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In Re: Hardial Singh S/O Rallia Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported in1949CriLJ370
AppellantIn Re: Hardial Singh S/O Rallia Singh
Cases ReferredEmperor v. Sibnath Banerji A.I.R.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....achhru ram, j.1. this order will dispose of 16 petitions under section 491, criminal p. c., namely, cr. m. 326 of 1948 to 840 of 1948 and or. m, no. 243 of 1948. the first 15 petitions were made by one jagdish mittar, son of salig rarn, resident of cart road, simla, on behalf of the following 15 persons : (1) eameshwar dayal, son of kanhaya lai, resident of sabzi mandi, delhi. (2) kailash nath sharma, son of pt. prabhu putt shaatri, resident of chandni chauk, delhi. (3) mangal sain, son of kewal ram, resident of bareilly, u. p. u) narindar kumar, son of hari shankar, resident of mahrauli. (5) chhajju earn, son of nandu ram, resident nangli, district delhi. (6) prameshri das, son of lakshman das, resident of shahdara. (7) rameshwar das, son of munshi ram, resident of narela, district.....
Judgment:

Achhru Ram, J.

1. this order will dispose of 16 petitions under Section 491, Criminal P. C., namely, Cr. M. 326 of 1948 to 840 of 1948 and or. M, No. 243 of 1948. The first 15 petitions were made by one Jagdish Mittar, son of Salig Rarn, resident of Cart Road, Simla, on behalf of the following 15 persons : (1) Eameshwar Dayal, son of Kanhaya Lai, resident of Sabzi Mandi, Delhi. (2) Kailash Nath Sharma, son of Pt. Prabhu putt Shaatri, resident of Chandni Chauk, Delhi. (3) Mangal Sain, son of Kewal Ram, resident of Bareilly, U. P. U) Narindar Kumar, son of Hari Shankar, resident of Mahrauli. (5) Chhajju Earn, son of Nandu Ram, resident Nangli, District Delhi. (6) Prameshri Das, son of Lakshman Das, resident of Shahdara. (7) Rameshwar Das, son of Munshi Ram, resident of Narela, District Delhi. (8) Vishwa Nath, son of Amar Nath, resident of Bazzar Sita Earn, Delhi, (9) Aho Earn, son of Raghbir Saran, resident of Balaini, District Meerut. (10) Kanwar Sain, son of Prahiad Eai, resident of Pahari Dhiraj, Delhi. (11) Bam Bhagat, son of Ram Kishen Das, resident of Sadar Bazar, Delhi. (12) Ajudhia Narain, son of Pt. Jagat Narain, resident of Sabzi Mandi, Delhi. (13) Dharam Bir, son of Malak Locha Ram, resident of Sabzi Mandi, Delhi. (14) Balkrishan, be n of Brij Lai, resident of Sabzi Mandi, Delhi. (16) Surendar Sharma, son of Jai Dev Sharma, resident of Shahdara, Delhi.

2. The 16th petition was made by one Har-. dial Singh of Delhi.

3. In the first 15 petitions, the petitioner Jagdish Mittar impugned the legality and the validity of the arrest and subsequent detention of the aforesaid 16 detenus under Section 3, Punjab Public Safety Act of 1947, as extended to Delhi Province. The allegations on which the 15 petitions were based were that the detenus mentioned in those petitions were arrested on different dates on account of their being members of the Rashtriaya Swayam Sewak Sangh and that the arrests were made not after a consideration of the individual cases of the several detenus and after being satisfied with regard to every one of them that with a view to preventing him from acting in any manner prejudicial to the publics safety or the maintenance of public order it was necessary so to do. It was further alleged that the arrests of the aforesaid detenus had been ordered not because it was necessary to do so in order to prevent them from acting in the manner indicated above, but out of ulterior and political motives and that the arrests were consequently mala fide. It was also averred that if the detenus were arrested on account of their connexion with the R. S. S. which had been declared unlawful, the proper course for the Government to adopt was to try and prosecute them under the Criminal Law Amendment Act and that their detention under the Safety Act was wholly unwarranted and illegal.

4. The 16th petition wag also made on the allegation that the arrest and subsequent detention of Hardial Singh petitioner was mala fide and had not been made after satisfying that with a view to preventing the said petitioner from acting in any manner prejudicial to the public safety or the maintenance of public order it was necessary so to do. It was alleged that the petitioner had never indulged in any prejudicial activities.' It was further alleged that he had fought successfully a civil suit against one Mr. S. B. Gupta whom along with some others he was also prosecuting for a criminal offence; that on 24th May 1948 at about 11 A.M. when he happened to be in the District Court compound in front of the Court of S, Harjindar Singh Dhillon Magistrate in connection with the aforesaid prosecution, the said Mr. Gupta and his father-in-law Chandu. Lai came up, accompanied by a Police Head Constable attached to Kashmiri Gate Police Station; and that the Head Constable asked him to accompany him to the Kashmiri Gate Police Station. It was further averred that the aforesaid Head Constable, on enquiry by the petitioner as well as by the learned Magistrate, had been unable to indicate what the matter in connection with which the petitioner's presence was wanted at the Police Station was, and that when the petitioner did go to the Police Station he was arrested and detained without any order or authority for his arrest or detention being shown to him and without any information being vouchsafed to him as to the cause of his detention beyond being told that the detention was under the Punjab Public Safety Act.

5. In all these petitions some common questions of law were raised and I propose to dispose of those questions before dealing with the individual cases.

6. One of the contentions raised on behalf of the petitioners was that the Punjab Public Safety Act of 1947 had not been properly extended to the Province of Delhi and that therefore the arrest and the detention of the detenus under that Act was illegal and ultra vires. After hearing the learned Counsel for the parties I am dearly of the opinion that this contention is without force and must be repelled. The Act was extended to the Province of Delhi by a notification of the Government of India, Ministry of Home Affairs, issued on 7th September 1947 and published in the Gazette of India Extraordinary of the said date. The notification reads as follows:

In exercise of the powers conferred by Section 7, Delhi Laws Act, 1912, the Central Government is pleased to direct that the Punjab Disturbed Areas Act 1947 (Punjab Act I [1] of 1947) and the Punjab Public Safety Act, 1947 (Punjab Act. II [2] of 1947) shall apply to the Province of Delhi subject to the modification that all powers of the Provincial Government under those Acts shall be powers of the Central Government as well as of the Chief Commissioner of Delhi.

7. This notification was, evidently issued tinder Section 7, Delhi Laws Act, 1912, which runs as follows:

The Provincial Government may by notification in the official Gazette extend with such restrictions and modifications as it thinks fit to the Province of Delhi, or any part thereof, any enactment which is in force In any part of British India at the date of such notification.

8. The expression ' Provincial Government' was defined in s, 3, Sub-section (43)(a), General Clauses Act of 1897, as modified by the Adaptation Order of 1937, in relation to a Chief Commissioner's Province as the Central Government. The combined effect of Section 7, Delhi Laws Act and Section 8(48)(a), General Clauses Act was to confer on the Central Government the power by notification in the official Gazette to extend, with such restrictions and modifications as it thought fit, to the Province of Delhi, or any part there. of, any enactment which was in force in any part of British India on the date of such notification. The Central Government having, in the exercise of this power, issued a notification extending the Punjab Public Safety Act. to the Province of Delhi, it must be held that with effect from the date of the notification, i.e., 7th September 1947, the aforesaid Act was properly extended to the said Province and is in force there.

9. The second contention raised by the learned Counsel for the petitioners as governing all the petitions was that under the provisions of the Punjab Public Safety Act the Provincial Government had to make up its mind once for all as to the period for which any person arrested under Sub-section (l) of Section 3 of the aforesaid Act was to be detained, and that, after it had once made an order for his detention for a particular period, it was not open to it to keep him in detention subsequent to the expiry of that period or to extend the period of his detention. This contention is equally devoid of force.

