# I'rarksh v. A /.c}ul Sa11uJcl

- **Citation:** [1962] Supp. 3 S.C.R. 915
- **Court:** Supreme Court of India
- **Decided:** 1959-12-22
- **Bench:** B. P. srnHA, K. suBBA RAo, N. Rajagopala Ayyangar, J. R. MuDHOLKAR, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-rarksh-v-a-c-ul-sa11ujcl-2514
- **Pages:** 20

## Headnote

Habeas Corpus-Arrest and detention for de1JortalionPetition for haheas corpus-Police holding detenues for production before High Court-Non-1iroduction before MagistrateProduction before High Court and grant of bail-Detention, if
illegal-Con•titution of India Art. 2 2( 2).
In pursuance of an order for their deportatio11 the respondents were arrested on July 21, and sent to Amritsar.
The next day a habeas corpus application was filed on their
behalf before the High Court at Lucknow and they were
ordered to be produced on July 25, but on the High 'Court
being informed that
the respondents were beyond its
jurisdiction it directed the
application to be consigned
to the records.
On spurious information being
received
at Amritsar that the respondents had to be produced
before the High Court the respondents were sent back
to Lucknow which they reached at 1 P.M. on July 25.
They
were produced before the Deputy Registrar at 3 P. M. and
he directed them to be produced at I0.15 A.M. on 'the next
day. In the mean time a second habeas corpus application was
filed on behalf of the respondents, inter a1ia, on the ground
that the detention of the respondents was in violation of Art.22
of the Constitution as they had not been produced before any
Magistrate. The respondents were produce¢ before the High
Court at 10.30 A.M. on July 26, when the High Court adjourned the case till 2 P.M. onJuly
0 27, and directed the production of the respondents at the time of hearing. On July 27,
· the High Court ordered the release of t~e respondents on bail
and adjourned the case till July 28. On July 28, the High
Court allowed the application and directed the · respondents to be
released on the ground of a contravention of
Art. 22(2). It did not consider the legality of the detention
in the first stage, i.e. from July 21 to 1 p.m. on July 25, but
·held that the detention in the second stage was illegal as the
respondents were not produced before a Magistrate within
24 hours of l P.M. of July 25.
Held, (per Sinha, C.J., Ayyangar, Mudholkar and'Aiyar,
- J.J., Subba Rao, J., dissenting), that the detention of the
196:!
March16.
19G2
Stales of Uttar
I'rarksh
v.
A /.c}ul Sa11uJcl
!)Hi SUPREME OOUitT HEPORTS [1002] SUPP.
respondents was lei;al and the High Cou1 t '''a=> , .. ·1ong in orUer·
ing their relcast'..
·rhc rcsponrlc:nts \\'Crc produced before the
High Court on .July 26, within 2+ hours of their airival at
Luckno\v and the l·ligh C0urt by ordcrini.;· their production the
. next day permitted the rr:spondcnts to rc~n1ain in police custody.
'I hey were again ·produced before the 1-Iigh (;ourt within the
next 24 hours on July 2i, \Vhr:n they \Vere ordered cu be
rrleased on bail.
"fhus at no tin1e during the sccund sragc
wuld the respondents be said to have been 11legally detainer!
for 1nore than 24 hours \Vithout production before a j udical
authority in violation of Art. 22(2).
Per Subba Rao, J. The detention of the respondents
\Vas illegal.
The detention could no! b: dissected into t\\'O
stages; it ,.,,.as a continuous one.
Arrest an<l detention for
purposes of deportation was subject
to
t ~e provisions of
Art.22(2) and the 1espondents
not i1aving been produced
lieforc a ~11fal{istr<itc \\o·ithin 24 liours of their arrest the delc11tion ~\'as illegal.
Collector of Ma/,af,ar v. },"/17ohim llajee, (19:i7) S.C.R. ~70
and State of l'unjab v. Ajaib Sinyh, (1953) S.C.R. 254,
distinb>'Uishj .
CRIMJNAL APPELLATE .JuHJ~!JfCTlOl'i : Criminal·
Appeal !\o. 48 of UHll.
Appeal by special leave from the judgment
and order dated July ·28, I fHiO, of the Allahabad
High Court (Lucknow Bench) at Lucknow in Cr.
:\iisc. rase :No. 186 of IU60.
G. C. ,Jfot/mr and C. /'. Lal, for the appellant.
S. P. Siiiha and JJJ. I. JOmuj11, for the respondents.
19(i2. March !ti. The ,Judgment of Sinha.,
C. ,J., Ayyangar, 7lludholk1;r and Aiyar, ,J,J., was
delivered by Ayyangar, J., Subba Rao, J., d1•livcrPd
a separate Judgment.
AYYA:SGAR, J.- This is an appeal by special
lcaYc against the judg

## Text

a s.c.R.
suPREME couRT R:Eroitrs
!Ji5
STATE OF UTTAR PRADEISH
ABDUL SAMAD & ANOTHER.
(B. P. srnHA, c. J., K. suBBA RAo, N. RAJAGOPALA
AYYANGAR, J. R. MuDHOLKAR and T. L.
VENKATARAMA AIYAR, JJ.)
