Dua j - (1.) These four cases (Climinal Miscellaneous Petitions Nos. 48 and 49 and 51 and 52 of 1967) are the remnants of a bunch of five cases which were registered in this Court inconsequence of my visit to Solan Sub-Jail on 14th June, 1967. While inspecting that Sub-Jail, it appeared to me that these five persons, to whom those five criminal miscellaneous petitions relate were being detained without authority of law. On my return here, I directed show cause notices to go to the authorities concerned to produce the record and the persons detained in this Court and to Justify their detention under the law. On 20th June, 1967, Shri K. C. Pandit appeared in opposition to the show cause notices and asked for time for putting in appropriate returns. He, however, conceded that Nek Ram was entitled to be set at liberty because the Government had already decided to release him on the ground that he was reported to have been cured of the mental malady from which he was supposed to be suffering. We accordingly made an order releasing him on 20th June l967. Cr. Misc. No. 50 of 1967 was thus disposed of on that date. We are now concerned with the remaining four petitions, in which Shri K. C. Pandit has appeared in opposition to the show cause notice and Sarvshri H. S. Thakar, M. R. Gupta, Chhabil Das and Sushil Malhotra advocates have, in accordance with the high traditions of the bar in this Republic. been good enough to agree to assist this Court as amicus curiae. We will now deal with each one of these four petitions seperately Before dealing with them, however, it may appropriately be stated at the outset that on behalf of the State, no obJection has been raised to the show cause notices having been issued by this Court suo motu and, in our opinion, rightly so, because there is authority for the view that if this Court is apprised of the material which prima facie suggest illegality of the detention or custody, then this Court can, for the ends of Justice proceed to issue a show cause notice for determining the legality of the detention in question. In all the four cases, we passed short-final orders on 22nd June 1967 reserving reasons to be given later. We now proceed to give our reasons. Dealing first with Criminal Miscellaneous No. 51 of 1967. Golo v. State, we find that on 4th February, 1967, the Station House Officer, Dhalli Police Station, recorded a note to the effect that Golo or Ghawal, as described by the Station House Officer in the said note, wha originally belonged to Tibet, came to India with his brother Doga at the time of China Tibet conflict. For some time he stayed at Rampur and thereafter he came to Kinnaur where he worked as mule teer. There he is, reported to have developed insanity and as a resalt of treatment at Ripon Hospital, Simla, was cured of the malady. Thereafter he again started doing his regular work and for two years proceeding, he had been doing work at Sainj. For five or six days, this man again became in sane and started talking irrelevant things and also started throwing stones on the people. His brother Doga took him to Kasumpti for treatment on 2nd February, 1967, but his condition appeared to deteriorate day by day. -On 4th February, 1967, Golo caught hold of a pup and killed it, later he caught hold of another dog and wanted to kill that too. Golo, according to this report, had thus become a dangerous lunatic, who tried to throw stones on the public. The Station House Officer arrested Golo in these circumstances, treating him to be a dangerous lunatic. This report is Annexture 'B' to the return. On 4th Feburary, 1967, the General Assistant to the District Magistrate made an order purporting to act for the District Magistrate directing Ghawal to be kept in )adicial lock up at Kasumpti till further orders, adding that the said Ghawal be got medically examined. The Superintendent, Snowdon Hospital, was accordingly asked to send his report after examining Ghawal lunatic before 7th Feburary, 1967. This order is Annexure 'C' to the retarn. Annexure 'D' which purports to be the opinion of the Medical Specialist, Snowdon Hospital, dated 6th Feburary, 1967 is in the following words :- "Patient gives his name as 'Golo' and not Dhawan Mentioned in the letter. He is talking rationally,, although because of language difficulty, it is difficult to follow him properly. It will be advisable to keep him under obsarvation in hospital under police escort for some days. It will also be necessary to interview some relative or also associate living with him before giving an opinion about his mental condition." As per annexure 'E' to the return dated 7th February 1987, the District Magistrate, Mahsu. sent Golo to the Hospital as desired by the Medical Seperintendent Showdon, with a request that the. said Medical Superintendent bs pleased to examine Golo medically about his mental condition and furnish a report to the District Magistrate as early as possible. Annexure 'F' to the return is the medical opinion of Dr. S. P. Gulati, Medical Specialist, H. P. State Hospital, Simla dated 6th March 1967 after the examination of Gob, the alleged lunatic, and is in the following terms: - "The above named patient was admitted in this hospital on 21st February 1967 for observation with regard to his alleged insane behaviour and is discharged on 6th March .1937. He sometimes becomes agitated. Sometimes talks in rough tone. Occassionally gazes at people. Sometimes begins to breath in high noise. He reads his book well written in his own language. Sometime tries to run away from his bad. It is considered that he is suffering from insanity probably Schizopherania and requires admission in a mental hospital." It is noteworthy that although the District Magistrate had forwarded Golo to the Medical Superintendent Saowdon Hospital on 7th February 1967, pursuant to the suggestion of the Superintendent dated 6th February 1967, he was not admitted to the hospital for observation before 21st February 1967, during which period, it is not denied before us, Golo was kept in the Judicial look up at Kasumpti. And then again it took the District Magistrate about 19 days to write to the Director of Health Services H. P. Simla on 25th March 1967 stating that from the report of Shri S. P. Gulati, Medical Superintendent, H. P. State Hospital, Simla, it appeared that Golo was suffering from insanity