and a proper person to be taken charge of and detained under care and treatment'. Neither of the two medical certificates expressly says that and satisfies the requirement. Again the form of the certificate in Clause (3) enjoins that the doctor has to form this conclusion on specified grounds namely -
'(a) Facts indicating insanity observed by the doctor namely, etc. ............
(b) Other facts (if any) indicating insanity communicated to him by others, and the doctor has to state here the information and from whom he had received.'
Not one of these two certificates states the facts indicating insanity observed by the doctors. These forms have reference to Sections 18 and 19 of the Lunacy Act. The requirements of Sections 18 and 19 of the Lunacy Act are not satisfied by these two medical certificates used here. Section 19 (1) of the Act makes it important that these certificates should not be old certificates and that they should not be older than seven clear days before the date of the presentation of the petition, and, in all other cases not more than seven clear days before the date of the reception order.
32. For these reasons we are satisfied that the entire proceeding which the District Judge took under the Lunacy Act is from beginning to end without jurisdiction. In violation of all the relevant sections of the Lunacy Act and the forms and the rules made thereunder which we have discussed above. It, therefore, must follow that the entire proceeding including the order for inquisition and the appointment of guardian made by the District Judge is void ab initio and must be quashed and the Rule under Article 227 of the Constitution must be made absolute. As these pretended orders under the Lunacy Act have been put forward as sufficient warrant for detaining Sanat Chandra Bose and as the said orders are all wholly illegal and void, the Rule for Habeas Corpus must also be made absolute against the respondents Nos. 3 and 4.
33. It will be necessary now to discuss the case of the petitioner against the first two respondents, namely, the Secretary and the Superintendent respectively of the Indian Psycho-analytical Society and the Superintendent of the Lumbini Park. It must be said, at the outset, that Mr. S. Banerjee, learned Counsel for the first and second respondents conceded that (1) he could not support the lunacy proceedings or any order made thereunder and could not take that as plea or answer to the writ of Habeas Corpus against his clients; and (2) that his clients were in fact not detaining Sanat Chandra Bose. On those concessions naturally the Rule for Habeas Corpus must be made absolute against respondents Nos. 1 and 2. But there are certain features so far as the first and second respondents are concerned which require to be decided and disposed of by this Court.
34. The answer which the first and second respondents have given to the Writ of Habeas Corpus is an admission form purporting to give the patient's name Sri Sanat Chandra Bose, numbered as 5356 dated as 29-12-60. This is a printed form. Its heading is 'Rules for admission of indoor patients'. It contains 16 rules. At the end of those there is a place called 'the signature of the guardian'. This is signed by respondent Subodh Chandra Bose just after the words '...... my ward patient No. 5356 Sri Sanat Chandra Bose'. This is the authority under which Lumbini Park received Sanat Chandra Bose. This authority is illegal and inadequate and is no answer to the rule. Subodh Chandra Bose could not be the guardian. He could not be the guardian under the Hindu Law. He could not be the guardian of was not the guardian under any order of the Court. Sanat Chandra Bose was a major and adult. It is significant that the Lumbini Park Authorities never received in writing from the said Subodh Chandra Bose any statement showing the facts by which he was purporting to act as a guardian.
35. Secondly there was no reception order in this case. If the Lumbini Park is an Asylum within the meaning of the Lunacy Act then reception of Sanat Chandra Bose as an indoor patient by Lumbini Park was illegal, unauthorised and highly improper and in violation of Section 4 of the Lunacy Act which provides:
'No person other than a criminal lunatic so found by inquisition shall be received or detained in an asylum without a reception order save as provided by Sections 8, 16 and 98;
Provided that any person in charge of an asylum may, with! the consent of two of the visitors of such asylum, which consent shall not be given except upon a written application from the intending boarder, receive and lodge as a boarder in such asylum any person who is desirous of submitting himself to treatment.'
'Clause (2)...... A boarder received in an asylum under this proviso to Sub-section (1) shall not be detained in the asylum for more than twenty-four hours after he has given to the person in charge of the asylum notice in writing of his desire to leave such asylum.'
