# THE S'rA'l'E OF PUNJAB v. AJAIB SINGH AND ANOTHER

- **Citation:** [1953] 1 S.C.R. 254
- **Court:** Supreme Court of India
- **Decided:** 1952-06-10
- **Case number:** Criminal Appeal No. 82of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-s-ra-l-e-of-punjab-v-ajaib-singh-and-another-7
- **Pages:** 19

## Headnote

254
SUPREME COURT REPORTS
[1953]
1952
exclude nephews or they take jointly, and whether
succession is per stirpes or per capita, was the subi"ect
Ganeshi Lal
v.
of disagreement at the Bar before us.
This question
Joti Pershad. must therefore be left over for determination by the
trial court, and the case will have to go back to that
Ghan~rasekhara court for effecting partition and deli very of posses-
,i.yar J.
sion according to the shares to which the plaintiffs
may be found entitled. ·
1953
Nov.10 ..
Subject to what is contained in the foregoing paragraph, the appeal will stand dismissed with costs.
Appeal dismissed.
Agent for the appellant: Nehal Chand Jain.
Agent for the respondent: B. P. Maheshwari.
THE S'rA'l'E OF PUNJAB
v.
AJAIB SINGH AND ANOTHER
(PATANJALI SASTRI C.J., MUKHERJEA, DAS,
VIVIAN BosE, and GHULAM HASAN.JJ.].
Abducted Persons (Recovery and Restoration) Act (LXV of
1949) ss. 4, 6, 7-Constitution of India, Arts. 14, 15, 19 (1) (d), (e),
(g), 21, 22-Law authorising police officers to take abducted persons
into custody and deliver such persons to officer in charge of campConstitutional vaUdity-"Arrest and detention", meaning of-Sc<>]Je
of Art. 22-Construction of statutes.
The Abducted Persons (Recovery and Restoration) Act (Act
LXV of 1949) does not infringe art. 14, art. 15, art. 19 (1) (d), (e)
and (g), art. 21 or art. 22 of the Constitution and is not unconstitutional on the ground that it contravenes a,ny of these provisions.
The physical restraint put upon an abducted person in the
process of recovering and ta.king that person into custody without
any allegation or accusation of any actual or suspected or appre·
bended 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 s. 4 of the Abducted
Persons (Recovery and Restoration) Act (LXV of 1949) is not
arrest and detention within the meaning of art. 22 (1) and (2) of
the Constitution.
The said Act does not therefore infringe the
fundamental right guaranteed by art. 22 of the Constitution.
I
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s.c.n.
SUPREME COURT REPORTS
255
The fundamental right conferred by art. 22 gives protection
against such arrests as are effected otherwise than under a
warrant issued by a Court on the allegation or accusation th11.t the
arrested person has, or is suspected to have, committed,.or is
about or likely to commit, an act of a criminal or quasi-criminal
nature or some activity prejudicial to the public or the State
interest.
There is indication in the language of art. 22 (1) and (2)
that it was designed to give protection against the act of the executive or other non-judicial authority.
The Blitz Case (Petition No. 75 of 1952) explained.
Muslim abducted persons constitute a well-defined class for
the purpose of legislation and the fact that the Act is extended
only to the several States mentioned in s. 1 (2) of the Act does
not make any difference, for a classification may well be made on
a geographical basis. The Act does not therefore contravene art.
14 of the Constitution.
If the language of an article is plain and unambiguous and
admits of only one meaning, then the duty of the Court is to adopt ·
that i;neaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible then the Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew the other
which will lead to absurdity or give rise to practical inconvenience
or make well established provisions of existing law nugatory.

## Text

_Characters 0–39,993 of 40,885. This is a partial read: ask again with offset=39993 for what follows._

254
SUPREME COURT REPORTS
[1953]
1952
exclude nephews or they take jointly, and whether
succession is per stirpes or per capita, was the subi"ect
Ganeshi Lal
v.
of disagreement at the Bar before us.
This question
Joti Pershad. must therefore be left over for determination by the
trial court, and the case will have to go back to that
Ghan~rasekhara court for effecting partition and deli very of posses-
,i.yar J.
sion according to the shares to which the plaintiffs
may be found entitled. ·
1953
Nov.10 ..
Subject to what is contained in the foregoing paragraph, the appeal will stand dismissed with costs.
Appeal dismissed.
Agent for the appellant: Nehal Chand Jain.
