KUMARI POKHRAJ Vs. SUPERINTENDENT, PROTECTIVE HOME, ALLAHABAD AND OTHERS

JUDGEMENT

(1.) These are two connected writ petitions in which a prayer has been made for the issue of a writ of Habeas Corpus. The questions of law involved are common in both the cases.

(2.) The argument of the learned counsel who have appeared for the petitioners is that there is nothing either in Sec. 17 or any other Sec. of the Act under which the learned City Magistrate has the jurisdiction to direct that the petitioners shall live in a Protective Home during the pendency of the proceedings under Sec. 17 of the Act. It was contended that the power to put a person in a place against her will amounts to the curtailment of her personal liberty and unless there is a provision in the Act expressly authorising the Magistrate to pass such an order, he has no such authority or jurisdiction. Learned counsel also submitted that even if there is a lacuna in the Act, the petitioners cannot, on that basis, be confined in the Protective Home against their will. On behalf of the State, the submission was that there is no lacuna in the Act and that the power to direct that the arrested girl should remain in a Protective Home or shall be transferred to the custody of some one else, as the Court thinks fit, is conferred expressly by sub-sec. (3) of Sec. 17 of the Act. It is contended that as it is not possible in every case to pass an order under sub-sec. (2) of Sec. 17 of the Act immediately and an adjournment may some times become necessary, there must be implied ancillary power of issuing direction for the custody of the girl rescued pending the decision of the case under Sec. 17(2) of the Act. The learned Government Advocate supplemented his submission by drawing our attention to the provisions of Sec. 17(1) of the Act where it is provided that if the girl cannot, for any reason, be produced before .the Magistrate who issued the order, then she will be produced before another Magistrate who shall pass such orders as he deemes proper for her safe custody until she is produced before the appropriate Magistrate." The learned Government Advocate submitted that when power has been expressly conferred upon another Magistrate to make directions with regard to the interim custody of the girl rescued, it would be erroneous to assume that no such powers has been conferred upon the Magistrate who has passed the order. The learned Government Advocate has also contended that it is not a proper way of interpreting a statute to assume lacuna in the Act.

(3.) Sec. 2(g) of the Act defines Protective Home and reads as follows: