1. In this petition under Article 226 of the Constitution read with section 491 of the Criminal Procedure Code, the prayer is for issuing a writ in the nature of Habeas corpus directing the respondents, the State of Punjab and the Police Officials in-charge of Police Station Beas to set at liberty S. Gian Singh Rarewala and S. Basant Singh from their alleged illegal detention at the Police Station Beas in the District of Amritsar. The Petitioner S. Baldev Singh, who was Deputy Speaker of the Punjab Vidhan Sabha prior to the last mid-term election, claims to be a friend of the detenus S. Gian Singh Rarewala and S. Basant Singh. S. Gian Singh Rarewala was at one time a Chief Minister in the erstwhile State of Pepsu. S. Basant Singh is a Member of the Legislative Assembly and Secretary of the Punjab Unit of the Swantantra Party.
2. S. Darshan Singh Pheruman, who undertook a fast to press the claim of the Punjab for the inclusion of the Union Territory of Chandigarh in that State, died on 27th October, 1969, at Amritsar. The next day his dead body was taken to his village Pheruman, about 25 miles away, and cremated there. In accordance with the religious custom his ashes were to be collected on 30th October, 1969. According to the petitioner's allegations, that morning, while he was proceeding to Pheruman to participate in that function accompanied by S. Gian Singh Rarewala in a car and reached Rayya at 8.30 A. M., the Deputy Superintendent of Police, in charge Beas Police Station (S. S. Bains) respondent No. 4, stopped them and told S. Gian Singh Rarewala that he could not proceed to village Pheruman. On being asked to produce written orders banning his movements or entry in village Pheruman, the Deputy Superintendent of Police is stated to have told S. Gian Singh Rarewala that he was under arrest and asked him to come out of the car.
In the meanwhile, Besant Singh M.L.A., the other detenu named in the petition, came there similarly bound for Pheruman. He was also stopped and not permitted to go to that village. The Deputy Superintendent of Police asked S. Gian Singh Rarewala to get into a police jeep, which was parked nearby, and directed S. Basant Singh to go to police station Beas and from there to contact the Superintendent of Police on telephone before he cold proceed to Pheruman. A Police constable was, however, made to sit with him. While leaving, S. Basant Singh asked the petitioner to follow him. Baldev Singh thereupon got into the car in which he has travelled with S. Gian Singh Rarewala and followed the police jeep and the car of S. Basant Singh. On reaching the Police Station, when S. Basant Singh wanted to use the telephone, the Station House Officer, Beas Police Station respondent No. 5, (S.I. Bachan singh) promptly told him that he was under arrest but refused to disclose any reason or grounds for his arrest. Throughout the day all three of them remained at the Police Station.
About 6.30 P.M., he learnt from the two detenus that the reasons for their detention had not been disclosed to them despite their persistent enquiries but on the other hand they were informed that 'instructions were awaited from above'. The petitioner claims that the arrest and the detention of S. Gian Singh Rarewala and S. Basant Singh, in these circumstances, being in violation of Art. 22(1) of the Constitution, was illegal, mala fide and violative of the fundamental rights. It is further pleaded that the detention is mala fide and had been made to restrain the detenus, who are prominent public men, from exercising their fundamental right of free speech to criticise the Government of the day. It is alleged that the Chief Minister of Punjab, who is their political opponent, is annoyed with them and it was for ulterior purposes that they have been illegally arrested and detained.
3. On the 31st of October, 1969, when this petition came up before the Motion Bench, rule nisi returnable by 1.45 p.m., on that very day was issued to the Advocate General, Punjab. Subsequently soon after lunch when the case was placed before me, the Deputy Advocate General, Punjab, stoutly opposing the prayer for a writ of Habeas corpus stated before me that S. Gian Singh Rarewala along with 12 others had been arrested by the police in connection with first information report No. 315 dated the 29th of October, 1969, registered at Police Station, Beas, under Section 9 of the Punjab Security of Sate Act., 1953, because of certain speeches alleged to have been made by them at village Pheruman on the 29th October, 1969. At that time he disclosed that according to the information which he received on the telephone, the detenus had been taken to a Magistrate at Amritsar for obtaining their remand but the Magistrate adjourned the case till 2.00 p.m. on that day as he was busy in some other case at the time the detenus were taken to his Court. Neither the copy of the first information report or other papers were then in possession of the Deputy Advocate General. Obviously he was under a handicap as the rule nisi had been issued to the Advocate General alone and that too only that morning.
Accordingly, by my order dated the 31st of October, 1969, I directed the rule nisi to issue to the police officers concerned, the Deputy Superintendent of Police and the Station House Officer in charge of the Police Station, Beas, with the direction that the detenu be produced in this Court on the 3rd of November, 1969 (the 1st and 2nd of November being Saturday and Sunday) along with the relevant papers.