10. According to sub-a. (4) of Section 3, Punjab Public Safety Act the officer making the arrest under Sub-section (l) of the aforesaid section can, unless the Provincial Government by special order other- wise directs, detain the person arrested in custody for a period not exceeding one month. By Sub-section (6) of the aforesaid section the power of the Provincial Government to detain such a person in custody has been limited to six months. The only effect of the provisions contained in the section is that the outside limit of the period for which a person arrested under Section 3(l) can be detained by the Provincial Government is not to exceed six months. It is nowhere provided that if in the first instance the Provincial Government makes an order for the detention of the person arrested for a period less than six months, its power to keep him in detention for the full period of six months, if it is of the opinion that such detention is necessary in the interests of public safety or public order, is taken away. It is impossible to read into the section any provision to the effect that the Provincial Gov-ornament has to make up its mind once for all as to the precise period for which the person arrested has to be detained in custody and that once it had made an order for his detention for a certain period, it cannot, in view of the Changed circumstances or otherwise, extend the period within the outside limit of six months. I have no hesitation, in the circumstances, in repelling this contention of the learned Counsel.

11. A third point which was said to be common to all the petitions and on which considerable stress was laid by the counsel for the petitioners was that R. S. S. having been declared to be an unlawful association under Section 16, Criminal Law Amendment Act. of 1908, the only action which could lawfully be taken against any member thereof, or any person connected therewith in the manner indicated in Section 17 of the aforesaid Act, was his prosecution under the said section, and. that the arrest and detention of the members of the Sangh under Section 3, Punjab Public Safety Act, was a clear abuse of the powers conferred on the executive under that Act and accordingly ultra vires. It was urged that the persons in respect of whom these petitions had been made had all been arrested on account of their being members of the R. S. S., and that therefore their arrests and subsequent detentions must be held to be ultra vires.

