The State of Punjab Vs. Ajaib Singh
& ANR [1952] INSC 57 (10 November 1952)
DAS, SUDHI RANJAN SASTRI, M. PATANJALI (CJ)
MUKHERJEA, B.K.
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 10 1953 SCR 254
CITATOR INFO :
R 1954 SC 297 (11) R 1955 SC 191 (7) F 1955
SC 334 (15) R 1956 SC 20 (6) R 1957 SC 688 (8,10) D 1957 SC 927 (9) R 1962
SC1006 (74) D 1962 SC1506 (20) MV 1966 SC1910 (15,20,32) RF 1971 SC 337 (7) RF
1973 SC1461 (543) R 1974 SC 849 (16) RF 1974 SC1389 (255) D 1992 SC1858 (22)
ACT:
Abducted Persons (Recovery and Restoration)
Act (LXV of 1949) ss. 4, 6, 7-Constitution of India, Arts. 14,15,19 (1) (d),
(e), (g), 21, 22-Low authorising police officers to take abducted persons into
custody and deliver such persons to officer in charge of camp Constitutional
validity-"Arrest and detention", meaning of-Scope of Art.
22-Construction of statutes.
HEADNOTE:
The Abducted Persons (Recovery and
Restoration) Act (Act LXV of 1949) does Not infringe art. 14, art. 16, art. 19
(1) (d), (e) and (g), art. 21 or art. 22 of the Constitution and is not
unconstitutional on the ground that it, contravenes any of these provisions.
The physical restraint Put upon an abducted
person in the process of recovering and, taking that person into custody
without any allegation or accusation of any actual or suspected or apprehended
commission by that person of any offence of a criminal or quasi-criminal nature
or of any act prejudicial to the State or the public interest, and delivery of
that person to the custody of the officer in charge of the nearest camp under
s. 4 of the Abducted Persons (Recovery and Restoration) Act (LXV of 1949) is
not arrest and detention within the meaning of art. 22 (1) and (2) of the
Constitution. The said Act does not therefore infringe the fundamental right
guaranteed by art. 22 of the Constitution.
255 The fundamental right conferred by art.
22 gives protection ,against such arrests as are effected otherwise than under
a warrant issued by a Court on the allegation or accusation that the arrested
person has, or is suspected to have,. committed, or is about or likely to
commit, an act of a criminal or quasi-criminal nature or some activity
prejudicial to the public or the State interest. There is indication in the language
of art. 22 (1) and (2) that it was designed to give protection against the act
of the executive or other non-judicial authority.
The Blitz Case (Petition No. 75 of 1952)
explained.
Muslim abducted persons constitute a
well-defined class for the purpose of legislation and the fact that the Act is
extended only to the several States mentioned in s. 1 (2) of the Act does not
make any difference, for a classification may well be made on a geographical
basis. The Act does not therefore contravene art. 14 of the Constitution.
If the language of an article is plain and
unambiguous and admits of only one meaning, then the duty of the Court is to
adopt that meaning irrespective of the inconvenience that such a construction
may produce. If, however, two constructions are possible then the Court must
adopt that which will ensure smooth and harmonious working of the Constitution
and, eschew, the other which will lead to absurdity or give rise to practical
inconvenience or make well established provisions of existing law nugatory.
CRIMINAL APPELLATE JURISDICTION: Criminal Ap.
peal No. 82 of 1952. Appeal under art. 132 (1) of the Constitution of India
from the Judgment and Order dated June 10, 1952, of the High Court of
Judicature for the State of Punjab at Simla (Bbandari and Khosla JJ.) in
Criminal Writ No. 144 of 1951.
M. C. Setalvad (Attorney-General for India)
and C. K. Daphtary (SolicitorGenera I for India) (B. Ganapathy, with them) for
the appellant.
J. B. Dadachanji (amicus curice) for
respondent No. 1.
