Full Judgment Text
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PETITIONER:
V.L.ROHLUA
Vs.
RESPONDENT:
DY. COMMR. AIJAL, DISTT. MIZO
DATE OF JUDGMENT:
29/09/1970
BENCH:
[M. HIDAYATULLAH, C.J., J. M. SHELAT, G. K. MITTER,C. A. VAIDIALINGAM AND A. N. RAY, JJ.]
ACT:
The Armed Forces (Assam & Manipur) Special Powers Act, 1958,
ss. 4 and 5-Code of Criminal Procedure, 1898, s. 344-Mizo
hostile arrested by armed forces under s. 4 of 1958 Act-
Handed over to civil authorities after two months-Whether
this was done with the least possible delay within meaning
of s. 5-Remand orders by Magistrate exceeding 15 days-Code
of Criminal Procedure not applicable to area-Spirit of Code
only applies-Remand orders exceeding 15 days when not un-
conscionably long do not vitiate detention.
HEADNOTE:
The petitioner was a resident of Mizo District. He was
arrested by the Armed Forces under s. 4(c) of the Armed
Forces (Assam & Manipur) Special Powers Act, 1958. He was
handed over to the Civil Authorities on March 2, 1968, i.e.,
about two months after his arrest. Thereafter two criminal
cases covering a wide range of offences under the Assam
Maintenance of Public Order Act, the Arms Act and several
sections of the Indian Penal Code were started against him.
He was remanded to Judicial custody from time to time the
period of remand being on each occasion more than 15 days.
He filed a petition for a writ of habeas corpus in the High
Court and on its dismissal hr. filed a writ petition in this
Court under Art. 32 of the Constitution. The questions that
fell for consideration were : (i) whether his detention was
illegal on the ground that the armed forces had not
handed him over to the civil authorities with the ’least
possible delay’ as required by s. 5 of the 1958 Act; (ii) whether
the detention of the petitioner could be held to be illegal
because (a) the remand orders were for more than 15 days and
(b) there was a break in the remand orders while the
petition under Art. 32 was pending in this Court.
HELD : (i) Under s. 5 of the Armed Forces (Assam & Manipur)
Special Powers Act the person arrested has to be made over
to the officer in charge of the nearest police station with
the least possible delay, together with the circumstances
occasioning the arrest. What is the least possible delay in
a case depends upon the facts, that is to say, how, where
and in what circumstances the arrest was affected. In the
present case the petitioner was, according to the affidavit
filed on behalf of the State Government, connected with the
Mizo hostiles who were waging war against India., It was,
therefore, necessary to question him about his associates,
his stores of arms, and like matters. The difficulty of
the terrain, the presence of hostile elements in the
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area must be considered in this connection. Although the
Armed Forces surrendered the petitioner to the Civil
authorities after some delay, which was not intended by the
law, there was not too much delay. [506 A-D]
(ii) The Criminal Procedure Code is not applicable by reason
of the sixth Schedule to the Constitution, in the area in
question. only the spirit of the Criminal Procedure Code
applies. Therefore strict compliance with the provisions
of Art. 344 could not be insisted on. [506 E-F]
State of Nagaland v. Rattan Singh,[1966] 3 S.C.R. 830,
referred to.
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The period of remand in the present case was each time more
than 15 days but not so unconscionably long as to violate
the spirit of the Code. There was a gap when the petitioner
was in the custody of this court but no request was made for
his release then. He was remanded to the custody of the
Magistrate by this Court and thereafter his detention could
not be held to be illegal. [406 G]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 238 of 1970.
Petition under Art. 32 of the Constitution of India for writ
in the nature of habeas corpus.
Hardev Singh, for the appellant.
Naunit Lal, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C. J. The petitioner Rohlua has applied for
his release by the issuance of a writ of Habeas Corpus.
previously he had applied to the High Court of Assam &
Nagaland (Misc. Criminal Case No. 506 of 1969) but his
petition was dismissed. The facts are as follows :
The petitioner is admittedly an inhabitant of Bakupi in the
Mizo District. He was arrested by the Armed Forces under s.
4(c) of the Armed Forces (Assam & Manipur) Special Powers
Act, 1958. He was handed over to the Civil Authorities on
March 2, 1968. Since then-two criminal cases have been
started against him on November 10, 1969 and February 26,
1970. They cover a wide range of offences under the Assam
Maintenance of Public Order Act, the Arms Act, several
sections of the Indian Penal Code, etc. The cases are
pending against him.
The petitioner’s complaint is that he was not informed of
the rounds of his arrest and detention, that no warrant was
shown to him and that he was denied the right of making
representations. His further grievance is that the cases
have not been tried and he is held in illegal custody
without obtaining proper remands from Magistrates.