Agent for the respondent: B. P. Maheshwari.
THE S'rA'l'E OF PUNJAB
v.
AJAIB SINGH AND ANOTHER
(PATANJALI SASTRI C.J., MUKHERJEA, DAS,
VIVIAN BosE, and GHULAM HASAN.JJ.].
Abducted Persons (Recovery and Restoration) Act (LXV of
1949) ss. 4, 6, 7-Constitution of India, Arts. 14, 15, 19 (1) (d), (e),
(g), 21, 22-Law authorising police officers to take abducted persons
into custody and deliver such persons to officer in charge of campConstitutional vaUdity-"Arrest and detention", meaning of-Sc<>]Je
of Art. 22-Construction of statutes.
The Abducted Persons (Recovery and Restoration) Act (Act
LXV of 1949) does not infringe art. 14, art. 15, art. 19 (1) (d), (e)
and (g), art. 21 or art. 22 of the Constitution and is not unconstitutional on the ground that it contravenes a,ny of these provisions.
The physical restraint put upon an abducted person in the
process of recovering and ta.king that person into custody without
any allegation or accusation of any actual or suspected or appre·
bended 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 s. 4 of the Abducted
Persons (Recovery and Restoration) Act (LXV of 1949) is not
arrest and detention within the meaning of art. 22 (1) and (2) of
the Constitution.
The said Act does not therefore infringe the
fundamental right guaranteed by art. 22 of the Constitution.
I
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s.c.n.
SUPREME COURT REPORTS
255
The fundamental right conferred by art. 22 gives protection
against such arrests as are effected otherwise than under a
warrant issued by a Court on the allegation or accusation th11.t the
arrested person has, or is suspected to have, committed,.or is
about or likely to commit, an act of a criminal or quasi-criminal
nature or some activity prejudicial to the public or the State
interest.
There is indication in the language of art. 22 (1) and (2)
that it was designed to give protection against the act of the executive or other non-judicial authority.
The Blitz Case (Petition No. 75 of 1952) explained.
Muslim abducted persons constitute a well-defined class for
the purpose of legislation and the fact that the Act is extended
only to the several States mentioned in s. 1 (2) of the Act does
not make any difference, for a classification may well be made on
a geographical basis. The Act does not therefore contravene art.
14 of the Constitution.
If the language of an article is plain and unambiguous and
admits of only one meaning, then the duty of the Court is to adopt ·
that i;neaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible then the Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew the other
which will lead to absurdity or give rise to practical inconvenience
or make well established provisions of existing law nugatory.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 82of 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. 0. Setalvad (Attorney-General for India) and
0. K. Daphtary (Solicitor-General for India) (R. Ganapathy, with them) for the appellant.
J.B. Dadachanji (amicus curi~) for respondent
No. 1.
1952. November 1 O. The Judgment of the Court
was delivered by
DAS J.-This appeal arises out of a habeas corpus.
petition filed by one Ajaib Singh in the High Court
1 of Punjab for the production and release of one
Musammat Sardaran alias Mukhtiar Kaur, a girl of
about 12 years of age.
195!J
The State of
Punjab
v.
~aib Singh
and Another.
256
SUPREME COURT REPORTS
[1953j
196a
Tbe material facts leading up to tbe filing of tbri,t
·Th• State of petition may be shortly stated as follows.
On tbe
. Punjab
report made by one Major Babu Singh, Officer Comv.
mahding No. 2 Field Company, S. M. Faridkot, in
Ajaib Singh bis letter dated February 17, 1951, that the petitioner
and Another. Ajaib Singh bad three abducted persons in his possesDas J.
sion, tbe recovery police of Ferozepore, on June 22,
1951, raided his house in village Shersingwalla and
took the girl Musammat Sardaran into custody and
deliYered her to tbe custody of tbe Officer in charge
of the Muslim Transit Camp at Ferozepore from
whence she ·was later transferred to and lodged in tbe
Recovered Muslim Women's Camp in Jullundur City.
A Sub-Inspector of Police named Nihar Dutt
Sharma was deputed by the Superintendent of Police,
RecoYery, 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 alia, that the girl had been abducted
by the petitioner during the riots of 1947.
On Nov~niber 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 comideration the report of the
Sub-Inspector aud the statements made before them
by the girl, her mother who appeared before them
while the enquiry was iu 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 pel'Son 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
lligb Court appended a note to tbe effect that she
'
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S.O.R.