1952. November 10. The Judgment of the Court
was delivered by DAS J.-This appeal arises out of a habeas corpus petition Bled
by one Ajaib Singh in the High Court of Punjab for the production and release
of one Musammat Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age.
256 The material facts leading up to the
filing of that petition may be shortly stated as follows. On the report made by
one Major Babu Singh, Officer Commanding No. 2 Field Company, S. M. Faridkot,
in his letter dated February 17, 1951, that the petitioner Ajaib Singh had
three abducted persons in his possession, the recovery police of Ferozepore, on
June 22, 1951, raided his house in village Shersingwalla and took the girl
Musammat Sardaran into custody and delivered her to the custody of the Officer
in charge of the Muslim Transit Camp at Ferozepore from whence she was later
transferred to and lodged in the Recovered Muslim Women's Camp in Jullundur
City.
A Sub-Inspector of Police named Nibar Dutt
Sharma was deputed by the Superintendent of Police, Recovery, Jullundur to make
certain enquiries as to the facts of the case. The Sub-Inspector as a result of
his enquiry made a report on October 5, 1951 to the effect, inter, that the
girl had been abducted by the petitioner during the riots of 1947.
On November 5, 1951, the petitioner filed the
habeas corpus petition and obtained an interim order that the girl should not
be removed from Jullundur until the disposal of the petition. The case of the
girl was then enquired into by two Deputy Superintendents of Police, one from
India and one from Pakistan who, after taking into consideration the report of
the Sub-Inspector and the statements made before them by the girl, her mother
who appeared before them while the enquiry was in progress, and Babu alias
Ghulam Rasul the brother of Wazir deceased who was said to be the father of the
girl and other materials, came to the conclusion, inter alia, that the girl was
a Muslim abducted during the riots of 1947 and was, therefore, an abducted
person as defined in section 2(a) (1) of the Abducted Persons (Recovery and
Restoration) Act LXV of 1949. By their report made on November 17, 1951, they
recommended that she should be sent to Pakistan for restoration to her next of
kin but in view of the interim order of the High Court appended a note to the
effect that she 257 should not be sent to Pakistan till the final decision of
the High Court.
The matter then came before a Tribunal said
to have been constituted under section 6 of the Act. That Tribunal consisted of
two Superintendents of Police, one from India and the other from Pakistan. The
Tribunal on the same day, i.e., November 17, 1951, gave its decision agreeing
with the findings and recommendation of the two Deputy Superintendents of Police
and directed that the girl should be sent to Pakistan and restored to her next
of kin there.
The habeas corpus petition came up for
hearing before Bhandari and Khosla JJ. on November 26, 1951, but in view of the
several questions of farreaching importance raised in this and other similar
applications, the learned Judges referred the following questions to a Full
Bench :
1. Is Central Act No. LXV of 1949 ultra vires
the Constitution because its provisions with regard to the detention in refugee
camps of persons living in India violate the rights conferred upon Indian
citizens under article 19 of the Constitution ?
2. Is this Act ultra vires the Constitution
because in terms it violates the provisions of article 22 of the Constitution ?
3. Is the Tribunal constituted under section
6 of the Act a Tribunal subject to the general supervision of the High Court by
virtue of article 227 of the Constitution ? At the same time the learned Judges
made it clear that the Full Bench would not be obliged to confine itself within
the narrow limits of the phraseology of the said questions. On the next day the
learned Judges made an order that the girl be released on bail on furnishing
security to the satisfaction of the Registrar in a sum of Rs. 5,000 with one
surety. It is not clear from the record whether the security was actually
furnished.
The matter eventually came up before a Full
Bench consisting of the same two learned Judges 258 and Harnam Singh J. In
course of arguments before the Full Bench the following further questions were
added:
4.Does this Act conflict with the provision
of article 14 on the ground that the State has denied to abducted persons
equality before the law or the equal protection of the laws within the
territory of India? 5.Does this Act conflict with the provisions of article 15
on the ground that the State has discriminated against abducted persons who
happen to be citizens of India on the ground of religion alone ?