Habeas Corpus-Arrest and detention for de1JortalionPetition for haheas corpus-Police holding detenues for production before High Court-Non-1iroduction before MagistrateProduction before High Court and grant of bail-Detention, if
illegal-Con•titution of India Art. 2 2( 2).
In pursuance of an order for their deportatio11 the respondents were arrested on July 21, and sent to Amritsar.
The next day a habeas corpus application was filed on their
behalf before the High Court at Lucknow and they were
ordered to be produced on July 25, but on the High 'Court
being informed that
the respondents were beyond its
jurisdiction it directed the
application to be consigned
to the records.
On spurious information being
received
at Amritsar that the respondents had to be produced
before the High Court the respondents were sent back
to Lucknow which they reached at 1 P.M. on July 25.
They
were produced before the Deputy Registrar at 3 P. M. and
he directed them to be produced at I0.15 A.M. on 'the next
day. In the mean time a second habeas corpus application was
filed on behalf of the respondents, inter a1ia, on the ground
that the detention of the respondents was in violation of Art.22
of the Constitution as they had not been produced before any
Magistrate. The respondents were produce¢ before the High
Court at 10.30 A.M. on July 26, when the High Court adjourned the case till 2 P.M. onJuly
0 27, and directed the production of the respondents at the time of hearing. On July 27,
· the High Court ordered the release of t~e respondents on bail
and adjourned the case till July 28. On July 28, the High
Court allowed the application and directed the · respondents to be
released on the ground of a contravention of
Art. 22(2). It did not consider the legality of the detention
in the first stage, i.e. from July 21 to 1 p.m. on July 25, but
·held that the detention in the second stage was illegal as the
respondents were not produced before a Magistrate within
24 hours of l P.M. of July 25.
Held, (per Sinha, C.J., Ayyangar, Mudholkar and'Aiyar,
- J.J., Subba Rao, J., dissenting), that the detention of the
196:!
March16.
19G2
Stales of Uttar
I'rarksh
v.
A /.c}ul Sa11uJcl
!)Hi SUPREME OOUitT HEPORTS [1002] SUPP.
respondents was lei;al and the High Cou1 t '''a=> , .. ·1ong in orUer·
ing their relcast'..
·rhc rcsponrlc:nts \\'Crc produced before the
High Court on .July 26, within 2+ hours of their airival at
Luckno\v and the l·ligh C0urt by ordcrini.;· their production the
. next day permitted the rr:spondcnts to rc~n1ain in police custody.
'I hey were again ·produced before the 1-Iigh (;ourt within the
next 24 hours on July 2i, \Vhr:n they \Vere ordered cu be
rrleased on bail.
"fhus at no tin1e during the sccund sragc
wuld the respondents be said to have been 11legally detainer!
for 1nore than 24 hours \Vithout production before a j udical
authority in violation of Art. 22(2).
Per Subba Rao, J. The detention of the respondents
\Vas illegal.
The detention could no! b: dissected into t\\'O
stages; it ,.,,.as a continuous one.
Arrest an<l detention for
purposes of deportation was subject
to
t ~e provisions of
Art.22(2) and the 1espondents
not i1aving been produced
lieforc a ~11fal{istr<itc \\o·ithin 24 liours of their arrest the delc11tion ~\'as illegal.
Collector of Ma/,af,ar v. },"/17ohim llajee, (19:i7) S.C.R. ~70
and State of l'unjab v. Ajaib Sinyh, (1953) S.C.R. 254,
distinb>'Uishj .
CRIMJNAL APPELLATE .JuHJ~!JfCTlOl'i : Criminal·
Appeal !\o. 48 of UHll.
Appeal by special leave from the judgment
and order dated July ·28, I fHiO, of the Allahabad
High Court (Lucknow Bench) at Lucknow in Cr.
:\iisc. rase :No. 186 of IU60.
G. C. ,Jfot/mr and C. /'. Lal, for the appellant.
S. P. Siiiha and JJJ. I. JOmuj11, for the respondents.
19(i2. March !ti. The ,Judgment of Sinha.,
C. ,J., Ayyangar, 7lludholk1;r and Aiyar, ,J,J., was
delivered by Ayyangar, J., Subba Rao, J., d1•livcrPd
a separate Judgment.
AYYA:SGAR, J.- This is an appeal by special
lcaYc against the judgment and orcl!'r of the High
Court of Allahabad by l\·hich it allowed a petif.ion
under, s. ,l!)l of the Criminal Proc<'<lure Code filed
on behalf of the rcspondrnts.
3 S.C.R.
SUPREME COURT REPORTS
917
We shall now narrate the facts which are not in
dispute. The two respondents, who are husband and
wife, were in Pakistan in March 1955. While there,
they obtained a Pakistani passport on September 6,
1955, and obtained from the Deputy Indian High
Commissioner on September l 7, 1955, a visa to enter
India which theY. did on September 22, 1955. The
visa granted to them was of the •C' category i.e.,
for temporary stay, which permitted them to remain
in India till December 16, 1955.
By repeated
applications they had the term of the visa extended
and continued to stay in India. On Angust 10, 1957,
they applied for their registration as Indian citizens but the application was rejected on October 18,
1957. Thereupon they moved the High Court by a
petition under Art. 226 of the Constitution to have
this order of the rejection of their application set .
aside but the petition was dismissed in April, 1959.
