P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

This is a petition under section 491, Criminal P. C. by fourteen petitioners who are nationals of India. Petitioners 1 to 13 came over to Pakistan with valid passports and visas in March 1956, while petitioner No, 14 similarly came here in May 1956. Before the expiry of their visas, petitioners 1 to 13 were arrested by the Karachi C. I. D. Police on 22nd May 1956, while petitioner No. 14 was arrested at Lahore on or about 14th June 1956. The petitioners have been in custody ever since and they have not yet been challaned to any Court of law having jurisdiction. It was found out by the police in the course of their investiga tion that the petitioners had committed a forgery of their passports by adding United Kingdom to the list of countries for which they had got the passports. In the original pass ports U. K. was not mentioned as one of the countries for which they had got the passports. On this ground the police arrested the petitioners and have been getting remands from time to time. It is alleged that the remand has been obtained under section 344, Criminal P. C. because under section 167, Criminal P. C. remand could be had only for fifteen days in the aggregate. So far at least seventeen remands have been obtained, but no action has so far been taken in the shape of any challan, interim or otherwise, being presented to a Court of law on the basis of which the Court might commence an inquiry against the petitioners. In the counter affidavit the Inspector of the C. I. D. Police, (Crime Branch), Karachi has stated that the petitioners were arrested under section 6 read with section 3 of the Pakistan (Control of Entry) Art, 1952, and further investiga tion in that behalf was proceeding. In our opinion, section 6 of the Pakistan (Control of Entry Act) 1952 does not apply to the facts of this case. Section 6 says that any police officer may by a general or special order of the Central Government or of a Provincial Government arrest without a warrant any person whom such officer reasonably suspects of having contravened any of the provisions of section

3. Section 3 (1) says that no Indian citizen shall, unless exempted by a provision made under this Act, enter into Pakistan unless he is in possession of a passport with a visa authorising the entry. It is clear from the facts of this case that the petitioners had valid passports as well as visas for entry into this country. Clearly therefore section 6 read with section 3 of the Pakistan, Control of Entry Act, 1952 is irrelevant for the purposes of this case. The only provision which would seem to apply to the facts of this case is section 3 (1) (d) (e) of the Passport (Offences) Act, 1952. This reads as follows :- "Any person who forges, alters or dampers with any passport ; or uses a passport which he knows or has reason to believe to be forged, altered or tampered with, . . . . . . Even if we take it for granted that the petitioners forged their passports by adding U. K. to the list of countries for which they had originally got the passports, .the offence would fall under section 3 (1) (d) (e) of the Passport (Offences) Act, 1952. This offence is punishable with im prisonment which may extend to two years or with a fine or with both. It is important to read subsection (2) of section 3 of this Act, which lays down that, no Court shall take cognizance of any offence under this section except with the previous sanction in writing of the Central Government or the Government of the Province or the State within which the offence is committed. It has not been alleged by the respon dents in this case that any previous sanction of the relevant Government has been taken. Therefore even before the petitioners are prosecuted this previous sanction would be necessary and the absence thereof clearly renders the detention illegal, especially when this detention has gone on from the month of May 1956 right upto this day. It is important also in this connection to remember that while the remand has been allowed by the learned City Magistrate to the police from time to time under the provisions of section 344, Criminal P. C., no interim challan has been presented to the Court. The learned Additional Advocate-General referred to a ruling in the case of Dukhi and another v. State (1955 Cr. L J 1305) and argued that it was not necessary for the police to present an interim challan under section 344 before getting a remand. In this ruling the learned judges of the Allahabad High Court overruled a previous ruling of the same Court reported in A I R (1955) All. 462, and they also doubted a ruling of the Calcutta High Court reported in A I R (1924) Cal.

614. With all respect, it is extremely difficult for us to follow this ruling of the Allahabad High Court as in our opinion the clear words of section 344 would militate against such interpretation. Section 344 says that "if from the absence of a witness or any other reasonable cause it becomes necessary or advisable to postpone, the commencement of or adjourn any inquiry or trial the Court may . . . . . ." It presupposes the placing of material before the Court so that if the Court refused to grant a further remand it may be able to commence the inquiry. It cannot be gainsaid that an inquiry cannot be commenced unless there is some sort of challan from the side of the police before the Magistrate. The words "absence of a witness" further clearly show that there should be material before the Court on the basis of which the Court may either commence the inquiry or on account of the absence of a witness or any other reasonable cause adjourn the inquiry. Under section 61, Criminal P. C. an accused person after his arrest has to be produced before a Magistrate immediately after the expiry of twenty-four hours. He cannot be detained by the police on their own authority beyond that period. If the police are not able to finish the investigation within those twenty-four hours, there is a provision under section 167, Criminal P: C. to enable the police to obtain a remand of the accused for a period up to fifteen days on the whole. If after fifteen days the police still feel the necessity of carrying on the investi gation further, it is their duty to place before the Court material under section 344, Criminal P. C. to enable the Court to commence the inquiry if it likes. The Court has then the discretion to allow the remand of the accused on any reason able ground. If we adopt the interpretation put upon section 344 by the Allahabad High Court we feel we would be contravening the clear provisions of section 167, Criminal P. C. There has been no interim challan and no material in fact before the Court to either commence the inquiry or to postpone it. The orders passed by the learned Magistrate on the applications for remand give no reasons whatsoever for further remand being allowed as is expressly directed by section 344, Criminal P. C. Section 344, Criminal P. C. further contemplates the Court taking cognizance of an offence. We are afraid the learned Magistrate has no authority to take cognizance of this case without the previous sanction of the relevant Government as provided by subsection (2) of section 3 of the Passport (Offences) Act, 1952. In view of all these reasons, we have no doubt whatsoever that the detention of the petitioners is not warranted by any law. We therefore allow the petition and direct that the petitioners be set at liberty forthwith: K. B. A. /A. H. Petitions allowed.