36. Now on the 29th December, 1960, the date when the Lumbini Park received Sanat Chandra Bose he was neither a criminal lunatic nor a lunatic so found by inquisition within Section 4; nor was he admitted under the proviso to Section 4 (1) of the Lunacy Act; nor was in that event Section 4 (2) satisfied.
37. Realising this difficulty Mr. S. Banerjee relied on the definition of the word 'Asylum' in the Lunacy Act to say that Lumbini Park was not an asylum within the meaning of the Act. Section 3 (1) of the Lunacy Act defines 'asylum' as follows :-
' 'asylum' means an asylum (or mental hospital) for lunatics established or licensed by the Central Government or any State Government'.
Therefore, Mr. S. Banerjee argues that only those places which are 'established or licensed' by the Central or State Government can come within the meaning of the word 'asylum'. He contends that Lumbini Park is not established or licensed either by the State or Central Government. In this respect he is between the two horns of a dilema. In some respect he was contending that the Lumbini Park was a Government Institution because Government was paying for fifteen free beds in that hospital and had a nominee in their Board of management to see the Government's interest but nevertheless he says to come within the word 'asylum' all this recognition and patronage do not mean that Lumbini Park was or is 'established or licensed' within the meaning of Section 3 (1) of the Lunacy Act. If the Government establishes fifteen beds, at least that portion of the hospital which contains the fifteen beds and runs as such and with them certainly is established by the Government. bat it may be debatable that even then LumbiniPark does not come within the word 'asylum' as. described in Section 3 (1) of the Act, but then this does not help Mr. S. Banerjee's clients. Section 93 of the Lunacy Act provides for penalty for improper reception or detention of lunatics. It provides as follows:
'Any person who -
(a) otherwise than in accordance with the provisions of this Act receives or detains a lunatic or alleged lunatic in an asylum, or
(b) for gain detains two or more lunatics in. any place not being an asylum, shall be punishable with imprisonment which may extend to two years or with fine or with both.'
Even if Mr. S. Banerjee's clients, Lumbini Park authorities, do not come within Section 93 of the Act so as to make Lumbini Park an asylum within the meaning of the Act it would be difficult for his clients to get out of the rigours of Section 93(b) of the Lunacy Act which provides for penalty for improper detention of a lunatic even in a place which is not an asylum. Mr. Banerjee scents that danger, and he therefore put forward the argument that the words 'for gain' in Section 93 (b) of the Lunacy Act, protect his clients. His argument is that Lumbini Park does not do anything for gain and is doing the work purely out of a sense of humanitarism and philanthropism. I do not think such a consequence was either contemplated or justified by the Act.
38. One of the major principles underlying the Lunacy Act is prevention of detention of lunatics or alleged lunatics in unlicensed or unauthorised places or institutions. Certainly lunatics in the houses of their own relatives or homes would not come under such a prohibition but where a public institution and not the home of the lunatic or the alleged luna tic admits to keep and detain lunatic then the situation falls within the principle. As the objects and reasons for the Lunacy Act published in the Gazette of India in 1911 page 1 show that this Section 93 is really inspired by Section 315 of the English Lunacy Act 1890. Under Section 91 of the Lunacy Act the State Government has power to make rules for regulating care and treatment of lunatics and the lunatic asylums. Such Rules have been made under Section 91 and published in Form No. 2, 7th Edition of Rules for the Superintendence and Management of Jails and Subsidiary Jails in Bengal by Notification No. 2227 dated nth November, 1915 and printed at pages 137 to 165. Rule 4 specifies the place of detention of lunatics or alleged lunatics to be
(a) the Government mental hospital where there is such mental hospital and
(b) the jail, in districts where there is no such mental hospital Rule 6 specifies three mental hospitals:
(1) Mental Observation Ward, Bhawanipore, Calcutta
(2) European Mental Hospital at Kanke, Ranchi, and
(3) Indian Mental Hospital at Kanke, Ranchi, Rule 6 specifies that lunatics of the classes mentioned there shall be sent to those mental hospitals.
