P L D 1965 Azad J & K 32 (PLP)

MUHAMMAD SHARIF, J.‑Najib Ali has been ordered by the Government to be detained for a period of six months under section 3 of the Public Safety Act. Muhammad Khan has moved the High Court under section 491, Cr. P. C. that the detention of the detenu being illegal, improper and mala fide, the detenu should be set at liberty. My Lord the Chief Justice, who is hearing this habeas corpus application has by order dated the 20th of October 1959, referred the question whether section 43 of the Public Safety Act has taken away the jurisdiction of this Court tinder section 491, Cr. P. C., to the Full Bench for an authoritative decision. The learned Government Advocate contends that section 43 of the Public Safety Act, bars the jurisdiction of the High Court to entertain an application under section 491, Cr. P. C. in respect of a person ordered to be detained under section 3 of the Public Safety Act. Section 43 of the Public Safety Act is reproduced below:‑ " Except as provided in this Act no proceeding or order taken or made under this Act shall be called in question by any Court, and no civil or criminal proceeding shall be instituted against any person for anything done or intended to be done under this Act or against any person for any loss or damage caused to or in respect of any property whereof possession has been taken under this Act." On the other hand it is argued by Kh. Muhammad Shafi counsel for the petitioner that it is not so. His argument is that section 43 of the Public Safety Act is of the nature of a general provision of Lam, and does not over‑ride the special pro vision of the Law, i.e., section 491, Cr. P. C. His further contention is that where it is alleged that the order of detention made under section 3 of the Public Safety Act is illegal. improper or mala fide, the High Court has jurisdiction to inquire into such allegation; and if after trying the issue the High Court finds that the allegations of the petitioner are correct, it should order that the detenu should be released. The learned Government Advocate has referred to Malik Muzaffar Khan's case in which Sheikh Abdul Majid (C. J.) held that section 43 was a bar to the High Court entertaining the revision petition against an order made under section 4 of the Public Safety Act. In this case, Malik Muzaffar Khan, a Pleader had been served with a notice not to deliver any speech. This was not a case of detention, and the High Court had not been moved under section 491, Cr. P. C. In fact the observation of the Chief Justice that section 43 is a bar to the High Court using its powers of revision, was an obiter dicta since the order made by the District Magistrate under section 4 of the Public Safety Act, was an executive order made by the District Magis trate and not by a Court, as such it was not revisable under section 435, Cr. P. C. This case is not relevant to the point raised before us. There is another case of our own High Court, Which is Raja Haider Khan's case, who had been detained under fiction 3 of the Public Safety Act and the High Court was moved for his release under section 491, Cr. P. C. It was alleged in this case that the detention was improper and the Chief Justice allowed the petitioner to lead evidence to prove that it was so. The learned Government Advocate's contention is that the question of section 43 of the Public Safety Act was not specifi cally raised in this case, so it should not be taken as an authority, for the proposition that the High Court is not barred by section 43 from entertaining an application under section 491, Cr. P. C. Rahmatullah v. Crown (P L D 1951 B J 64) is an exhaustive authority on the point involved in which the whole case law bearing on the point has been thoroughly discussed. In A I R 1948 Lah. 87 Bandari, (J) observed "the object of a habeas corpus is to enable the Court to enquire into and determine the legality of the detention of the person, who is restrained of his liberty. As a person is entitled to liberty unless he is restrained by process of law initially the onus of proof lies on the Custodian to establish that the restraint is under the legal process. If he fails to make out a prima facie case, the detenu must be released. If on the other hand, he produces an order, which shows on the face of it that the detention is legal, the burden of proof shifts and the detenu must prove all the facts necessary to show that the restraint is illegal. In view of the legal maxim that all acts are presumed to have beer done rightly and regularly, the facts set‑out in the return submitted by the Provincial Government in response to the writ are prima facie, presumed to be true, unless this presumption is rebutted by the production of convincing evidence to the contrary." In another case also similar question whether section 43 was bar to the High Court, proceeding under section 491, Cr. P. C. came up before the Lahore High Court in which Muhammad Munir (J) held in a petition under section 491, Cr. P. C. "the first point to remember is that every arrest or detention is illegal unless the authority for it is shown by the arresting or detaining authority. Where in an application under section 491, Cr. P. C. an