These allegations are controverted in counter-affidavits by
Mr. D. B. Poon the Additional Deputy Commissioner, Mizo Dis-
trict, Aijal. According to him the petitioner was arrested
without warrant by the Armed Forces as is authorised under
S. 4(c) of the Armed Forces (Assam & Manipur) Special Powers
Act. The petitioner was informed of the grounds of his
arrest and as soon as he was handed over to the Civil
Authorities he was prosecuted for the offences. The
petitioner was also given the grounds of detention along
with the detention order on May 9, 1968. He could have
represented to the Advisory Board but did not make a
representation. Since then the petitioner made a confession
which is also exhibited in the case but as he is to be tried
we do not refer to it here.
505
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The State authorities have produced the order-sheets from
the cases. From them it appears that the petitioner was’
charged in the Court of the Additional District Magistrate
on March 3, 1968 and was kept in judicial custody. He has
since been remanded to jail custody from time to time. On
July 28, this Court in the Habeas Corpus petition ordered
his production in Court and appointed Mr. Hardev Singh
Advocate as Amicus Curiae.
The petitioner then filed a second affidavit on August 3,
1970. In that affidavit he has alleged that he was handed
over to the ,civil authorities by the Armed Forces after 2
months from his arrest, his confessional statement was
obtained at gun-point, that no order was served on him under
the Assam Maintenance of Public Order Act, 1953, that he was
tortured, that the detention order was vague and that as the
remand order expired on July 18, 1970 his further detention
became illegal.
In reply to this another affidavit has been filed by Mr. D.
B. Poon. According to him the petitioner was handed over to
the civil authorities on March 2, 1968 and the petitioner
was produced before a Magistrate the very next day. The
order of remand made on that day has been filed. The last
order of remand was made on June 20, 1970 and it was till
July 18, 1970. Since then another order of remand has been
produced and the remand is to run till September 28, 1970.
During the time he has been in the custody of this Court
there has ’been a break in the orders of remand as will
appear presently. The Additional Deputy Commissioner also
stated that owing to shortage of accommodation at Aijal Jail
the petitioner was kept in Dibrugarh Jail till his
production in this Court. In a supplementary affidavit the
Additional Deputy Commissioner has explained that the
petitioner was held for some time. by the Armed Forces for
interrogation at the Security Force Head Quarters because of
his connection with activities against the security of the
State and his close association with the outlawed Mizo
National Front Army and with Pakistan, that before the last
order of remand expired the petitioner was put in the
custody of this Court and that now he is again on a proper
remand by the Magistrate in the original custody. The
affidavit also states that the Criminal Procedure Code does
not apply to the Mizo District and the spirit of the Code
has been followed in this case, that the petitioner was pro-
duced before a Magistrate within the time prescribed by the
Constitution and the Code of Criminal Procedure and that the
remands, although of more than 15 days duration, were legal
as there was no provision applicable and the requirements of
this disturbed area justified slightly longer periods
between each remand as jail conditions were difficult.
506
-From the order-sheets produced before us it is clear that
the petitioner was first produced before the Magistrate on
March 3, 1968. That was roughly two months after his arrest
by the Armed Forces. Under s. 5 of the Armed Forces (Assam
& Manipur) Special Powers Act, he had to be made over to the
Officer-in-charge of the nearest police station with the
least possible delay, together with a report of the
circumstances occasioning the arrest. What is the, least
possible delay in a case depends upon the facts, that is to
say; how, where and in what circumstances the arrest was
effected. From the affidavit of Mr. Poon, it prima facia
appears that the petitioner is connected with the Mizo
hostiles who are waging war against India. It was, there-
fore, necessary to question him about his associates, his
stores of arms, and like matters. The difficulty of the
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terrain, the presence of hostile elements in the area must
be considered in this connection. Although it seems to us
that the Armed Forces delayed somewhat his surrender to the
civil authorities, which is not the intention of the law,
there Is not too much delay. If the matter had arisen while
the petitioner was in the custody of the Armed Forces a
question might well have arisen that he was entitled to be
released or atleast made over to the police. However, that
question does not arise now because he is an under trial
prisoner. The only question is one of remand. Here too, if
the matter had been for the application of the rules of the,
Code of Criminal Procedure, no remand could have been longer
than 15 days at a time. The fact of the matter, however, is
that the Criminal Procedure Code is not applicable by reason
of the Sixth Schedule to Constitution in this area. This
was laid down in State of Nagaland v. Rattan Singh(1). Only
the spirit of the Criminal Procedure Code applies. In this
view of the matter we cannot insist on a strict compliance
with the provisions of s. 344 of the Code of Criminal
Procedure. The petitioner had to be kept at Dibrugarh for
want of space at Aijal. Long distances, difficult terrain
and hostile country, are considerations to take into
account. The period each time was slightly longer than 15
days but not so unconscionably long as to violate the spirit
of the Code. There was a gap when the petitioner was in the
custody of this Court but no request was made for his
release then. Now he is on a proper remand and in fact has
been remanded to the custody of the Magistrate by us. We
cannot now hold his detention to be illegal.
We see no reason to release him. The petition fails and
will be dismissed.
G.C. Petition dismissed.
(1)[1966] 3 S.C. R. 830.
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