12. I agree that where the only charge against a person is that be is a member of an association which has been declared to be unlawful, the appropriate course for the Government to adopt is to put him on his trial in a Court of law on such charge .To deny to such a person the right to refute the charge and to show that he is not in f Act. connected with such association and has not otherwise brought himself within the ambit of the penal law of the land, and to make use against him of the emergency powers of the executive conferred on it by the Legislature for the prevention and not for the punishment of crime is wholly indefensible and should not be tolerated under any civilised system of judicial administration. However, .where an association has been declared to be unlawful by reason of the prejudicial activities of its members and any members of such association are reason, ably believed to have themselves participated in such activities, I do not consider as objectionable the use against such persons of the emergency powers of the executive meant for the prevention of such activities. Indeed there may be cases where the public interest may make it imperative that instead of trying these persons for the offences of being members of or other. wise connected with an unlawful: association, action be taken against them under preventive enactments. At times the adoption of the first course may quite reasonably be sup-posed to be calculated to foster and promote the very mischief for the prevention whereof the association has been declared to be unlawful. The publicity which its prejudicial activities must necessarily receive as a result of public trials of a large number of persons supposed to be associated with it may have very dangerous repercussions by inciting other sections of the society to similar activities. In such circumstances, it may become the duty of the executive Government in the interests of public peace and order to refrain from launching mass prosecutions of the members of such association and to make use of its emergency powers in order to put a stop to their prejudicial activities. I am, therefore, clearly of the view that in case of persons who, while they were members of or otherwise associated with Rule 8.8., were actually indulging in prejudicial activities or were otherwise conducting them-selves in such a manner as to give rise to the belief that with a view to preventing them from acting in any manner prejudicial to the public safety or the maintenance of public order it was necessary to isolate them from the public and to place them in detention,, there should be no valid objection to an action being taken against them under Section 3, Punjab Public Safety Act, merely because they could, if the Government so desired, also have been prosecuted under Section 17, Criminal Law Amendment Act of 1908. In so far as the present detenus are concerned, there is no indication at all that any one of them was arrested and detained simply because of his being a member of, or otherwise, connected with, E. 8. S. The affidavits that have been filed on behalf of the arresting officers in the several petitions contain no reference at all to membership of or association with R. S. S. On the other hand, in these affidavits it is stated in very dear and unambiguous words that each case was individually considered by the arresting authority on its merits, and that after consideration of every case the said authority was satisfied that the person concerned had been indulging in such activities as were sufficient to give rise to the belief that with a view to preventing him from acting in any manner pre. judicial to public safety, and for the maintenance of public order, it was necessary to take action against him under Section 8, Punjab Public Safety Act, I accordingly see no force in this contention of the learned Counsel for the petitioners. [13] Coming now to the individual cases Mr. Harnam Singh the learned Advocate General has pointed out that Vishwa Nath in respect of whom the petition in or. M. 333 of 1948 was made, Kanwar Sain in respect of whom the petition in Or. M. 835 of 1948 was made, and Earn Bhagat in respect of whom the petition in or. M. 336 of 1948 was made have been released by the Government. Vishwa Nath is said to have been released on 6th June 1948; Kanwar Sain is said to have been released on 2nd July 1948 and Bam Bhagat is said to have been released on 26th July 1943. It is interesting to observe that Vishwa Nath had been released well-nigh a month before the petition for issue of a writ of habeas corpus in respect of him was made. Of the other two, Kanwar gain was released within a few days of the presentation of the petition and Bam Bhagat was also released before the application for his interim bail was made. The petition in respect of Vishwa Nath was made at a time when he was no longer in custody and even though the other two were in custody at the time petitions in respect of them were made, they were released soon after the presentation of those petitions and this fact was never brought to the notice of this Court and orders for the release of be to of them on bail were obtained without disclosing this fact. This demonstrates very clearly the danger of allowing any and every person to move a petition for habeas corpus on behalf and for the benefit of any detenu. Jagdish Mittar, the petitioner in the present cases, is a resident of Simla. He does not appear to be any relation . of the detenus in respect of whom he has moved petitions for issue of writs of habeas corpus. He does not seem even to have been aware of their movements. I wish some rule should 4db framed by the authorities concerned limiting the right to move petitions under Section 491, Criminal P. C,, to the detenus, their relations and at the most their friends. I understand that such is the practice in England and it will save a lot of judicial time and a good deal of unnecessary embarrassment; to the authorities if a similar .practice is introduced in this country. To allow irresponsible people to move petitions of this nature on behalf of persons about whose affairs they have really no knowledge, merely on account of the existence between them of any political or other affinity, seems to me to be pre-judicial to the proper and efficient administration of justice and otherwise undesirable.

14. The three petitions mentioned above have to be dismissed as infructuous.

15. Out of the remaining petitions, in the petition in Cr. M. 326 of 1948 relating to Rameshwar Dayal, the petition in Cr. M. 827 of 1948 relating to Kailash Nath, the petition in cr. M. 828 of 1948 relating to Mangal Sain and the petition in or. m. 840 of 1948 relating to Surendar Sharma six months' period of detention has already expired and under the provisions of the Punjab Public Safety Act the persons mention. above cannot any more be kept in detention. Rameshwar Dayal and Kailash Nath were arrested on 6th February 1948. The last order for the extension of the periods of their detention extended such periods up to 1st August 1948 and since then no fresh order for extension of the period of detention has been made in either case, In any event the maximum period of six months during which they could have been kept in detention expired on 6th August 1918.

16. Mangal Sain whose case is covered by he petition in or. M. 328 of 1948 was arrested on 15th February 1948. The period of his detention under the last order passed by the Provincial Government expired on 10th August 1948 and no fresh order for the extension of that period has been made.

