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Judgment
Mehar Singh, J.—This is a petition under Art. 226 of the Constitution and under S. 491, Criminal P.C. for a writ of habeas corpus, arising out of facts as given below.
The petitioner, Mst. Rehmat, is a muslim and resides at village Bhadaur in district Sangrur. Mst. Azmat is her widowed daughter, whose age is about 30 years. It is averred in para No. 4 of the petition that the members of the family of her deceased husband were killed during the disturbances in the year 1947 and not one of them, therefore, went to Pakistan. Mst. Azmat thus remained in India and the petitioner claims that she is bona fide citizen of India.
On 19-7-1954, a report was lodged in police station Lehra, in district Sangrur, that one Harkesh Singh had been beaten and was being wrongfully confined in the house of Arjan Singh of village Phulera. Karnail Singh S.I. reached the village during the night, and during the investigation he found that Mst. Azmat alias Kartar Kaur had been living in the house of Arjan Singh and that she was a muslim. It is not necessary, to go into the details of the case relating to the hurt caused to and wrongful confinement of Harkesh Singh, though it may be stated here that the latter was in fact recovered by the police from the house of Arjan Singh.
Mst. Azmat alias Kartar Kaur also appeared before the Sub-Inspector in that case. He, having some to know from the evidence before him during the investigation of that case that she was a muslim and had been living with Arjan Singh for the past six years, wrote a ruqa to Sub-Inspector Akalsewak Singh of the Recovery of Abducted Women''s Special Staff at Sangrur informing him about Mst. Azmat alias Kartar Kaur. This was on 20-7-1954.
On the same day she appears to have been taken to the district headquarters at Sangrur for her statement under S. 164, Criminal P.C. in the Criminal case. Sub-Inspector Akalsewak Singh after looking into the police diary of that case and taking the statement of Santokh Singh of village Phulera put on the record that from the statement of Santokh Singh of Phulera, his own enquiry into the matter, and an entry at S. No. 576PS/9787 in the printed list for recovery of abducted persons received from Pakistan, he was of the opinion that Arjan Singh of Phulera was in possession of Mst. Azmat, a muslim woman abducted during the disturbances of 1947, and that in the disturbances of 1947 she had been abducted after having been separated from her relations. He then stated that he was going to recover her as an abducted woman. It is now an admitted fact that he obtained her into his custody from Sub-Inspector Karnail Singh of Police station Lehra on the same day.
According to the petitioner her widowed daughter Mst. Azmat is a bona fide citizen of India and as the member of the family of her deceased husband never left for pakistan, there could be no reason to believe that she is an ''abducted person''. Therefore, her arrest is illegal as well as mala fide. The petitioner prays that she be set at liberty.
The reply for the respondents, Officer Incharge of Muslim Recovered Women''s Camp at Patiala and Superintendent of Police, Recovery Staff at Patiala, is by way of an affidavit by Sub-Inspector Akalsewak Singh.
The facts are not disputed in this affidavit. The Sub-Inspector deposes that after receiving information about Mst. Azmat, he examined a respectable person of village Phulera and on the basis of the report of Sub-Inspector Karnail Singh & the statements in the police diary in the criminal case and the fact that the name of Mst. Azmat appears in the printed list for the recovery of abducted persons, he had reason to believe that she is an ''abducted person'' and so took her into custody. He left her in the muslim transit camp at Patiala on 21-7-1954. The Sub-Inspector has further affirmed that on the basis of information received by him Mst. Azmat was separated from her family after March 1947 and before 1-1-1949, & was later found in the possession of Arjan Singh.
The Learned Counsel for the petitioner contends that the members of the family of the deceased husband of Mst. Azmat having been killed during the disturbances of 1947 did not of course go to Pakistan and there could be no question of separation of Mst. Azmat from her family. She was, therefore, not an ''abducted person'', and Sub-Inspector Akalsewak Singh had no power to take her into custody.
He urges that there was no material on the basis of which, that Sub-Inspector could either have reason to believe or be of opinion that she is an ''abducted person'', and therefore the act of the Sub-Inspector i� taking her into custody and her detention by the respondents is illegal and mala fide.
The learned Advocate General on behalf of the respondents replies that under S. 4, Abducted Persons (Recovery and Restoration) Act, 1949 (hereinafter to be referred as the Act.) a Sub-Inspector of police or other officer mentioned therein has power, when he is of the opinion that any person is an ''abducted person'', to take that person into custody and to deliver him or her to the Officer Incharge of the nearest camp for abducted persons. He says that the opinion of the proper officer under that section is his personal opinion and based on subjective considerations; therefore it is not open to consideration by the Court on objective basis.
