State Of Punjab Vs Ajaib Singh and anothers-10/11/1952

Meaning of arrest

• Physical restraint on an abducted person to ensure his restoration is not arrest.

• Interpretation of Statutes—Ambiguous word—Possibility of two constructions—The Court must adopt the Construction which will ensure smooth and harmonious working—It should eschew the construction which shall lead to absurdity or give rise to practical inconvenience.

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The State Of Punjab Vs Ajaib Singh and anothers

(Before : M. Patanjali Sastri, C.J.I., B. K. Mukherjea, S. R. Das, Vivian Bose And Ghulam Hasan, JJ.)

Criminal Appeal No. 82 of 1952,

Decided on : 10-11-1952.

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Das, J—This appeal arises out of a habeas corpus petition filed by one Ajaib Singh in the High Court of Punjab for the production and release of one Mt. Sardaran alias Mukhtair Kaur, a girl of about 12 years of age.

2. 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 17-2-1951 that the petitioner Ajaib Singh had three abducted persons in his possession the recovery police of Ferozepore, on 22-6-1951, raided his house in village Shersingwalla and took the girl Mt. Sardaran into custody and delivered her to the custody of the Officer in charge of the MuslimMuslim A community gathered around Muhammad (d. 632 CE) and confessed that Muhammad was the last of Prophets and he received Quran through Zibreel Farista from Allah. Hadith of Sahih Bukhari faithfully recorded the commands of Muhammad. He acknowledged the contribution of Jesus to the Abrahamic Religion. Transit Camp at Ferozepore from where she was later transferred to and lodged in the Recovered Muslim Women’s Camp in Jullundur City.

3. A Sub-Inspector of Police named Nihar 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 5-10-1951 to the effect, inter alia that the girl had been abducted by the petitioner during the riots of 1947.

4. On 5-11-1951 the petitioner failed 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 l947 and was therefore, an abducted person as defined in S.2(1) (a), Abducted Persons (Recovery and Restoration) Act, 65 of 1949. By their report made on 17-11-1951, 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 should not be sent to Pakistan till the final decision of the High Court.

5. The matter then came before a Tribunal said to have been constituted under S. 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. 17-11-1951 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.

6. The habeas corpus petition came up for hearing before Bhandari and Khosla JJ. on 26-11-1951, but in view of the several questions of far-reaching importance raised in this and other similar applications, the learned Judges referred the following questions to a Full Bench :

(1) Is Central Act No. 65 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 Art. 19 of the constitution?

(2) Is this Act ultra vires the Constitution because in terms it violates the provisions of Art. 22 of the Constitution? ‘

(3) Is the Tribunal constituted under s. 6 of the Act a Tribunal subject to the general supervision of the High Court by virtue of Art. 227 of the Constitution?

At the same timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) the learned Judges made it clear that the Full Bench Would nor be oblige to confine itself within the narrow limits to 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 ` 5,000 with one surety, It is not clear from the record whether the security was actually furnished.

7. The matter eventually came up before a Full Bench consisting of the same two learned Judges and Harnam Singh J. In course of arguments before the Full Bench the following further question were added:

“(4) Does this Act conflict with the provision of Art. 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 Art. 15 on the ground that the State has discriminated against abducted persons who happen to be citizens of India on the ground of religionReligion ‘The word ‘Religion’ -Re Legion- A group or Collection or a brigade, is a social-cultural construction and Substantially doesn’t exist. Catholic religion is different from Protestant religion. It is not Dharma. alone?

(6) Does this Act conflict with Art. 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 jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case..

8. By their judgments delivered on 10-6-1952 Khosla and Harnam Singh JJ. answered question 1 in the negative but Bhandari J. held that the Act Was inconsistent with the provisions of Art. 19 (1) (g) of the Constitution. The learned Judges were unanimous in the view that the Act was inconsistent with the provisions of Art. 22 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 s. 4 (1) of the Act was in conflict with Art. 22 (2) Harnam Singh J. did not consider it necessary to express any opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. on the validity of the constitution of the Tribunal.

9. 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 Bench. The case was accordingly placed before the Division Bench which thereafter ordered that Mt. Sardaran alias Mukhtiar Kaur be set at liberty. The girl has since been released.

10. 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 amicus curiae which he readily agreed to do. He has put forward the petitioner’s case with commendable ability and we place on record our appreciation of the valuable assistance rendered by him to the Court.

11. In his opening address the learned Solicitor-General frankly admitted that he could not contend that the Tribunal was properly constituted under S. 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 on those question, 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 could give our reasons later on. We now proceed to set forth our reasons for the decision already announced.

12. 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 65 of 1949 which is impugned before us as unconstitutional. It is now a matter of history that serious riots of virulent intensity broke up 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 HinduHindu A geographical name given by non-Hindus, who came to visit Bharatvarsha (Hindusthan). Sanatan Dharma is the actual Dharmic tradition of the Hindus. People who live in Hindusthan are Hindu, whether they Follow Islam, Chris, Buddha, Mahavira, or Nanaka. In this way, Tribals are also Hindu. and Sikhs from Pakistan to India. There were heart-rending tales if abduction of women and children on both sides of the border which 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 11-11-l948 an Inter-Dominion AgreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. 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 31-1-1949 an Ordinance called the Recovery of Abducted Persons Ordinance, 1949. This Ordinance was replaced by Act 65 of 1949 which came into force on 28-12-1949. The Act was to remain in force up to 31-l0-l951 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 29-2-1952, 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.

13. 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 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 S. 1 (2) the Act extends to the several States mentioned above and is to remain in force up to 31-10-1952. The expression “abducted person” is defined by S. 2 (1) (a) as meaning

“a male child under age of sixteen years or a female of whatever age who is, or immediately before 1-3-1947, was a Muslim and who, on or after that day and before 1-1-1949, 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 person 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 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 faithFaith  πίστει.. Section 10 empowers the Central Government to make rules to carry out the purposes of the Act.