probably schizopherania requited admission in amental hospital and that Shri Doga, brother of Golo, had ensured that he would bear the maintenance charges of the mental hospital of the patient as also his travelling expenses. A request, was accordingly made that a seat for Golo be got reserved in some mental hospital at an early date. This communication is Annexure 'G' to the retarn. It was five days less than two months the reafter, on 30th May 1967, that the Director of Health Services, H.P.,wrote back to the District Magistrate, Mahasu District, Kasumpti, stating that Golo luantic could be admitted in the Mental Hospital, Ranchi, against the quota reserved for H.P after ascertaining about the availabillty of a bed form the Medical Saperintendent of the hospital It was added that nceessary documents required at the time of admission be given to the escort of the lunatic and that the maintenance and travelling charges would have to be met by Shri Doga, the brother of the lunatie. This letter concluded with the observatioa that before sending the patient for admiasion to the mental hospital, his brother may be required to enter into a bond for making all payments direct to. the hospital authorities. Then we have a copy of a telegram purporting to have been sent on 6th June 1967 by the Deputy Commissioner, Mahasu to the Mental Hospital, Kenke, Ranchi, seeking confirmation telegraphically if the seat reserved for Golo lunatic was available, also requiring the necessary admission forms. Annexure 'A' is a letter dated 9th June 1967 from the Medical Superintendent, Hospital for Mental diseases, P. 0. Kanke, Ranchi to the District Magistrate, Mahasu District, Kasumpti, in which reference is made to the letter dated 30th May 1967 from the Director of Health Services. H. P. addressed to the District Magistrate with a copy endorsed to the Mental Hospital, and it is stated in Annexure 'A' that there was no bed vacant in the H. P. State quota, but Shri Golo's name was entered in the waiting list. It is added that a bed would be available to him as soon as his turn comes. This letter concludes with a request that the patient should not be sent for admission till there is a communication from the Mental Hospital. It is somewhat surprising that in this letter, no reference has been made to the telegram alleged to have been sent on 6th June, 1967. Although in the return, no reference has been made to any order whereby Golo was directed to be detained or lodged in the sub Jail at Solan, our attention has been drawn by Shri K. C. Pandit, learned counsel for the State, to an order in Hindi dated 8th March. 1967, on the record passed by some officer acting on behalf of the District Magistrate Mahasu, in which it is directed that Golo be lodged in the judicial Sub-Jail Solan, pending the enquiry from his brother as to whether or not he would be willing to defray the maintenance and travelling expenses in connection with his admission to the mental hospital.
(2.) The question on these facts arises whether Golo's present detention in Sub-Jail at Solan is lawful Before dealing with the legal question, we must point out that the returns in all these cases do not conform to the rules framed on the subject because they arc not in the form of affidavits duly sworn by some one having knowledge of the facts asreted therein. These returns are more in the form of comments by the District Magistrate which are not even verified in the manner in which the pleadings have to be verified. In future, this Court would insist on a proper return being made and if the return is not in accordance with the rules framed by this Court, then such a return would not be taken into consideration. The indulgence shown by this Court on the present occasion is not to be cited as a binding precedent in any comparable circumstances in future.
(3.) It is concededthat proceedings against Golo were started under section 13 of the Indian Lunacy Act, 1912. This section provides as under:- "13. Powers an duties of police in respect of wandering of or dangerous lunatics and lunatics cruelly treated or not under proper care and control. (1) Every officer in charge of a police-station may arrest or cause to be arrested all persons found wandering at large within the limits of his station whom he has reson to believe to be lunatics and shall .arrest or cause to be arrested all poisons within the limits of his station whom he has reason to believe to be dangerous by reason of lunacy. Any person so arrested shall be taken forthwith before the Magistrate. (2) Every officer in charge of a police station who has reason to believe that any person within the limits of his station is deemed to be a lanatic and is not under proper care and control, or is cruelly treated or neglected by any relative or other person having the charge of his immediately report the fact to the Magistrate. A person arrested under this section has to be produced before a Magistrate forthwith and under section 14 the Magistrate is enjoined to examine the person arrested and, if he thinks that there are grounds for proceeding further, he has to cause him to be examined by a medical officer. The Magistrate is also authorised to make such further enquires as he thinks fit. In case the Magistrate is satisfied that such person is a lunatic and a proper person to be detained, he may, if the medical officer who has examined such person, gives a medical certificate with regard to him, make a reception order for the admission of such lunatic into an asylum. The proviso to section 14 deals with the case of a friend or a relative of such lunatic desiring the latter to be sent to a licensed asylum, but we are not concerned with the said proviso in the present case. "reception order", as defined in section 3 (10) of this Act means an order under the provisions of this Act for the reception into an asylum of a lunatic other than a lunatic so found by inquisition. The word "asylum", as defined in section 3(1) means anasylum or mental hospital for lunatics established or licensed by the Central Government or any State Government. The form for a reception order has been prescribed by the Act which is Form 5 in Schedule I of the Act. It is desirable to reproduce the material portion of this form so far as relevant at this stage :- "I.C.D. Magistrate...........having caused A. B. to be examined