Sub-section (2) of S. 4 of the Act is not material, but sub-s. (1) reads:
If any police officer, not below the rank of an Assistant Sub-Inspector or any other police Officer specially authorized by the Provincial Government in this behalf, has reason to believe that abducted person resides or is to be found in any place, he may, after recording the reasons for his belief, without warrant, enter and search the place and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such person to be delivered to the custody of the officer in charge of the nearest camp with the least possible delay.
In the present case the first part of this sub-section really has no application because Mst. Azmat has not been recovered upon any search. In the criminal case, referred to above, Sub-Inspector Karnail Singh of P.S. Lehra found Mst. Azmat at village Phulera and the evidence before him during the investigation of that case disclosed that she is a muslim and had been living with Arjan Singh for the past six years. He took her statement during the investigation of that criminal case and later brought her to Sangrur to have her statement recorded under S. 164, Cr. P.C. also in that case.
He did not act under S. 4 of the Act and did not take her into custody under the provisions of the Act. All that he did was to write a ruqa giving information about her to the Recovery of Abducted Women''s Special Staff at Sangrur. It was then that Sub-Inspector Akalsewak Singh of that staff took her into custody from Sub-Inspector Karnail Singh. It is apparent that S. 4(1) of the Act does not strictly apply to such recovery, because that section deals with search of the place where an ''abducted person'' is believed by the proper officer to be and if upon search any person is found in that place and is in the opinion of that officer an ''abducted person'', then he or she is to be taken into custody and delivered to the nearest camp.
Now, under first part of the sub-section there was no search In this case and so it would appear that the second part does not really apply-to the facts of this case. In any case, the argument of the learned Advocate General is that Sub-Inspector Akalsewak Singh took Mst. Azmat into custody under S. 4 of the Act because he was of the opinion that she is an ''abducted person'' and that that opinion of his is made conclusive by statute and is not a justifiable matter into which this Court can go.
There is no doubt that where by a statute a matter is left to the subjective consideration or satisfaction of an executive or administrative authority such matter is not justiciable, and the Court has no power to go into the matter and say whether there were or were not sufficient or reasonable grounds or material for such consideration or satisfaction. But I have no doubt that the fact that there was no material upon which such subjective consideration or satisfaction could be based or founded is a matter into which the Court hag every right to go and give its decision.
This question came up for consideration in - Brundaban Chandra Dhir Narendra Vs. The State of Orissa in the Revenue Department and Others, , and at page 121 Jagannadha Das C.J. (as he then was) observed thus:
.......the exercise of the statutory power is open to challenge broadly on three grounds: (a) non-observance of mandatory statutory procedure, (b) non-existence of the basic facts with reference to which the power is vested, and (c) an abuse of the discretion for collateral purpose or an arbitrary exercise thereof. Now it is clear that grounds 1 and 3 are always open to examination by Courts. But so far as the second ground is concerned, a further distinction arises. In the ordinary class of cases, the question as to whether the basic facts which confer the statutory power exist is one collateral to the exercise of the power itself and hence is one subject to examination by the ordinary Courts when the legality of the exercise of the power is challenged, - ''The Queen v. Commrs. for Special Purposes of the Income Tax'', (1888) 21 QBD 313 (B) & ''Colonial Bank of Australasia v. Willan'', (1874) LR 5 PC 417 (C). But it may sometimes happen as pointed out in those cases that the decision of the collateral facts with reference to which the power is vested in the authority concerned is vested in that authority itself by statute. In such a case, the Court will be precluded from canvassing the correctness of that decision except for the purpose of satisfying itself that there has been a fair and judicial determination of these facts, Occasionally, however, as happens in recent statutes, the statute by its very terms indicates that the existence of the basic facts which give the power is left to the subjective satisfaction of the authority concerned and not to the judicial determination thereof by the said authority. In such a case, unless there is material on which the factum or the bona fides of that subjective satisfaction can be challenged, the Court is not in a position to canvass the existence of the basic facts which give rise to the statutory power. See - ''Liversidge v. Anderson'', (1942) AC 206 (D) and - ''Nakkuda v. Jayaratna'', 54 Cal WN 883 (PC) (E).
In the present case, S. 4(1) of the Act leaves to the subjective satisfaction or consideration of the proper officer the formation of the opinion as a basic fact, as to whether a particular person is or is not an ''abducted person'', to give him power to take such person into custody. But, as pointed out in the authority cited, the Court can go into the matter if the factum or bona fides of that subjective satisfaction or consideration is challenged. This is what is exactly done on behalf of the petitioner in this case. It is, therefore, necessary to consider the material on the basis of which Sub-Inspector Akalsewak Singh formed the opinion that Mst. Azmat is an ''abducted person''.
The definition of an ''abducted person'' as given in S. 2(a) of the Act may first be stated, which runs thus
''abducted person'' means a male child under the age of sixteen years or a female of whatever age
(a) who is, or immediately before the 1st day of March 1947, was, a Muslim and
(b) who, on or after that day and before the 1st day of January 1949, has become separated from his or her family and
(c) is found to be living with or under the central of any other individual or family, and in the latter case includes a child born to any such female after the said date.
It is evident that all the three conditions must be fulfilled before a person becomes an ''abducted person'' under that definition. Sub-Inspector Akalsewak Singh has relied, in his written record pre-pared on 20-7-1954, and in his affidavit, on three materials to form an opinion that Mst. Azmat if an ''abducted person''. The three materials are (a) the statement of Santokh Singh of village Phulera taken on 20-7-1954, (b) the statements of Maghar Singh, Herkash Singh, Arjan Singh and Mukhtiar Singh alias Poonda of village Phulera as found in the police diary of the criminal case, already referred to, and (c) the appearance of the name of Mst. Azmat in the list, received from Pakistan, for the recovery of abducted persons.
I have seen those materials and have gone through the statements of Santokh Singh and also those of the others as found in the police diary. All that is made out from those materials is (a) that Mst. Azmat is a muslim, and (b) that she had been living with Arjan Singh at village Phulera about six years previous to 19-7-1954. There is not a word in those materials which gives the least indication that she was separated, from her family between 1-3-1941 and 1-1-1949. Indeed, there is absolutely no reference to this matter either in those statements or in the list relied upon. It is, therefore, evident that the second condition in the definition of an ''abducted person'' is not to be found from those materials.
The learned Advocate General urges that there was material before Sub-Inspector Akalsewak Singh about conditions (a) and (b) and that from that material he could further infer condition (c) and that once on those materials he formed his opinion, it is not open to this Court to go into the sufficiency of those materials. I consider that the argument is untenable, because it is not a question of considering the sufficiency of the materials, as it is a clear case of complete absence of material will regard to the third condition in the definition.
Now, if the third condition is eliminated, then a muslim citizen of India a female, who is found living with and under the control of an individual for family other than her own, would also be taken as an ''abducted person'' and liable to be taken into custody. This is neither the intention of the Act nor is there any provision in the Act for such deprivation of liberty of an ordinary citizen of India. It now becomes clear that the second condition in the definition is the most essential condition, and if no material was with the Sub-Inspector to help him form his opinion as to the existence of that condition, he had nothing upon which he could found his opinion that Mst. Azmat is an ''abducted person''.
The absence of material as regards the second condition, therefore, cuts at the root of the power of the Sub-Inspector to take into custody Mst. Azmat. There was no material on the basis of which he could say that the basic fact of his forming an opinion about the status of Mst. Azmat existed. In the absence of such material no such opinion could be formed & there was no power with the Sub-Inspector to take Mst. Azmat into custody. From another angle the formation of such opinion without material was mala fide and even upon this consideration the act of that Sub-Inspector cannot be held to be legal.
The learned Advocate General has contended that once Mst. Azmat has been taken into the camp, this Court has no jurisdiction to decide whether or not she is an ''abducted person'' because such jurisdiction vests under S. 6 of the Act in a tribunal constituted for the purpose by the Central Government. In so far as the question of jurisdiction is concerned, this argument of the learned Advocate General finds support from a Full Bench case of this Court - ''Sohan Singh v. The State, AIR 1955 Pepsu 1 (P). But to ex-delude the jurisdiction of this Court the initial custody and detention of Mst. Azmat must be legal and according to the Act, and if it is not so, then the provisions of the Act are not attracted in relation to her, and this Court has jurisdiction to decide whether or not Mst. Azmat has been legally taken into custody. This is apparent also from the Full Bench case upon which the learned Advocate General has placed reliance.
I have already stated above that in the present case of the three conditions given in the definition of the term ''abducted person'', there was no material on the basis of which opinion could be formed as to the second condition which is the most important and the material condition that goes to decide whether or not a person is an ''abducted person''. In such circumstances Sub-Inspector Akalsewak Singh could not form an opinion, that Mst. Azmat is an ''abducted person''.
I consider that if he had even some slight material, with regard to this condition, it was not open to the Court to go behind his opinion, but, as seated, there was no material with regard to this condition, and., it is open to this Court to take cognizance of the absence of material which takes away the power of the Sub-Inspector to take Mst. Azmat into custody in this case. Therefore, in my opinion, Mst. Azmat was not taken into custody according to law and it follows that her custody and detention by the respondents is not in accordance with any law. She cannot be deprived of her liberty except in accordance with law.
In the view taken, the petition succeeds and a writ of habeas corpus be issued setting Mst. Azmat at liberty. In fact she is present in Court and I do not consider that she should return to the custody of the respondents and, though a writ in the terms above will be served upon the respondents, she is allowed to go free.
The learned Advocate General has made an oral application that under S. 52, Ordinance No. 10 of 2005 bk. a certificate be granted for appeal to a Division Bench of this Court. I think an important question of law is involved in this case and so the certificate is granted.
No order as to costs.