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Mapping Citizenship in India$

Anupama Roy

Print publication date: 2010

Print ISBN-13: 9780198066743

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198066743.001.0001

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(p.178) Appendix I

(p.178) Appendix I

Mapping Citizenship in India
Oxford University Press

The State of Punjab v. Ajaib Singh and Another


CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 82 of 1952. Appeal under art. 132 (1) of the Constitution of India from the Judgment and Order dated June 10, 1952, of the High Court of Judicature for the State of Punjab at Simla (Bhandari and Khosla JJ.) in Criminal Writ No. 144 of 1951.

M. C. Setalvad (Attorney-General for India) and C. K. Daphtary (Solicitor-General for India) (B. Ganapathy, with them) for the appellant.

J. B. Dadachanji (amicus curae) for respondent No. 1.


DAS J.-This appeal arises out of a habeas corpus petition filed by one Ajaib Singh in the High Court of Punjab for the production and release of one Musammat Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age.

…. On the report made by one Major Babu Singh, Officer Commanding No. 2 Field Company, S. M. Faridkot, in his letter dated February 17, 1951, that the petitioner Ajaib Singh had three abducted persons in his possession, the recovery police of Ferozepore, on June 22, 1951, raided his house in village Shersingwalla and took the girl Musammat Sardaran into custody and delivered her to the custody of the Officer in charge of the Muslim Transit Camp at Ferozepore from whence she was later transferred to and lodged in the Recovered Muslim Women’s Camp in Jullundur City.

(p.179) A Sub-Inspector of Police named Nibar Dutt Sharma was deputed by the Superintendent of Police, Recovery, Jullundur to make certain enquiries as to the facts of the case. The Sub-Inspector as a result of his enquiry made a report on October 5, 1951 to the effect, inter, that the girl had been abducted by the petitioner during the riots of 1947.

On November 5, 1951, the petitioner filed the habeas corpus petition and obtained an interim order that the girl should not be removed from Jullundur until the disposal of the petition. The case of the girl was then enquired into by two Deputy Superintendents of Police, one from India and one from Pakistan who, after taking into consideration the report of the Sub-Inspector and the statements made before them by the girl, her mother who appeared before them while the enquiry was in progress, and Babu alias Ghulam Rasul the brother of Wazir deceased who was said to be the father of the girl and other materials, came to the conclusion, inter alia, that the girl was a Muslim abducted during the riots of 1947 and was, therefore, an abducted person as defined in section 2(a) (1) of the Abducted Persons (Recovery and Restoration) Act LXV of 1949. By their report made on November 17, 1951, they recommended that she should be sent to Pakistan for restoration to her next of kin but in view of the interim order of the High Court appended a note to the effect that she should not be sent to Pakistan till the final decision of the High Court.

The matter then came before a Tribunal said to have been constituted under section 6 of the Act. That Tribunal consisted of two Superintendents of Police, one from India and the other from Pakistan. The Tribunal on the same day, i.e., November 17, 1951, gave its decision agreeing with the findings and recommendation of the two Deputy Superintendents of Police and directed that the girl should be sent to Pakistan and restored to her next of kin there.

The habeas corpus petition came up for hearing before Bhandari and Khosla J.J. on November 26, 1951, but in view of the several questions of far-reaching importance raised in this and other similar applications, the learned Judges referred the following questions to a Full Bench:

  1. 1. Is Central Act No. LXV of 1949 ultra vires the Constitution because its provisions with regard to the detention in refugee camps of persons living in India violate the rights conferred upon Indian citizens under Article 19 of the Constitution ?

  2. 2. Is this Act ultra vires the Constitution because in terms it violates the provisions of Article 22 of the Constitution ?

  3. 3. Is the Tribunal constituted under section 6 of the Act a Tribunal subject to the general supervision of the High Court by virtue of Article 227 of the Constitution? At the same time the learned Judges made it clear that the Full Bench would not be obliged to confine itself within the narrow limits of the phraseology of the said questions. On the next day the learned judges made an order that the girl be released on bail on furnishing security to the satisfaction (p.180) of the Registrar in a sum of Rs. 5,000 with one surety. It is not clear from the record whether the security was actually furnished.

    The matter eventually came up before a Full Bench consisting of the same two learned judges and Harnam Singh J. In course of arguments before the Full Bench the following further questions were added:

  4. 4. Does this Act conflict with the provision of Article 14 on the ground that the State has denied to abducted persons equality before the law or the equal protection of the laws within the territory of India?

  5. 5. Does this Act conflict with the provisions of Article 15 on the ground that the State has discriminated against abducted persons who happen to be citizens of India on the ground of religion alone?

  6. 6. Does this Act conflict with Article 21 on the ground that abducted persons are deprived of their personal liberty in a manner which is contrary to principles of natural justice? There was also a contention that the Tribunal which decided this case was not properly constituted in that its members were not appointed or nominated by the Central government and, therefore, the order passed by the Tribunal was without jurisdiction.