Thereafter orders were iosued by the State Government and served on them asking them to leave
India but they repeatedly applied for and were
granted extensions of time for so doing.
The last
extension applied for was on December 22, 1959,
but .this was rejected and_ the government passed
an order on July 7, 1960, requiring them to leave
India within 24 hours after its service upon them.
This order was served on them on ,July 20, 1960,
at about 10 a.m. but they made no efforts to
comply with it.
The order not having been complied with the
police took the two respondents into custody on the
evening of July. 21, 19ti0, at about 6 p.m. and sent
them on by train to Amritsar for being deported to
Pakistan.
The respondents with their escort
reached Amritsar in the early hours of July 23,
1960. The Head Constable who had the custody of
the respondents produced them before· the Reader
of the District Magistrate, Amritsar as directed by
the Senior Superintendent of .Police, Kanpur anq
1962
State o~f Uttar ·
Pradesh
v.
A bdn'/ Sam ad
AyyangtlrJ,
J961
Stolt of Ullar
l'"'hsh
v.
Abdul Stmad
!ll8 SUPREME COURT REPORTS [1962] SUPP:
the Reader took thorn by about IO a.m. to a Magistrate who ordered that they be kept in the Civil
Lines Thrma till further orders.
Meanwhile, afccr the departure oft.he rcsponrlents from Lucknow, proceedings were started on
their behalf under R. 491 of the Criminal Procedure
Code
before
the
Lucknow
Bench
of
the
Allahadad High Court.
This application was
filed
on July 22,
1960.
The learned Judgo
before whom the application was placed directed
notice to the State of Uttar Pradesh and required the State to take a.II possible steps to detain
these two persons and produce them before the
Court. It ma.y be mentioned that the ·ground upon
which the detcntiou was challenged as illegal in
this petition was that the respondents were "British
subjects" within the meaning of the Foreigners Act
a.nd hence "their arrest was illegal as they were
citizens of India." In other words, what was challenged was
the
validity
of the
deportation
order. On the same day, i.e., on July 22, 1960 the
petition wa.s placed hefore the Bench dealing with
the matter which fixed tho date for the hearing of
the petition as 10.15 A.:11. on July 2ii, l!lliO, R.twhich
hour the rr•spon<lents ·,vcr<' directed to bo produced
before the Court..
On July 2;~, 1()()0, a count<ir-affidavit waH filed on behalf of the State, which was
affirmed by n Sub-Inspector of Police who, after
denying that there was anything iilDgal in the order
of deportation, stated that the respondents had been
taken into custody on July 21, 1960, and were
immedia.telv thereafter sent to AmritJ1ar and were
therefore 1!0 more ·in Vtt-0.r Prade8h within the
jurisdiction of the Court.
The petition under R. 491 of the Criminal
Proeedure Code was taken up for hearing by the
Court. on ,July 25, 1960, nR originally fixed, and
after perusing the counter-affidavit filed on behalf
of the State, the learnod .Judges in their ordor
l
3 S.Q.R.
SUPREME COURT REPORTS
919
stated that the two respondents had been · sent
away to Amritsar and were no longer within the
territorial jurisdiction of the Court, and recorded~
"We find that we have no jurisdiction in
the matter"
Their further direction was :
"The proceedings are consigned to records".
Certain matters, however, transpired on July
23, 1960, to which it is necessary immediately to
refer. After the remand by the Magistrate at
Amritsar on July 23, 1960, and when the respondents were being kept in Civil Line Thana, a telegram was received by the police at Amritsar and
also a call by trunk telephone, purporting to be from
Saxena, Under Secretary, Home Department, U.P.
informing them that the High Court had issued
orders that the respondents should be brought back
to Lucknow to attend their case on July 25, 1960.
It is now almost common ~round that the telephone
call as well as the telegram were spurious and did
not emanate from the authorities at Lucknow. The
Amritsar polico however acted on these messages
and immediately made arrangements for transporting the respondents back to Lucknow where they
arrived at about 1 P.M. on July 25, 1960, by which
time it would be noticed the petition filed on July
22, 1960, had been disposed of by the High Court
by being consigned to records.
Immediately on
their arrival a supplementary application was filed
for reviving the petition which had been disposed of
earlier in the morning founded upon the ground
. that the respondvnts were then at Lucknow within
the jurisdiction of the Court and praying for a direction that the respondents be released on bail. One
other fact requires mention. The police at Amritsar h1tving been informrd th1tt the High Court had
qirected the two respondent~ to be produceq before
1961
~tale of Uttar
PradeJh .
v.
.
Atdul Somod
AJ)'onpat #,
State of {Tttar
Pradtsh
v.
ilhdul Samad
A.r.J'.l"l!.arJ.
920 SUPREME COURT REPORTS [1962J. SUPP.
it, the police constables who escorte<l the respondtntR
from
Amritsar immediately ·on arrival
pr.oduced thPrn Lefore thP Deputy Hegi8trar of tho
High Court and this officer pass,:d an order in these
terms:
"Tho detcnuPs who were Lrought from
Amritsar today at. about 3 P.M. to this Court
......... are sent back under the same custody
with the direction that the Head Constable ...
