Mitter, J. - (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.;