By their judgments delivered on June 10, 1952, Khosla and Harnam Singh JJ answered question 1 in the negative but Bhandari J. held that the Act was inconsistent with the provisions of Article 19(1) (g) of the Constitution. The learned Judges were unanimous in the view that the Act was inconsistent with the provisions of Article 2.2 and was void to the extent of such inconsistency. Question 3 was not fully argued but Bhandari and Khosla JJ. expressed the view that the Tribunal was subject to the general supervision of the High Court. The Full Bench unanimously answered questions 4, 5 and 6 in the negative. Bhandari and Khosla JJ. further held that the Tribunal was not properly constituted for reasons mentioned above, but in view of his finding that section 4(1) of the Act was in conflict with Article 22(2), Harnam Singh J. did not consider it necessary to express any opinion on the validity of the constitution of the Tribunal.

The Full Bench with their aforesaid findings remitted the case back to the Division Bench which had referred the questions of law to the larger Bench. The case was accordingly placed before the Division Bench which thereafter ordered that Musammat Sardaran alias Mukhtiar Kaur be set at liberty. The girl has since been released.

The State of Punjab has now come up on appeal before us.

…. We accordingly heard arguments on the constitutional questions on the clear understanding that whatever view we might express on those questions, so far as this particular case is concerned, the order of the High Court releasing the girl must stand. After hearing arguments we intimated, in view of the urgency of the matter due to the impending expiry of the Act, that our decision was that the Act did not offend against the provisions of the Constitution and that we would give our reasons later on. We now proceed to set forth our reasons for the decision already announced.

(p.181) … The main contest before us has been on question 2 which was answered unanimously by the Full Bench against the State, namely, whether the Act violates the provisions of Article 22. If the recovery of a person as an abducted person and the delivery of such person to the nearest camp can be said to be arrest and detention within the meaning of Article 22(1) and (2) then it is quite clear that the provisions of sections 4 and 7 and Article 22(1) and (2) cannot stand together at the same time, for, to use the language of Bhandari J., ‘it is impossible to obey the directions contained in sections 4 and 7 of the Act of 1949 without disobeying the directions contained in clauses (1) and (2) of Article 22.’… The absence from the Act of the salutary provisions to be found in Article 22(1) and (2) as to the right of the arrested person to be informed of the grounds of such arrest and to consult and to be defended by a legal practitioner of his choice is also significant. The learned Solicitor-General has not contended before us, as he did before the High Court, that the overriding provisions of Article 22(1) and (2) should be read into the Act, for the obvious reason that whatever may be the effect of the absence from the Act of provisions similar to those of Article 22(1), the provisions of Article 22(2) which is wholly inconsistent with section 4 cannot possibly, on account of such inconsistency, be read into the Act. The sole point for our consideration then is whether the taking into custody of an abducted person by a police officer under section 4 of the Act and the delivery of such person by him into the custody of the officer-in-charge of the nearest camp can be regarded as arrest and detention within the meaning of Article 22(1) and (2)….

… A perusal of the sections referred to above will at once make it plain that the reason in each case of arrest without a warrant is that the person arrested is accused of having committed or reasonably suspected to have committed or of being about to commit or of being likely to commit some offence or misconduct. It is also to be noted that there is no provision, except in section 56, for acquainting the person to be arrested without warrant with the grounds for his arrest. Sections 60 and 61 prescribe the procedure to be followed after a person is arrested without warrant.

Turning now to Article 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants. The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the (p.182) judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right.

… This circumstance also lends support to the conclusion we have reached, namely, ‘that the taking into custody of an abducted person under the impugned Act is not an arrest within the meaning of Article 22(1) and (2)…. By this Act, the Legislature provided that the recovered Muslim abducted person should be taken straight to the officer in charge of the camp, and the Court could not question the wisdom of the policy of the Legislature. After the Constitution, Article 22 being out of the way, the position in this behalf remains the same.

… There can be no doubt that Muslim abducted persons constitute a well-defined class for the purpose of legislation. The fact that the Act is extended only to the several States mentioned in section 1 (2) does not make any difference, for a classification may well be made on a geographical basis. Indeed, the consent of the several States to the passing of this Act quite clearly indicates, in the opinion of the governments of those States who are the best judges of the welfare of their people, that the Muslim abducted persons to be found in those States form one class having similar interests to protect.’ Therefore the inclusion of all of them’ in the definition of abducted persons cannot be called discriminatory. Finally, there is nothing discriminatory in sections 6 and 7. Section 7 only implements the decision of the Tribunal arrived at under section 6. There are several alternative things that the Tribunal has been authorised to do. Each and everyone of the abducted persons is liable to be treated in one way or another as the Tribunal may determine. It is like all offenders under a particular section being liable to a fine or imprisonment. There is no discrimination if one is fined and the other is imprisoned, for all offenders alike are open to the risk of being treated in one way or another. In our view, the High Court quite correctly decided this question against the petitioner.

Although we hold that the High Court erred on the construction they put upon Article 22 and the appellant has succeeded on that point before us, this appeal will, nevertheless, have to be dismissed on the ground that the Tribunal was not properly constituted and its order was without jurisdiction, as conceded by the learned Solicitor-General. We, therefore, dismiss this appeal on that ground.

We make no order as to costs.

Appeal dismissed, Agent for the appellant: P.A. Mehta.