allegation is made that a person who has not com mitted any offence, has been arrested or detained, the High Court cannot but issue a writ requiring Crown to show the authority for arrest or detention. If in reply to such writ the Crown cannot show the order directing the arrest but produce only an order of detention, the petitioner can require the attendance of the officer arresting or directing the arrest of the detenu with a view to cross‑examining him and it is only after cross‑examining the Court is in a position to determine whether the arrest was or was not within the limit of subsection (1) of section 3 of the Act. This is Suraj Parkash Ram Lal v. Emperor (A I R 1948 Lah. 84). In another case of the Lahore High Court Abdul Ghafur v. Crown (P L D 1949 Lah. 55) it was alleged by the petitioner in his petition under section 491, Cr. P. C. that the arrest was mala fide and not in accordance with the provisions of Law. In that case, the learned Single Judge after the Crown had produced all the relevant papers in response to the writ issued to the Crown went into the question raised by the detenu. On facts, the learned Judge after examining the relevant evidence held that the detention in respect of the petitioner was not for Its own sake, it had a different meaning and purpose. He, therefore, held the detention illegal. But, at the request of the Advocate-General, the matter was referred to the consideration of a larger Bench as it was a question of tar reaching conse quences. The question before the Division Bench was whether the Court should go beyond the order under challenge and inquire into the allegation made by the petitioner under section 43 of the Punjab Act II of 194 7 The observation of the Division Bench was to the effect:‑ "It is true that there is in the present case an official record which recites that the authority which directed the arrest was satisfied that it was necessary to arrest Muhammad Hussain Ata with a view to prevent him from acting in a manner prejudicial to the public safety and that that record may give rise to the presumption that Ata was arrested for the reasons stated therein but the presumption is not one of law and the Court need not raise it in all cases. Further, the presumption if raised is rebutted by proof to the contrary." The learned Government Advocate has cited A I R 1943 All. 277 Full Bench in which the observations of Iqbal Ahmad (C. J.) may be read with interest: "The powers conferred on the High Court under section 491, Cr. P. C. are very wide and impose upon the Court the duty of protecting the liberty of His Majesty's subjects. That power and duty has, however, to be exercised and discharged on certain fixed judicial principles and not in an arbitrary manner. The jurisdiction vested by clause (b) can be exercised only if the Court is satisfied that the detention is illegal or improper. In the consideration of this question all that the Court has to see is whether or not the detention is in conformity with the dictates of law. It is however, clear that, in cases in which, even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment or amounts to an abuse of the powers given to the executive by the Legislature, it is the duty of the Court to step in and to order that the person detained be set at liberty." Subsection (3) of section 491, Cr. P. C. provides that nothing in this section applies to persons detained under the Bengal States Prisoners Regulation, 1898, or Bombay Regulation 25 of 1827 or the State Prisoners Act, 1850 or the State Prisoners Act, 1858. In this subsection the Public Safety Act does not figure. If it was intended that section 491, Cr. P. C. would not apply to the proceedings taken under the Public Safety Act, then of course, Public Safety Act also would have been inserted in subsection (3). It is a well‑known Rule of Law, that a general later law, does not abrogate an earlier special one by mere implication: Maxwell on, Interpretation of Statutes, Eighth Edn. p. 156 may be referred to Section 43 of the Public Safety Act is a general later Law which cannot abrogate the earlier special one i.e., section 491, Cr. P. C. by mere implication. Moreover, Courts are, and should be very reluctant to throw away their jurisdiction in any particular case, unless specifically taken away by the Legislature. The Full Bench case of our own High Court, reported as Dil Mir v. Government (P L D 1959 Azad J & K 61). may be referred to. It was held in Muhammad Anwar Babari v. Crown (P L D 1955 Lah. 585) that it is not enough that a warrant should purport to have been issued under the Regulation (Bengal State Prisoners Regulation, 1888), in order to exclude the jurisdiction of the High Court. It must be truly a warrant which has been authorised by the Regulation. Section 491, subsection (3), Cr. P. C. is not a bar to the High Court, ascertaining whether a detention is in fact a detention under the Bengal Regulation. Whether a detention is or is not under the Regulation, is a matter of substance and is not concluded by the circumstances that the Regulation is mentioned in the warrant. It was laid down in Hamesh Gul v. Crown (P L D 1955 Pesh. 1) that:‑ "It is the basic principle of law that if