Skip to content


Shafiquel Rahman Khan Vs. Superintendent Jail and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Case No. 2958 of 1965
Judge
Reported inAIR1966All431; 1966CriLJ979
ActsConstitution of India - Articles 14, 21, 22 and 352; Police Act, 1861 - Sections 20; Foreigners' Act, 1946; Foreigners' (Internment) Order, 1962; Code of Criminal Procedure (CrPC)
AppellantShafiquel Rahman Khan
RespondentSuperintendent Jail and ors.
Appellant AdvocateM. Asif Ansari and ;S.S. Bhatnagar, Advs.;H.N. Seth, Adv.
Respondent AdvocateSushil Kumar, Asst. Government Adv.
DispositionPetition dismissed
Excerpt:
.....14, 21, 22 and 352 of constitution of india - proclamation of emergency - enforcement of fundamental rights - held, foreigner cannot move to any court for enforcement of fundamental rights under articles 14, 21 and 22. (ii) arrest - paras 3, 5 and 8 of foreigners (internment) order, 1962 - arrest without warrant - under para 8 persons involved in antinational activities can be arrested without warrant - arrest of petitioner under para 5 - held, it is not necessary for civil authority to obtain a warrant in accordance with provision of criminal procedure code. - - the period granted under the visa expired on 7-9-1965 but owing to the extraordinary conditions prevailing on the border on account of the hostilities between india and pakistan the petitioner in spite of his best efforts..........on bail by the learned sessions judge of delhi on 16-9-1965. in pursuance to an order of the civil authority. meerut, dated 27-9-1965 purporting to be under paragraph 5/8 of the foreigners' internment order, 1962, the petitioner was arrested by the police at meerut on 6-10-1965 and was lodged in the district jail at meerut where he is still under detention.3. mr. asif ansari, learned counsel for the petitioner has raised the following points in support of the petition. firstly that as the petitioner was on bail granted by the court of session, in law he was in the custody of the court and, therefore, could not have been arrested by the police. secondly the petitioner could be arrested under para. 8 of the foreigners' internment order only if there was a reasonable suspicion of his.....
Judgment:

Tripathi, J.

1. By this petition under Section 491 of the Code of Criminal Procedure read with Article 226 of the Constitution the petitioner challenges the validity of his detention in the district Jail at Meerut.

2. The undisputed facts which are relevant to the questions in controversy are these:--

The petitioner is a national of Pakistan. In June 1965 he came to India to see some of his relations on a Pakistani passport and an Indian visa permitting his stay in India for a period of three months only. The period granted under the visa expired on 7-9-1965 but owing to the extraordinary conditions prevailing on the border on account of the hostilities between India and Pakistan the petitioner in spite of his best efforts could not go back to his country. After reporting his departure to the police at Meerut the petitioner reached Delhi on 7-9-1965. He was, however, arrested by the Delhi police during the same night and was sent up for trial under Section 14 of the Foreigners Act for overstaying in India. On 16-9-1965 the learned Sessions Judge, Delhi, allowed the petitioner to be released on bail. The petitioner could not go back to his country as the borders between India and Pakistan were sealed on account of hostilities. Finding himself in such a helpless condition the petitioner, after his release on bail, came to Meerut to stay with his father. On 21-9-1965 the petitioner's father addressed a communication to the Senior Superintendent of Police, Meerut, informing him that his son who was a Pakistani national was staying with him since his release on bail by the learned Sessions Judge of Delhi on 16-9-1965. In pursuance to an order of the civil authority. Meerut, dated 27-9-1965 purporting to be under Paragraph 5/8 of the Foreigners' Internment Order, 1962, the petitioner was arrested by the Police at Meerut on 6-10-1965 and was lodged in the District Jail at Meerut where he is still under detention.