SUPREME COURT REPORTS
257
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 A.ct.
'.l'hat 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 bearing
before Bhandari and Khosla J J. on N overnber 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.
Is Central Act No. T_JXV 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.
Is this Act ultra vires the Constitution because
in terms it violates the provisions of article 22 of the
Constitution?
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 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
1953
The St,ite of
Punjab
v.
Ajaib Singh
and Another.
Das J.
Th• Stat• of
Punjab
v.
Ajaib Singh
and Another.
Das J.
258
SUPREME COURT REPORTS
(1953]
and Harnam Singh J. In course of arguments before
the Full Bench the following further questions were
added:
"'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.
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.
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 couteution 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 22 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 prnperly constituted for reasons
mentioned above, but in view of bis 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 va.lidity of the cons~i·
tution of the Tribunal.
... -
S.C.R.
SUPREME COURT REPORTS
259
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 placM before the Divisi.on
Bench which thereafter ordered that M usa.mmat
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.
As the petitioner respondent Ajaib Singh
represented to us that he could not afford to brief
an advocate to argue his case, we requested Sri
J. B. Dadachanji to take up the case as amicus curiae
which he readily agreed to do.
He has put forward
the petitioner's case with commendable ability and
we place on record our appreciation of the valuable
assistance rendered by him to the Court.
In his opening address the learned SolicitorGeneral frankly admitted that he could not contend
that the Tribunal was properly constituted under
section 6 of the Act and conceded that in the premises the order of the High Court•directing the girl
to be released could not be questioned. He, however,
pressed us to pronounce upon the constitutional
questions raised in this case and decided by the High
· Court so that the Union Government would be in a
position to decide whether it would, with or without
modification, extend the life of the Act which is due
to expire at the end of the current month.
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 again»t the provisions of the Constitution
and that we would give our reasol:lS later on.
We
now proceed to set forth our reasons for the decision
a.lready announced.
~4
1952
Tht; Stata of
Punjab
v.
Ajaib Singh
and Another.
Das J.
•
1952
The St'lte.oj
Pun; ab
v.
Ajaib Singh
and Another.
Das.r.
'260
SUPREME COURT REPORTS
[1953)
In order to appreciate the rival contentions canvassed before ns it is necessary to bear in mind the
circumstances which led to the promulgation of an
Oriiinance which was eventually replaced by Act LXV
of 1949 which is impugned before us as unconstitutional. It is now a matter of history that serious
riots of virulent intensity broke out in India and
Pakistan in the wake of the partition of August, 1947,
resulting in a colossal mass exodus of Muslims from
India to Pakistan and of Hindus and Sikhs from
Pakistan to India.
There were heart-rending tales
of abduction of women and children on both sides of
the border which the governments of the two Dominions could not possibly ignore or overlook. As it was
not possible to deal with and control the situation by
the ordinary laws the two governments had to devise
ways and means to check the evil. Accordingly there
was a conference of the representatives of the two
Dominions at Lahore in December, 1947, and Special
Recovery Police Escorts and Social Workers began
functioning jointly in both the countries. Eventually
on November 11, 1948, an Jnter-Dominion Agreement between India and Pakistan was arrived at for
the recovery of abducted persons on both sides of the
border. 'ro implement that agreement was promulgated on January 31, 1949, an Ordinance called the
Recovery of Abducted Persons Ordinance, 1949.
This Ordinance was replaced by Act LXV of 1949
which came into force on December 28, 1949.
The
Act was to remain in force up to October 31, 1951,
but it was eventually extended by a year.
'l'hat the
Act is a piece of beneficial legislation and has served
a useful purpose canuot be deuied, for up to February 29, HJ52, 7,981 abducted persons were recovered
in Pakistan and 16,168 in India. This circumstance,
however, can have no bearing on the constitutionality
of the Act which will have to be judged on purely
legal considerations.
. The Act is a short one consisting of eleven sections.
It will be observed that the purpose of the Act is to
implement the agreement between tbe two countries
'\
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.... -
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; -
8.0.R.
SUPREME COUR'l' REPORTS
261
as recited in the first preamble.
The second preamble will show that the respective governments of
the States of Punjab, Uttar Pradesh, Patiala and
East Punjab States Union, Rajasthan and Delhi itJ.ve
their consent to the Act being passed by the Constituent Assembly-a circumstance indicative of the fact
that those governments also felt the necessity for this
kind of legislation.