6. Does this Act conflict with article 21 on
the ground that abducted persons are deprived of their personal liberty in a
manner which is contrary to principles of natural justice ? " There was
also a contention that the Tribunal which decided this case was not properly
constituted in that its members were not appointed or nominated by the Central
Government and, therefore, the order passed by the Tribunal was without
jurisdiction.
By their judgments delivered on June 10,
1952, Khosla and Harnam Singh JJ. answered question 1 in the negative but
Bhandari J. held that the Act was inconsistent with the provisions of article
19(1) (g) of the Constitution. The learned Judges were unanimous in the view
that the Act was inconsistent with the provisions of article 2.2 and was void
to the extent of such inconsistency. Question 3 was not fully argued but
Bhandari and Khosla JJ. expressed the view that the Tribunal was subject to the
general supervision of the High Court. The Full Bench unanimously answered
questions 4, 5 and 6 in the negative. Bhandari and Khosla JJ. further held that
the Tribunal was not properly constituted for reasons mentioned above, but in
view of his finding that section 4(1) of the Act was in conflict with article
22(2) Harnam Singh J. did not consider it necessary to express any opinion on
the validity of the constitution of the Tribunal.
259 The Full Bench with their aforesaid
findings remitted the case back to the Division Bench which had referred the
questions of law to the larger Beach. The case was accordingly placed before
the Division Bench which thereafter ordered that Musammat Sardaran alias
Mukhtiar Kaur be set at liberty. The girl has since been released.
The State of Punjab has now come up on appeal
before us.
As the petitioner respondent Ajaib Singh
represented to us that he could not afford to brief an advocate to argue his
case, we requested Sri J. B. Dadachanji to take up the case as ambicus curiae
which be readily agreed to do. He has put forward the petitioners case with
commendable ability and we place on record our appreciation of the valuable assistance
rendered by him to the Court.
In his opening address the learned Solicitor
General frankly admitted that he could not contend that the Tribunal was
properly constituted under section 6 of the Act and conceded that in the
premises the order of the ' High Court directing the girl to be released could
not be questioned. He, however, pressed us to pronounce upon the constitutional
questions raised in this case and decided by the High Court so that the Union
Government would be in a position to decide whether it would, with or without
modification, extend the life of the Act which is due to expire at the end of
the current month. We accordingly heard arguments on the constitutional
questions on the clear understanding that whatever view we might express oh
those questions, so far as this particular case is concerned, the order of the
High Court releasing the girl must stand. After hearing arguments we intimated,
in view of the urgency of the matter due to the impending expiry of the Act,
that our decision was that the Act did not offend against the provisions of the
Constitution and that we would give our reasons later on. We now proceed to set
forth our reasons for the decision already announced.
34 260 In order to appreciate the rival
contentions canvassed before us it is necessary to bear in mind the
circumstances which led to the promulgation of an Ordinance which was
eventually replaced by Act LXV of 1949 which is impugned before us as
unconstitutional. It is now a matter of history that serious riots of virulent
intensity broke out in India and Pakistan in the wake of the partition of
August, 1947, resulting in a colossal mass exodus of Muslims from India to
Pakistan and of Hindus and Sikhs from Pakistan to India. There were
heart-rending tales of abduction of women and children on both sides of the
border which the governments of the two Dominions could not possibly ignore or
overlook. As it was not possible to deal with and control the situation by the
ordinary laws the two governments had to devise ways and means to check the
evil.
