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2011 DIGILAW 484 (CAL)

Pradeep Ram v. Deputy Superintendent of Police

2011-04-04

DEBASISH KAR GUPTA, MD.ABDUL GHANI

body2011
JUDGMENT 1. THIS writ application is filed in the nature of public interest litigation by a legal practitioner of this Court for granting the following reliefs: "In the above premises, Your Petitioner Most Humbly Prays that YOUR LORDSHIP would be Graciously pleased to issue: (a) A writ of mandamus and/or writ in the nature thereof commanding the respondent authorities and each one of them: (i) A writ and/or writs do issue in the nature of mandamus directing the respondents hereinabove to justify the detention of twelve Myanmaries for a period with effect from 09.12.2010 to 20.12.2010 who have been apprehended in connection with FIR 1227 of 2010 of Police Station, Central Crime Station, Port Blair. (ii) A writ and/or writs do issue in the nature of mandamus issuing stricture upon respondents authorities particularly the respondent Nos.2 and 4 for their dereliction in duty in the matter of non production of 12 Myanmaries who have been apprehended on 09.12.2010 before the competent Criminal Court as per the provisions of section 57 of Code of Criminal Procedure, 1973. (iii) A writ and/or writs do issue in the nature of mandamus commanding the respondents to ensure henceforth that accused persons arrested in connection with criminal offence are required to be produced before the competent Criminal Court having jurisdiction over the matter immediately as per provisions as laid down under section 57 of Code of Criminal Procedure, 1973. (iv) A writ of certiorari be issued commanding the respondent authorities and each one of them to present proceeding for giving conscionable justice to the present petition; (v) Cost of the present application. (vi) To pass such other or further order or orders, direction/directions do issue as this Hon'ble Court may deem fit and proper. 2. ACCORDING to the petitioner, 12 Myanmar nationals were apprehended on December 09, 2010 by the Assistant Commandant, Boarding Officer, ICGS Kanaklata Barua. The aforesaid 12 Myanmar nationals were handed over the Station House Officer, Central Crime Station, Port Blair, A and N Islands on December 10, 2010. ACCORDING to the petitioner, they were illegally detained in the police custody upto December 21, 2010. The aforesaid 12 Myanmar nationals were handed over the Station House Officer, Central Crime Station, Port Blair, A and N Islands on December 10, 2010. ACCORDING to the petitioner, they were illegally detained in the police custody upto December 21, 2010. On December 21, 2010 a First Information Report bearing No.1227 of 2010 was prepared under sections 3/7/1-/14/15(c) of the Maritime Zone Act, 1981 read with section 14A of the Foreigners (Amendment) Act, 2004 together with the provisions of section 50/51 of the Wildlife (Protection)Act, 1972 and the same was registered with Station House Officer, Central Crime Station, Port Blair. G.R. Case No. 3577 of 2010 was registered against the aforesaid 12 Myanmar nationals on the same date and they were produced before the Court of learned Chief Judicial Magistrate, Port Blair. By virtue of an order dated December 12, 2010 passed by the learned Chief Judicial Magistrate, Port Blair they were sent to judicial custody till January 04,2011. According to the petitioner, the respondent authorities are under obligation to produce, the aforesaid 12 Myanmar nationals before the learned Court of Chief Judicial Magistrate, Port Blair within 24 hours from the date of their arrest. According to the petitioner they were arrested on December 12, 2010. In terms of the provisions of section 46 of the Code of Criminal Procedure, 1973, Therefore, there was violation of the provisions of section 57 of the Code of Criminal Procedure, 1973. 3. IT is further submitted on behalf of the petitioner that there was violation of the provisions of Article 22 of the Constitution of India because the instant case was not governed under the provisions of clauses 3(a) or 3(b) of the Article 22 of the Constitution of India. 4. ON the other hand, it is submitted on behalf of the respondents that the aforesaid 12 Myanmar nationals were apprehended on December 9, 2010. They were handed over to the Station House Officer, Central Crime Station, Port Blair on December 10, 2010. 4. ON the other hand, it is submitted on behalf of the respondents that the aforesaid 12 Myanmar nationals were apprehended on December 9, 2010. They were handed over to the Station House Officer, Central Crime Station, Port Blair on December 10, 2010. Relying upon a notification dated June 29,1948 issued by the provisional Government in exercise of powers conferred under the provisions of subsection (2) of section 2 of the Foreigners Order, 1948 (hereinafter referred to as the said orders), it is submitted by the learned Counsel appearing for the respondents that the Superintendent of Police, A and N Islands has been appointed as Civil Authority under the said orders in A and N Islands. 