By section 1 (2) the Act extends
to the several States mentioned above and is to remain in force up to October 31, 1952.
The expression "abducted person" is defined by section 2(1) (a)
as meaning "a male child under the age of sixteen
years or a female of whatever age who is, or immediately before the l st day of March, 194 7, was a
Muslim and who, on or after that day and before
the 1st day of January, 1949, has become separated
ffom his or her family, and in the latter case includes
a child born to any such female after the said date."
Section 4 of the Act, which is important, provides
that if any police officer, not below the rank of an
Assistant Sub-Inspector or any other police officer
specially authorised by the State government in that
behalf, has 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 warra.nt,
enter and take into custody any person found therein
who, in his opinion, is an abducted person, and deliver
or cause such persons to be delivered to the custody
of the officer in charge of the nearest camp with the
least possible delay.
Section 6 enacts that if any
question arises whether a person detained in a camp
,•
is or is not an abducted person, or whether such person should be restored to his or her relatives or
handed over to any other person or conveyed out of
India or allowed to leave the camp, it shall be referred to, and decided by, a '1
1ribunal constituted for the
purpose by the Central Government.
The section
makes the decision of the Tribunal final, subject,
however, to the power of the Central Government to
review or revise any such decision. Section 7 provides
for the implementation of the decision of the
1953
The State of
Punjab
v.
Ajaib Singh
and Another.
Das J.
1952
1.'he State of
Punjab
v.
Ajaib Singh
and Another.
Das J.
262
SUPREME COURT REPOHTS
(1953]
Tribunal by declaring that any officer or authority to
whom the custody of any abducted person has been
delivered shall be entitled to receive and hold the person" in custody and either restore such person to his
or her relatives or convey such persons out of India.
Section 8 makes the detention of any abducted person
in a c'amp in accordance with the provisions of the
Act lawful and saves it from being called in question
in any court.
Section 9 gives the usual statutory
immunity from any suit or proceeding for anything
done under the Act in good faith.
Section 10 empowers the Central Government to make rules to
carry out the purposes of the Act.
The main contest before ns 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
Constitution commands that every person -arrested
and detained in custody shall be produced before the
nearest Magistrate within 24 hours excluding the
time requisite for the journey from the place of arrest
to the Court of the Magistrate but section 4 of the
Act requires the police officer who takes the abducted
person into custody to deliver such person to the
custody of the officer-in-charge of the nearest camp
for the reception and detention of abducted persons.
'rhese provisions are certainly conflicting and inconsistent. 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
'
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•
4' -
S.C.R.
SUPREME COUR'r REPORTS
263
defended by a legal practitioner of his choice is also
significant.
'rhe 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)
shou Id be read in to 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 (nto 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 officerin-charge of the nearest camp can be regarded as
arrest and detention within the meaning of article
22(1) and (2). If they are not, then there can be no
complaint that the Act infringes the fundamental
right guaranteed by article 22(1) and (2).
Sri Dadachanji contends that the Constitution and
particularly Part III thereof should be construed liberally so that the fundamental rights conferred by it may
be of the widest amplitude. He refers us to the various
definitions of the word "arrest" given in several we Uknown law dictionaries and urges, in the light of such
definitions, that any physical restraint imposed upon
a person must result in the loss of his personal liberty
and must accordingly amount to his arrest. It is
wholly immaterial why or with what purpose such
arrest is made.
'rhe mere imposition of
physical
restraint, irrespective of its reason, is arrest and as
such, attracts the application of the constitutional
safeguards guaranteed by article 22 (1) and (2). That
the result of placing such a wide definition on the
the term "arrest" occurring in article 22 (1) will
render many enactments unconstitutional is obvious.
To take one example, the arrest of a defendant before judgment
under
the
provisions of Order
XXXVIII, rule 1, of the Code of Civil Procedure or
the arrest of a judgment-debtor in execution of a
decree under section 55 of the Code wi'll, on this
1952
The State of
Punjnb
v.
Ajaib Singh
and A nothe1·.
Das J.
•
•
1952
1'h6 State of
Pnnjab
v.
Ajaib Singh
and A 1tothcr.
Das J.
264
SUPREME COURT REPOR1'S
[1953)
hypothesis, be unconstitutional inasmuch as the Code
provides for tbe production of the arrested person,
not before a Magistrate but before the civil court
which made tbe order.