by E. F., a Medical Officer under the Indian Lunacy Act, 1912, and being satisfied that A. B. (describing him) is a lunatic who was wandering at large............and a proper person to be taken charge of and detained under care and treatment, hereby direct you to receive the said A. B., into your asylum. (sd.) C. D. Dated the To the Officer in charge of the asylum at **". It is not denied before us that no such reception order has so far been made in connection with Golo : The medical certificate referred to in section 14 has been dealt with by section 18, which may also be reproduced at this stage :- "18. Medical Certificates. (1) Every medical certificate under this Act shall be made and signed by a medical practitioner or a medical officer, as the case may be, and shall be in the form prescribed. (2) Every medical certificate shall state the facts upon which the person certifiing has formed his opinion that the alleged lunatic is a lunatic, distinguishing facts observed by himself from facts communicated by others ; and no reception order on petition shall be made upon a certificate founded only upon facts communicated by others. (3) Every medical certificate made under this Act shall be evidence of the facts therein appearing and of the Judgment therein stated to have been formed by the person certifying on such facts, as if the matters therein appearing had been verified on oath." The form of such a medical certificate is also prescribed in Form 3, Schedule 1. Paragraph 3 of this form requires the Medical Officer concerned to state the facts indicating insanity observed by him and other facts indicating insanity communicated to him by others and then to give grounds which are the basis of his conclusion. The sanctity of the reception order would be clear from section 20 which provides that a reception order, if the same appears to be in conformity with this Act, shall be sufficient authority for the petitioner or any person authorised by him, or in the case of an order not made upon petition, for the person authorised so to do by the person making the order to take the lunatic and convey him, to the place mentioned in such order and for his reception and detention therein, or in any asylum to which he may be removed in accordance with the provisions of this Act, and the order may be acted on without further evidence of the signatures or of the jurisdiction of the person making the order. The proviso to section 20 lays down. inter-alia, that no reception order can have effect alter the expiry of 30 days from its date, unless the lunatic has been admitted to the place mentioned therein within that period. These provisions reflect the high interest the people in a democratic set-up like ours have in the preservation of liberty of person. The Lunacy legislation, of course, dates back to the British rule inindia, but legislation in that period was also inspired to a considerable extent by the traditional respect for personal liberty which the British Parliament is reputed always to have championed. The British Parliament, which was answerable to the British public, apparently maintained, largely speaking, a fairly close scrutiny over the British Indian legislation, with the result that the legislation in British India and the Lunacy Art in question largely contained adequate safeguards against arbitrary deprivation of personallibrity, though of course the authorities even in this country were not effectively answerable to the Indian public. They were certainly answerable ultimately to the British Parliament which was in the end answerable to the British public. The basic principle on which the legislative scheme of the Lunacy Act is based, seems to us to be rooted in the democratic spirit of the British Constitution which has always been anxious to protect and preserve liberty of person against all arbitrary on slaughts. Section 23, on which main reliance has been placed on behalf of the State, provides for detention of lunatics pending their removal to asylum. It reads as under :- "23. Detention of lunatics pending removal to asylum. When any reception order has been made under section 7, 10, 14 or 15, the Magistiate may, for reason to be recorded in writing, direct that the lunatic, pending his removal to an asylum, be detained in suitable custody in such place as the Magistrate thinks fit." Plain reading of this section shows that it is of no assistance to the State, because it operates only after a proper reception order has been made under the appropriate sections, including section 14. No such reception order having been made in this case, this section is quite clearly inapplicable. It is faintly argued that the provisions dealing with the reception order and the medical certificate should be considered to have been substantially complied with in the present case and that Forms 3 and 5 in Schedule I of the Act should not be construed to demand a strict and meticulous compliance without any change or variation. We quite agree that the forms contained in the Schedule have to beused with such variation as the circumstances of each case may require, and indeed this has been specifically so provided by section 96 of the Act. We are, however, unable to find any substantial compliance with the provisions of sections 14 and 8 in this case and our attention has not been drawn to any order which can reasonably be considered to be reception order in substantial compliance with section 14. Nor do we find any Medical certificate which can on any reasonable and rational ground be considered to conform to the provisions of law contained ia the Lunacy Act. We have come to this conclusion after devoting our most serious attention to both Annexures 'D' and 'F'. It may be recalled that by virtue of section 20, the authoirty for reception on the basis of a reception order lapse after the expiry of 30 days. This limitation of period, in our opinion, provides a complete answer to the respondent's argument in sustaining the legality of Golo's present detention. When confronted with section 20 and with the scheme of the Act, the learned counsel for the respondent had virtually to concede that there was no effective and operative reception order as contemplated by the statute in the present case and he had finally to drop the suggestion that sections 14 and 18 had been substantially complied with. ;