4. When the matter came up before me yesterday, S. Gian Singh Rarewala, one of the detenus named in the petition, was produced in police custody and the other detenu S. Besant Singh was also in attendance, but was not in any one's custody. S. Basant Singh put in an affidavit which, broadly speaking, supports the allegations made by the petitioner. He however, disclosed that after having been detained at Police Station Beas till 9.30 p.m., on the 30th of October, 1969, he as well as S. Gian Singh Rarewala and S. Teja Singh Akarpuri, Ex-M.P., were told that they could go as there was no case against them. As it was quite late at that time, S. Gian Singh Rarewala expressed his inability to go away, whereupon he was separated from S. Besant Singh, who was taken by the police to the Rest House. S. Basant singh spent the night there are in the morning, when he found that the police as not to be seen anywhere in the Rest House, he went to the Police Station and was told that he was free to go away as there was no case against him. Basant Singh in his affidavit alleges that the whereabouts of S. Gian Singh Rarewala were, however, not divulged to him despite enquiry.
5. From what has been said above it is evident that on the 3rd of November, 1969. When the detenus had to be produced in this Court in obedience to its order, S. Basant Singh was no longer in custody. In these circumstances, the petitioner's learned counsel Mr. A. S. Sarhadi, has not sought any relief regarding him and conceded that the prayer for issuing a writ of Habeas corpus, so far as S. Basant Singh was concerned, had become infructuous. Accordingly, it is not necessary to consider whether the original arrest and detention of Basant Singh was illegal.
6. So far as S. Gian Singh Rarewala is concerned he is admittedly in police custody. In defending his detention the respondents produced an order of remand passed by Mr. G. L. Chopra, Judicial Magistrate, Amritsar, dated the 31st of October, 1969. This order of remand has been made when this detenu was produced before the Magistrate in connection with first information report No. 315 dated the 29th of October, 1969, of Beas Police Station. The Magistrate had remanded the detenu to the police lock-up till 5th of November, 1969. Both the respondent - police officers have put in affidavits by way of return station on oath that S. Gian Singh Rarewala was arrested as he was named as one of the accused in respect of whom the first information report No. 315 was recorded at Beas Police Station on the 29th of October, 1969 and they asserted that this detention at present is in pursuance of the remand order passed by the Judicial Magistrate on the 31st of October, 1969.
7. Mr. Mela Ram Sharma, Deputy Advocate General for the State of Punjab, has strenuously argued that in view of this remand order passed by a Magistrate of competent jurisdiction, the detention of Gian Singh Rarewala is perfectly legal and there is thus no occasion for issuing a writ of Habeas corpus in respect of him.
8. The petitioner's learned counsel Mr. A. S. Sarhadi does not dispute the fact that at present the petitioner is being detained in pursuance of the remand order made by the Magistrate on the police report that S. Gian Singh Rarewala had been arrested and was being detained in connection with the first information report No. 315 dated the 29th of October, 1969, registered at Police Station, Beas. He, however, contends that this remand order cannot operate to turn the illegal detention and arrest of S. Gian Singh Rarewala into legal one or cure the legal infirmity pertaining to his arrest. He submits that in these circumstances the subsequent remand order will not operate as a bar to S. Gian Singh Rarewala being set at liberty if this Court finds that his arrest and detention was not in accordance with law.
The precide contentions raised by him, which need consideration, are these :-
(1) That S. Gian Singh Rarewala, having been arrested without disclosing to him the reason for his arrest or serving upon him any warrant, had been deprived of the protection enshrined in Art. 22(1) of the Constitution, and because of this violation of his fundamental rights, his arrest and detention were illegal abinitio.
(2) That as he was not produced before the Magistrate within 24 hours of his arrest, his arrest, at the time it was effected, had become illegal being in violation of Art. 22(2) of the Constitution.
(3) That assuring that the remand order is valid, it cannot cure the initial defect in the arrest of S. Gian Singh Rarewala as the material point for determining the validity of the arrest of a citizen, is the time when he is arrested and detained and not any subsequent occasion.
9. From whatever has been said above, it is abundantly clear that the whole matter revolves on the assertion of the petitioner and of the detenu that at the time he as arrested, the reasons for his arrest were not disclosed to him. This averment of fact is, however, vehemently disputed by the respondent Police Officials concerned with the arrest and detention of the detenu supported by the affidavit of A.S. I. Sucha Singh. Thus on a question of fact, there is a keen contest between the parties. The affidavits have been filed by the parties in support of their respective assertions and in this summary enquiry it is somewhat difficult to arrive at a definite findings as to which of the parties is speaking the truth. On the basis of the material that is available. I am, however inclined to the view that the complaint of the detenu that at the time he was arrested, the reasons for his arrest were not disclosed to him appears to be correct.
