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Petitioner: CHIRAGH DIN VS Respondent: CROWN
P
P. L. D. 1950 Lahore 451
Before Muhammad Jan, J.
CHIRAGH DIN‑Petitioner
Versus
CROWN‑Respondent
Criminal Miscellaneous Petition No. 348 of 1950, decided on 21st August, 1950, under section 491, Criminal Procedure Code.
(a) Punjab Public Safety Act (XVIII of 1949), S. 3 (1) "Satisfied‑Whether means "reasonably satisfied"‑Onus on Crown to prove to satisfaction of Court that arrest was' neces sary.
The Crown must prove, to the satisfaction of the Court before whom the arrest is challenged, that the officer ordering the arrest was "reasonably satisfied" that the arrest was neces sary in order to prevent the person arrested from acting in a manner prejudicial to public safety or order.
Liversidge v. Sir John Arderson ; Green v. Secretary of State for Home Affairs reported in All England Reports Vol. III (1941) at pages 338 and 388 respectively ; I. L. R. 1946 Nagpur 651; A. I. R. 1948 Lahore 84 ref.
The order of arrest and the affidavit of the officer ordering the arrest, which do not disclose the information which the officer possessed when he ordered the arrest, do not enable the Court to pass judgment on 'the matter in issue nor do‑ they dis charge the onus which rests on the Crown.
[The habeas corpus petition, however, was dismissed, following P. L. D. 1950 F. C. 1 (13) wherein it was held by the Federal Court that the reasons for the arrest cannot be asked‑and it is for the detenu to prove that he was arrested for reasons for which he could not be arrested or detained.]
Evidence Act (1 of 1872), Ss., 123, 124‑Reasons for arrest under Punjab Public Safety Act (XVIII of 1949), S. 3 (1), whether Privileged‑Evidence Act (I of 1872), Ss. 4 and 114, illus. (e; and (h).
The officer ordering the arrest is not justified in refusing to answer material questions with regard to the factum of his satisfaction by virtue of section 124, Evidence Act. Even if he were legally entitled to refuse cross‑examination on this point, his refusal could lead to an adverse inference regarding the truth of his averments. Everybody knows that the Punjab Public Safety Act is an unpopular piece of legislation because it infringes upon the liberty of the people and allows a Police Officer to put anyone in prison without trial. When such acts of Government servants are decried as oppressive, arbitrary, wanton or dishonest, it is in the public interests, that the public officers concerned should state the reasons why they acted as they did and not rest content with merely repeating the shibboleth that they were "satisfied". The officers of the Crown, whilst banking on illustration (e) of section 114, Evidence Act, lose sight of illustration (h) which says that the "Court may presume that if a man refuses to answer a. question which he is not com pelled to answer by law, the answer, if given, would be un favourable to him.
The officer ordering arrest by refusing to be cross‑examin ed, prevents the Court from determining whether the arrest was or was not within the purview of subsection (1) of section 3 of the Act and bars the enquiry on the question whether or not he was really satisfied that it was necessary to arrest the detenu in order to prevent him from acting in a manner preju dicial to public safety or order. It is true that if the original order of arrest, which is an official record of the act of arrest, contains a recital that the officer ordering the arrest was satis fied that it was necessary to arrest the detenu in order to pre vent him from acting prejudicially to public safety or order, the Court may presume under section 114 (e), Evidence Act, that, the official act of arrest was regularly performed.
But, by virtue of section 4, Evidence Act, presumption under section 114 (e) is not obligatory. The Court may or may not make that presumption, according to the circumstances of the case, and even where the Court makes the presumption it is a rebuttable presumption.
Section 124; Evidence Act, says that no public officer shall be compelled to disclose communications made to him in official confidence when .he considers that the public interests would suffer by the disclosure. In the first place, there is nothing to prevent a public officer from voluntarily disclosing any commu nications made to him in official confidence. Secondly, all commu nications made to a public offices are not in official confidence.
In cases where the liberty of the subject is at stake, the responsibility of the High Court is great ; and it has a right to expect that the, Crown will place all the facts frankly before it; or, at any rate, so much of the facts as will, without dis closing secret information, enable the Court to a conclusion on the issues raised.