3. Mr. Asif Ansari, learned counsel for the petitioner has raised the following points in support of the petition. Firstly that as the petitioner was on bail granted by the Court of Session, in law he was in the custody of the Court and, therefore, could not have been arrested by the police. Secondly the petitioner could be arrested under Para. 8 of the Foreigners' Internment Order only if there was a reasonable suspicion of his having indulged or likely to indulge in any prejudicial activity mentioned in the aforesaid paragraph. It is contended that the suspicion to be reasonable envisages that it has to be put to an objective test and the detaining authority has to satisfy the Court that it had sufficient material for entertaining a reasonable suspicion about the detenu and as there is nothing on the record to show that there was any material on the basis of which the civil authority could arrive at a reasonable suspicion regarding the petitioner indulging in any prejudicial activities his arrest under Para 8 is wholly unsustainable. Learned counsel contends that a comparison of the provisions of Paras. 5 and 8 of the Foreigners' Internment Order makes it obvious that while under Para. 5 the civil authority had the power to arrest or cause to be arrested any person Para. 8 envisages the arrest of the person by the civil authority himself and not by his agent and as the arrest of the petitioner has been effected by a Sub-Inspector it cannot be held to be a legal arrest within the meaning of Para. 8 of the Order. It is contended that in Para. 8 it has been specifically mentioned that the civil authority can arrest a person without any warrant but as arrest without a warrant it must be held that an arrest under that paragraph can be made by the civil authority only after obtaining a warrant from some other authority and as in the instant case no such warrant of arrest was shown to the petitioner, his arrest and subsequent detention are illegal. Learned counsel contends that whenever the power has been given to a police officer to arrest any person without warrant it has been specificially mentioned in the provision giving him such a power. It is contended that the entire order being inconsistent with Article 14 of the Constitution is ultra vires and must be struck down. Another argument raised by the learned counsel is that persons under arrest under Para. 5 must be surrendered as soon as may be to the Commandant of an Internment Camp as provided under Sub-clause (2) of the aforesaid paragraph and neither the civil authority nor the Jailor, District Jail, Meerut, had any authority in law to keep the petitioner under detention in the premises of the District Jail. It is argued that if the arrest of the petitioner under Para. 8 of the order is held to be invalid his arrest under Para. 5 too cannot be sustained because it is settled law that if an order of detention is based on two grounds one of which proves to be illusory the entire order must be held to be invalid.

4. The right of a foreigner to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution remains suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October 1962, is in force, by the Presidential Order G. S. R. 1418, dated 30th of October 1962, as amended by G. S. R. 1276, dated New Delhi, 27th of August 1965. It is, therefore, obvious that the argument raised by the learned counsel on the basis of Article 14 of the Constitution cannot be entertained in support of the petition.

5. In order to examine the contentions raised by the learned counsel it is necessary to quote the impugned order. The Foreigners' (Internment) Order, 1962, consists of three chapters. Paragraphs 1 and 2 fall in the first chapter, Paras. 3, 4, 5, 6 and 7 in the second chapter and Para 8 in the third chapter.

Paragraph 3 as amended reads:

'3. Application of Chapter--This chapter shall apply to and in relation to any national of Pakistan and to any other foreigner who is, and any person who, or either of whose parents, or any of whose grand parents was at any time a citizen or subject of any country at war with, or committing external aggression against India or of any other country assisting the country at war with, or committing such aggression against India.'

Paragraph 4 provides tor the establishment of Internment Camps and for the appointment of a Commandant of every such camp.

Paragraph 5 reads:

'5. Arrest and internment of certain persons:

(1) The Civil Authority for any area may arrest or cause to be arrested any person to whom this chapter applies in that area:

Provided that nothing in this sub-paragraph shall, except by an express direction of the Central Government, apply to, or in relation to, any such person employed in a diplomatic or consular mission in India ....... ...

(2) Every person arrested under the provisions of sub-para. (1) shall be surrendered, as soon as may be, to the Commandant of an Internment Camp:

Provided that....... .....

(3) Every such person surrendered to the Commandant of an Internment Camp in pursuance of sub-para. (2) shall be confined in an Internment Camp until otherwise directed by the Central Government.

Paragraph 6 reads:

'6. Temporary detention of internees.--The Civil Authority, shall, pending the surrender of an internee to the Commandant of an Internment Camp detain or confine such internee in such manner and at such place as may to such authority appear suitable;

Provided that the manner of such detention or confinement shall not be more rigorous than the manner in which an arrested person is detained or confined while in police custody under the provisions of the Code of Criminal Procedure.'