Accordingly there was a conference of the
representatives of the two Dominions at Lahore in December, 1947, and Special
Recovery Police Escorts and Social Workers began functioning jointly in both
the countries. Eventually on November 11, 1948, an Inter-Dominion Agreement
between India and Pakistan was arrived at for the recovery of abducted persons
on both sides of the border. To implement that agreement was promulgated on
January 31, 1949, an Ordinance called the Recovery of Abducted Persons
Ordinance,. 1949. This Ordinance was replaced by Act LXV of 1949 which came
into force on December 28, 1949. The Act was to remain in force up to October
31, 1951, but it was eventually extended by a year. That the Act is a piece of beneficial
legislation and has served a useful purpose cannot be denied, for up to
February 29, 1952, 7,981 abducted persons were recovered in Pakistan and 16,168
in India this circumstance, however, can have no bearing on the
constitutionality of the Act which will have to be judged on purely legal
considerations.
The Act is a short one consisting of eleven
sections. It will be observed that the purpose of the Act is to implement the
agreement between the two countries 261 as recited in the first preamble. The
second preamble will show that the respective governments of the States of
Punjab, Uttar Pradesh, Patiala and East Punjab States Union, Rajasthan and
Delhi gave their consent to the Act being passed by the Constituent Assembly a
circumstance indicative of the fact that those governments also felt the
necessity for this kind of legislation. By section 1 (2) the Act extends to the
several States mentioned above and is to remain in force up to October 31,
1952. The expression "abducted person" is defined by section 2(1) (a)
as meaning " a male child under the age of sixteen years or a female of
whatever age who is, or immediately before the 1st day of March, 1947, was a
Muslim and who, on or after that day and before the 1st day of January, 1949,
has become separated from his or her family, and in the latter case includes a
child born to any such female after the said date." Section 4 of the Act,
which is important, provides that if any police officer, not below the rank of
an Assistant Sub-Inspector or any other police officer specially authorised by
the State government in that behalf, has reason to believe that an abducted
person resides or is to be found in any place, he may, after recording the
reasons for his belief, without warrant, enter and take into custody any person
found therein who, in his opinion, is an abducted person, and deliver or cause
such persons to be delivered to the custody of the officer in charge of the
nearest camp with the least possible delay. Section 6 enacts that if any question
arises whether a person detained in a camp is or is not an abducted person, or
whether such person should be restored to his or her relatives or handed over
to any other person or conveyed out of India or allowed to leave the camp, it
shall be referred to, and decided by , 'a Tribunal constituted for the purpose
by the Central Government. The section makes the decision of the Tribunal
final, subject, however, to the power of the Central Government to review or
revise any such decision. Section 7 provides for the implementation of the
decision of the 262 Tribunal by declaring that any officer or authority to whom
the custody of any abducted person 'has been delivered shall be entitled to
receive and hold the person in custody and either restore such person to his or
her relatives or convey such persons out of India. Section 8 makes the
detention of any abducted person in a camp in accordance with the provisions of
the Act lawful and saves it from being called in question in any court. Section
9 gives the usual statutory immunity from any suit or proceeding for anything
done under the Act in good faith. Section' 10 empowers the Central Government
to make rules to carry out the purposes of the Act.
The main contest before us has been on
question 2 which was answered unanimously by the Full Bench against the State,
namely, whether the Act violates the provisions of article 22. If the recovery
of a person as an abducted person and the delivery of such person to the
nearest camp can be said to be arrest and detention within the meaning of
article 22(1) and (2) then it is quite clear that the provisions of sections 4
and 7 and article 22(1) and (2) cannot stand together at the same time, for, to
use the language of Bhandari J., " it is impossible to obey the directions
contained in sections 4 and 7 of the Act of 1949 without disobeying the
directions contained in clauses (1) and (2) of article 22." The
Constitution commands that every person arrested and detained in custody shall
be produced before the nearest Magistrate within 24 hours excluding the time
requisite for the journey from the place of arrest to the Court of the
Magistrate but section 4 of the Act requires the police officer who takes the
abducted person into custody to deliver such person to the custody of the
officer-in-charge of the nearest camp for the reception-and detention of
abducted persons. These provisions are certainly conflicting and inconsistent.