5. THE Civil Authority by an order No. 5612 dated December 11, 2010 imposed some conditions restricting the movements of the aforesaid 12 Myanmar nationals and kept them at Sainik Vishram Ghar, Delanipur, Port Blair for conducting a joint interrogation and initiating legal action against them. 6. THE above order was passed in exercise of the power conferred upon the aforesaid Civil Authority in accordance with the provisions contained in paragraph 11 of the said orders. THE above order is quoted below: OFFICE OF THE FOREIGNERS REGISTRATION OFFICER and CIVIL AUTHORITY Andaman and Nicobar Islands. Port Biair, dated the 11th December, 2010. ORDER No. 5612 I, S.B.S. Tyagi, IPS, Superintendent of Police, Andamans, appointed as Civil Authority in A and N Islands to carry out the implementation of Foreigners Order, 1948 by the Chief Commissioner, A and N Islands vide, A and N Administration's Notification No.62 of 1948 dated the 29th June, 1948 r.w. Govt. of India, Ministry of Home Affairs Notification No. 9/9/46-II Political(EW) dated the 10th Feb, 1948 and in exercise of powers conferred on me as Civil Authority under para-11 of he Foreigners Order, 1948, hereby impose the following conditions restricting the movements of 12 Myanmar nationals apprehended from Spike Island on 09.12.2010, have been brought to Port Blair on 10.12.2010 and kept at Sainik Vishram Ghar, Delanipur, Port Blair for conducting joint interrogation and initiating legal action against them. CONDITIONS 1. They shall not move out room the barracks between the sun set and sun-rise. 2. They should restrict their movements within the area bound by Delanipur junction, Panipat road junction and Zoological Survey of India Office. CONDITIONS 1. They shall not move out room the barracks between the sun set and sun-rise. 2. They should restrict their movements within the area bound by Delanipur junction, Panipat road junction and Zoological Survey of India Office. They may, however, move out of the said area only for the purpose of procuring their essential requirements and treatment etc. with the prior permission either from Dy.SP(CID) or SHO CCS. 3. They should not engage themselves in any activity prejudicial to the interest and security of India. 4. Any violation of the above condition(s) render them liable for legal action U/S 14 Foreigners Act, 1946. Given under my hand and seal this 11th day of December, 2010. Sd/- (SB.S.Tyagi, IPS) Foreigners Registration Officer and Civil Authority, A and N Islands. Attention of this Court is drawn towards a joint interrogation report of the aforesaid 12 Myanmar nationals prepared by a team consisting of the following members: 1) Shri Satyajit Kumar, IB(SIB) 2) Shri R.K.Sharma, Inspector (Immg.andF) 3) Nb Sub Mado Singh, Army Intelligence 4) Shri D.K.Roy, Special Bureau. 5) Shri D.N.Singh, SI, SB(CID) 6) Shri S.S.Ware, Coast Guard. 7) Shri Santosh Kumar, POR(TEL), Naval Inteliengence. The above report was prepared on the basis of the joint interrogation held on 14th and 15th December, 2010. 7. ACCORDING to the learned Counsel, the Civil Authority upon consideration of the above report passed order No. 5813 dated December 21, 2010 cancelling the order No.5612 dated December 11, 2010. 8. IT is further submitted by him that on December 21, 2010 the aforesaid 12 Myanmar nationals were arrested and the arrest report under section 58 of the Cr. PC was prepared to that effect. Let a copy of the above arrest report dated December 21, 2010 be kept on record. On the above date, an FIR bearing No.1227/10 dated December 21, 2010 was prepared. Those 12 Myanmar nationals were produced before the Court of learned Chief Judicial Magistrate, Port Blair on the same day. By virtue of an order dated December 21, 2010 passed by the learned Chief Judicial Magistrate, they were sent to the judicial custody till January 04, 2011. 9. Those 12 Myanmar nationals were produced before the Court of learned Chief Judicial Magistrate, Port Blair on the same day. By virtue of an order dated December 21, 2010 passed by the learned Chief Judicial Magistrate, they were sent to the judicial custody till January 04, 2011. 9. DRAWING the attention of this Court towards the provisions of subsection (1) of section 3 of the Foreigners Act, 1946 read with Orders 2 (2), 5A and 8 of the said orders, it is submitted by the learned Counsel appearing on behalf of the respondents that arrest took place on December 21, 2010. It is also submitted by him that there was no illegal detention of the aforesaid 12 Myanmar nationals during the period of restricting their movements and for their interrogation from December 09, 2010 to December 20,2010. 10. WE have heard the learned Counsels appearing for the respective parties as also we have considered the facts and circumstances of this case. It is an admitted fact that by virtue of the arrest report dated December 21, 2010 prepared under the provisions of section 58 Cr. PC the 12 Myanmar nationals were arrested on December 21, 2010. It is also not in dispute that they were apprehended on December 9, 2010 and handed over the Station House Officer, Central Crime Station, Port Blair on December 10, 2010. The question which falls for consideration of this Court is this whether the restriction of movement of the 12 Myanmar nationals for the period from December 10, 2010 upto December 20, 2010 could be considered as a case of arrest under the provisions of section 46 of Cr. PC? 11. IN order to adjudicate the above issue the provisions of section 46 Cr.PC are quoted below: "46. Arrest how made.- (1) . PC? 11. IN order to adjudicate the above issue the provisions of section 46 Cr.PC are quoted below: "46. Arrest how made.