1. On 26th January 1943, an application was made by Mr. Surita on behalf of his client, Leo Zepantis of Stephen House, Dalhousie Square, Calcutta, under Section 491, Criminal P.C. in respect of one Nicholas Schinas who was described as a Greek national formerly residing at 3A Ripon Street, Calcutta, who it was alleged had been arrested by officers of the Calcutta Police Force at that address at about 1 P. M. on 24th January 1943 and removed therefrom by the police officers. There was an allegation that Schinas was a sailor and that he might have been put on board a ship. Accordingly the same day we issued a Rule calling upon the Commissioner of Police, Calcutta, to produce Nicholas Schinas in Court on 28th January 1943 and to show cause why an Order should not be made under Section 491, Criminal P.C. in respect of Nicholas Schinas and why Nicholas Schinas should not be set at liberty.
2. The proceedings under Section 491, Criminal P.C. are analogous to those known as habeas corpus proceedings in England. The Rule was served on the Commissioner of Police the same afternoon being received on his behalf by Mr. Sircar, who is a Deputy Commissioner of Police at 4-30 P. M., on 26th January 1943. On 28th January 1943, the Standing Counsel appeared in this Court to answer the rule. Mr. Surita appeared for the applicant. The matter was urgent and the Standing Counsel, though he had not the ordinary instructions that counsel is accustomed to have, was in possession of a file of correspondence relating to this matter. It was a file produced from the custody of that department of the Commissioner of Police the Security Control Department-which deals with these matters. The learned Standing Counsel was quite frank and placed the whole of the correspondence before us with the exception of one or two documents which he has put in to day, and throughout these proceedings, I think it is only right to say, the police themselves have given the Court every assistance and they have not as far as I can see, kept anything
3. The correspondence to which I have referred has been copied and we have had the opportunity of going through it. It gives a history of this matter from the beginning of 1942. Nicholas Schinas is a Greek, 39 years of age; we are not told from what part of Greece he hails or when he was last in Greece. He appears to have been a ship's steward. Sometime in 1940 or 1941 he signed on as a steward on board the 'S. S. Ronin' at New York. The 'S.S. Ronin'' was flying the Panama Flag. The 'S. S. Ronin' arrived in Calcutta about June 1941, and, on its arrival in Calcutta, it was taken over by the Ministry of War Transport with a view to its being used for other purposes and the crew was discharged. Nicholas Schinas went into hospital and was there for a period of three weeks or more. He was discharged from hospital, but appeared to be suffering from some chest trouble. He was paid some maintenance by the ship's agents or the agents of the former owners of the ship, Messrs. Lionel Edwards, Ltd. It appears from a letter written in January 1942, by Messrs. Lionel Edwards that Nicholas Schinas suffered inter, mittently from asthma and bronchitis, that the doctor attending him was of opinion that he was unfit for general sea duties, and that the cost of maintaining Schinas was approximately Rs. 200, a month, and that both the ship's agents and Schinas wished to come to a settlement which would be in satisfaction of all future claims against the owners by Schinas. They wished the Security Department of Police to allow Schinas to remain, in India. What they said was this:
Should we be able to agree on a figure of compensation, we shall be glad to know if this man will be allowed to remain in India, as we appreciate that we cannot conclude any negotiations should the authorities not permit Mm to remain.
Should the Security Control Department insist that the man leaves, we shall be grateful if any assistance could be given to us as we have been up to this time been unable to repatriate him to a.ny port.
Apparently the ship's agents continued to support Schinas and there were some negotiations for a settlement. The Greek Consul General in Calcutta seems to have been in-touch with the ship's agents and also with the Security Department of the Calcutta Police, Both the Greek Consul General and the agents wrote to the police. It does not appear that the police had any direct communication with this man. At any rate it does not appear from the correspondence. Negotiations for a settlement appear not to have been successful and the question of repatriating this Greek arose. Who first raised it seems difficult to say.from the correspondence: it may have been the ship's agents, it may have been the Greek Consul General or it may have been the police. They all seem to have thought that something in that way should be done.