17. The period of detention under the last order passed against Sarendar Sharma whose case is covered by the petition in Cr. M. 340 of 1948 expired on 7th August 1948, and has not been extended.

18. These petitions have all obviously become infructuous and it does not seem to be necessary to take any further action in them or to make any further orders except to dismiss them as infructuous and to order the bail bonds to be cancelled.

19. Narindar Kumar, the detenu in or. M. 329 of 1948, was arrested on 17 to February 1948, and was ordered to be detained up to 16th March 1948. On 15th. March 1948, the Chief Commissioner of the Province of Delhi extended the period of his detention up to 14th May 1948. On the latter date, a further order was made by the Chief Commissioner extending the period of detention up to 13th July 1948. On the last mentioned date yet another order was made by the Chief Commissioner for the extension of the period of his detention up to 13th August 1948, The period of six months in his case is due to expire on 17th August 1948, but no order for the extension of the period of detention beyond 12th August 1948 has so far been made and we were assured by the learned Advocate-General that no such order was going to be made. In the circumstances the petition in respect of this detenu is also virtually infructuous. I would accordingly dismiss the same. The period of detention having already expired, the detenu who is on bail need not surrender himself to the Jail authorities. His bail bond shall be cancelled.

20. Chajju Ram the detenu in Or. M, 330 of 1948 was arrested under the orders of Mr. Shanti Lal Ahuja, dated 19th February 1948. On the same date an order was made by the said Magistrate for the detention of Chajju Earn for a period of one month, i. e., till 18th March 1948. The original order dated 19th February 1948 has been produced by the learned Advocate-General, The period of detention was extended by the Chief Commissioner of the Province of Delhi for two months ending on ,16th May 1948, by means of his order dated 15th March 1948, an attested copy of which order has been placed on the record by the learned Advocate-General. The period of detention was extended for a further period of two months ending on 15 to July 1948 by the Chief Commissioner by means of his order dated 5th May 1948, which has been placed- on the record in original. The period of detention was further extended for a month ending on 14th August 1948 by the Chief Commissioner by means of his order dated 10th July 1948. The original order has been produced by the learned Advocate-General, The affidavit sworn to by Mr. Ahuja on 16th July 1948 and filed by the learned Advocate-General is to the effect that at the time of ordering the arrest of Chhajju Ram the deponent was satisfied, from the material before him, that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the public safety and maintenance of public peace and that he had arrived at this conclusion after considering the case of the individual detenu on its merits.

21. There does not appear to be any reason to hold that the order made for the arrest or detention of this detenu was either illegal or ultra vires. The petition under Section 491 in his case was made after inordinate delay. No attempt was made to move a petition for issue of a writ of habeas corpus at the time of the arrest or at the time when two successive orders for the ex-tension of the period of his detention were made. The petition was moved as late as 28th June 1948. Even then the petition was moved not by the detenu himself or by some relation or intimate friend of his but by a person who in view of the facts mentioned above seems to be an utter stranger and who appears to have taken the initiative in. the matter merely out of political or guesi-political considerations, In view of the delay in moving the petition and the fact that even after such an inordinate delay it has been moved by a stranger who cannot be expected to have any personal knowledge of the circumstances under which and the reasons for which the person concerned was arrested and detained. I do not consider that there is any substance in the allegation contained in the petition and in the affidavit accompanying it as to the arrest and detention being mala fide. No particulars were given, either in the petition or in the affidavit, as to the alleged mala fides of the arresting authority, except that the orders for mass arrests of members of the R. S, S, were made without consideration of each individual case. This assertion, as has already been Been, has been categorically denied by the officer making the arrest. In the circumstances I fail to see any force in this petition and would dismiss the same.

22. Petitions of Parmeshri Das, the detenu in Cr. M. 381 of 1948, and of Rameshwar Das, the detenu in Cr. M. 332 of 1948, were also dismissed for same reasons as Cr. M. 330 of 1948.