Sri Dadachauji contends that
such consideration should IJ.Ot weigh with the court
in construing the Constitution.
'iVe are in agreement with learned counsel to this extent only that if
the language of the article is plain ·and unambiguous
and admits of only one meani1rn then tbe duty of the
court is to adopt that meaning irrespective of the
inconvenience that such a construction may produce.
If, however, two constructions are possible, then the
court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew
tbe other which will lead to absurdity or give rise to
practical inconvenience or make well established provisions of existing law nugatory.
·we have, therefore, to examine tbe article in question with care and
ascertain the meaning and import of it primarily from
its language.
'
Broadly speaking, arrests may be classified into two
categories, namely, arrests under warrants issued by
a court and anests otherwise
than
under
such
warra.nts.
As
to the first category of
arrest,
sections 75
to
86 collected under sub-beading
" B-Warrant of Arrest" in Chapter VI of the Code
of Criminal Procedure deal with arrests in execution
of warrants issued by a court under that Code.
Section 7 5 prescribes that such a warrant must be in
writing signed by the presiding officer, or in tbe case
of a Bench of Magistrates, by any member of such
Bench and bear the seal of the court.
Form No. II
of Schedule V to the Code is a form of warrant for
tbe arrest of an accused person.
The warrant quite
clearly has to state that the person to be arrested
stands charged with a certain offence.
Form No.
VII of that Schedule is used to bring up a witness.
The warrant itself recites that the court issuing it has
good and sufficient reason to believe that the witness
will not attend as a witness unless compelled to do so.
The point to be notell is that in either case the
"'
...
S.C.R.
SUPREME COURT REPOR'rS
265
warrant ex facie sets out the reason for the arrest,
namely, that the person to be arrested has committed
or is suspected to have committed or is likely to commit
some offence.
In short, the warrant contains. a crear
accusation against the person to be arrested. Section
80 requires that the Police Officer or other person
executing a warrant must notify the substance thereof
to the person to be arrested, and, if so required, shall
show him the warrant. It is thus abundantly clear
that the person to be arrested is informed of the
grounds for his arrest before he is actually arrested.
Then comes section 81 which runs thus:-
"The Police Officer or other person executing a
warrant of arrest shall (subject to the provisions of
section 76 as to security) without unnecessary delay
bring the person arrested before the Court before
which he is required by law to produce such person."
Apart from the Code of Criminal Procedure, there
are other statutes which provide for arrest in execution of a warrant of arrest issued by a court. To take
one example, Order XXXVIII, rule 1, of the Code of
Civil Procedure authorises the court to issue a
warrant for the arrest of a defendant before judgment
in certain circumstances.
Form No. 1 in Appendix F
sets out the terms of such a warrant. It clearly recites
that it has been proved to the satisfaction of the
court that there is probable cause for belief that the
defendant is about to do one or other of the things
mentioned in rule 1.
The court may under section
55 read with Order XXI, rule 38, issue a warrant for
the arrest of the judgment-debtor in execution of the
decree.
Form No. 13 sets out the terms of such a
warrant.
The warrant recites the decree and the
failure of the judgment-debtor to pay the decretal
amount to the decree-holder and directs the bailiff of
the court to arrest the defaulting judgment-debtor,
unless he pays up the decretal amount with costs and
to bring him before the court with all convenient
speed.
The point to be noted is that, as in the case
of a warrant of arrest issued by a court under the
Oode of Criminf!-1 Procedure, a warrant of arrest
1952
The State of
Pwijab
v.
Ajaib Siiigh
and Anoth•r.
Das J.
195.'J
The State of
P1t1ifab
v.
Aj ?i.b Singh
and Another.
Das J.
266
SUPREME COURT REPORTS
[1953)
issued by a court under the Code of Civil Procedure
quite plainly discloses the reason for the arrest in that
it sets out an accusation of default, apprehended or
ac~al, .and that the person to be arrested is made
acquainted with the reasons for his arrest before he
is actually arrested.
The several sections collected under sub-heading
"B-Arrest without warrant " in Chapter V of the
Code of Criminal Procedure deal with arrests otherwise than under warrants issued by a court under that
Code. Section 54 sets out nine several circnmstances
in which a police officer may, without an order from
a Magistrate and without a warrant, arrest a person.
Sections 55, 57, 151 and 401 (3) confer similar
powers on police officern.