6. It will be noticed that the provisions of Paras. 3 and 5 of the order are of a very wide amplitude and empower the civil authority to arrest or cause to be arrested any national of Pakistan or any other foreigner. In fact persons either of whose parents or any of whose grand parents was at any time a citizen or subject of any country at war with India also fall within the ambit of these provisions and can be arrested by the civil authority of the area without assigning any reason for such arrest. In view of the Emergency declared by the President in the wake of hostilities committed by the Chinese and on account of the internal situation which had suddenly develop-ed in the country because of the hostilities commenced by Pakistan, these powers were vested in the civil authority in the interest of public safety. It will be noticed that para 5 of the order does not speak of any written warrant or the manner in which a foreigner or a Pakistani national was to be arrested. It leaves entirely at the discretion of the civil authority either to arrest the person himself or to get him arrested in any manner that may suit the exigencies of the situation. It is true that in Para. 8 of the order, which falls in Chapter 3 and deals with persons about whom there may be reasonable suspicion of indulging in anti-national activities, it has been specifically mentioned that they can be arrested without any warrant. That, however, in our opinion is no ground for assuming that although Para. 5 in its terms does not make it incumbent on the civil authority to arrest a person only after obtaining a warrant it must be held that no such arrest can be made in the absence of a written warrant. We are, therefore, of the view that the contention of the learned counsel, that for arresting the petitioner under Para. 5 of the order it was necessary for the civil authority to obtain a warrant in accordance with the provisions of the Code of Criminal Procedure must be rejected.

7. The question can be looked at from mother standpoint. Neither the Foreigners' (Internment) Order creates any authority for the issue of any such warrant nor the Code of Criminal Procedure envisages the issue of a warrant in such a case. The order has been promulgated to meet the Emergency and the Code of Criminal Procedure could not in the very nature of things provide for such a situation.

8. Mr. H. N. Seth, learned Standing Counsel for the Union of India has stated before us that although the order of the civil authority and the counter affidavit filed in support of the same by Sri Bishun Sarup Saxena mentions that the petitioner had been arrested under Para. 5/8 of the Foreigners' Internment Order, in fact his arrest has been effected under Para. 5 of the order alone and mention of Para. 8 in the order and the counter affidavit is a clerical mistake. Learned counsel submits that the case should be decided on the supposition that the petitioner has been arrested in pursuance to Para. 5 of the order. It has been contended that even if it is held that the petitioner's arrest had been effected under Paras 5 and 8 of the order and that his arrest under Para 8 of the order cannot be sustained that will not affect in law the validity of his detention under Para. 5 of the aforesaid order. It is contended that it is not a case where the detaining authority is to give any ground or has to be satisfied on the basis of any material for the arrest of a person under Para. 5 of the order although under Para. 8 it must entertain a reasonable suspicion before effecting his arrest. It is urged that the arrest of a person under Para. 5 stands on an entirely different footing than that of his arrest under Para. 8 and therefore even if his arrest under Para. 8 is held to be invalid it cannot affect hisdetention under Para. 5 of the order. We find force in these contentions.

9. In view of the categorical statement made on behalf of the opposite parties that the petitioner is being detained under Para. 5 of the order and not under Para. 8, it is not necessary to examine the various contentions raised by the learned counsel challenging the validity of his detention under Para. 8 of the order. Even if it is assumed that the petitioner has been detained both under Paras. 5 and 8 of the order and that his detention under Para. 8 is invalid because nothing has been brought out on the record to show that there was any material before the detaining authority for entertaining a reasonable suspicion about his prejudicial activities, that fact in our opinion cannot invalidate his detention under Para. 5 of the order as he happens to be a Pakistani national and as no such suspicion as mentioned in Para. 8 is required on the part of the civil authority for exercising its power under Para. 5 of the order. The entire scheme of the order appears to be that any foreigner or Pakistani national in his area can be arrested by the civil authority on his subjective satisfaction under Para. 5 of the order and after the arrest he has to be surrendered as soon as may be to the Commandant of an Internment Camp. But for exercising its authority under Para. 8 of the order something more is required on the part of the civil authority and that is that he must entertain a reasonable suspicion regarding the arrested person having acted, acting or being about to act in a prejudicial manner. That is why an arrest under Para. 8 has to be forthwith reported to the Central Government. Para. 8 envisages a more serious situation while that is not the case for the exercise of power under Para. 5. The arrest and detention of a person under Para. 8 of the order in all probability can be subjected to an objective test by the courts. But that cannot be the case when a foreigner is put in detention under Para. 5 of the order. In such a case the court has no power to enquire about the reasons of the order or to go behind the order.

