1. This is an application under Article 226 of the Constitution for a Writ in the nature of Habeas Corpus, directing the production of one Panna Bai, now in the custody of the Lady Superintendent of the Government Rescue Home.
2. The petitioner claims to be known to the said Panna Bai. His case is that as by reason of her incarceration, the girl is unable to move this Court, he is entitled to ask for appropriate orders for her release.
3. The first point which falls to be determined is whether or not the petitioner is competent to make this application. There can toe no doubt that the girl concerned is a minor. As to her age, the evidence of Dr. Kabir Hossain appears to be conclusive. The giri being a minor, it seems to us that ordinarily the only person competent to move the Court in habeas corpus is one who is entitled either to the custody of the child or to represent her legally. Where, however, such a person is shown to be incapable of making the application, or where no such person exists, the question of the right of a friend to make such an application may properly arise. But, in that case, it must be shown by an affidavit, firstly, that no one who is legally entitled to the custody of the child or to represent her exists, or that such a person, if any, is unable, for reasons to be set out in the affidavit, to make such an application and, secondly, that the applicant himself is interested in the welfare of the child. The present applicant, in our view, does not appear to be interested in the welfare of the child, which is the paramount consideration here. Indeed, the applicant's interests appear to be in conflict with the well-being of the child who was recovered from a brothel and subsequently detained at the Rescue Home under the provisions of the Bengal Suppression of Immoral Traffic Act, 1933. We would hold, therefore, that the applicant is incompetent to present this application. At the same time, we have decided to dispose of this petition on its merits as well.
4. Mr. Ghose on behalf of the applicant has argued that Sections 13, 14, 15 and 17 of the Bengal Suppression of Immoral Traffic Act, 1933 (Bengal Act 6 of 1933) offend against Articles 91 and 22 of the Constitution and that, therefore the detention of the girl is illegal. In order to appreciate the contention put forward by Mr. Ghose, it is necessary to set out the facts leading to this application.
5. In October last year, the girl Panna Bai was recovered by an Inspector of Police from premises No. 43/1, Bowbazar Street, Calcutta,where she carried on the profession of a dancer. The house concerned was a brothel. In consequence of the recovery of the girl, the police sent up a woman named Tara Bai and one Md. Siddique for trial under Sections 8 and 10 of the Bengal Suppression of Immoral Traffic Act, 1933, on the allegation that offences punishable under the said sections had been committed by them in respect of the said child. It was in connection with that prosecution that the present applicant was summoned as a prosecution witness. The girl Panna Bai was also a witness in the said case. Acting under Section 13 of the Bengal Act, the Inspector of Police, who was responsible for the recovery of the girl, removed her from the said address in Bowbazar Street and produced her before a learned Magistrate who on 27-1-1953, made the following order:
'The girl Panna Bai is examined. She says she wants to go back to Bowbazar house. Considering the evidence of Dr. K. Hossain, I am of the opinion that the age of the girl is between 16 and 17 years, nearer 17 years on 30-10-52, the date of examination.Having regard to Section 14 (2) of B. S. I. T. Act. 1933, I direct that Panna Bai be detained at the Rescue Home for 9 months more.'
The girl has been at the Rescue Home since.
6. Mr. Ghose's contention is that the girl's detention is neither punitive nor preventive, and is, therefore, illegal. He argues that Sections 13, 14, 15 and 17 of the Bengal Act violate the provisions of Articles 21 and 22 of the Constitution. The answer to this argument is that Article 22 does not appear to us to be applicable to the facts of this case. Mr. Ghose argues 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 Clauses (1) and (2) of Article 22 of the Constitution. Section 13 is as follows:
'The Commissioner of Police, Superintendent of Police, or a police officer not below the rank of a Sub-Inspector specially authorised in writing in this behalf by the Commissioner of Police or Superintendent of Police, may enter any premises if he has reason to believe-
(a) that an offence punishable under Section 4 has been committed or is being committed in respect of the premises; or
(b) that a female in respect of whom an offence punishable under Section 8, .9, 10, 11 or 12 has been committed is to be found therein;
and may remove any girl who appears tohim to be under the age of eighteen years,if he is satisfied-
(a) that an offence punishable under Section 4 has been or is being committed in respect of the premises; or
(b) that an offence punishable under Section 8, 9, 10, 11 or 12 has been committed in respect of the girl.'