4. Schinas himself got a passport from the Greek Consul General in November 1941, That was never vised for India and did not entitle him to stay in India. Whether he came to shore with a dock pass or a special permit or under a general permit given to ship's master when the crew was discharged it does not appear. He certainly came ashore with the permission of those responsible for admitting foreigners into the country. The remainder of the crew had been provided with other occupation and had gone away, but Schinas remained. He was no longer in hospital. He was waiting to settle up his claim against the ship's owners through the ship's agents. A certificate was given by a doctor who examined him at the instance of the ship's agents to the effect that he was suffering from asthma and bronchitis and would never improve if he remained in Bengal. Both the ship's agents and the Consul at one time wished to get Nicholas Schinas a passport vised to enable him to go to South Africa for the benefit of his health, but there were difficulties and that proposal fell through. About the end of 1942, the question of his being repatriated came to the fore again. The Police moved in the matter, and wrote to the ship's agents suggesting that arrangements should be made for his repatriation without further delay. On 28th October 1942, the ship's agents wrote to the Assistant Commissioner if Police as follows:
In the circumstances we request you to please inform the Greek Consul General that the man can-not be allowed to remain any longer in India and that he should arrange for his early repatriation to the present seat of the Greek Government in Egypt, We ahall be pleased to meet the Consul General's expenses for such repatriation.
5. On 7th November 1942, the officer-in-charge the Security Control Department wrote back to the agents saying:
I write to inform you that Mr. Schinas must be repatriated from Calcutta without any further delay and you may negotiate direct with the local Greek Consulate General, to whom a copy of this letter is 'being sent.
6. About the beginning of January 1943, a Greek vessel was in port and on Sth January 1943,an officer of the Security Control Department wrote to the Consul General asking him to take steps to arrange for the departure of Mr. Schinaa and there was a reply to that, and correspondence went on between the agents, the Consul General and the police. on 20th January 1948, the agents wrote to the Greek Consul General saying:
We have been in communication with the Deputy Commissioner of Police, Security Control, Passport Department, who inform us that it is essential that file man in question should leave India by one of the vessels mentioned in your letter. They state that in the event of any disinclination on the part of Schinas to proceed on board, they will be pleased to arrange to put him on the vessel at your request.
7. On 28rd January 1943, the Consul General wrote to the Master of a certain boat, 's. s. Maria L' which was then in Calcutta, as follows.
As per instructions by the police, the seaman Nicholas Schinas should be put on board of the first 'available steamer sailing from Calcutta and be re-patriated to Egypt. As your steamer is the first leaving this Port, I request you to take the man on board and repatriate him to Egypt. In case your steamer is not going to the above destination you will hand him over to our Consular Authorities in Aden with a request to send him further to Egypt. The necessary papers to this effect will be given to you. Aa for the expenses, landing guarantee etc., please arrange with the firm, Messrs. Lionel Edwards Ltd.
8. On tho same day the Consul General wrote Sohinas as follows:
In continuation of my letter dated 30th November 1942 and in compliance with police instructions, I have issued orders to the Master of 's. s. Maria L' to take you on board and repatriate you to Egypt. You are therefore requested to comply with the above orders and be on board before to-morrow noon, the 24th instant, failing which you will be brought by the police on board. Your passport is handed over to the Master of 's. s. Maria L.
9. On the same day the Consul General wrote to the Deputy Commissioner of Police, Security Control Office, as follows:
I have the honour to inform you that I have issued instructions to the Master of 's. s. Maria L' to take on board the seaman Nicholas Schinas for deportation to Egypt as per your order. This Order has been handed over to Messrs. Lionel Edwards Ltd. to do the needful. In case Mr. Schinas refuses to comply with the order, I request you to kindly put him on board the steamer to-morrow, as the steamer is expected to leave on Monday morning at about 6 o'clock.
10. What happened on 24th January 1943, is told by the report which Sergeant Ryan made to his superiors in the police. It is signed 25th January 1943:
Re. Seaman, Nicholas Schinas. As ordered Sgt. Machride and myself accompanied a representative of Lionel Edwards with a view to putting on board the 'Maria L' the abovementioned seaman. In this connexion we went to 45 Karnani Mansions as this was the given address; on arriving it was ascertained that no such person was known, so our next call was at the 'V' Restaurant where he was known to have his meals; he was ultimately picked up here and then taken to 13 Marques St. so as to enable him to gather his belongings, then to Sudder St. where he gathered some more of his personal effects, and then to 3 Garden Reach Jetties where he was put on board and a receipt obtained by the Chief Officer, all oor-respondence about Nicholas Schinas is attaohed.
11. The receipt in question has been produced and is headed 's. s. Maria L.' It is in these terms: 'Received on board Mr. Nicholas Schinas for repatriation to Egypt.' It is signed by some one who is the Chief Officer and is dated 24th January 1943. On 26th January 1943, a letter was written to the police at a port in another part of India. The text of it was:
One Mr. Nichclas Schinas was on board a ship which left Calcutta for yours. Please take steps to prevent him from leaving that vessel whilst in your port.