39. Apart from this question of principle we do not think that Mr. S. Banerjee's interpretation of the words 'for gain' in Section 93 (b) of theLunacy Act can be accepted by this Court. He has relied on clause 4 of the Memorandum of Association of the Indian Psycho-Analytical Society which says that the income and properties of the Society whensoever derived shall be applied solely towards the promotion of the objects of the Society and no portion thereof shall be paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to any member of the Society provided of course that nothing herein contained shall prevent the payment of remuneration to the officers or servants of the Society or to any member thereof in return for any work done or services actually rendered for the Society nor prevent the payment of interest on any money borrowed from any member of the Society. He also relied on Rule 5 of the Memorandum which says:
'If upon dissolution of the Society there shall remain any property after satisfaction of all debtsand liabilities the same shall not be divided among the members but shall be given and transferred to some other Society having similar object to those of the Indian Psycho-analytical Society.'
Relying on Rules 4 and 5 Mr. S. Banerjee contends that this is not a Society for gain within the meaning of Section 93 (b) of the Lunacy Act. We are unable to accept this contention for many reasons. We shall state the reasons briefly.
40. Whether the members of the Society can make a profit or gain is not the point involved in Section 93 (b) of the Lunacy Act. The point is whether the Society takes it for gain so far as the patient is concerned. The Society gains; it charges admission fees and fees for treatment and we shallpresently see the charges from the rules of the Lumbini Park itself. It may be stated incidentally here that Lumbini Park is a mental hospital and clinic which is said to be managed by the Indian Psycho-analytical Society which Society was registered under the Indian Societies Act. The patients have to pay certain charges for admission. An admission fee of Rs. 25/- is charged in all cases under Rule 8 except when the patient is readmitted within one year of discharge from this hospital. Fan charge of Rs. 10/- per month from March to October is also payable. Any additional cost for necessary medical expenses, special nursing, special attendance, food and other arrangements are also charged extra. The admission form which was signed by respondent Subodh Chandra Bose specifies under Rule 8 four classes of paying beds with varying charges, the charge for Sanat Chandra Bose being Rs. 225/- per month. Whether the members of the Indian Psycho-analytical Society were making this profit or distributing this profit or gainamongst themselves is beside the point. If theywere accumulating the profit or gain so as not todistribute among themselves but for applying itafter dissolution to institutions with similar objects,it does not make the work any the less for 'gain'.This point is made clear by the leading case In reArthur Average Association for British Foreign andColonial Shins, Ex parte Hargrove and Co., reportedin (1875) 10 Ch A 542. At pages 546-47 of thatreport. Sir George Jessel, M. R. states:
'(1) Now, if you come to the meaning of the word 'gain', it means acquisition. It has no othermeaning that I am aware of. Gain is something obtained or acquired. It is not limited to pecuniary gain. We should have to add the word 'pecuniary' so to limit it. And still less is it limited to commercial profits. The word used, it must be observed, is not 'gains' but 'gain', in the singular,'
'(2) Between the association and its members it carries on business with a view of getting more than it shall pay. It must acquire the difference. It contemplates the acquiring it. It is formed for the purpose of acquiring, first of all, the sums wanted for the expense of carrying it on, and, secondly, the sums to form a reserve fund at the end of the year. It is quite true that the reserve fund may be ultimately divided, but it is not divided and given back to the people who have paid too much, but to another class .........'
41. Whether the Indian Psycho-analytical Society or the Lumbini Park actually make a profit for themselves is, therefore, not the test for interpreting the word 'for gain' within the meaning of Section 93 (b) of the Lunacy Act. Vis-a-vis their patients they charge the patients and therefore they make a profit so far as the patients are concerned. Whether these authorities between themselves divide the profit or the money received from the patients or utilize it for similar purposes, therefore, cannot take these institutions out of the operation of Section 91 (b) of the Lunacy Act.
42. Then Mr. S. Banerjee for the first andsecond respondents fell back upon the word 'detains' in Section 93 (b) of the Lunacy Act and contended that his clients did not detain Sanat Chandra Bose and that he was free to go away. This submission cannot be upheld on the express rules of Lumbini Park on which his clients have relied. Sanat Bose was not admitted as a voluntary patient who entered the hospital of his own volition. He was being admitted to the Lumbini Park Mental Hospital on the plea that someone was admitting him as his guardian. Therefore, without the consent of that guardian Sanat could not be released by the Mental Hospital. Rule 5 which deals with voluntary discharge says:
'A voluntary patient may leave the institution if he so likes by giving 24 hours' notice in writing to the Superintendent.'