14. 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 Art. 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 Art. 22 (1) and(2) then it is quite clear that the provisions of Ss. 4 and 7 and Art 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 Ss. 4 and 7 of the Act of 1949 without disobeying the directions contained in cls. (1) and(2) of Art. 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 S. 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 Art. 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 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 Art. 22 (1) and (2) should be read into the Act, for the obvious reason that whatever may be the effect of the absence from the Act of provisions similar to those of Art. 22(1), the provisions of Art. 22 (2) which is wholly inconsistent with S. 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 S. 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 Art. 22(1) and (2). If they are not, then there can be no complaint that the Act infringes the fundamental right guaranteed by Art. 22 (1) and (2).

15. Sri Dadachanji contends that the Constitution and particularly part III thereof should be construed liberally 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 well-known 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 Arts. 22(1) and (2). That the result of placing such a wide definition on the term “arrest” occurring in Art. 22 (1) will render many enactments unconstitutional is obvious. To take one example, the arrest of a defendant before judgment under the provisions of O. 38, R. 1, Civil P. C., or the arrest of a judgment-debtor in execution of a decree under S. 55 of the Code will, on this 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 wil1 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 impart of it primarily from its language.

16. 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, Ss. 75 to 86 collected under sub-heading “B-Warrant of Arrest” in Chap. 5, Criminal P.C. deal with arrests in execution of warrants issued by a Court under that Code. Section 75 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 seal of the Court. Form No. 2 of sch. 5 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.7 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 paint to be noted is that in either case the warrant ex 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 S. 81 which runs thus:

“The Police officer or other person executing a warrant of arrest shall (subject to the Provisions of S. 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.”

17. Apart from the code of criminal Procedure, there are other statutes which provides for arrest in execution of a warrant of arrest issued by a Court. To take one example, O. 38, R, 1, civil p.c., authorises the Court to issue a warrant for the arrest of a defendant before judgment in certain circumstance. 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 there is probable cause for belief that the defendant is about to do one or other of the things mentioned in R. 1. The Court may under S. 55 read with O. 21, R. 38 issues a warrant for the arrest of the judgment-debtor in execution of the decree. Form No. 13 sets out the terms of such, warrant. The warrant recites the decree and failure of the judgment-debtor to pay the decorate 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 costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or 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 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 arrest made acquainted with the reason for his arrest before he is actually arrested. “

18. The several sections collected under subheading “B-Arrest without warrant” in chap.5, Criminal P. C., deal with arrest 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 in 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) Sch. 2, Criminal P.C., also specifies the cases where the police may arrest a person without warrant. Section 56 empowers on officer in charge of a police station or any police officer an investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed. under Chap. 14 to require any subordinate to him to arrest without a warrant any person who may lawfully be 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 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 non-able 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 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 S. 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 ball, take or send the person arrested before a Magistrate having jurisdiction in the care, 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 S. 167, exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”

19. 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 Ss. 173 and 174, Sea Customs Act (8 of 1878) and S. 64, Forest Act (16 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.

20. Turning now to Art. 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 arrest 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 Art 22 (2) has been practically copied from Ss. 60 and 61, Criminal P.C. which admittedly prescribe the procedure to be followed after a person has been arrested without warrant. The requirement of Art. 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 Art. 22 (1) and (2) indicates that the fundamental right conferred by it 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. In other words, 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 for other non-judicial authority. The Blitz case (Petn. 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 a 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 at tempt 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 with the purview of Art. 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 trial person to the custody of the officer in charge of the nearest camp under S. 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of Art. 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.

21. Our attention has been drawn to Ss. 100 (search for persons wrongfully confined) and 552 (power to compel restoration of abducted females) of 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 Ss. 60 and 61 which require the production of a person arrested without warrant, or under S. 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, Ss. 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 Art. 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 Art. 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 Ss. 100 and 552, Criminal P. C. 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, Art. 22 being out of the way, the position in this behalf remains the same.

22. Sri Dadachanji also argued that the Act is inconsistent with Art. 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 vs. The Union of India, 1950 SCR. 869, The State of Bombay vs. F.N. Balsara, 1951 SCR. 682, The State of West Bengal vs. Anwar Ali Sarkar, 1952 SCR. 284 and Kathi Raning Rawat vs. The State of Saurashtra, 1952 SCR. 435. 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 S. 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 Mus1im abducted persons to be found in those States from 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 Ss. 6 and 7. Section 7 only implements the decision of the Tribunal arrived at under S. 6. There are several alternative things that the Tribunal has been authorised to do. Each and everyone 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 if being treated in one way or another. In our view, the High Court quite correctly decided this question against the petitioner.

23. The learned counsel for the respondent Ajaib Singh contended that the Act was inconsistent with the provisions of Art. 19 (1) (d) and (e) and Art. 21. This matter is concluded by the majority decision of this Court in Gopalan’scase (supra) 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 Art. 19 (1) (g). Nor has learned counsel seriously pressed the objection of unconstitutionality based on Art. 15, which, in our view, was rightly rejected by the High Court.

24. Although we hold that the High Court erred on the construction they put upon Art. 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.

AIR 1953 SC 10 : (1953) SCR 254 : (1953) CriLJ SC 180

Counsel for the Parties:

Shri M. C. Setalvad,Attorney-General for India and C. K. Daphtary, Solicitor-General for India (Shri R. Ganapathy Iyer, Advocate, with them) instructed by Shri P. A. Mehta, Advocate;-for the Appellant

Shri J. B. Dadachanji, Advocate, amicus curiae-for Respondent No.1.

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