Sohan Singh and another vs The State

Teja Singh, C.J.—Two habeas corpus petitions have been referred to the Full Bench because of important questions of law involved therein.

The first petition relates to Mst. Krishna alias Naziran and the petitioner is Sohan Singh. The allegation of Sohan Singh are that Mst Krishna was originally a Mohammaden, that she was converted to Hinduism and was married to him long before the partition of the country & the note, that a Sub-Inspector of Police arrested Mst. Naziran on 8-12-1951 on the ground that she was an abducted woman and that she was transferred to Abducted Women''s Camp.

The petitioner also alleged that the Abducted Persons (Recovery and Restoration) Act under the provisions of which the Police took action against Mst. Krishna was ''ultra vires'' the Constitution, that Mst. Krishna was not an abducted person, that her arrest was illegal and in contravention of the provisions of the Act as well as the Constitution and that consequently she should not be kept into custody or detention.

On these allegations it was prayed by Sohan Singh that Mst. Krishna be released and it should be ordered that she and the two children that she had borne to the petitioner could not be taken outside the jurisdiction of the Court.

The other petition is by Teja Singh and relates to Mst. Surjit Kaur. His allegations are that Mst. Surjit Kaur was arrested on 11-1-1952 and was later on transferred to the abducted persons camp and questions the arrest and detention only on two grounds; (i) that the Act under which the arrest was made was ''ultra vires'' the Constitution and (ii) that she was not an abducted person within the meaning of the said Act.

As regards the constitutionality of the Abducted Persons (Recovery and Restoration) Act the matter has now been set at rest by a recent pronouncement of their Lordships of the Supreme Court in - ''The The State of Punjab Vs. Ajaib Singh and Another, The appeal arose out a decision of the Full Bench of the High Court of Judicature at Simla in which it had been held that the Act offended against the provisions of Art. 22 of the Constitution. Their Lordships of the Supreme Court over-ruled the view of the Punjab High Court and held that the Act was perfectly valid.

Mr. Nehra who appears for the petitioner in both the cases admits that in view of the decision of the Supreme Court it is no longer open to him to contend that the Act was illegal because it violated the provisions of Art. 22 of the Constitution, but he contends that it contravened part 1 of Art. 15 of the Constitution and was bad for this reason. Fart 1 of the said Article reads as follows:

�The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.�

It appears from the judgment of the Supreme Court in the above mentioned appeal that in the Punjab case the contention that the Act was opposed to the provisions of Art. 15 had been spurned and though the point was raised before the Supreme Court, the counsel who appeared for the respondent did not urge it. Accordingly their Lordships of the Supreme Court did not feel called upon to give a detailed decision on the point. With all this they appeared to be of the view that the finding of the Punjab High Court was correct.

This is what they said:

�Sri Dadachanji (counsel for the respondent) has not sought to support the views of Bhandari J. regarding the Act being inconsistent with Art. 19(1)(g). Nor has Learned Counsel seriously pressed the objection of unconstitutionality based on Art. 15, which, in our view, was rightly rejected by the High Court.�

I am in respectful agreement with the observations because the Act applies to abducted persons and as I read the definition of "Abducted Person" given in S. 2(1) of the Act it appears to us that it does not discriminate against any person merely because of religion. According to the definition ''abducted person'' means

�a male child under the age of sixteen years or a female of whatever age who is, or immediately before the 1st day of March, 1947 was, a Muslim and who, on or after that day and before the 1st day of January, 1949 has become separate from his or her family and is found to be living with or under the control 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 true that no person other than a Muslim can be treated as an abducted person according to the definition, but merely being a Muslim is not sufficient and only that Muslim person whether, female or male, would be regarded as an abducted who was separated from her or his family and was found to be living with or under the control of any other individual or family etc.

This means that two conditions have to be satisfied for a person to be regarded as an abducted person, (i) that he or she was a Muslim and (ii) that she or he became separated from his or her family in the circumstances narrated in the definition. This being the case, I do not see: how it can be held that there was a discrimination in favour of persons on the ground of religion. This contention is therefore, over-ruled and we hold that the Act was perfectly constitutional and valid.