Though the petitioner and Sardar Gian Singh Rarewala maintain that they were intercepted by the Police at 8.30 a.m., on 30th of October, 1969, the respondents admit that, in any case, about 10 or 10.30 a.m. that day he was in their custody. They also admit that S. Basant Singh M.L.A. who, though originally named as a detenu is no longer before this Court was with them. It is further admitted by the respondents in their affidavits that S. Basant Singh remained with them at least till the evening of that day. Had the reason for his arrest and detention been disclosed to S. Gian Singh Rarewala or to S. Basant Singh, I cannot imagine that Basant Singh who, according to the respondents, was never arrested and was free to go about, would not take any steps either to approach this Court with a petition for Habeas corpus like the present one or run to Amritsar, hardly 22 miles from Rayya, to move an application for ball on behalf of Gian Singh Rarewala.
10. In this view of the matter, it is obvious that there has been a violation of the guarantee contained in Art. 22(1) of the Constitution. The question that, however, arises for consideration at this stage is whether the subsequent order of remand passed by the Magistrate on the police report that Gian Singh Rarewala had been arrested in a criminal case under Section 9 of the Punjab Security of State Act, has to be ignored and whether in face of that order a writ of Habeas corpus can be issued.
Mr. Ajit Singh Sarhadi, as has been observed earlier, has contended that in dealing with the validity of the detention of a citizen, the Court has to look to the state of things at the time he was taken into custody or arrested and, not to any subsequent event or occasion. He urges that once it is found that the arrest was in breach of the fundamental rights or some legal provisions, no subsequent order passed by any authority can cure the defect and the detenu is entitled to be set at liberty in exercise of the powers of this Court by issuing a writ in the nature of Habeas corpus.
In support of this contention he has placed reliance on Madhu Limaye v. State, AIR 1959 Punj 506, where while disposing of a similar matter R. P. Khosia, J. observed as follows :-
'The learned Assistant Advocate-General for the State had no real answer to the contentions raised but suggested that in any event today (at the time of the hearing of the petition ) the detenu was in proper legal custody, for the challan for those offences had meanwhile been put in Court. The submission is wholly untenable. In point of time, the question has to be settled whether at the time of arrest of the detenu, the detention was legal or not.'
11. In this decision no authorities are, however, referred to in support of the dictum that the question regarding the validity of detention has to be settled with reference to the time of the arrest of the detenu, and speaking with respect, I find that the various decisions on the subject do not bear out this dictum. In my opinion, the weight of the authority is in favour of the view that the validity or otherwise of the detention while dealing with petition for writ of Habeas corpus or an application under Section 491 of the Code of Criminal Procedure, has to be settled with reference to the time when the return is made in pursuance of the rule issued by the Court. In view of the discordant note struck by Khosla, J., I would have liked to refer this matter to a larger Bench but I do not consider it necessary as, in my opinion, the matter is concluded by the pronouncements of their Lordships of the Supreme Court in various cases which do not appear to have been brought to the notice of R. P. Khosla, J. in Madhu Limaye's case, AIR 1959 Punj 506.
Even earlier the Federal Court had dealt with this matter in Basanta Chandra Ghose v. Emperor, AIR 1945 FC 18, Spens, C. J. delivering the judgment of the Court in that case observed thus :-
'It was finally contended that as the previous order of this Court directed an enquiry into the validity of the detention under the order of 19th March, 1942, the decision of the High Court must be limited to that question and that it was not open to the High Court to base its decision on the subsequent order of 3rd July, 1944. This contention proceeds on a misapprehension of the nature of Habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner.'
12. These observations were relied upon by a Division Bench of this Court (Harnam Singh and Falshaw, JJ.) in Virendra Kumar Tripathi v. Crown., AIR 1951 Simla 216. After concluding them, Falshaw, J. (as he then was) speaking for the Court observed as follows :-
'After giving the matter my careful thought, I am of the opinion that the fact that the Chief Commissioner invoked the provisions of sub-section (4) of Section 3 of the Act of 1947 in extending the periods of detention of the present detenus instead of invoking sub-section (4) of Section 3 of the Act of 1949 under while he was empowered to extend the periods of detention in exactly the same way does not invalidate the orders in question, and that in any case the detenus are now being validly detained under the subsequent orders further extending their detention in which correction provision of law was invoked.
13. In Ram Narayan Singh v. The State of Delhi, AIR 1953 SC 277 their Lordships ruled that in Habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. Mr. Ajit Singh Sarhadi has, however, contended that this authority, for from supporting the contentions raised by the Deputy Advocate General, goes in the petitioner's favour as in that case it was found that though initially the arrest and detention of the detenu was valid, subsequently it became invalid because no order remanding him to custody was made. He argued that since at the time the return was filed their Lordships found that the custody of the detenu was not valid being in violation of the legal provisions, they granted the writ of Habeas corpus, but in the case before us, which is just the reverse, the custody of S. Gian Singh Rarewala was ab initio void and in breach of the constitutional provisions and thus could not be validated nor the infirmity cured by any subsequent order of remand.