23. Inasmuch as in these three petitions the maximum period of six months for which the three detenus can lawfully be detained is due to expire on 19th August 1918 in the first two cases and on 20th August 1948 in the third case, and inasmuch as the period of detention as ordered by the Chief Commissioner in the first two cases expires on 11th August 1948 and in the third case on 15th August 1948 and we were assured -by the learned Advocate-General that there was no intention on the part of the Government to extend the period of detention of these three detenus for the remaining five or six days of the full period of six months, I do not propose to direct three three detenus to surrender themselves to the jail authorities for serving the un-expired period of their detention. The three of them are on hail and away from Simla. Any order passed in Simla to-day cannot be reason, ably expected to reach these detenus before the date on which their period of detention expires. I accordingly refrain from directing these three detenus to surrender themselves to the jail authorities for serving the unexpired portions of their periods of detention. Their bail bonds shall be deemed to be cancelled on the dates on which their periods of detention expire, i. e on 14th August 1948 in the first two cases and on 15th August 1948 in the third case.

24. Aho Ram, the detenu in Cr. M, 034 of 1948, was arrested under the orders of Mr. S. L. Ahuja, District Magistrate, on 25th February 1948 and was ordered to be detained for a period of one month ending on 23rd March 1948. The original order for his detention has been produced. On 16th March 1948 the Chief Commissioner extended the period of his detention for two months ending on 22nd May 1948, This order of the Chief Commissioner has been produced in original. On 10th May 1948 the Chief Commissioner made an order for a further extension of the period of detention for two months ending on 21st July 1948. This order of the Chief Commissioner has also been produced in original. On 10th July 1948 the last order for the extension-of the period of detention was made by the Chief Commissioner and under this order the period of detention is to expire on 20th August 1948. this order has also been produced in original. the learned Advocate- General has also filed an affidavit sworn by Mr. Ahuja wherein he has stated, that be ordered the arrest and detention of Aho-Ram on 26th February 1948 as he was satisfied from the material before him that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the public safety and maintenance of public order, and that be had made the aforesaid order often considering the detenu's case on its merits. For the reasons already given by me I do not sea any substance in the petition in this case and dismiss the same. I direct the detenu to surrender its the Jail authorities for serving the un-expired portion of the period of his detention. I note that there are only another seven days left out of this period. I, however, do not find it possible to treat the case of this detenu as standing on the same footing bb those of the three detenus I have just dealt with. It is quite possible that information about the order made to day may reach him when there are yet a few days out of the period of detention left un-served.

25. The circumstances relating to the three petitions in or. M. 337, 888 and 339 of 1948 are almost identical and therefore these three cases-may conveniently be dealt with together. The detenu in Cr. M, 887 of 1048 is Ajudhia Narain, The detenu in a. M. 338 of 1948 is Dharam Bir. The detenu in or. M. 839 of 1948 is Bal Knsen. These three persona were arrested on 15th April 1943 under the orders of Pt. Jagan Nath, Superintendent of Police, who ordered them to be detained for a period of one month each ending on 14th May 1948. The orignal orders of Pt. Jagan Nath is the three cases have been produced. On 5th May 1948 the Chief Commissioner made orders for the extension of the periods of detention 6i the three detenus for a period of two months ending on 13th July 1948. The original orders of the Chief Commissioner in the three cases have been produced. On 6th July 1948, the Chief Commissioner passed orders for a further extension of the periods of detention of the three detenus for two months ending in each case on 12th September 1948. Affidavits sworn by Pt. Jagan Nath have been produced according to which he satisfied himself in respect of each of the three detenus, and after considering each individual case, that their detention was necessary for the maintenance and preservation of public peace and order. On their face the arrests and detentions of these three detenus seem to be quite in order and legal. The only contention advanced by the learned Counsel for the petitioners in the three oases was that the arrests were made mala fide.