As the section is concerned with the removal of a minor girl from a brothel or from premises which are used 'as a brothel and does not in terms authorise the 'arrest' of any such girl, Mr. Ghose points out that the word 'arrest' as used in Article 22 is wide enough to include any kind of restraint. In our view, the word 'arrest' in Article 22 has a much restricter meaning and does not include the removal of a minor girl under Section 13 of theBengal Act. A similar controversy arose in the case of -- 'State of Punjab v. Ajaib Singh', : 1953CriLJ180 (A). The question there was whether the taking into custody of an abducted person by a police officer and the delivery of such person by him into the custody of the Officer in charge of the nearest camp under Section 4 of the Abducted Persons (Recovery and Restoration) Act 65 of 1949 could be regarded as arrest and detention under Article 22(1) and (2) of the Constitution. Section 4 of that Act provided that it any police officer, not below the rank of an Assistant Sub-Inspector, or any other police officer specially authorised by the State Government in that behalf) had reason to believe that an abducted person resided or was to be found in any place, he might, after recording the reasons for his belief, without warrant, enter and take into custody any person found therein who, in his opinion, was a abducted person, and deliver or cause such person to be delivered to the custody of the Officer in charge of the nearest camp with the least possible delay. Their Lordships of the Supreme Court held that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody under Section 4 of the impugned Act could not be regarded as arrest and detention within the meaning of Article 22(1) and (2). In view of the various definitions of the word 'arrest' in well-known Law Dictionaries) Das J., in construing Article 22 of the Constitution, observed as follows:
'We are in agreement with learned counsel to this extent only that if the language of the Article is plain and unambiguous and admits of only one meaning, then the duty of the Court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory.'
It is not necessary to go further into this matter, for, the law laid down in that case is conclusive on the point.
7. Mr. Ghose next argues that the girl's removal from the brothel and her subsequent detention at the Rescue Home were in breach of the provision of Article 21 of the Constitution. As to this, we need only say that the matter is concluded by the majority decision of the Supreme Court in -- 'Gopalan A. K. v. State of Madras', : 1950CriLJ1383 (B). In our view, the words 'procedure established by law' refer to any enactment which is not repugnant to the Constitution. That being the position, Bengal Act 6 of 1933 would be attracted by Article 21, provided, of course, there is nothing in the Bengal Act which is repugnant to the Constitution. Article 23 of the Constitution provides for prohibition of traffic, 'inter alia', in human beings, which would include traffic in women and children for immoral or other purposes. The provisions of Article 35, which require that Parliament shall have, and the Legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under Part III of the Constitution, are subject to clause (b) of Article 35. It is, therefore, nobody's case that Bengal Act 6 of 1933 is notvalidly in operation. If the provisions of Article 22 (1) and (2) have no application to the facts of this case, then the question of the alleged non-disclosure of the grounds of the girl's removal or any failure to produce her before the nearest Magistrate within a period of 24 hours cannot arise. The scheme of the Bengal Act is to provide for salvage of such children as are being exploited or are likely to be exploited for immoral purposes. While the Constitution prohibits discrimination, it provides for protection of women and children who may be said to suffer from a certain amount of disability either by reason of their sex or age. In our view, nothing has been shown in the Bengal Act which can be said to infringe either Article 21 or Article 22 of the Constitution, and we would, therefore, hold that the removal and the subsequent detention of the girl under the provisions of the said Act were and are legal.
8. Mr. Ghose argues that the words 'her case' appearing in Section 17 (2) of the Bengal Act suggest that the girl concerned was either an accused in the proceedings or that she was to be detained until she had deposed in the case. In our view, there is no substance in this contention. The use of the words 'her case' would suggest that the paramount consideration for the Court was her welfare and her future custody and that the girl's 'case' in that sense had to be disposed of in accordance with the provisions of the Act. Sections 14, 15, 16 and 17 of the Act provide for the girl being placed in suitable custody until she attains the age of 18 years, and we cannot see how these provisions offend against the provisions of the Constitution.
9. In our view, no case has been made out for any of the reliefs asked for. In the result, this application fails and is dismissed.
10. Mr. Ghose on behalf of the petitioner asks for a certificate under Article 132 of the Constitution. The points involved are concluded by the two decisions of the Supreme Court already referred to in our judgment. Mr. Ghose's prayer is accordingly rejected.
11. I agree.