The absence from the Act of the salutary provisions to be found in article
22(1) and (2) as to the right of the arrested person to be informed of the
grounds of such arrest and to consult and to be 263 defended by a legal
practitioner of his choice is also significant. The learned Solicitor-General
has not contended before us, as he did before the High Court, that the
overriding provisions of article 22(1) and (2) should be read into the Act, for
t e o vious reason that whatever may be the effect of the absence from the Act
of provisions similar to those of article 22(1), the provisions of article
22(2) which is wholly inconsistent with section 4 cannot possibly, on account
of such inconsistency, be read into the Act. The sole point for our
consideration then is whether the taking into custody of an abducted person by
a police officer under section 4 of the Act and the delivery of such person by
him into the custody of the officer in-charge of the nearest camp can be
regarded as arrest and detention within the meaning of article 22(1) and (2).
If they are not, then there can be no complaint that the Act infringes the
fundamental right guaranteed by article 22(1) and (2).
Sri Dadachanji contends that the Constitution
and particularly Part III the ereof should be construed liber -ally so that the
fundamental rights conferred by it may be of the widest amplitude. He refers us
to the various definitions of the word "arrest" given in several
wellknown law dictionaries and urges, in the light of such definitions, that
any physical restraint imposed upon a person must result in the loss of his personal
liberty and must accordingly amount to his arrest. It is wholly immaterial why
or with what purpose such arrest is made.
The mere imposition of physical restraint,
irrespective of its reason, is arrest and as such, attracts the application of
the constitutional safeguards guaranteed by article 22 (1) and (2). That the
result of placing such a wide definition on the term "arrest"
occurring in article 22 (1) will render many enactments unconstitutional is
obvious.
To take one example, the arrest of a defendant
before judgment under the provisions of Order XXXVIII, rule 1, of the Code of
Civil Procedure or the arrest of a judgment debtor in execution of a decree
-under section 55 of the Code will, on this 264 hypothesis, be unconstitutional
inasmuch as the Code provides for the production of the arrested person, not
before a Magistrate but before the civil court which made the order. Sri
Dadachanji contends that such consideration should not weigh with the court in
construing the Constitution. We are in agreement with learned counsel to this
extent only that if the language of the article is plain and unambiguous and
admits of only one meaning then the duty of the court is to adopt that meaning
irrespective of the inconvenience that such a construction may produce.
if, however, two constructions are possible,
then the court must adopt that which will ensure smooth and harmonious working
of the Constitution and eschew the other which will lead to absurdity or give
rise to practical inconvenience or make well established provisions of existing
law nugatory.
We have, therefore, to examine the article in
question with care and ascertain the meaning and import of it primarily from
its language.
Broadly speaking, arrests may be classified
into two categories, namely, arrests under warrants issued by a court and
arrests otherwise than under such warrants. As to the first category of arrest,
sections 76 to 86 collected under sub-heading B-Warrant of Arrest " in
Chapter VI of the Code of Criminal Procedure deal with arrests in execution of
warrants issued by a court under that Code. Section 76 prescribes that such a
warrant must be in writing signed by the presiding officer, or in the case of a
Bench of Magistrates, by any member of such Bench and bear the Beal of the court.
Form No. II of Schedule V to the Code is a form of warrant for the arrest of an
accused person. The warrant quite clearly has to state that the person to be
arrested stands charged with a certain offence., Form No. VII of that Schedule
is used to bring up a witness. The warrant itself recites that the court
issuing it has good and sufficient reason to believe that the witness will not
attend as a witness unless compelled to do so. The point to be noted is that in
either case the 265 warrantex facie sets out the reason for the arrest, namely,
that the person to be arrested has committed or is suspected to have committed
or is likely to commit some offence. In short, the warrant contains a clear
accusation against the person to be arrested. Section 80 requires that the
Police Officer or other person executing a warrant must notify the substance
thereof to the person to be arrested, and, if so required, shall show him the
warrant. It is thus abundantly clear that the person to be arrested is informed
of the grounds for his arrest before he is actually arrested. Then comes
section 81 which runs thus:" The Police Officer or other person executing
a warrant of arrest shall (subject to the provisions of section 76 as to
security) without unnecessary delay bring the person arrested before the Court
before which he is required by law to produce such person." Apart from the
Code of Criminal Procedure, there are other statutes which provide for arrest
in execution of a warrant of arrest issued by a court. To take one example,
Order XXXVIII, rule 1, of the Code of Civil Procedure authorises the court to
issue a warrant for the arrest of a defendant before judgment in certain
circumstances. Form No. 1 in Appendix F sets out the terms of such a warrant.