in passing a certain order, any compelling provision of the law has been contra vened, or it is made contrary to the object and purposes of the Act, under which it is passed, or the authority making it has permitted itself to be influenced by considerations outside the scope of the Act, then it shall be taken that the statutory authority has acted either without jurisdiction or in excess of jurisdiction and in such matters interference by the High Court will be called for." In A I R 1946 Bom. 65, which was a case under Defence of India Rules, Bhagwati (J) on page 80 of the report has observed that:‑ "It does not mean that in all cases where the executive offices or police officer has purported to act under Rule 129(1), Defence of India Rules, his action is not liable to be impeached at all. In cases where the executive officer or the police officer though purporting to act under Rule 129 (1) really acts with ulterior purposes, not in furtherance of the objects which are prescribed in the preamble of the Defence of India Act and in section 2 thereof as elaborated in Rule 129(1), Defence of India Rules, the action of the executive officer or the police officer concerned would be outside the scope of that provision, would be a fraud upon the Act and the Rules framed thereunder, would be wrongful and mala fide and would certainly be liable to be impeached." A I R 1932 Cal. 753 (D B) is also a case of section 491, Cr. P. C. It was held in this case that:‑ "The word `improperly' used in clause (b) of section 491, Cr. P C. would refer to cases in which although the forms of law have been observed there has been a fraud on an Act or an abuse of the powers given by the Legislature. The Courts can, and in a proper case must consider and determine the question whether there has been a fraud on an Actor an abuse of powers granted by the Legislature. The Court must also consider whether there has been any misuse of the powers given to the executive, but although the Court should not insist on technicalities, the petitioner must satisfy the Court that there has been in fact a misuse of such powers. A vague allegation is not sufficient, but if it is established that there has been misuse of its powers, the fact that the forms of the law have been strictly adhered to will not suffiee." The observations of Abdul Aziz, J. as he then was made in P L D 1951 B J 64 at p. 76 of the report, with which we agree are reproduced here:‑ "The power of the High Court under section 491, Cr. P. C. is abridged to a certain extent in the presence of section 89 of the Bahawalpur State Public Safety Act, 1944 (which corres ponds to section 43 of the Punjab and Azad Kashmir Public Safety Act), but is not taken away in its entirety. The High Court is, therefore, competent to call upon the Crown under its residuary power to produce all the relevant papers before the Court. If in response to the writ so issued, the Crown places on the record all the relevant papers prepared in conformity with the provisions of section 73 of the Act, (corres ponding to section 3, Punjab and Azad Kashmir Public Safety Act), the initial burden placed on the Crown is discharged as it is for the Government to see reasons of State or the preserva tion of peace and tranquility in the territories of the Babawalpur State that render it necessary to place under personal restraint any person and not for the Court. If in such cases, therefore no allegation of mala fides on the part of the Crown are made by the petitioner, the petition under section 491, Cr. P. C. should be dismissed as the initial burden placed on the Government stands discharged. If on the other hand the challenger makes the allegation of mala fides on the part of the Government or of extraneous circumstances which prevailed or, the Government to make the order of restraint or of fraud or the Act and so forth, the burden of proof shifts on him arid the duty is cast on the Court to try the issue in spite of the fact that no presumption in favour of bad faith, dishonesty or fraud exists. If after trying that issue the Court is of the opinion that the burden placed on the petitioner is discharged, it should accept the petition and release the detenu. If on the other hand the petitioner fails to discharge the burden, the petition under section 491, Cr. P. C. should be dismissed." We are of the opinion that where the order of detention i made under section 3 of the Public Safety Act and allegations of mala fides on the part of the detaining authority are made, the High Court can in spite of section 43 of the Public Safety Act go into the question of mala fides and if it finds that the detenu has been detained on the grounds, which are foreign and extraneous to the Public Safety Act or there has been a fraud on the Act or the detaining authority has abused its powers vested) in it by the Legislature, and not for the purpose of furthering the object of section 3, subsection (1) of the Public Safety Act, it can hold the detention to be illegal or improper, and take necessary, action under section 491, Cr. P. C. We answer the reference accordingly. The record shall now go back to the Single Judge for proceeding according to Law. K.B.A. Reference answered.