12. It was signed by some one for the Deputy Commissioner of Police, Security Control, Calcutta. On 25th January 1943, the Solicitors of Mr. Schinas, Messrs. Asoke Mitra & Co., received a letter (an affidavit has been filed that it is in Schinas' handwriting) to the following effect:
With big surprise I see to-day the CalcuttaPolioe to take me by force and send me to the ship'Maria L' for I don't know where 1 go. I think we go to the Colombo and after to the Egypt. I please you make the necessary s possible to coming me back at Calcutta and put the affair against the company Lionel Edwards to the Court very soon. I hope at yours hands please telephone to the Navy House to take me out from the ship to-morrow morning or tonight. My expulsion is coming from the Consul Greek and not from the police or Government Bengal. Please go very soon to save me. With respect your client.
P. S. Kesp my papers well please because I coming back a day to see you.
13. I ought to mention that on 7th January 1913, a plaint claiming damages or compensation was filed in this Court by Nicholas Sehinas who is described as residing at 3A Ripon Street, Calcutta against Namezee, owner of a steam-ship named 'S. S. Ronin,' carrying on business within the jurisdiction of the Court through his agents, Lionel Edwards Ltd. Mr. Zepantis who petitioned the Court in the first instance is apparently a friend of Nicholas Sehinas and he has caused these proceedings to be taken. We are told that the ship sailed on the morning of 25th January, and that she is now well away from Calcutta. I am satisfied for my part that the ship is well away from Calcutta out of the jurisdiction of this Court and that Nicholas Schinaa is on that ship. There is very little that we can do to help Nicholas Schinas at the moment. He came here as a sick seaman and he landed with proper permission. As far as can be seen, he was suffering from asthma and bronchitis and he appears to have thought, as indeed did the agents of the ship's owners, that he had a claim against the owners of the ship in respect of his illness. That claim may be a good claim or it may not. Apparently, both he and the ship's agents believed that it was of some value because there were negotiations for a settlement. Those negotiations came to nothing and Sehinas began proceedings in this Court. By reason of his removal from Calcutta he will not be able to go on with those proceedings. It may be that he will never arrive at a place where he can bring those proceedings against the owners of the ship. He has lost that advantage which he had here in Calcutta. He is still suffering from asthma and bronchitis and both he and. the ship's agents and at one time the Greek Consul were of the opinion that a visit to South Africa would benefit his health. He had no right to stay in Calcutta indefinitely but if he had left Calcutta when he had cleared up his own affairs and possibly got some compensation, and left it voluntarily, he could have gone to a place where his health might have benefited. The ship's agents thought that he would be of no further use as a seaman. But he might have benefited in health if he had been allowed to leave India and go to a place which was good for his health. He was not allowed to stay here to prosecute his claim: he was not allowed to go to the place which would have benefited his health; he was put on a boat for repatriation to Egypt where the Greek Government is at present situate.
14. Calcutta is a part of India. There are still laws administered in the Courts of this country in spite of the various regulations and various pieces of legislation termed Emergency Legislation which have been passed. Not under any law or regulation having the force of law to which our attention was drawn was there any power residing in anybody except the Central Government to Order this man's removal from this country to Egypt. Perhaps the Provincial Government or a proper Court of law might have ordered it. Each one of these authorities would no doubt have taken into consideration the state of this man's health and the fact that he had a claim which he was prosecuting against the owners of a ship in respect of damage to his health. None of these matters have been taken into consideration. The Greek Consul had no right in Calcutta to Order his removal from, Calcutta; the ship's agents had no right to Order his removal from Calcutta; the police had no right to Order his removal from Calcutta unless they did it under an autho-rity from the Central Government, or perhaps the Provincial Government or a proper Court of law. The police had no such authority; the Greek Consul had no such authority; the ship's agents had no such authority. In my opinion, this was a piece of lawlessness on the part of the ship's agents, the police and the Greek Consul. I regret that we are not in a position to help this man as he is out of the jurisdiction, but I hope this case will be a warning to those who are like minded to take the law into their own hands where they have no right to do so. This Rule is discharged. Let the affidavits of George John Adam-son and Denis Robert Ryan on behalf of the opposite party, the letter of Nicholas Sehinas dated 24th January 1943, and the affidavit of Leo Zepantis,' the petitioner, filed in Court to-day, be kept on the record.
15. I agree.