As regards the second point urged in both, the petitions that the two women in question were not abducted persons, S. 6 of the Act lays down that this can only be decided by a Tribunal constituted for the purpose by the Central Government. It was urged by Mr. Nehra that the Tribunal that was in existence at the time Mst. Krishna was a arrested, was not properly constituted and since the legality of the arrest has to be determined with regard to the conditions that existed at the time it was made, Mst. Krishna was entitled to be released on this ground.

In the first place I do not accept the contention that the existence of a properly constituted tribunal is a condition precedent for the initiation of proceedings under S. 4 of the Act which lays down that

�if any police officer, not below the rank of an Assistant Sub-Inspector or any other police officer specially authorised by the Provincial Government in this behalf, had reason to believe that an 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.�

It will be seen that according to these words all that is necessary is that before a police officer who is competent to take proceedings under the Act moves into the matter, he should have reason to believe that an abducted person resides or is to be found in any place and if this condition is satisfied he is merely to record his reasons for his belief and then take the said abducted person into custody. After this it is the duty of the officer to deliver the adjusted person to the custody of the officer of the camp. It is nowhere laid down that before these proceedings are taken there should be in existence a properly constituted tribunal for deciding the case, because as I read the plan of the Act, it appears to me that it is only after the arrest had taken place and the abducted person has been taken to a camp that an occasion for the tribunal to decide whether he or she in fact is an abducted person would arise. Secondly whether or not there existed a properly constituted tribunal at the time of Mst. Krishna''s arrest is a question of fact and it was not raised in the petition. Thirdly even if it be assumed for a single moment that the tribunal that existed then was not properly constituted there was nothing to prevent the Central Government from replacing that tribunal by another tribunal constituted according to the provisions of law and the matter Being referred to that tribunal for decision.

In fact it is contended by Shri Chetan Dass who appears on behalf of the respondents that a tribunal has now been constituted (which?) confirms with the provisions of law strictly and he has referred us in this connection to Notification No. 539 issued by the Central Government on 3-11-1952. Mr. Nehra is not in a position to join issue with Mr. Chetan Dass on this point and the fact that a notification constituting a proper tribunal has been issued by the Central Government takes the wind out of the petitioner''s sail so far as this point is concerned, because the question whether or not Mst. Krishna is an abducted person will have to be decided by that tribunal and this Court has no jurisdiction to go into it.

The third point argued by Mr. Nehra before us is that Mst. Krishna''s arrest was not legal inasmuch as the conditions laid down in Section 4 of the Act were not satisfied. I agree with Mr. Nehra that before any proceedings under the Section can be taken the conditions laid down therein to which I have referred in brief, must be satisfied, but whether or not they were satisfied in this case is a question of fact and it is nowhere stated in the petition that they were not satisfied. All that is mentioned in paragraph Nos. 5 and 7 of the petition is that the arrest was illegal and the mandatory provisions of the Act and the Constitution were not complied with. This, in our opinion, was a vague allegation and we are not prepared to construe it to mean that Mst. Krishna''s arrest took place without the conditions laid down in the Section being satisfied.

As regards the other petition the legality of the arrest of Mst. Surjit Kaur was not even questioned and the two points actually raised in that petition have already been dealt with in connection with the first petition.

The result, therefore, is that the petitions fail and are dismissed. Mst. Surjit Kaur who is present in Court is directed to surrender to the custody of the officer in charge of the Muslim Abducted Persons Camp Patiala who produced her in Court. Her bail bond shall stand cancelled.

Mst. Krishna is not present in Court. Mr. Nehra states that she gave birth to a child on 26-12-1952. She was released on the basis of the surety bond given by Sohan Singh. Mr. Nehra has been directed to cause Sohan Singh to produce her in Court on 6-2-1953.

Passey J.

I agree.

Chopra, J.

I concur.