- (1) . IN making an arrest the police officer or other persons making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: (Provided that where a women is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is female, the police officer shall not touch the person of the woman for making her arrest.) (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade arrest, such police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. (4) Save in exceptional circumstances, no woman shall be arrested after sun-set and before sun-rise, and where such exceptional circumstances exist, the women police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the First Class within whose local jurisdiction the offence is committed or the arrest is to be made." 12. FROM the order No.5612 dated December 11, 2010, it appears to us that the movement of the aforesaid 12 Myanmar nationals were restricted in terms of the conditions mentioned therein. The above restriction was imposed for the purpose of conducting joint interrogation and initiating legal action against them. Considering the conditions of the aforesaid order, we do not find that it was a case of arrest in terms of section 46 of Cr. PC. Further, in order to ascertain the power of the Civil Authority under the provisions of the Foreigners Act, 1946. The provisions of sub-section (e) of section 3 are set out below. "3. Power to make orders.- ........ PC. Further, in order to ascertain the power of the Civil Authority under the provisions of the Foreigners Act, 1946. The provisions of sub-section (e) of section 3 are set out below. "3. Power to make orders.- ........ (e) shall comply with such conditions as may be prescribed or specified- (i) requiring him to reside in a particular place; (ii) imposing any restrictions on his movements; (iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified; (iv) requiring him to allow his photograph and finger impression to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified; (v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; (vi) prohibiting him from association with the persons of a prescribed or specified description; (vii) prohibiting him from engaging in activities of a prescribed or specified description; (viii) prohibiting him from using or possessing prescribed or specified articles; (ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;" 13. IN order to adjudicate the aforesaid point, the provisions of paragraph 5A and 8 of the said Orders are also quoted below: "5A. Power to examine persons.- The Civil Authority may examine any person who seeks leave to enter India or to depart therefrom or during his stay in India for the purposes of the Foreigners Act, 1946, or of any order made thereunder; and it shall be the duty of every such person to furnish to the Civil Authority such information in such manner and as such times, as that authority may require. 8. Prohibited places.- (1) No foreigner shall without the permission of the Civil Authority having jurisdiction at such place, visit, or reside in, any prohibited place as defined in the Indian Official Secrets Act. 1923(19 of 1923). (2) Where any foreigner is, on the commencement of his order, residing in any prohibited place and is not permitted to continue to reside there, he shall, within such time as may be specified by the Civil Authority, remove himself from such place. 1923(19 of 1923). (2) Where any foreigner is, on the commencement of his order, residing in any prohibited place and is not permitted to continue to reside there, he shall, within such time as may be specified by the Civil Authority, remove himself from such place. (3) The Civil Authority may impose on any householder or other person in such prohibited place the obligation to report to the police or to any naval, military or air-force authority the presence of any foreigner in his household or in any premises occupied by him or under his control and the departure of any such foreigner and such other particulars with respect to such foreigner as may be prescribed by such authority." 14. IT is also not in dispute that the Superintendent of Police, A and N Islands has been appointed as the Civil Authority under the said orders by virtue of the notification dated June 29, 1948. Considering the order No.5612 dated December 14, 2010, we have no hesitation to come to a conclusion that the Civil Authority had the power to restrict the movement of 12 Myanmar nationals under reference for conducting a joint interrogation and initiating legal action in terms of the provisions contained in paragraph 8 of the said orders. 15. IT is evident from the joint interrogation report prepared on the basis of the interrogation held on 14th and 15th December, 2010 that the 12 Myanmar nationals were interrogated by a committee. That was permissible in accordance with the provisions of paragraph 5A of the said orders. The above restriction of movement was lifted by virtue of an order dated December 21, 2010. 16. CONSIDERING the arrest report dated December 21, 2010, an FIR No.1227 of 2010 dated December 21, 2010, we find that the 12 Myanmar nationals under reference were arrested on December 21, 2010. It is also not in dispute that they were produced before the Court of learned Chief Judicial Magistrate on December 21, 2010. Needless to point out that the Foreigners Act, 1946 and the Foreigners Order, 1948 are special laws. Therefore, we do not find any impropriety with regard to the actions taken against the 12 Myanmar nationals. 17. IN view of the discussions and observations made hereinabove, we do not find any violation of the Code of Criminal Procedure in this case and the writ petition is dismissed. 18. Therefore, we do not find any impropriety with regard to the actions taken against the 12 Myanmar nationals. 17. IN view of the discussions and observations made hereinabove, we do not find any violation of the Code of Criminal Procedure in this case and the writ petition is dismissed. 18. THERE will be, however, no order as to costs. Urgent photostat certified copies of this order, if applied for, be furnished to the parties upon compliance with the requisite formalities. B.D.