Shrimati Vidya Verma V. Dr. Shiv
Narain Verma  Insc 65 (11 November 1955)
VIVIAN DAS, SUDHI RANJAN BHAGWATI, NATWARLAL
SINHA, BHUVNESHWAR P.
CITATION: 1956 AIR 108 1955 SCR (2) 983
Fundamental Right, Infringement of-Detention
by private person-Issue of writ-Power of Supreme Court-Constitution of India,
Arts. 21, 82.
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 (
S.C.R. 88) and P. D Shamdasani v. Central Bank of India ( S.C.R. 391),
ORIGINAL JURISDICTION: Petition No. 262 of
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 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
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
preliminary 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 liberty. There is no
express reference to the State in article 21. But could it be (1)  S.C.R.
(2)  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
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 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
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.