.. . ... should produce them before this Court at
IO.Iii A.M. tomorrow, the :Wth July, l!J60
po sitiV<dy."
1md the Head Constable made nn endorsement on
th<' order undertaking to produce as direckcl.
Not contont with what was termed the supplemPntary application filed on the 2iith aftrrnoon, a
fresh petition unrlcr s. 4!ll of tl1P Criminal Procedure Codo was filrd on tho 26th for the production
of the respondent;i and for thrir being set a.t liberty
and it is this aprlication that was allowed hy the
learned Judges. In the petition, beaicles repeating
the allegation8 nlrcad.v made in the petition filed
on .Tnly 22, 1960, chalJt.nging the validity of the
rkportntion order, n fresh one wnR addNI which
ran:
"Since .Tuly 21, 19n0 the applicants are
in custody without. being produced before any
Ma!!istrate and hence the provisions of Art.. 22
of thri Constitution have been violated".
Which, as would be seen from tho abo:ve narration.
was delibRrately false, and.it ended with th~ prayer
that the Stato be rcstrame<l from effeetm!( the
<lcportation of the reaponrlentl! to Pnkistan. Both
the "supplementary appl.i~ntion" elated .July 2fi,
1960 to r"vh·" thP pct1t1on dat<'d .July 22, l!l60,
as w"ll as the fresh substantive petition clat.ed .July
26, 1960, camo up for orders before the Bench on
-
3 S.C.R.
SUPREME COURT REPORTS
921
July 26, 1960, and the learned .. Jud.ges,', afterdisp.os-
. :ing of the "supplementary apphcat10n by directmg
that no orders were necessary thereon because of
the other petition, passed an 0rder on the petition
dated July 26, 1960, that it would be taken up for·
hearing the next day (i.e., 27th at 2 P.M. and al~o
directed that the respondents should be produced m
Court at the time of the"hearing.
The petition was taken up on July 27, 1960,
as directed the previous day when the le:i,rned
Government Advocate prayed for :i,n adjournment
of one day, i.e., till July 28, 1960, to enable hirn to
file proper affidavits particularly as r'egards the
bogus communication received by the police at
Amritsar which ~as responsible for the respondents
being brought back to Lucknow. The adjournment
asked for was granted bt1t in doing so the learned
Judges made this ob;;ervation :
"As it is not denied that the two applicants
have been in police custody since 21st July,
1960, it appears to us that their non-production before a Magistrate within 24 hours of
ttheir being taken in custody is pr-ima facie
open to 0bjection under the Constitution of
India. We, therefore, without corning to any
decision, direct that the two applicants sh.all
forthwith be released on bail on each of them
· furnishing a personal bond in the sum of
Rs. 1,000/- (one thousand) and two sureties in
the like amount to appear before this Court
tomorrow at 10.15 A.M. sharp and on all
da~es to which the hearing of the case may be
adiourned... ...... .. . ..
. ..... In case of default
the two applicants ~ill be remanded to jail
custody."
Thei respondents took advantage or this order for
their release on hail :i,nd they were accordingly
released the same day. The State filed a counter-
:1ffid~vit on July 28, 1960, in the course of which
1962
State of Uttar
Pradesh
v.
Abdul Samad
A7yangar J •
)962
Stal• of VIiar
Praduh
••
Abdul Samad
Ayyan_ear J.
922 SUPREME OOURT REPORTS (1962) SUPP.
they
pointed
out
that
the
respondents
had
been
produced
bAforo a
Magistrt-0
!at
Amritsar and recounted the other facts which
we have already
narrated.
The matter came
on for final orders on ,July 28, 1960, when the learned .Judgpe held that the respondents bad been
detained in violation oft.ho provisions of Art. 22(2)
of the Constitution and thorefore directed their hoing set at liberty. It is the correctness of this
order that is challenged by the State in this appeal.
Pausing here we consider it necessary to mention one matter. We were informed by ::IIr. Sinha·-
learned Counsel-who appeared for the respondents
that subsequent to tho order of release now under
appeal the respondents had instituted a suit in a
Civil Court challenging the validity of the deportation order and had obtained n.u interlocutory injunction restraining the State from effecting their
deportation pending the disposal of the suit.
On
this ground he urged that tho question of the correctness or propriety of the order of the High Court
was no louger a livo issue hut had become acadcmic.
Having carefully considered this aspect of the
mn.tter wo have arrived at the cimclu8ion that the
grounds on which the learned .Judges J..inve directed
the reli:n.sc nre Ruch as to require examination at
our hn.nds.
It would be noticed that ~he respondents had
been in custody from a bout G P.llf. on the 2 I st ,July
to the evening of the 27th July when on the orders
of the High Court they were rclt>ased on bail.
Tho learned Judges have divided this into two
periods-the
dividing
line being
1 P.'.IT.
nn
25th July l(lUO, when they were brought to Lu«know
in pursuance of the telephonic message purporting
to emanate from the Under Secrctarv to G0\'1 rnment for being proclucerl before the High Court.
The Learned ,Judges of t.he High Court confined
their attention to tho second period aud holding
3S.C.R.
SUPREME COURT REPORTS
923 ·
that during this period there had been a violation
of the requirements of Art. 22(2) of the Constitution,
in that the respondents had not been produced before a Magistrate within 24 hours of the commencement of the custody, expressed their opinion that the
detention was illegal and directed the release of
the respondents. It is the correctness of this order
. of the High Court that arises for consideration in
this appeal.
Before p:'oceeding to examine the reasoning of
the learned Judges it it necessary to state one
matter. · In view of the ver,v limited question before
us we do not feel called upon to deal with the scope
of Art. 22(1) or .22(2) or of the two clauses read
together in relation to the taking into custody of a
person for the purpose of executing a lawful order of
deportation which would require to be considered in
regard to the detention durin~ what has been stated
earlier as the first period. When the question does
arise for decision the following circumstances would
be among those to be considered before the scope of
the constitutional guamntee could be properly determined: (1) An alien has no legal and enforce~ble
right to enter the country and can do so only subject to the permission granted by the executive
under our law and when such a person overstays in
the country beyond the period for which he i' so
permitted, the State acting through· the executive
is entitled to require the alien to quit the country
for the mere reason that the period for which he has
been permittd to stay has elapsed. - (2) That where
an alien is tak~n into custody in pursuance of a
valid order of deportation he is not charged with
any offence within the meaning of these words in
Collector of Malabar v. Ebrahim Hajee (1 J but the
State is merely effecting his removal from the
country -
an act which the alien was himself bound
by law to have done. (3) When the Constitution
makes a provision for procluction before a Magistrate, the requirement is not to be trea.te1l as any
(1) [1937J S.C.R, 970.
.
196B .
State of Uttar
Praderh
v.
Abdul Samad
Ayyangar J.
19C2
Stalt nf Uttar
PradtJh
v.
Abdul Sr;mad
---.
A v·angor J.
924. SUPREME COURT REPORTS [1962) SUPP.
formality but as purposeful designed to enable the
person arrested an<l detained to be releaRed on bail
or other provision made for his proper custody
pending the
investig1~tion into the offence with
which h<' is charged or pending an enquiry or trial.
In the caRe of a lawful deportation order the Magis·
trate can obviously pasR no order for release on bail
or direct any other custody than that of the officers
who have to execute the order of deportation.
As stat<'d earlier, the learned ,Judges having
confined their scnit.iny to the second period we
shall not pronounce on the precise scope of Art.22(1)
or (~) or the two clauses read together in n'lation
to an arrest and dPtcntion for the purpose of exeeu·
ting a lawful order of deportation, which arises by
n:ason of tho non.production before a magistrate
within 24 hours after the respondents w"rn taken
into custody on the evening of the 21st ,July or
before the nearest Magistrnt c, but shall restrict ourselves to the very narrow question whether there
was any basis for th(! conclusion of the Learned
.Judge~ that there had been a. viol:ition of the
constitutional guarantee
after the respondents
were brought to Lucknow at beyond mid·dny on
2iith .July, l9GO.
The main judgment in the case wa~ r1mdercd
by ~igam, .J., who reasoned as follows :
"I do not propose to give a considered
view on the matter of (arrest and detention
of a person for the purpose of deporting him
out of India not being an arrest and detention
within Art. 22(2)) at this stage for I am of
opinion that even if tho contention of the
learned Counsel iH accepted the detention on
2ith July, I %0 could not IH' said to Ii(• n
detention for the plll'posc of deportation".
This he explained lat.er by stating :
"After return from Amritsar the t:w"
•
•
. 3 S.C.R.
SUPREME COURT REPORTS.
925.
applicants were being detained not for the ·
vurpose of deportation for bad that been
the guiding purpose they would never have
been brought back from Amritsar.
They
were brought back to Lucknow and were
being detained in the custody in connection
with the writ petition pending before this
Court. Thus, I find as a matter of fact th<it
in tbe present circumstances the detention was
not in connection with the deportation of the
petitioners and as such, it being admitted
that the petitioners were not produced befofe
a Magistrate within 24 liours of their arrest
and were not being detained in connection
with a warrant for jail or police custody signed by a Magistra,te or other judicial officer,
it cannot be suggested that their detention
was legal."
Mulla, J., the other learned Judge also divided
the case into the same two stages. And this learned
Judge also thought that at the second stage a violation of Art. 22(2) had occurred. His reasons. were
stated thus :
"l need not dwell upon the first stage
but I feel that once the petitioners came
back within the jurisdiction of this Court and
a writ waR filed on their behalf eailier, which
was entertained and on which the State was
asked to submit a return, the matter• had
become sub-judice and the
detention or
custody of the petitioners ceased to b peurely
au administrative custody for the purpose
of carrying out an executive order. It is wellknown that in writ of habeas corpus. the
presence
of the
petitioners before the
court is
necessary and therefore they became parties to a judicial proceeding and they
can be lawfully kept only in judicial custody
............ The courts of law do not approve
1962
State of Uttar
Pradesh
v.
Abdul Samad
Ayyango1 J.
1962
Slat, of Ullo.
P•aduh
v.
Abdul Samt1tl
ll26 SUPREME COURT REPURTS [1962] SUPP.
\
of citizens or aliens remaining in tho custody
or detention of the police for a long time.