It clearly recites that it has been proved to the satisfaction of the court
that there is probable cause for belief that the defendant is about to do one
or other of the things mentioned in rule 1. The court may under section 55 read
with Order XXI, rule 38, issue a warrant for the arrest of the judgment-debtor
in execution of the decree. Form No. 13 sets out the terms of such a warrant.
The warrant recites the decree and, the failure of the judgment-debtor to pay
the decretal amount to the decree-holder and directs the bailiff of the court
to arrest the defaulting judgment debtor, unless he pays up the decretal amount
with costs and to bring him before the court with all convenient speed.
The point to be noted is that, as in the case
of a warrant of arrest issued by a court under the Code of Criminal Procedure,
a warrant of arrest 266 issued by a court under the Code of Civil Procedure
quite plainly discloses the reason for the arrest in that it sets out an
accusation of default, apprehended or actual, and that the person to be
arrested is made acquainted with the reasons for his arrest before lie is
actually arrested.
The several sections collected under
sub-heading B-Arrest without warrant " in Chapter V of the Code of
Criminal Procedure deal with arrests otherwise than under warrants issued by a
court under that Code. Section 54 sets out nine several circumstances in which
a police officer may, without an order from a Magistrate and without a warrant,
arrest a person. Sections 55, 57, 151 and 401 (3) confer similar powers on
police officers. Column 3, Schedule II to the Code of Criminal Procedure also
specifies; the cases where the police may arrest a person without warrant.
Section 56 empowers an officer in charge of a police station or any police
officer making an investigation under Chapter XIV to require any officer
subordinate to him to arrest without a warrant any person who may lawfully be
arrested without a warrant. In such a case, the officer deputing a subordinate
officer to make the arrest has to deliver to the latter an order in writing
specifying the person to be arrested and the offence or other cause for which
the arrest is to be made and the subordinate officer is required, before making
the arrest, to notify to the person to be arrested the substance of the order
and, if so required by such person, to show him the order. Section 59
authorises even a private person to arrest any person who in his view commits a
nonbailable and cognisable offence or any proclaimed offender and requires the
person making the arrest to make over the arrested person, without unnecessary
delay, to a police officer or to take such person in custody to the nearest
police station. A perusal of the sections referred to above will at once make
it plain that the reason in each case of arrest without a warrant is that the
person, arrested is accused of having committed or reasonably suspected to have
committed or of 267 being about to commit or of being likely to commit some
offence or misconduct. It is also to be noted that there is no provision,
except in section 56, for acquainting the person to be arrested without warrant
with the grounds for his arrest. Sections 60 and 61 prescribe the procedure to
be followed after a person is arrested without warrant.
They run thus:" 60. A police officer
making an arrest without warrant shall without unnecessary delay and subject to
the provisions herein contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station." "61.No police officer shall detain in
custody a person arrested without warrant for a longer period than under all
the circumstances of the case is reasonable, and such period shall, not, in the
absence of a special order of a Magistrate under section 167, exceed
twenty-four hours, exclusive of the, time necessary for the journey from the
place of arrest to the Magistrate's Court." Apart from the Code of
Criminal Procedure, there are other statutes which authorise the arrest of a
person without a warrant issued by any Court. Reference may, by way of example,
be made to sections 173 and 174 of the Sea Customs Act (VIII of 1878) and
section 64 of the Forest Act (XVI of 1927). In both cases, the reason for the
arrest is that the arrested person is reasonably suspected to have been guilty
of an offence under the Act and there is provision in both cases for the
immediate production of the arrested person before a Magistrate. Two things are
to be noted, namely, that, as in the cases of arrest without warrant under the
Code of Criminal Procedure, an arrest without warrant under these Acts also
proceeds upon an accusation that the person arrested is reasonably suspected of
having committed an offence and there is no provision for communicating to the
person arrested the grounds for his arrest.