10. The idea of an internment under the Foreigners' Internment Order is to put a restraint on the physical movements of the internee so that he may be watched by the authorities responsible for the maintenance of public order and may not be able to indulge in prejudicial activities. There is no physical restraint on a person who is on bail although he remains legally in the custody of the court granting the ball. The case of Zahir Ahmad v. Ganga Prasad, 1982 All LJ 654: (AIR 1963 All 4) decided by a Division Bench of this Court to which one of us was a party, and relied upon by the learned counsel in support of his contention that a person on bail cannot be arrested does not lay down any such proposition. If a person after his release on bail commits a crime there is nothing to prevent his arrest in spite of tie fact that he has been enlarged on bail in connection with some other offence. There is therefore no reason to hold that although the Foreigners' Internment Order provided for the internment of a person in the interest of public safety, he could not have been arrested for such purposes because he had been enlarged on bail by the court in connection with some criminal case.

11. It has been vehemently argued that as Clause (2) of Para. 5 of the order provides that every arrested person shall be surrendered, as soon as may be, to the Commandant of an Internment Camp and as the petitioner has not been surrendered to any such Internment Camp as yet, his detention in the district jail of Meerut must be held to be illegal and he must be released on that ground alone. We do not find any force in this contention.

12. The executive authorities were faced suddenly with a grave situation by the commencement of the hostilities and to meet that situation this order was promulgated. In pursuance to the order a large number of persons were arrested. It was not physically possible for the authorities to have established Internment Camps on the spur of the moment and that is why Para. 6 of the order provided for the temporary detention of internees pending their surrender to the Commandant of an Internment Camp, in such a manner and at such place as appears suitable to the detaining authority provided that the manner of such detention or confinement was not more rigorous than the manner in which a person is detained or confined while in police custody. There is no allegation that the manner of petitioner's detention in the district Jail at Meerut is more rigorous than what it would have been if he was in police custody. There is no allegation that he is not being treated as a detenu but as a convict amenable to the rules and regulations under the Jail Manual. So long as the Internment Camps had not been established it was open to the civil authority to keep the petitioner in police custody and detain him at any place it deemed suitable. We do not see any reason, therefore, why it cannot detain him within the premises of the district Jail at Meerut, if the Jailor is prepared to take him within the jail premises. Such a detention tantamounts to his temporary detention within the meaning of Para. 6 of the order and it will not make him either a convict or a person amenable to the rules and regulations of the U. P. Jail Manual. If the civil authority instead of detaining him in the police lock up gets him detained in more congenial surroundings of the district jail we see no reason to interfere with its discretion.

13. Mr. Anasari contends that the appointment of every Superintendent of Police as civil authority for his respective area is inconsistent with the provisions of Section 20 of the Police Act.

Section 20 of the Police Act reads:

'Police Officers enrolled under this Act shall not exercise any authority, except the authority provided for a police officer under this Act and any Act which shall hereafter be passed for regulating criminal procedure.'

It is, therefore, obvious that this section prohibits a police officer from exercising anyother authority except that which is provided for him under this Act or under any Act which shall hereafter be passed for regulating criminal procedure. The Police Act was passed in the year 1861 with the object of re-organising the police and to make it a more efficient instrument for the prevention and detection of crime. The framers of the Act while putting a restraint on the police officer to act in any other manner except as a police officer under this section also anticipated that there may be subsequent enactments regulating criminal procedure where the help of the police as an instrument for prevention and detection of crime might be needed in other contexts, That is why Section 20 specifically mentioned that the bar on the authority of a police officer would not operate when such an authority has been derived by him under an Act for regulating criminal procedure. The word 'Act' which has been used in this section must be interpreted to include even orders passed by the executive authority in pursuance of a power vested in it under an Act. In this case the Foreigners' (Internment) Order has been issued in pursuance to the power vested in the Central Government under the Foreigners' Act, 1946. It deals with criminal procedure inasmuch as it provides for the arrest of a person with a view to preventing him from doing something prejudicial to the public order. In our opinion therefore the bar created under Section 20 of the Police Act will not stand in the way of the respective police officers exercising functions as civil authority within the meaning of the Foreigners' (Internment) Order.

14. As all the contentions raised by the learned counsel in support of the petition fail, the petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //