Salim Akhtar Malik vs Administrator of Union Territory of Delhi and Others

R.S. Narula, J.—In this petition u/s 661.A of the Criminal P. C., Salim Akhtar Malik (alias B. K. Dughal alias Asa Ram Kapoor, etc.) a Pakistani national at present detained in the Central Jail, Delhi under Rule 30 of the Defence of India Rules has prayed for a direction being given to the Administrator of the Union Territory of Delhi, the District Magistrate, Delhi and the Superintendent of the Jail to classify the petitioner as a special class detenu on the ground that his social status, family connections, normal standard of living and education justify such classification and that, therefore, he should not be treated as an ordinary detenu.

At the outset I may point out that the petition u/s 661-A of the Criminal P. C., is misconceived. The said section reads as follows:

561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process Of any Court or otherwise to secure the ends of justice.

The direction sought by the petitioner cannot be claimed to be necessary to give effect be any order under the Code of Criminal Procedure or to prevent any alleged abuse of process of any Court. The petitioner is in jail neither as an under trial prisoner nor as a convict. The petitioner does not owe his detention in jail to any proceedings under the Code of Criminal Procedure Nor am 1 inclined to think that a detenu can as a matter of right claim any special treatment during his detention otherwise than under any special rules that might have been framed by an appropriate authority for that purpose. The question of securing the ends of justice by treating any particular detenu as a "special class detenu" does not appear to me to arise.

The only rules stated to have been framed by the Delhi Administration in connection with the detention of persons under the Defence of India Rules are the "Defence of India (Delhi Detenus) Rules, 1964". These were framed under Rule 80 (4) of the Defence of India Rules, Rules 3 and 4 of the said rules have been relied upon by the learned Counsel for the detenu. There rules as originally framed in May, 1964 are quoted below:

Accommodation.

All detenus of one Class shall be kept in the same dormitory or any closed ward and will be allowed to associate freely with each other, but as far as possible, will be kept separate from ordinary prisoners. The Superintendent may however, confine any particular detenu or any clash of detenus separately if he considers it desirable on grounds of health or on any other reasons The detenus shall be allowed to deep in the open during Hummer. 4, Classification.

... Detenus shall be classified as Class I, Class II or Class III detenus by the District Magistrate subject to confirmation by the Administrator.

The Defence of India (Delhi Detenus) Amendment Rules, 1966 were published in Delhi Administration notification dated 24th February, 1966. Rule 4 quoted above was amended by para 2 of the amending order. The said paragraph was in the following terms:

Amendment of Rule 4.-2. In the Defence of India (Delhi Detenus) Rules 1964 (hereinafter referred to as the said rules) for Rule 4 the following rule shall be substituted namely:

Classification. - Detenus shall be classified as Special Class or Ordinary Class by the District Magistrate subject to confirmation by the Administrator. Special class will ordinarily be meant for Political Detenus.

By still another notification dated 16th April, 1966 the words '' Special Glass will ordinarily be meant for political detenus" were deleted from the amended Rule 4. The rules by which the said words were deleted were called the Defence of India (Delhi Detenus) Second Amendment Rules, 1966.

As a net result of all the amendments, Rule 4 now subsists in the following language:

Detenus shall be classified, as Special Class or Ordinary Glass by the District Magistrate subject to confirmation by the Administrator.

Rules 6 to 8 of the Defence of India (Delhi Detenus) Rules, 1964 deal with the amenities, ration, clothing, bedding, furniture, utensils and funds and other facilities which are provided to detenus under the Defence of India Rules. Even the Ordinary Glass detenus are given great facilities and substantial comfort In any case the rules vest the discretion of the classification in the District Magistrate subject to confirmation by the Administrator, I do not, therefore, think it to be open to this Court to interfere in the matter of classification of detenus under Rule 4 reproduced above.

Nor am I inclined to think that on the . record placed before me the petitioner is entitled to any special treatment. In this petition he hag claimed to be related to late Mr. Ghulam Mohammad Malik, Governor-General of Pakistan. He has also claimed to be the brother of Shri Mohammad Ikram Malik who is in the Foreign Service of Pakistan and is stated to be posted at present as Trade Commissioner in the Embassy of Pakistan in Australia. From his statement to the Police it is no doubt confirmed that another brother of the petitioner is an Extra Assistant Commissioner in Peshawar and that the youngest brother of -the petitioner is a Research Scholar of Atomic Energy in Canada, His brother-in-law is stated to be Secretary, Food and Agriculture in the Government of Pakistan. His cousin brothers include an officer holding the rank of a Major in the Pakistan Army and also Sheikh Mohammad Khurshid, Law Minister in Pakistan Central Government. Still another cousin brother of the petitioner, namely Malik Maqsood is stated to be Deputy Superintendent of Police, C. I. D. West Pakistan, posted at Lahore. This shows that the petitioner is no doubt well-connected. But even if it were open to me to go into the question of the entitlement of the petitioner for some special treatment in the jail what has to be considered is the personal status and qualifications of the petitioner and not of his relatives. According to the in formation given by himself to the Government the petitioner passed only the Matriculation Examination from Islamia High School, Lahore in 1949 in the third division and did not thereafter attend any college though he states to have managed to obtain the F. So. certificate by paying Rs. 500/- to someone in Pakistan. So far as education is concerned, therefore, he is not even a graduate. So far as his status in life before coming over as a spy to India is concerned, he appears to have been a resident of different jails in Pakistan for a substantial time undergoing different sentences of imprisonment in different cases on charges of cheating. Even after coming to this country in a surreptitious and illegal manner he does not appear to have been well off and in any way leading a respectable life. Without going into unnecessary details it may be noticed that he was penny less when he went to certain officials of the Pakistan Embassy offering his services in consideration of some money on which what happened may best be described in the petitioner''s own language:

After recording my statement Mr. X advised me to take a bold step and kill Goulam Mohd. Sadiq, Chief Minister, Kashmir, Mir Qasim or Kamraj, Congress President. He also advised me to visit Kashmir and create some good contacts there. I told him that it van not possible for me to visit Kashmir due to shortage of money. Mr. X promised to give money only when I was in a position to be something....

The petitioner has also said in his statement made by turn in this country that he had been selling about his articles and trying to cheat Indian citizens in order to make his living. This type of a man is hardly entitled to be treated as special class detenu. From whatever angle this matter is looked at, there is no force whatever in this petition and the same is accordingly dismissed.