But then Sanat Chandra Bose was not admitted as a voluntary patient at all. Indeed Rule 3 in the admission form says:
'A special form shall be filled up by guardian of the patient and by the patient himself, if he wants to seek admission voluntarily, signifying assent of the party or parties concerned to abide by the rules of the Institution. If the patient is not in a position to sign the form himself his guardian will sign the form for him.'
Here in this case there is no allegation or suggestion that the patient was not in a position to sign. The patient is adult and in fact letters have been written by him. One letter is set out in the petition, and another is on the file of the Deputy Sheriff which has been made part of the record of this proceeding and written while the patient was in the Harrington Nursing Home under directions of this Court. Rule 4 relating to discharge of a patient provides:
'.......The guardian of a patient may take hisward away from the hospital, if he so likes, by paying up all hospital dues and signing a discharge bond between 8 a.m. and 8 p.m.'
That does not permit such a patient to go away as he likes. The guardian is supreme in such a case. No doubt Rule 4 expressly reserves to the Superintendent the right to discharge a patient either on medical recommendation or on administrative grounds without assigning any reason, but that is the right of the Superintendent. It does not permit a patient admitted under a guardian to leave without the guardian's consent. So far, therefore, as Sanat is concerned in the facts of this case he was a virtual prisoner in the hands of the authorities of the Lumbini Park and the alleged guardian Subodh Chandra Bose.
43. Mr. M.N. Banerjee appearing for the petitioner has also contended before us that the Lumbini Park's act in receiving Sanat was also illegal because of the West Bengal Clinical Establishments Act, 1950. Section 2 (a) of that Act says :
' 'Clinical establishment' means a nursing home, a physical therapy establishment, a clinical laboratory or an establishment analogous to any of them by whatever name, called;'
Section 2 (d) further defines a 'nursing home' to mean an establishment where persons suffering from illness, injury or infirmity whether of body or mind are usually received and accommodated for the purpose of nursing and treatment. Both the affidavits of the first two respondents as well as the printed memorandum of the Psycho-analytical Society and the Rules of the Lumbini Park definitely bring this establishment Lumbini Park within the meaning of a Clinical Establishment and Nursing Home as defined by Section 2 Clauses (a) and (d) of the West Bengal Clinical Establishments Act, 1950. The object of the Indian Psycho-analytical Institute is expressly declared inter alia to be to establish a Mental Hospital and Clinic. The printed rules of Lumbini Park expressly declare the Lumbini Park to be such a Mental Hospital and Clinic with both indoor and outdoor patients.
44. Section 3 of the West Bengal Clinical Establishments Act, 1950, expressly provides:
'No person shall keep or carry on a clinical establishment without being registered in respect thereof and except under and in accordance with the terms of a license granted therefor.'
Now it is admitted that there is no license under the West Bengal Clinical Establishments Act, 1950, so far as the Lumbini Park is concerned. This Act by Section 1(2) extends to the whole of West Bengal and affects all Clinical Establishments unless particularly excluded. Section 8 of this Act contains what is called 'savings'. Section 8(1) provides that for a period of six months from the commencement of this Act in 1950. Section 3 would not be applicable to any clinical establishment in existence on the date of such commencement, but naturally after six months Section 3 would be applied. That means an existing clinical establishment such as Lumbini Park should have had a license under the Act within six months from the date of the operation of the Act. Section 8(2) o the Act expressly provides that nothing shall apply in respect of certain institutions. One exemption is --any clinical establishment maintained by or underthe control of Government or any local authority. It is quite obvious that the control of the clinical establishment of the Lumbini Park, even making a concession with respect to the fifteen beds maintained by the Government, cannot be said to be maintained by the Government or by any local authority. It also exempts an asylum established under the Indian Lunacy Act. In 1954 there was an amendment to this Act, the relevant one on the point being Sub-clause (f) which provides:
'any hospital, dispensary or other medical institution recognised in this behalf by the State Government....'