35 268 Turning now to article 22(1) and (2),
we have to ascertain whether its protection extends to both categories of
arrests mentioned above, and, if not, then which one of them comes within its
protection. There can be no manner of doubt that arrests without warrants
issued by a court call for greater protection than do arrests under such
warrants. The provision that the arrested person should within 24 hours be
produced before the nearest Magistrate is particularly desirable in the case of
arrest otherwise than under a warrant issued by the court, for it ensures the
immediate application of a judicial mind to the legal authority of the person
making the arrest and the regularity of the procedure adopted by him. In the
case of, arrest under a warrant issued by a court, the judicial mind had
already been applied to the case when the warrant was issued and, therefore,
there is less reason for making such production in that case a matter of a
substantive fundamental right.
It is also perfectly plain that the language
of article 22(2) has been practically copied from sections 60 and 61 of the
Code of Criminal Procedure which admittedly prescribe the procedure to be
followed after a person, has been arrested without warrant. The requirement of
'article 22(1) that no person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest
indicates that the clause really contemplates an arrest without a warrant of
court, for, as already noted, a person arrested under a, court's warrant is
made acquainted with the grounds of his arrest before the arrest is actually
effected. There can be no doubt that the right to consult a legal practitioner
of his choice is to enable the arrested person to be advised about the legality
or sufficiency of the grounds for his arrest. The right of the arrested person
to be defended by a legal practitioner of his choice postulates that there is
an accusation against him against which he has to be defended. The language of
article 22(1) and (2) indicates that the fundamental right conferred by it
gives protection against such 269 arrests as are effected otherwise than under
a warrant issued by a court on the allegation or accusation that the arrested
person has, or is suspected to have, committed, or is about or likely to commit
an act of a criminal or quasicriminal nature or some activity prejudicial to
the public or the State interest. In other words, there is indication in the
language of article 22(1) and (2) that it was designed to give protection
against the act of the executive or other non-judicial authority. The Blitz
case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on
this very view, for there the arrest was made on a warrant issued, not by a
court, but, by the Speaker of & State Legislature and the arrest was made
on the distinct accusation of the arrested person being guilty of contempt of
the Legislature. It is not, however, our purpose, nor do we consider it
desirable, to attempt a precise and meticulous enunciation of the scope and
ambit of this fundamental right or to enumerate exhaustively the cases that
come within its protection. Whatever else may come within the purview of
article 22(1) and (2), suffice it to say for the purposes of this case, that we
are satisfied that the physical restraint put upon an abducted person in the
process of recovering and taking that person into custody without any
allegation or accusation of any actual or suspected or apprehended commission
by that person of any offence of a criminal or quasi-criminal nature or of any
act prejudicial to the State or the public interest, and delivery of that
person to the custody of the officer in charge of the nearest camp under section
4 of the impugned Act cannot be regarded as arrest and detention within the
meaning of article 22(1) and (2). In our view, the learned Judges of the High
Court over-simplified the matter while construing the article, possibly because
the considerations hereinbefore adverted to were not pointedly brought to their
attention.
