Jagdish Sahai, J. - (1.) This is an application for an order under Sec. 491 of the Code of Criminal Procedure and for a writ of habeas corpus under Article 226 of the Constitution of India.
(2.) The petitioner who has been held to be 13 years of age by the City Magistrate, Agra has been ordered by him under Sec. 17 of the Suppression of Immoral Traffic in Women and Girls Act (hereinafter referred to as the Act) to be detained in Protective Home until she attains the age of 21 years. That order has been affirmed in appeal by the learned I Additional Sessions Judge, Agra on 18th January, 1963. By means of this petition it is prayed that the orders passed by the City Magistrate and the I Additional Sessions Judge be quashed by means of a writ of certiorari and that the petitioner may be set forth at liberty from custody in the Protective Home.
(3.) The facts, in this case are not in dispute and the questions to be decided are primarily those of law. During the course of arguments, which by breaks extended to several days, we permitted the learned counsel for the petitioner to raise some legal questions which had not been specifically taken in the petition. The submissions made before us are as follows: 1. That the learned City Magistrate acted without jurisdiction in passing the order dated 27th December, 1962 directing the detention of the petitioner in a Protective Home without first having summoned a panel of five respectable persons as required by sub see. (3) of Sec. 17 of the Act with the result that the entire proceedings are a nullity for want of proper constitution of the court and the order of detention is illegal; 2. That there was evidence to show that the petitioner had married and was leading a respectable life and the learned City Magistrate, who was a tribunal of limited jurisdiction, could not have demanded from the petitioner any higher burden of proof than of prima facie establishing marriage and in any case he was prevented from into fine and complicated questions of law relating to marriage and 3. That under the provisions of Sec. 17 of the Act a person can be detained in a Protective Home only if she is carrying on promiscuous intercourse; the jurisdiction under Sec. 17 of the Act is meant to be preventive and not punitive with the result that even if it be found that though once the petitioner was carrying on promiscuous intercourse and she had given it up at the time the case was before the Magistrate he would have no jurisdiction to try the case and pass an order detaining the petitioner in a preventive Home. We will take the submissions seriatim. Sec. 17 of the Act reads as follows: "17 (1) When the Special Police Officer removing a girl under sub-sec. (4) of Sec. 15 or rescuing a girl under sub-sec. (1) of Sec. 16, fails to produce her immediately before the Magistrate as required by sub-sec. (5) of Sec. 15 or sub-sec. (2) of Sec. 16, he shall forthwith produce her before nearest Magistrate of any class, who shall pass such orders as he deems proper for her safe custody until she is produced before the appropriate Magistrate. (2) When the girl is produced before the appropriate Magistrate he shall, after giving the girl an opportunity of being heard, cause an enquiry to be made as to the correctness of the information received under sub-sec. (1) of Sec. 16 and the age of the girl and if satisfied that the information received is correct and, the girl is under the age of twenty-one years, he may subject to the provisions of the next sub-section, make an order that such girl be detained for such period as may be specified in the order in a protective home or such other custody as he, for reasons to be recorded in writing, shall consider suitable. Provided that such custody shall not be that of a person, or body of persons, of a religious persuasion different from that of the girl. (3) In discharging his functions under sub-sec, (2), a magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may for this purpose keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in women and girls. (4) Against every order under sub-sec. (2) an appeal shall lie to the Sessions Judge whose decision on such appeal shall be final" (italicized by us).;