Colunrn .3, Schedule II, to
the Code of Criminal Procedure also specifies the
cases where the police may arrest a person without
warrant.
Section 56 empowers an officer in charge
of a police station or any police officer making an
investigation under Chapter XIV to require any
officer subordinate to him to arrest without a warrant
any person who may lawfully be arrested without a
warrant. In such a case, the officer deputing a subordinate officer to make the arrest has to deliver to
the latter an order in writing specifying the person to
be arrested and the offence or other cause for which
the arrest is to be made and the subordinate officer is
required, before making the arrest, to notify to the
person to be arrested the substance of the order and,
if so required by such person, to show him the order.
Section 59 authorises even a private person to arrest
any person who in his view commits a non-bailable
and cognisable offence or any proclaimed offender
and requires the person making the arrest to make
over the arrested person, without unnecessary delay,
to a police officer or to take such person in custody to
the nearest police station. 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 p~rson arrested is accused of having committed
or reasonably suspected to have committed or oi
.f.
-
<" -
S.0.R.
SUPREME COURT REPORTS
267
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 wanant
with the grounds for his arrest.
Sections 60 and 61
prescribe the procedure to be followed after a person
is arrested without warrant. They run thus:-
" 60.
A police officer making an arrest without
warrant shall without unnecessary delay and subject
to the provisions herein contained as to bail, take or
send the person arrested before a Magistrate having
jurisdiCtion in the case, or before the officer in charge
of a police station."
"61. No police officer shall detain in custody a
person anested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a
special order of a Magistrate under section 167,
exceed twenty-four hours, exclusive of the time
necessary for the journey from the place of arrest
to the Magistrate's Court."
Apart from the Code of Criminal Procedure, there
are other statutes which authorise the arrest of a person without a warrant issued by any Court. Reference
may, by way of example, be made to sections 173 and
174 of the Sea Customs Act (VIII of 1878) and section 64 of the Forest Act (XVI of 1927). In both
cases, the reason for the arrest is that the arrested
person is reasonably suspected to have been guilty of
an offence under the Act and there is provision in
both cases for the immediate production of the arrested
person befol"e a Magistrate. Two things are to be
noted, namely, that, as in the cases of arrest without
warrant under the Code of Criminal Procedure, an
arrest without warrant under these Acts also proceeds
upon an accusation that the person arrested is reasonably suspected of having committed an offence· and
there is no provision for communicating to the perso~
arrested the grounds for his arrest,
~J
1952
The Stats of
Punjab
v.
Ajaib Si>igh
and Another.
Das.J.
'1962
·The State of
·Punjab
v.
Ajaib Singh
and Another.
DasJ.
268
SUPREME COURT REPORTS
[1953]
Turning now to article 22(1) and (2), we have to
ascertain whether its protection extends to both cate-
. gories of arrests mentioned above, and, if not, then
which oue . of them comes within its protection.
There can be no manuer 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 peroan should within 24 hours be
produced before the nearest Magistrate is particularly
.desirable in the case of arrest otherwise tban 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 tbe arrest and the
regularity of the procedure adopted by him. In the
case of arrest under a warrant issued by a court, the
judicial mind bad 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. It is also
perfectly plain that the language of article 22(2) bas
been practically copied from sections 60 and 61 of
the Code of Criminal Procedure which admittedly
.prescribe the procedure to be followed after a person
has been arrested without warrant. The requirement
of article 22(1) that no person who is arrested shall
.be detained in custody without being informed, as
soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest
without a warrant of court, for, as already noted, a
person arrested under a court's warrant is made
acquainted with the grounds of his arrest before the
arrest is actually effected.
There can be no doubt
that the right to consult a legal practitioner of his
choice is to enable the arrested person to be advised
about the legality or sufficiency of the grounds for
his arrest. The right of the arrested person to be
defended by a legal practitioner of his choice postulates that there is an accusation against him against
which he has to be defended.
The language of
article 22(1) and (2) indicates that the fundamental
right conferred by it gives protection a15ainst such
• •
s.b.R.
SUPREME COURT REPORTS
269
arrests as are effected otherwise than under a warrant
issued by a court on the allegation or accusation that
the arrested person has, or is suspected to have, ~om
mitted, or is about or likely to commit an act of a
criminal or quasi-criminal nature or some activity
prejudicial to the public or the State interest. In
other words, there is indication in the language of
article 22(1) and (2) that it was designed to give
protection against the act of the executive or other
non-judicial authority.