26. The only ground given in the petitions as well as in the affidavits in support of the contention as to the arrests being mala fides is that the arresting officers had passed orders for the mass arrests of all members and workers of the R. S. S. without considering each individual case and without satisfying themselves regarding each of the individuals arrested that his case fell within the purview of Section 8, Punjab Public Safety Act. In so far. as these three detenus are concerned they were arrested more than a couple of months after the R. S. S. had been declared to be an unlawful association. They can certainly not be regarded as being out of those persons who were arrested en masse after ban had been placed on the Sangh.

27. The learned Counsel for the petitioners insisted that the petitioners should be afforded an opportunity of calling evidence in support of their allegations. I, however, do not consider that any useful purpose can be served or the cause of the detenus can be advanced by adjourning these cases as requested by the learned Counsel. As pointed out before, the person who filed the petitions is a resident of Simla and does not appear to have any personal knowledge of the circumstances under which and the reasons for which the detenus were arrested and detained. An order for the release on bail of the detenus was made by this Court on 27th July 1948 and in the ordinary course they must have been released some days ago. It is passing strange that in spite of this none of them has cared to appear in this Court to make a statement as to the circumstances under which his arrest took place. None of them has cared to send any affidavit to explain these circumstances. None of them has even cared to contact either to petitioner or his learned Counsel. In the circumstances I cannot see any justification at all for granting the request of the learned Counsel for the petitioners for adjourning these cases and giving him an opportunity to call evidence. No facts have been disclosed in the petition or otherwise to establish which the learned Counsel wants to call evidence. No such facts are evidently within the knowledge of the petitioner or his counsel. In the circumstances, it will be a sheer waste of judicial time and gross abuse of the process of this Court to permit the learned Counsel to fish for evidence, the nature o which is admittedly not known to him or to his client. For the reasons given above I would dismiss these three petitions and direct the three detenus to surrender themselves to the jail authorities for serving the unexpired portions of the periods of their detention.

28. Hardial Singh, the petitioner in Cr. M. 243 of 1948, was arrested on 23rd May 1948 under orders of Mr. Ram Lall, Superintendent of Police, Delhi, and was ordered to be detained for a period of one month ending on 23rd June 1948. The original order for the detention of Hardial Singh passed by the said Mr. Earn Lall has been produced. On 16th June 194S the Chief Commissioner of Delhi Province extended the period of detention of Hardial Singh by two months ending on 22nd August 1948. This order of the Chief Commissioner has been produced in original. Two affidavits sworn by Mr. Earn Lall have been filed. One of these affidavits was sworn on 17th June 1948. It was stated therein that the deponent had ordered the arrest and the-detention of Hardial Singh after being satisfied that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to the public safety or maintenance of public order. The second affidavit was sworn later and is much fuller and more detailed. In this later affidavit Mr. Earn Lai has referred to the averments contained in the petition para by para. The averments contained in para. 2 of the petition as to the petitioner not being connected with any political organisation or party having never dealt with any public affair whatsoever which might be considered to be in any way concerned with public safety or public order was categorically denied and it was stated that the detenu was reasonably suspected to be associated with subversive activities, and that, in the interests of public safety and maintenance of law and order, his detention was considered to be necessary. The averment in the concluding portion of Para. 4 of the petition expressing the petitioner's apprehension that his detention had been manipulated by some one connected with Mr. S. B. Gupta and Chandu Lai with whom he had had civil and criminal litigation wa3 stated to be incorrect and baseless to the knowledge of the deponent. The averment of the petitioner as to the order of arrest not having been shown to him was stated to be incorrect. It was further stated that the orders for the arrest of the detenu were issued after due consideration of all the facts relating to his case and after the deponent personally satisfying himself that it was necessary to arrest and detain him with a view to preventing him from acting in any manner prejudicial to public Safety and maintenance of law and order.