It is well‑established that the High Court cannot substitute its own judgment in place of the judgment of the officer order ing the arrest, Such officers can, therefore, very safely state the act or acts to prevent which the detenu was arrested provided that the acts were prejudicial to public safety or order. The obstinate refusal to give any idea of the apprehended acts raises a strong suspicion that the acts were not prejudicial to public safety or order.
Certain witnesses can claim privilege under sections 123 and 124, Evidence Act; provided that there are grounds for the claim. If the grounds do not exist there is no privilege. Section 123 of this Act says, that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State except with the permission of the officer at the head of the department concerned who shall give or with hold such permission, as he thinks fit.
A. I. R. 1948 Lah. 84 ; A. 1. R. 1945 Nag. 8 ; A. 1. R. 1943 Lah. 41 ; A. I. R. 1944 Lah. 373 ; P. L. R. 1949 Lah 531 (=P. L. D. 1949 Lah. 55) ; P. L. R. 1949 Lah. 497 ; Criminal Miscellaneous No. 172 of 1950 ref,
(c) Federal Court‑Obiter dicta of‑Whether binding on High Court.
A. I. R. 1944 Lah. 220 ref.
Khawaja Feroz‑ud‑Din Ahmad, for Petitioner.
Abdul Aziz Khan, Advocate‑General, for Respondent.
ORDER
MUHAMMAD JAN, J.‑---On 16th June 1950 an order was issued by Agha Ali Muhammad Khan, Senior Superintendent of Police, Lahore, for the arrest of Mehraj Din, son of Muhammad Bakhsh under section (3) (1), Punjab Public Safety Act, 1949. It has been placed on the record of this case and reads as follows:‑
"Having been satisfied that with a view to preventing Mehraj Din, son of Muhammad Bakhsh from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary so to do, I hereby direct A. S. I. Khuda Bakhsh to arrest the said Mehraj Din ........................
On 17th June 1950, Mehraj Din was arrested by Khuda Bakhsh, A. S. I. On the same day Agha Muhammad Ali made a report to the Home Secretary to Government, Punjab, Lahore, that having been satisfied that with a view to prevent ing Mehraj Din from acting in a manner prejudicial to the public safety and the maintenance of public order it was neces sary to arrest him. Agha Muhammad Ali directed Khuda Bakhsh, A. S. I., to effect his arrest which he did on 17th June 1950 at 5 A.M. The order of detention, dated the 17th June 1950, was issued by Agha Muhammad Ali to the Superintendent, Central Jail at Montgomery, to receive the said Mehraj Din into his custody in the Central Jail and to detain him there for a period of one month. Ten days later, i.e., on 27th June 1950, the Governor of the Punjab, in exercise of the powers conferred on him by subsection (4) of section 3 of the Punjab Public Safety Act, 1949, ordered that the aforesaid Mehraj Din be de tained in jail until 16th December 1950.
On 19th June 1950 a petition, under section 491, Criminal Procedure Code, supported by an affidavit, was filed in the High Court, Lahore, by Chiragh Din, brother of Mehraj Din. The petition should inter alia, that in 1927 there were communal disturban ces in Lahore in which the Muslims were subjected to many atro cities and Mehraj Din helped them at great personal risk and to the annoyance of the Hindus who, being influential, had his name entered in police Register No. 10. Later on his name was removed from that register but in the year 1946 a bigoted Hindu D. S. P, again had his name put on Register No. 10 when Mehraj Din was away at Kashmir. About three months be fore the arrest Ch. Muhammad Nasib, Officer in charge, Gowal mandi Police Station, recommended that the name of Mehraj Din be removed from Register No. 10 because he was living an honourable life. The recommendation was accepted. After this Asghar Ali Shah, who was in charge of Police Station, Gowal mandi, asked Mehraj Din for some gratification failing which, he threatened to make it difficult for Mehraj Din to live in peace. On Mehraj Din's refusal to comply with the demand, Asghar Ali Shah became hostile and said he would have Mehraj Din's name re‑entered in Register No. 10. Mehraj Din was stated in the petition to be possessed of property worth a couple of lacs, yielding a monthly rental of four to five hundred rupees. He was given a commendation certificate by the Superintendent of Police, Lahore, in 1943 and a reward for good services. Mehraj Din was said to be a respectable married man with four children. His arrest by the police was unjustified and the petitioner believed that Asghar Ali Shah, Sub‑Inspector, had got him arrested on some false charge out of malice. The detention of Mehraj Din. was alleged to be ultra vires, improper and unjust. It was, therefore, prayed that Mebraj Din, who was said to be illegally and improperly detained, be set at liberty. A writ of habeas corpus was issued by the learned Chief justice on 20th June 1950.