The Blitz case (Petition
No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made
on a warrant issued, not by a. court, but, by the
Speaker of a State Legislature and the arrest was
made on the distinct accusation of the arrested person
being guilty of contempt of the Legislature. It is
not, however, our purpose, nor do we consider it
desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental
right or to enumerate exhaustively the cases that
come within its protection. Whatever else may come
within the purview of article 22(1) and (2), suffice it
to say for the purposes of this case, that we are satis- .
:tied that the physical restraint put upon an abducted
person in the process of recovering and taking that
person into custody without auy 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). In our view, the
learned Judges of the High Court over-simplified the
matter while construing the article, possibly because
the considerations herein before adverted to were not
pointedly brought to their attention.
Our attention has been drawn to sections 100
(search for persons wrongfully confined) and 552
(power to compel restoration of abducted females) of
1962
2'he Stato of
Punjab
v.
Ajaib Singh
and Anothsr.
Daa J.
'
191i2
The State of
Punjab
v.
Ajaib Singh
and Another.
Da~ J.
270
SUPREME COURT REPORTS
(1953)
the Code of Criminal Procedure, and it bas been
urged tha~ neither of those sections contemplates an
acc~ation against the victim and yet such victim,
after recovery, has to be brought before a Magistrate.
It is to be observed that neither of the two sections
treats the victim as an arrested person for the victim
is not produced before a Magistrate under sections
60 and 61 which require the production of a person
arrested without warrant, or under section 81 which
directs the production of a person arrested under a
warrant issued by a court.
The recovered victim is
produced by reason of special provisions of two sections, namely, sections 100 and 552.
These two
sections clearly indicate that the recovery and taking
into custody of such a victim are not regarded as
arrest at all within the meaning of the Code of
Criminal Procedure and, therefore, cannot also come
within the protection of article 22(1) and (2).
This
circumstance also lends sup port 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).
Before the Constitution came into force it was
entirely for the Legislature to consider whether the
recovered person should be produced before a Magistrate as is provided by sections 100 and 552 of the
Criminal Procedure Code in the case of persons
wrongfully confined or abducted.
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.
Sri Dadachanji also argued that the Act is inconsistent with article 14.
'!.'be meaning, scope and
ambit of that article need not be explained again, for
they have already been explained by this Court on
more than one occasion. [See ChiranjitLal Chowdhury
v. The Union of India('), The State of Bombay v. F. N.
(1) [1950) S.C.R. 869.
~ ,
..
•
•
S.C.R.
SUPREME COURT REPORTS
271
Balsara (1), The State of West Bengal v. Anwar Ali
Sarkar (2), and Kathi Raning Rawat v. The State of
Saurashtra (3)].
'l' here can be no doubt tb at 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 ~o. 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.
The learned counsel for the respondent Ajaib Singh
contended that the Act was inconsistent with the
provisions of article HJ(l)(d) and (e) and article 21.
'fhis matter is concluded by the majority decision of
this court in Gopalan's case (4) and the High Court
quite correctly negatived this contention.
8ri Dadachanji has not sought to support the views of
Bhandari J. regarding the Act being inconsistent
with article 19 (l)(g).
Nor has learned counsel
(1) [1951] S.C.R. 682.
(2) [1952] S.C.R. 284.
(3) [1952] S.C.R. 435.
(4) [1950] S.C.R. 88.
1952
The State of
Punjab
v.
Ajaib Singh
and Another.
Da& J.
The State o/
Punjab
v,
Ajriib Singh
and Another.
DasJ.·
l9ii2
' 'Dea~ a.
272
SUPREME COURT REPORTS
[1953]
seriously pressed the objection of unconstitutionality
based on article 15, which, in our view, was rightly
rejected by the High Court.
lrlthough we hold that the High Court erred on
the construction they put upon article 2:2 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 So Ii ci tor-General.
vVe, therefore,
dismiss this appeal on that ground. We make no
order as to costs.
Appeal dismissed.
Agent for the appellant: P. A. Mehta.
VISHWAMITRA PRESS KARYALAYA
v.
THE WORKERS OF VISHWAMI'l'RA PRESS.
THE STATJ£ OF U'l'TAR PRADESH-Intervener.
[MEHll CHAND MAHAJAN, DAS and BHAOWATI JJ.]
U. P.