29. No suggestion has been made at any stage on behalf of the petitioner that there was any connection between Mr. Gupta and his father-in-law at whose instance he believes him. self to have been arrested and the arresting authority, namely, Mr. Earn Lall, Superintendent C.I. D. Police. No personal animus or motive is alleged against the aforesaid Mr. Earn Lall. The affidavit that accompanied the petition was sworn not by the petitioner but by a peraon who is said to be his co employee. The explanation given by the learned Counsel for the petitioner for this was that the jail authorities did not permit the petitioner to swear an affidavit. Bothat as it may, an order for the release of the petitioner on bail was made on 27th July 1948 and he may reasonably be expected to have been released some days ago. Even after his release the has not cared to file any affidavit to explain the circumstances under which and the reasons for which he was arrested or to give any indication of the reasons why his arrest and detention should he held to be mala fide. He did not care to appear in Court at the time of the hearing of the petition. In the circumstances I see no reason to accede to the request of his counsel for adjourning the case to enable the petitioner to appear in person before me and to call evidence to prove his arrest to be mala fide.

30. The learned Counsel relying on certain observations made by Munir J, in Suraj Par-hash Bam Lai v. Emperor, A. I, R. (35) 1948 Lah. 84 : (49 Cr. L. J, 156) pressed that Mr. Ram Lall should be called to appear in Court and an opportunity afforded to the counsel to cross-examine him on his affidavit. In the aforesaid judgment Munir J. expressed the opinion that where instead of producing the official record of the arrest stating the fact that the arresting officer was satisfied that it was necessary to make the arrest with a view to preventing the arrested man from acting in a manner prejudicial to the public safety or to the maintenance of public order the Crown only produces an affidavit of the officer who had effected the arrest under Section 3(l), Punjab Public Safety Act, the petitioner can require the attendance of the officer arresting or directing the arrest of the detenu with a view to cross-examining him in regard to averments in the affidavit. I am not prepared to accept the dictum of the learned Judge as laying down an absolute rule of universal application. If there is anything on the record throwing the least doubt on the correctness of the averments contained in the affidavit of the arresting officer or if there are allegations made by the petitioner which if substantiated will make the act of the arresting officer mala fide, and he is sought to be cross examined with reference to these allegations, it will certainly be a case in which the arresting officer should be called for examination in Court and the petitioner given an opportunity to cross-examine him. If there is no allegation made by the petitioner against the arresting officer and there is nothing suggested to impugn either his veracity or his motive in making the arrest, there will be no justification for the Court to call the officer to enable the petitioner's counsel to put random questions to him or otherwise to hold a fishing cross-examination of his, merely on the off chance of being able to elicit something from him on which to been an argument, As I have pointed out before, in the present case, no allegation has at any stage been made against the arresting officer Nothing has ever been suggested to impugn the veracity of the statements contained in his affidavit or his motive in effecting the arrest In the circumstances, I am of the opinion that no casa has been made out for the petitioner being afforded an opportunity for cross-examining the arresting officer.

31. My attention was also drawn by the learned Counsel for the petitioner to the judgment of Wanchoo J. in Zamir Qasim v. Emperor A.I.R. (35) 1948 ALL. 285 : (49 Cr.L J. 558), the judgment of the Federal Court in Emperor v. Sibnath Banerji and others A.I.R. (30) 1943 P. C. 75 : (45 Cr. L. J. 341) and the judgment of the Privy Council on appeal from the aforesaid judgment of the Federal Court reported as Emperor v. Sibnath Banerji A.I.R. (32) 1945 P. C. 156 : (I. L. B, (1945) Kar. P. C. 371). After a careful consideration of all these authorities, however, I am of the opinion that they have no bearing on the facts of the present case and are of no assistance to the petitioner.

32. For the reasons given above I would dismiss this petition and would direct the petitioner Hardial Singh who is on bail to surrender himself to the jail-authorities for serving the un-expired portion of the period of his detention.

Falshaw, J.

33. I agree.


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