Recognition in this behalf by the State Government naturally has to be made by the State Government and can be done by notification or intimation to the institution concerned and/or publication of such exemption in the Official Gazette. It is not shown to us that any such order of exemption or recognition has been made in this case in favour of this institution. It has, however, been contended on behalf of the authorities of the Lumbini Park that Government grants should be read as recognition. We think that is not possible because mere grant will not be enough for recognition as the words used are 'recognised in this behalf' under Section 8(2)(f) as amended. It is unnecessary for us to pursue the matter any further but in the interest of the Lumbini Park Authorities who claim to render public service to the community, this Court thinks that they should be careful to regularise their legal position both as an asylum under the Indian Lunacy Act and as a clinical establishment under the West Bengal Clinical Establishments Act so that they may avoid any future troubles.
45. From a consideration of all these aspects it is clear that Lumbini Park has no legal authority to keep Sanat Chandra against his wish. The Rule for Habeas Corpus, therefore, must be made absolute as against the first two respondents.
46. Before concluding, it will be appropriate to refer to two other small points placed before us. One is that alternative remedies under the Lunacy Act were available to the petitioner. It is argued that under Section 83 an appeal lies to the High Court from any order made by the District Court under Chapter V of the Lunacy Act. The short answer to this is that the petitioner was not a party in the lunacy proceeding nor did he have any notice of such proceedings. Even on the authority of ILR 54 Cal 836: (AIR 1927 Cal 636), it is doubtful whether the petitioner had a very clear right to appeal. Even if he had, it would not give him a complete relief because Lumbini Park was keeping the alleged lunatic not on the ground of any reception order or inquisition order under the Lunacy Act at all, but even from before through the improvised and illegal procedure of a guardian pretending to act for Sanat and admitting him to the Lumbini Park. Then also it was argued that relief could be obtained by the petitioner under Section 33 of the Lunacy Act and that was another alternative remedy. We do not think it is, because it only applies to an admitted lunatic detained under Section 14, 15 or 17 of the Act which is not the case here so far as Sanat is concerned. It does not apply all the more if theLumbini Park's contention that it is not an asylum is correct and because there was no authority by which he was detained. The theory of alternative remedy in any event, apart from the fact that there was no such remedy in this case which could give complete relief to the petitioner, is no answer because the law is that even where there is an alternative remedy it has to be sufficiently speedy. In our view proceedings in Habeas Corpus and under Article 227 of the Constitution are certainly speedier than any alternative remedies even if there be any as suggested. For this purpose reference may be made to the Division Bench decision in Abanindra Kumar Maity v. A.K. Biswas : AIR1954Cal355 and In re Annamalai Mudaliar : AIR1953Mad362 .
47. That Habeas Corpus lies against Mental Hospitals and Clinics, is well settled law and reference may be made to R. v. Board of Control, Ex. Parte Rutty, reported in (1956) 1 All ER 769 which has been cited to us. It may not be inappropriate to quote one observation of Lord Goddard, C.J. from that case at pages 775 and 776 particularly bearing on the point of medical certificates where the learned Chief Justice observed:
'It is for this reason that it is so important to stress the duty of the judicial authority, especially in deciding whether the person brought before him is a mental defective. It is not enough that he should have two medical certificates. That they should have been given is a necessary preliminary to his having jurisdiction; but they are not conclusive in any shape or form. Had it been to intended the statute would have so provided and enabled the judicial authority to act merely on reading the certificates' ........These peopleI gather, are those whom no one except psychiatrists would recognise as mentally defective, and that there is room for a difference of opinion among the latter is shown by the affidavits in this case. There are plenty of idle, naughty and mischievous children and young persons who are not mental defectives within the Act. It is for the Judicial authority to apply such tests and to call for such evidence as he may require, and I hope this is generally done. It is of the first importance, however, that the justice should not think that on the question whether the patient is a mental defective he is merely to act as a rubber stamp; to use a convenient colloquialism.'
