29 September 1970
Supreme Court








DATE OF JUDGMENT: 29/09/1970


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



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. 50 4 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



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



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. 50 7