The police is certai11 ly carrying out its executive duties and it i8 in the discharge of these
duties that the police has to keep some persons
in their custody, but the courts a1e vi@ilant
that tho police does not detain persons in their
cuatody beyond the }Jcriod which is necessary
for the discharge of their duties. hi this case
it was not necessary for the polico to detain
the petitioners in their custody for diseharging their dutios urn! their duty wuuld start
after the writ 1ietit.io11 was decided.
L p to
that time the presence of the n1·J!lie1111ts \la~
noe<led in tho hearing of the writ petition fi]c,d
by thorn and their detention for thiH pt riod
was primarily to help the court in deciding the
Writ Petition."
It is not very clear from the learned Judge's judgment as to what according to him was the duty of
the police after a petition for a writ of habeas
corpus had Lel'n filed. It is not. possible to make
out whether it was the opinion of the learned Judge
that on the filing of a petition for habeas corpus
the polico were bound immediately to have released
the detained person or whether the authorities
could la"l\·folly detain the perBon till the Court
decided the mattC'r.
The leamed Judge Wf'llt on
to add :
"l am, therefore, clearly of the or: inion
t }l!l t t bf' pct it iouns ~hould have bce1' •presented either before the High Court itst';: for
a suitable remand order or at any rate
~ efore
a MagiBtrate so that a judicial mind B~ ould
have operated in deciding the question \a to
their being kept in cuBtody and the cond1 •ions
under which they should be kept in oust ody.
The State failed to do so and detaine ithe
petitioners in the CUBtody of tho police. · C'his
'
-
-
•
'
3 S.C.R.
SUPREME COURT REPORTS
-·
927
violates the manda'tory provision of clause (2)
of Article 22. It cannot be said that the arrest
and detention of the petitioners subsequent
to their coming back to Lucknow was that
type of detention which is not covered by the
mandatory provi~ions of Article 22."
It is very difficult to appreciate
what ex,actly
either of the learned Judges had in mind in
making these observations holding
that
the
guarantee under Art. 22( 2) had been violated. During the "second stage" at which tho learned Judges
held that the detention has been illegal because of
violation of Art. 22(2), the facts were these : The
respondents had brought back to Lucknow on a
message requiring their production before the High
Court. They reached Lucknow on the 25th at
1 p.m. and were produced at 3 p.m. the same day,
i.e., within two hours of reaching Lucknow before
the Deputy Registrar. The Deputy Registrar had
directed their production the next day and they
were accordingly so produced.
Even taking it that
the Deputy Registrar was not a judicial authority
such as the learned Judges had in mind, the respondents had been produced on the 26th morning
at 10.15 a.m. before the learned Judge3 when they
were at liberty to make any order regarding the
custody which they considered proper and the time
when they were produced before the Judges was
admittedly not beyond 24 hours from the time the
respondents reached Lucknow .. On the 26th the
learned Judges who took part in the final decision
passed an order directing the production of the
respondents on July 27, 1960; at 2 p.m. which
obviously permitted the previous custody to be con·
tinned till further orders. They were produced
accordingly at 2 p.m. on that day and by a further
order of July 27, 1960, the learned Judges had directed the release of the respondents on bail and in
pursuance of this order the respondents had been
released on July 27, 1960, itself. In these circums·
1962
State of Uttar
Praduh
v.
Abdul Samad
AyyangMJ.
1962
.~tolr nj Uttar
I'radesh
v.
Abdul Samad
1IJJU1.g:1r J.
928 SUPREME COURT REPORTs (1962) SUPi'.
tances we are at a loss to unden;tand which is the
period during "the second stage" or "on tho 2ith",
when the respondents could be ea.id to have been
illegally detained for more than !!4 hours without
produotiou before a judicial aut,hority as required
by A,·t. 2~('.!).
We would add that oven if Art.22(2) ·
wcrn construed tu require that a person arrested
and detained has to be produced before a Magistrate
every 24 hours during his detention, a meaning
which it assuredly cannot bear, though it is not
clear to us whether the 'learned J udgo did not
undorstand the Article to require this, even such
a requirement wau satisfied in this case as the respondenU:l were during "the second stage" produced
before the High Court itself "for suitable orders"
on the 26th and again on the 27th. We have no
desire to comment further on this judgmeu t 9f the
learned Judges except to s<ty that tht>re was no
justification whatsoever for the finding on tho basis
of which the loamed Judges directed the release of
the respondents.
We have given anxious thought to the quPstion as to the proper order to pass in the appeal.
In the first place, we have to take into account that
it is the liberty of the person that is involved and
that it is the duty of the Courts to ensure that there
is no encroachments on that liberty anrl particularly
of infringements of the guaranteeB which the Constitution has conferred on all persons, oitizens and
others in that regard. When the highest Court in
a Sta.te has made an order upholding such a libCrty,
this Court would naturally be slow to intorfero with
it unless satisfied that there has been a miscarriage
of justice caused by a patently erroneous interpretation of the law, though it need hardly bo added
that a miscarriage of justice might equally be
occasioned by the improper order of release of a
person whose custody is· lawfo!. We are alsn
conscious of the fact that the appeal before us is
by virtue of special leave under Art. 136, and that
r
..
-
3 S.O.R. SUPREME CC>URT REPORTS
929
in such cases, it is not every error that would be
corrected, and in a case of the kind now before us,
the conscience of the Court should be satisfied that
interference is called for before the order of the
Court below is interfered with. It is be~ring these
considerations in miad that we have arrived at
the conclusion that the order of the High Court
should not be allowed to stand.