48. Here as we have said before the learned Judge acted as a rubber stamp. The words such as Schizophrenia of Paranoid type are not enough to make a man 'lunatic' under the Lunacy Act. These words are very common words used in modern psychology today. We have been shown many authorities, which we consider it unnecessary to discuss here, suggesting that such features as Schizophrenia of Paranoid type can be detected even in almost all persons including the normal healthy individuals. A person does not become a 'lunatic' under the Lunacy Act on the debatable niceties of psychological and psychiatric theories. It is, therefore, essential that the Judge must apply his mind and wherever possible examine personally the lunatic unless he has good reason not to do so, in very exceptional cases. It cannot betoo much emphasised that it is not the ultimate responsibility of the mental specialists and specialist doctors whose views are always entitled to great deference, but it is the responsibility of the Court of law to find and hold that a person is a 'lunatic' under the Lunacy Act and that he should be detained in a mental hospital. This responsibility on the Court is serious and heavy and must be discharged with great care and circumspection, and the Court cannot do it vicariously through the medical and psychological specialists, though it can always and should preferably be guided by them.
49. We, therefore, make the Rules absolute against all the respondents but with costs only against the third and the fourth respondents who really are the persons responsible both for the illegal and improper lunacy proceedings as well as for admission of Sanat into the Lumbini Park, hearing fee being assessed at twenty gold mohurs.
50. We, therefore, direct and order that Sanat Chandra Bose at present residing at the Harrington Nursing Home and now before us in Court be set at liberty forthwith.
N.K. Sen, J.
51. I entirely agree with the reasons and conclusions stated in the judgment just delivered by My Lord and desire to add very little. The two Rules were issued on the opposite parties 4. in number to show cause why a writ in the nature of Habeas Corpus should not issue directing them. to produce Sanat Chandra Bose before this Court and the said Sanat Chandra Bose be set at liberty and also to show cause why the order passed in the Lunacy Proceedings before the District Judge, Alipore declaring Sanat Chandra Bose a lunatic and appointing opposite party No. 3 as the guardian of the said Sanat Chandra Bose should not be set aside.
52. So far as the lunacy proceedings in the Court of the District Judge, 24-Parganas are concerned, it must be held that the said proceedings and the adjudication order purported to have been made therein are void ab initio and is a nullity and as such the proceedings should be quashed. The grounds may shortly be stated as follows: Firstly, no notice of the lunacy application was served on anybody except the respondent No. 4 Subodh Chandra Bose who is alleged to have accepted service on behalf of his brothers Sudhir Bose who ordinarily resides in England and Sirish, Bose. No notice was served on the alleged lunatic of the said application. The notice was alleged to have been served on the Superintendent, Lumbini Park Mental Hospital for and on behalf of the alleged lunatic. Medical certificates enclosed with the said application of the lunatic are defective and insufficient. The alleged lunatic was also not produced before the Trial Judge. Although, admittedly Sanat Chandra Bose at all material times resided permanently at No. 28, Nayan Chand Dutta Street, Calcutta, his address was stated as Lumbini Park Mental Hospital with the purpose of creating jurisdiction of the District Judge, Alipore. No notice was served on the other near relations of the said Sanat Chandra Bose including the present petitioner who happens to be the nephew of the alleged lunatic and also to thealleged lunatic's sisters. The lunacy proceedings and adjudication order purported to have been made by the District Judge of 24 Paraganas must, therefore, be held to be void. It may be noted here that Mr. K. C. Deb, appearing for opposite party No. 3 and Mr. Gouri Mitra, appearing on behalf of opposite party No. 4 conceded that the lunacy proceeding held in the Court of the District Judge at Alipore was void for want of jurisdiction.
53. On the other point, I entirely agree for the reasons stated by My Lord in his judgment that the detention of Sanat Chandra Bose is illegal and infringes his fundamental right to personal liberty and to lead a free life. My Lord has dealt with this point and has sufficiently and very elaborately dealt with the arguments of the learned Counsel appearing for the parties and I do not want to add anything excepting that I am not prepared to hold that the alleged lunatic is a person of unsound mind or a person incapable of managing his own affairs and in my view he should be set at liberty at once,
54. It must further be held that the detention of the alleged lunatic in the Lumbini Park Mental Hospital was without any authority. My Lord has in his judgment dealt with the question elaborately and has also noticed the arguments advanced on behalf of the Mental Hospital authorities by Mr. S. Banerjee. I respectfully agree with the reasons and conclusions stated in the judgment of My Lord and I do not propose to add anything beyond the general expression of concurrence with the said reasons.