On 26th June 1950 an affidavit was filed by Asghar Ali Shah, Sub‑Inspector of Police, affirming that he was Station House Officer, Gowalmandi Police Station, since 13th March 1950 and the history sheet of Mehraj Din was in his custody. It was incorrect that the history sheet was opened on account of any communal feelings. On 16th March 1900, on an under taking given by Mehraj Din that in future he would abstain from his nefarious activities Asghar Ali Shah recommended that his name should be transferred from bundle A to bundle B in order to give him a chance of reforming himself. The recom mendation was accepted but Mehraj Din made no improvement. Asghar Ali Shah further affirmed that he had never demanded any gratification from Mehraj Din, nor had he ever threatened to make it impossible for him to live in peace. Mehraj Din had, according to the information of the deponent, no regular profession or business. He was a man of a "desperate type" who molested women and was the ring‑leader of a gang of bad characters who also indulged in acts of molestation and assaults on ‑innocent girls and respectable women. The guardians of such girls and, women were reluctant to register cases with the police.
On 3rd July, Agha Muhammad Ali Khan filed an affidavit saying that Mehraj Din was arrested under section 3, Punjab Public Safety Act, 1949, by his order and the order was bona fade. Ire ordered the arrest and detention of Mehraj Din after being satisfied that it was necessary to do so in order to prevent him from acting in a manner prejudicial to public safety and order. The affidavit further showed that Mehraj Din was a bad character whose history sheet was opened in 1933. His name was on bundle A from 1933 to 28th May 1945 and was again put on that bundle on 15th October 1945. Mehraj Din was a: pre vious convict and, according to the information received by the deponent, he never had any regular profession or business.
On 10th July 1950, learned counsel for petitioner prayed for opportunity to produce evidence, and he was allowed to do so.
Agha Muhammad Ali Khan, who had ordered the arrest of Mehraj Dins was the first witness to be examined. He was asked to state the nature of the prejudicial act which he apprehended that the detenu was likely to commit. The witness refused to disclose the nature of the prejudicial act on the ground of privilege: He was then asked whether the prejudicial act was against the State or society. He replied that the apprehended act was "prejudicial to public safety." He refused to say how it was prejudicial to public safety and again claimed privilege. He said that there was a complaint in 1949, that Mehraj Din indulged in gambling but as no other complaints of this kind were received against him, his name was removed from bundle A to B in March 1950. The witness was asked whether there was any complaint in the history sheet of Mehraj Din during the last five years, that he had molested any women. The witness replied that be was unable to answer. He could not tell when Mehraj Din was convicted under the Gambling Art. He refused to name anyone to whom he may have spoken in order to Satisfy himself about the necessity of arresting Mehraj Din and he refused to state whether he had reduced into writing any statements which may have been made to him regarding Mehraj Din The antecedents of Mehraj Din mentioned in his affidavit were stated' by the witness not to be the reasons for which he ordered his arrest. He then said that they constituted one of the reasons: but immediately changed and said that he would not have ordered the arrest of Mehraj Din for any of the antecedents mentioned by him in the affidavit. He was asked to see the history sheet of Mehraj Din and state whether there was any entry in it to the effect that Mehraj Din had molested any women. He refused to look at the history sheet. He said he bail personal information‑ in this respect, but was not prepared to say whether. he had received any complaints and; if so, when He admitted that he filed, his