The appeal is accordingly allowed and the
order of the High Court set aside.
SUBBA RAo, J.-I regret my inability to
agree. The facts are simple. The two respondents,
husband and wife, were arrested at Lucknow by
the polioe on July 21, 1960 at about 6 p.m.
Soon
thereafter, they were sent by train to Amritsar
for being deported to Pakistan. They reached
Amritsar in the early hours on July 23, 1960, and
were produced before a Magistrate at Amritsar at
10 a.m. on the same day. They were ordered by
the said Magistrate to be kept in Civil Lines Than&
till
further orders. They were brought back to
Lucknow in the afternoon on July 25, 1960, and,
immediately thereafter, they were produced before
the Deputy Registrar, High Court, Lucknow Bench,
who directed them to be produced before the Court
at 10.15 a.m. on the next day. At 10.15 a.m. on
July 26, 1960, the High Court directed the respondents to be produced in court at 2 p.m. on July 27,
1960 to which time the petition for habeas cor- ·
pus, filed by the respondents, was posted for hearing. The petition was adjourned to July 28, 1960
and the High Court directed the two applicants
to be released on bail on certain terms. On July
28, 1960, the learned Judges allowed the petition
for a writ of habeas corpus on the ground that the
arrest of the respondents was in violation of the
provisions of Art. 22(2) of the Constitution and,
therefore, directed them to be set at liberty.
The
State of Uttar Pradesh has preferred the present
appeal against the said order of the High Court.
196t
State of Uttar
Pradesh
v.
Abdul Samad
Subb11 Rao, J •
1952
«'tali of Utldr
l'r11d,sh
v.
Abdul Sa1nad
..
930
SUPl~lTME OOUH:r R~l>ORTS [1962] SUPP.
It has been brought to our notice that subsequent to the tiling of the present appeal, the
respondents filed a smt and obtained an injunction
against the State from deporting them to Pakistan
pending the disposal of the suit. In the circumsta.nCCH they have ceased to have any interest in
the present appeal.
The first question is whether it is a. fit oase
for exercising the extraordinary juriRdiction of this
Court under Art. 136 of the Constitution. The
appeal has become infructuous, for even if the
1State succeeds it cannot arrest the respondents
till the disposal of the suit. Nor has the High
Court decided any such impcrta.nt question of law
as to cause some irreparable injury to the appellant unless this Court sets the matter right. The
learned Judges expressly left open the question
raised, namely, whether Art. 22 would govern the
arrest for the purpose of deportation. I would,
therefore, dismiAs the appeal on tho simple ground
that this is not a fit case for interference by this
Court,
That a.pa.rt, I am also not satisfied that the
conclusion
arrived at by the High Court is
wrong. On the said facts, the respondents were
arrested on July 21, }!)60, for tho purpose of deportation and they w~re admittedly not produced
before the nearest Magistratp, wit.bin a period of
24 hours of such arrest excluding the time necessary for the journey from thfl place of arrest to
the court of the Magistrate. .Such persons coulcl
not be detained in custody beyond the said period
without the authority of a Magistrate. There iH
an allegation that the respondents were produced
before a Magist.rat<' at Amritsar, I.Jut that i\Iagistrate did not satisfy the definition of ".:llagistrate"
in Art. 2:!(2) of tho Constitution. I find it difficult to dissect the detentiou into two periods,
namely,
(i)
detention
for deportation,
and
I'
-
3 S.C.R.
SUPREME COURT REPORTS
931
(i) detention for production before the High Court.
The act of detention was a continuous one and it
did not cease to be one for the purpose of deportation by the fact that the
respondents were
brought back to Lucknow or thereafter to the
High Court pursuant to the notice issued.
The
question, therefore, is whether such an arrest for
the purpose of deporta,tion is outside the ken of
the constitutional protection given under Art.22(2).
Indeed, the State of Uttar Pradesh in its petition
for. special leave contended that the detention
was for the purpose of deportation and, . therefore,
was not governed by the said provisions. The
material portions of the article read:
"22. (2) Every person who is arrested
and detained in custody shall be produced
before the nearest magistrate within a period
of twenty-four hours of such arrest excluding
the time necessa.ry for the journey from the
place of arrest to the court of the magistrate
and no such persqn shall be detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall
apply-
( a) to any person who for the time
being is an enemy, alien; or
'(b) to any person who is arrested or
detained under any law providing for preventive detention."
It would be seen that under this provision there is
a constitution injunction that a person arrested
and detained in custody shall be produced before
a magistrate within the prescribe~ tin;ie. It cann?t
be gainsaid that arrest and detention m custody m
contravention of this provision is illegal. Clause
(3) of the article specifies two exceptions to the
196t
Stott of Uttar
Prarlesh
v.
/bdul S motl
Subba Rao J.
1962
SI•" of Uttar
Praclesla
v.
Abdul Samoa
Subba Rao J.
932 SuPREME COURT REPORTS [1002] SUPP.
said injunction.
Admittedly the respondents did
not fall under one or other of the two exceptions.
The constitutional provision is couched in clear
and unambiguous phraseology and it is not permissible to read into thn.t. proviRion exceptions
other than those specially provided for.
