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PETITIONER: SHRIMATI VIDYA VERMA, THROUGH NEXT FRIEND R.V.S. MANI

       Vs.

RESPONDENT: DR. SHIV NARAIN VERMA.

DATE OF JUDGMENT: 11/11/1955

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. SINHA, BHUVNESHWAR P.

CITATION:  1956 AIR  108            1955 SCR  (2) 983

ACT: Fundamental Right, Infringement of-Detention by private per- son-Issue  of  writ-Power of Supreme  Court-Constitution  of India, Arts. 21, 82.

HEADNOTE: No  question of infringement of any fundamental right  under Art.  21  arises where the detention complained of is  by  a private person and not by, a State or under the authority or orders  of  a  State,  and  the  Supreme  Court  will   not, therefore,  entertain  an application for a writ of  have  a corpus, under Art. 32 of the Constitution. Consequently  a petition under Art. 32 of  the  Constitution for a writ of habeas corpus founded on Art. 21 and  directed against a father for alleged detention of his daughter  does not lie. A.   K.  Gopalan v. The State of Madras ([1950]  S.C.R.  88) and P. D    Shamdasani  v.  Central Bank  of  India  ([1952] S.C.R. 391), relied on.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 262 of 1955. Under  Article  32  of the Constitution for a  Writ  in  the nature of Habeas Corpus. R.   V. S. Mani, the next friend, in person. M.   C.  Setalvad, Attorney-General for India (G.. N.  Joshi and Porus A. Mehta, with him). Naunit Lal, for the respondent. 984 1955.  November II.  The Judgment of the Court was delivered by BOSE  J.-This  is  a  petition  under  article  32  of   the Constitution for a writ of habeas corpus.  The petition  was presented by Mr. R.V.S. Mani, an advocate of the Nagpur High Court,  on behalf of Shrimati Vidya Verma and  was  directed against her father Dr. Shiv Narayan Verma of Nagpur. Mr. Mani bad no power of attorney from the lady and when the

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office  pointed  out that be could not  present  a  petition without  producing  the necessary authority he  amended  the petition  and  described himself as the next friend  of  the lady. When  the  matter first came up for hearing  we  directed  a notice to issue to the father but later the same day it  was brought to our notice that the opposite party was not either the  Union  of India or a State, nor was  it  some  official acting  under the orders of one or the other, but a  private person.   The  question therefore arose of our  power  under article  32 to issue a writ of this kind against  a  private party.   Accordingly,  before  the notice was  sent  out  we recalled it and set the matter down for further hearing. Mr. Mani appeared again on the appointed date and was  robed as  he had been on the previous occasion.  He was  asked  to clarify  his  position and when be said he had no  power  of attorney  and explained that he was appearing in  a  private capacity as next friend he was told that at the next hearing he  must address the Court without his robes.  He  was  also warned  that if he lost he might have to bear the  costs  of the  other  side personally.  After hearing Mr. Mani  for  a time we decided to fix a date for the hearing of a  prelimi- nary  question only, namely, whether a fundamental right  is involved  when the detention complained of is by  a  private person  and not by a State or under the authority or  orders of  a  State.   We directed that notices be  issued  to  the opposite party as well as to the Attorney-General of India. At  the  adjourned  hearing Mr.  Mani  appeared  in  person, unrobed as directed, but with the advocate on 985 record  sitting  by his side.  He asked  for  permission  to address  us  himself.   We declined to hear  him  unless  he discharged the advocate on record.  He did that on the  spot and then proceeded to address us in person. As  the  question  that arises here has  been  discussed  at length  in two earlier decisions of this Court we  need  not examine  the matter, in any detail.  The  fundamental  right that is said to be infringed is the one conferred by article 21: the right to personal liberty.  In A. K. Gopalan v.  The State  of Madras(1) four of the six learned Judges who  were in that case held that the word "law" in article 21 referred to  State-made  law and not to law in  the  abstract.   They rejected  the contention that this was the same as  the  due process  clause in the American Constitution.   One  learned Judge dissented and one expressed no opinion on this  point. Patanjali Sastri., J. (as he then was) said at page 204 that as a rule constitutional safeguards are directed against the State  and its organs and that protection against  violation of rights by individuals must be sought in the ordinary law; and  S. R. Das, J. dealing with the question  of  preventive detention said at page 324 that article 21 protects a person against  preventive detention by the executive  without  the sanction of a law made by the legislature. This principle was applied to articles 19(1) (f) and 31 (1) by  a  Bench of five Judges in P. D. Shamdasani  v.  Central Bank  of  India(1)  who held that  violation  of  rights  of property  by a private individual is not within the  purview of  these  articles,  therefore a  person  whose  rights  of property  are infringed by a -private individual  must  seek his remedy under the ordinary law and not under article  32. Article 21 was not directly involved but the learned  Judges referring to article 31(1) said at page 394: "It  is  clear that it is a declaration of  the  fundamental right of private property in the same negative form in which article  21  declares  the fundamental  right  to  life  and

