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5. Although Kamini thus denied twice that she had been kept under wrongful restraint or wrongful confinement by the accused, the learned Magistrate permitted the learned advocates appearing on both the sides to address him "at great length" and after hearing their arguments, he reached the conclusion that the accused being in a peculiar position in relation to Kamini, they had made her state what they liked, but that could hardly be the truth. He, therefore, passsed the following order on September 20, 1971:

8. In order to show that Kamini's movements were wrongfully restrained and she was wrongfully confined to the house of her parents, Mr. Adi Gandhi sought to rely strongly on the letters by Kamini to Ellis when he was in Canada. But the last of such letters produced on record is dated January 15, 1971. Ellis was admittedly in Canada upto April 22, 1971. It was quite unnecessary for the petitioners to restrict Kamini's movements or wrongfully confine her in the house when Ellis was far away in Canada. Such a necessity could possibly arise only after Ellis returned to Bombay along with his parents on April 22, 1971. The material question, therefore, for consideration is whether there is any evidence of wrongful restraint or wrongful confinement of Kamini during the period from April 22, to August 5, 1971. The only material on record on this point consists of Kamini's statements when she was produced before the learned Magistrate on August 5, 1971 and when she was examined by the learned Magistrate on August 17, 1971. On both these occasions Kamini denied having been kept under wrongful restraint or wrongful confinement and she told the learned Magistrate that she desired to go back to her parents, Kamini being a major, these statements made by her should have ordinarily been regarded, in the absence of any other evidence to the contrary, as sufficient to show prima facie that there was no case for taking any further action under Section 100 of the Code of Criminal Procedure. The learned Magistrate, however, refused to accept Kamini's statement and relying upon the contents of the letters addressed by her to Ellis during the period from November 1970 to January 15, 1971, he reached the conclusion that the petitioners being in a peculiar position in relation to Kamini, they had made her state what they liked, but that could hardly be the truth. In doing so, he overlooked the fact that the letters were of a period nearly eight months prior to the date of the complaint. He also overlooked the legal position that these letters could not be used against Kamini without her attention being pointedly drawn to the material statements therein and without giving her an opportunity to explain those statements if she could. In any ease, what was really the position at the time of filing of the complaint in August 1971 is important and material and not what Kamini wrote to Ellis nearly eight months prior to that date. As stated earlier, on this point, we have only the statements of Kamini before the learned Magistrate. When these petitions were being argued before me, Kamini was present in Court throughout and I questioned her in my Chamber with a view to ascertain the real position. She told me in very clear and unambiguous terms that she has not been wrongfully confined or wrongfully restrained in the house by any of the petitioners and she is free to move about anywhere. She further told me that she had in fact joined some cooking class and was also thinking of rejoining her College. She strongly protested against the impugned order directing her detention in a Rescue Home for fourteen days and expressed that she should be allowed to stay With her parents who, according to her, love her very much and are extremely kind and indulgent to her.

The section applies in a case Where a person is wrongfully confined irrespective of whether that person is or is not the victim of kidnapping or abduction. It empowers the Magistrate to issue a search warrant if he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. Having regard to the allegations made by Ellis in his complaint, the learned Magistrate could reasonably believe that Kamini had been kept under wrongful restraint and/or wrongful confinement under such circumstances that the confinement amounted to an offence and consequently he had ample jurisdiction to issue a search warrant under the provisions of Section 100 of the Code of Criminal Procedure. Mr. J.C. Bhatt, learned Counsel for the petitioners, also did not seek to dispute this position. He, however, seriously urged that after Kamini who is sui juris was produced before the learned Magistrate and she denied having been kept under Wrongful restraint or wrongful confinement and expressed a desire to go back to her parents, the learned Magistrate had no jurisdiction to order her detention in a Rescue Home or at any other place. According to Mr. Bhatt, in passing the impugned order directing Kamini's detention in a Rescue Home for fourteen days, the learned Magistrate exceeded his authority and jurisdiction and the order is, therefore, illegal.

10. Mr. Bhatt is right in saying that in the case of a person like Kamini, who is sui juris, Section 100 of the Code of Criminal Procedure does not empower the Magistrate to order his or her detention, if the person concerned has not committed and is not likely to commit any offence. The words "shall make such order as in the circumstances of the case seems proper" in Section 100 do not vest in the Magistrate any such jurisdiction. Any order made in exercise of the discretion vested in the Magistrate is subject always to the implied proviso that the order is other-Wise legal. In the present case, Kamini was not an accused, nor was there any allegation of any offence against her. She was admittedly not a minor, nor was she suffering from any other disability. She denied having been kept under wrongful restraint or wrongful confinement by the petitioners and expressed her desire to go back to her parents. Any order of detention of such a person would inevitably offer d against one or more of the fundamental rights guaranteed under the Constitution.