When a
provision issues an injunction in clear words and
provides for two specific exceptions it must be
held that it prohibits any other exceptions. In
the present .case it is not. disp•1ted that the respondenta were arrested by the police on July 21, 1960,
and detained in their custody till they were pro,
duced before the High Court, and tha.t their production before the Magistrate at Amritsar was not
in compliance with the provisions of Art. 22(2) of
the Constitution.
But. it iH argued that this Court
has limited tho eontcnt of the words "arrested and
detained" in State of Pim jab v. Ajaib Sinyh{l) and
The Collector of Malabar v. Erimal Ebrahim Hajee(').
The first case relates to an abducted person taken
int@ custody for the purpose of being ha.oded over
to a rescue-home. But that decision
was confined only to the facts of that case, namely, a <'.ase
whir:h dealt with an extraordinary situation of
unprecedented exodus and abduction.
Das, J.,
as he then· was, observed:
"It is not, however, our purpose, nor do
we consider it desirable, to attempt 11 precise
and meticulous enunciation of the scope and
ambit of this fundamental right or to enumerate exhaustively the cases that some within
its protection. Whatever else may come
within the purview of article 2:!( 1) and ( 2),
suffice it to say for the purposes of this case,
that we are satisfied that the physical restraint
put .upon an abducted person in the process of
recovering and taking that person into custody
{I) !1953)S.C.R. 254,269.
(2) [1957) $.C.R. 970.
3 s.c.R.
SUPREME COURT REPORTS
933
without .any allegation or accusation of any
actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act
prejudicial to the State or the public interest,
and delivery of that person to the custody of
the officer in-charge of the nearest camp under
section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of article 22(1) and (2)".
There, this Court was dealing with a case of the
police taking into custody an abducted person with
the limited object and with the sole view of delivering that person to the custody of an officer incharge of the nearest rescue-home. In the , view of
this Court, such a person was not doing any act
prejudicial to the State or the public interest and,
therefore, the act of taking such a person into
custody was not arrest within the meaning of the
said constitutional provision. But in the present
case the respondents, who are alleged to be foreigners, were directed to leave the eountry; and, as
they failed to do so, the police arrested them wit,h
a view to deport them out of· the country. The
respondents were certainly guilty of an act prejudicial to the State or the public intereAt and, therefore, their arrest could not be equated with thitt of
the person in the aforesaid case. This Court in express terms confined that deciAion to the facts of
that case.
The second decision took away the case of
. arrest of a person in execution of a warrant by a
, civil court out of constitutional protection. That
decision does not bear upon the present case.
For the foregoing reasons, I hold that the
1962
Slate of Uuar
Pr-adesh
v •.
Abdul Samad
Subba Rao J,
1962
S14·, of Uttar
Pratk1h
v.
Abdul Samad
Sribja Rao J.
1902
March I'
934 SUPREME COC'RT REPORTS [1962) SUPP.
arrest of the respondents was illegal and that the
High Court rightly ordered their release.
In the result, the appeal fuils and is dismissed.
BY Cov1a. In accordance with the opinion
of the majority, the appeal is allowed.
M/S. SERAJUDDIN & CO.
1;.
THEIR WORKMEN
(P.R. GAJENDHAGADKAR and K. ~. WA~CIIOO, JJ.)
I11dustrial
DispMle-Reference
b11
Stau Gol'emmenlr alidity-"A1)1)ropriate Goi·ern1nent
1
i -''Industrial dispute'',
in relation to 1ni·ne-l'onstrur.tion of-1'J(ine"-DefinilionbidMslrial Dispuf.fs Ar.t, 1947 (J4of 1947), ss. 2(a), 2(a)(i),
2(j), 2(k)-Jfinr., Act, 1962 {-~··;of 19o2), "·'· 2(j), 2(k). 2(h).
/\. <lisp:.Ite covering clain1s n1adc by the employees \Yas
referred for adjudication to rhc tribunal by the State Government of \Vest Bengal. The appellant r:iisecl a preliminary
objection against the validity of the refcrencr and urged th<Lc
uncler s. 2(a) the appropriate Govcrnmrnt \Yhich could make
a valid reference in relation to the present dispute was the
Central Govr.r11mcnt and not the Govcrn1nent of lVest Bengal
and so, the refr.rcnce "''as unauthorised and
inconlpet~nt and
the Tribunal had no jurisdiction to deal v.:ith it. The Tribunal over-ruled this objection an<l the case was set do\vn for
hearing on the merit:;.
Against th_is finding, the appellant
prei'errc<l the present appeal hy special leave and the only
point raised \\·as that the hr.ad office of the appellant at
Calcutta hcing an inte~ral part of the mine, any industrial
dispute bet\vccn the said office and its ernployces is an
industrial dispute concerning a 111ine under s. 2(a)(i) and so
the appropriate Governn1cnt 1nust be the Central Government
and not the State Go,·ernmcnt. 'fhc q11cstion for decision \Vas
\Vhcther the present dispute can h<· said to he an industrial
dispute
concrrnin~ a 1nine
It \Vas argur.cl that the \\'ord
''industry" is wide enough to include the Head Office of a
mining company though, it may be situate<l a\\'ay from the