Our attention has been drawn to sections loo
(search for persons wrongfully confined) and 552 (power to compel restoration
of abducted females) of 270 the Code of Criminal Procedure, and it has been
urged that neither of those sections contemplates an accusation against the
victim and yet such victim, after recovery, has to be brought before a
Magistrate. It is to be observed that neither of the two sections treats the
victim as an arrested person for the victim is not produced before a Magistrate
under sections 60 and 61 'which require the production of a person arrested
without warrant, or under section 81 which directs the production of a person
arrested under a warrant issued by a, court. The recovered victim is produced
by reason of special provisions of two sections,, namely, sections 100 and 552.
These two sections clearly indicate that the recovery and taking into custody
of such a victim are, not regarded as arrest at all within the meaning of the
Code of Criminal Procedure and, therefore, cannot also come within the
protection of article. 22(1) and (2). This circumstance also lends
support"to the conclusion we have reached, namely, 'that the taking into
custody of an abducted person under the impugned Act is not an arrest within
the meaning of article 22(1) and (2). Before -the Constitution, came into force
it was entirely for the Legislature to consider whether the recovered person
should be produced before a Magistrate as is provided by sections 100 and 552
of the Criminal Procedure Code in the case of persons wrongfully confined or
abducted. By this Act, the Legislature provided that the recovered Muslim
abducted person should be taken straight to the officer in charge of the camp,
and the Court could not question the wisdom of the policy of the Legislature.
After the Constitution, article 22 being out of the way, the position in this
behalf remains the same.
Sri Dadachanji also argued that the Act is
inconsistent with article 14. The meaning, scope and ambit of that article need
not-be explained again, for they have already been explained by this Court on
more than one occasion. [See Chiranjit Lal Chowdhury v. The Union of India (1),
The State of Bombay v. F. N. (1) [1950] S.C.R. 869.
271 Balsara (1), The State of West Bengal v.
Anwar Ali Sarkar (2), and Kathi Raning Rawat v. The State of Saurashtra (3)].
There can be no doubt that Muslim abducted
persons constitute a well-defined class for the purpose of legislation. The fact
that the Act is extended only to the several States mentioned in section 1 (2)
does not make any difference, for a classification may well be made on a
geographical basis. Indeed, the consent of the several States to the passing of
this Act quite clearly indicates, in the opinion of the governments of those
States who are the best judges of the welfare of their people, that the Muslim
abducted persons to be found in those States form one class having similar
interests to protect.' Therefore the inclusion of all of them' in the
definition of abducted persons cannot be called discriminatory. Finally, there
is nothing discriminatory in sections 6 and 7. Section 7 only implements the
decision of the Tribunal arrived at under section 6. There are several alternative
things that the Tribunal has been authorised to do. Each and every one of the
abducted persons is liable to be treated in one way or another as the Tribunal
may determine. It is like all offenders under a particular section being liable
to a fine or imprisonment. There is no discrimination if one is fined and the
other is imprisoned, for all offenders alike are open to the risk of being
treated in one way or another. In our view, the High Court quite correctly
decided this question against the petitioner.
The learned counsel for the respondent Ajaib
Singh contended that the Act was inconsistent with the provisions of article
19(1)(d) and (e) and article 21. This matter is concluded by the majority
decision of this court in Gopalan's case (4) and 'the High Court quite
correctly negatived this contention. Sri Dadachanji has not sought to support
the views of Bhandari J. regarding the Act being inconsistent with article 19
(1)(g). Nor has learned counsel (1) [1951] S.C.R. 682. (3) [1952] S.C.R. 435.
(2) [1952] S.C.R. 284. (4) [1950] S.C.R. 88. 272
seriously pressed the objection of unconstitutionality based on article 15,
which, in our view, was rightly rejected by the High Court.
Although we hold that the High Court erred on
the construction they Put upon article 22 and the appellant has succeeded -on
that point before us, this appeal will, nevertheless, have to be dismissed on
the ground that the Tribunal was not properly constituted and its order was
without jurisdiction, as conceded by the learned Solicitor General. We,
therefore, dismiss this appeal on that ground.
We make no order as to costs.
Appeal dismissed, Agent for the appellant: P.
A. Mehta.
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