affidavit in answer to the allegations of the petitioner that he had arrested Mehraj Din unjustly, at the instigation of Asghar Ali Shah, Sub‑Inspector but denied that he gave the real reasons in his affidavit. He was asked why he did not give the real reasons in his affidavit which was filed in answer to a charge of injustice and had faith on his part. He said that the statement mad by him in the affidavit that he was satisfied that Mehraj Din should be arrested was quite enough. In that care, he was asked, why did he say in the affidavit that Mehraj Din was a previous convict, he had no profession or business, his history sheet was opened and his name was placed on bundle A or bundle B. He said that it was merely to give the antecedents and the background of the detenu. He was asked whether the antecedents and background had influenced him in arresting Mehraj Din. He denied this. He was then asked whether the antecedents and the background were set out in the affidavit to prejudice the Court and he denied that too. When asked to state what then was the necessity of saying in the affidavit that Mehraj Din was a bad character and a previous convict with no profession or business, the witness could give no reasonable answer and said that he just felt the necessity. It was put to him that the facts mentioned in leis affidavit constituted‑ all the information on the basis of which he had arrested Mehraj Din. He, of course, denied this and when asked to state why he did not disclose at least some of the real reasons to refute the charge of injustice and bad faith against him he said that, in his opinion, his saying that he was satisfied was quite enough. In short, the witness refused to be cross‑examined about the averments in his affidavit, and the order of arrest that he was satisfied about the necessity of arresting Mehraj Din in order to prevent him from acting in a manner prejudicial to public safety and order.
Confronted with a situation like this, if I had unfettered discretion in the matter, I would have held that the Officer ordering the arrest in this case had failed to show that he was in truth satisfied that it was necessary to arrest Mahraj Din in order to prevent him from acting in a manner prejudicial to public safety or order. But, there are difficulties in my way. The legal position, when arrests and detentions are questioned by habeas corpus petitions, was explained by the learned Chief Justice in Suraj Parkash Ram Lal v. Emperor (A I. R. 1948 Lahore 84). The first point, he said, was to remember that every arrest or detention is illegal unless authority for it is shown by the arresting or the detaining officer. When in an application under section 491, Criminal Procedure Code, an allegation is made, that a person has been arrested or detained without his having committed any offence, the High Court cannot but issue a writ requiring the officer concerned to show the authority for arrest or detention. If in reply to such writ, the Crown can only produce an affidavit of the officer who effected the arrest or an order of detention committing the person arrested to custody, the petitioner can require the attendance of the Officer concerned with a view to cross‑examining him in regard to the averments in his affidavit and it is only after such cross‑examination that the Court is in a position to determine whether the arrest was or was not within the limits of subsection (1) of section 3 of the Act. The affidavit itself is not the record of an official act and does not give rise to the presumption that the original arrest was a valid official act. Therefore, if the arrest under subsection (1) of section 3 of the Act is sought to be defended, the attendance of the officer arresting or directing the arrest becomes almost in evitable and a full enquiry opens on the question whether or not such, an officer was satisfied that it was necessary to arrest the detenu with a view to preventing him from doing any act prejudicial to the Public safety or the maintenance of Public order.