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liberty.   There  is no express reference to  the  State  in article 21.  But could it be (1) [1950] S.C.R. 88. (2) [1952] S.C.R. 391. 986 suggested on that account that that article was intended  to afford  protection  to  life and  personal  liberty  against violation  by  private individuals?  The  words  (except  by procedure  established  by  law’  plainly  exclude  such   a suggestions. They  held that the language of article 31 (1)  was  similar and  decided that article 31 (1) did not apply to  invasions of a right by a private individual and consequently no  writ under  article  32 would lie in such a case.  For  the  same reasons  we hold that the present petition which is  founded on  article  21  does  not lie  under  article  32.   It  is accordingly dismissed. As  regards costs Mr. Mani has no power of attorney and  has chosen to appear as next friend despite the warning given to him at the last hearing.  This is the fourth time the matter is being agitated in the Courts.  The first attempt was an application under  section 100  of the Criminal Procedure Code made by the person  who, according  to Mr. Mani, is the husband of the lady in  whose interests  he says he is acting.  It was filed on  10-9-1954 and asked for a search warrant for the recovery of the lady. The application was dismissed and a revision filed against the order of dismissal also failed. The same gentleman then applied to the High Court at  Nagpur on  18-10-1954 under section 491 of the  Criminal  Procedure Code.  The learned Judges examined the lady, who is 25 years old,  in  person, on 20-10-1954 and on the strength  of  her statement,  which they recorded, they held that she was  not under  any restraint either in the house or outside  and  so dismissed the application on 10-11-1954. Mr.  Mani  then  took up the cudgels  and  filled  a  second petition in the High Court on 6-12,1954, also under  section 491.  The learned Judges again examined the lady, this  time on two successive days.  On 20-12-1954 she said that she did not want to live with her father but wanted to live with her uncle  at  Waraseoni.  She appeared again the next  day  and clarified  this by saying that she would go to her uncle  in the  company  of  her father.  She said,  that  she  had  no discomfort  in  living with her father but was not  at  ease with him 987 and would have more peace of mind with her uncle.  She  also said: "I  have no need of any counsel and have nothing to talk  to Shri R. V. S. Mani". The  girl  was allowed to go to her uncle.   Mr.  Mani  then applied  for  leave  to withdraw  the  petition.   This  was allowed on 24-1-1955 and no order was made about costs. Then  came the present petition on 22-8-1955.  The  petition does not disclose that Mr. Mani made any attempt to  consult the  person who he says is the husband of the lady  (a  fact which  is disputed and on which we express no  opinion)  nor does it show that he made any attempt to contact either  the lady  or  her father or even her uncle.  He  has  had  three hearings  in  this Court despite the warning  he  was  given about costs and the learned Attorney-General was also  asked by  us to appear.  When the arguments were  fully  concluded and  Mr. Mani found that we were against him he adopted  the same  tactics  as  in the Nagpur High Court  and  asked  for permission to withdraw the petition.  That was refused.   We

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invited  him to show cause why he should not be made to  pay the  costs  and  have  heard all he  has  to  say.   In  the circumstances set out above, we feel this is a case in which he should be made to pay the costs personally. We  dismiss  the petition and direct that Mr. Mani  pay  the costs of the opposite party personally in addition to  those of  the learned Attorney-General and that he bear  his  own, also personally. 125 988