The officer ordering arrest by refusing to be cross‑examined, in my opinion, prevents the Court from determining whether the arrest was or was not within the purview of subsection (1) of section 3 of the Act and bars the enquiry on the question whether or not he was really satisfied that it was necessary to arrest the detenu in order to prevent him from acting in a manner prejudicial to public safety or order. It is true that if the original order of arrest, which is an official record of the act of arrest, contains a recital that the officer ordering the arrest was satisfied that it was necessary to arrest the detenu in order to prevent him from acting prejudicially to public safety or order, the Court may presume under section 114 (e), Evidence Act, that the official act of arrest was regularly performed. Section 4 of the Evidence Act lays down that whenever it is directed by that Act that the Court shall presume a fact it shall regard such fact as proved, unless and until it is disproved ; but whenever it is provided that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it. It is, therefore, clear that the presumption under section 114 (e) is not obligatory. The Court may or may not make that presumption, according to the circumstances of the case, and even where the Court makes the presumption it is rebuttable presumption. The petitioner can rebut it by in. dependent evidence or by evidence of the officer who ordered the arrest. To prove by independent evidence that the officer ordering the arrest was not satisfied would ordinarily be difficult because that officer is the best person to know whether or not he was satisfied. Indeed, independent evidence on this point may, in majority of cases, be inadmissible. It was observed by the Federal Court in Emperor v. Sibnath Banerjee and others (30 A. I. R. 1943 Federal Court 75) and approved by the Privy Council in A. I. R. 1945 Privy Council 156 that the presence of this recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a Prima facie case that the recital is not accurate. It is, there fore, all the more necessary for the officer ordering the arrest whose act is challenged as being illegal, unjust or dishonest to frankly state; as far as he can compatibly with his duties as a public servant, the reasons, or at least some reasons, which led him to believe that the detenu was so likely to do an act prejudicial to public safety or order that it was necessary to arrest and detain him in order to prevent him from doing so. The officer ordering the arrest in this case refused to give any reasons whatsoever for arresting Mehraj Din. He claimed privilege under section 124, Evidence Act, for refusing to answer questions which were essential for the purpose of determining whether he was, in truth, satisfied about the necessity of arresting the detenu or whether he was merely taking shelter under the phrase and had, in fact, committed a fraud on the statute. Section 124, Evidence Act, says that no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure. In the first place, there is nothing to prevent a public officer from voluntarily disclosing any communications made to him in official confidence. When a public officer is accused of dishonesty or bad faith, he is at liberty to disclose communications made to him in official confidence in order to vindicate his honour. Such communications are distinguishable from professional communi cations which, according to section 126, Evidence Act, no barrister, attorney, pleader or vakil shall at any time be permitted to disclose except with his client's express consent. No restric tion is imposed on a public officer in respect of communications made to him in official confidence. Secondly, all communications made to public officer are not in official confidence. Report relating to the commission of offences ‑are communications mad to public officers, but they are not in official confidence. The officer ordering the arrest in this case has nowhere stated that the information on the basis of which he ordered the arrest was communicated to him in official confidence. And lastly, a public officer cannot be compelled to disclose communications made to him in official confidence, only when he considers that the public interests would suffer by the disclosure. The public officer who ordered the arrest in this case did not at any time say that he considered that the public interests would suffer if he disclosed his reasons for arresting the detenu. He just claimed privilege. I, am, therefore, of the opinion that Agha Muhammad Ali, Senior Superintendent of Police, was not justified in refusing to answer material questions With regard to the factum of his satisfaction by virtue of section 124, Evidence Act. Even if he were legally entitled to refuse cross‑examination on this point, his refusal could lead to an adverse inference regarding the truth of his averments. Everybody knows that the Punjab Public Safety Act is an unpopular piece of legislation because it infringes upon the liberty of the people and allows a police officer to put anyone in prison without trial. When such acts of Government servants are decried as oppressive, arbitrary, wanton or dishonest, it is in the public interests, in my opinion, that the public officers concerned should state the reasons, why they acted as they, did and not rest content with merely repeating the shibboleth that they were "satisfied". The officers of the Crown, whilst banking on illustration (e) of section 114, Evidence Act, have lost sight of illustration (h) which says that the "Court may presume that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be un favourable to him". This illustration is as good as the other and very appropriate to the case.
It was said by a Division Bench in Vimlabai Deshpande v Emperor (A. I. R. 1945 Nagpur 8) that in cases where the liberty of the subject is at stake, the responsibility of the High Court is great; and it has a right to expect that the Crown will place all the facts frankly before it; or; at any rate, so much of the facts as will, without disclosing secret information, enable the Court to reach a conclusion on the issues raised.
A Full Bench of this Court‑ held in Lahore Electric Supply Company v: Province‑ of Punjab (A. I. R. 1943 Lahore 41), that if it appears to the High Court that the order impugned was not mace bona fide, but for some collateral object, it become the duty of the Court to interfere ; and a Division Bench consisting of Harries, C. J., and Mahajan J., held in Dilbagh Singh v, Emperor (A. 1. R. 1944 Lahore 373) that where there has been an abuse of power conferred on the police, the order. passed by them cannot be considered' an order under the Act. In another Division Bench case decided by Din Muhammad and Teja…
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