1. ' This is a reference by Tehsildar Magistrate 1st Class, Bagh under section 341 of the Code of Criminal Procedure in a criminal case made over to him by Sub-Judge, Magistrate 1st Class, Bagh for trial under section 3/26 of the Civil Defence Act. The learned Tehsildar Magistrate 1st Class was unable to hold the trial of the accused person as the latter is a person perhaps from Madras who does not understand or speak any of the languages understood in this part of the territory. Hence this reference is made to seek guidance from this Court in respect of procedure to be adopted by the trial Court. The accused person is charged with crossing over of the border line from occupied Kashmir into this part of the territory. He was also brought before this Court. The case against the accused was gone into accordingly by us. The learned Advocate-General and I myself attempted to see whether the accused is able to understand the nature of offence for which he was reportedly held liable by the police but we were unable to find him in a state of understanding the proceedings being taken against him. It was so tried even by signs and gestures which were demonstrated and exhibited to him in this Court but to no avail. I asked the Advocate-General to let the Court know whether services of an interpreter knowing the language of the accused can be hired by the Government within a reasonable time but his reply was in negative telling that it was not possible for the Government to arrange the services of an interpreter within a reasonable time and, at any rate, in the circumstances of the case, the Government may not be prepared to bear fee of an interpreter. The offence against the accused is that of illegal crossing of the border line.
2. The circumstances under which he was forced to do so are not known. He was apprehended by the Military security on 15-7-1979 and since then kept detained by them till 6-9-1979 when he was handed over to the police. Military Intelligence had interrogated the suspect upto the hilt and failed to attribute any sabotage activity to him. No activity of the detained person prejudicial to the security or interest of the State including the armed forces, could be detected. It was, on its face, an illegal detention by the Military authorities as no proper remand for the accused person was obtained from the competent authority. The police while making the investigation, also took a lot of time to bring the accused before the trial Court. In the beginning the police at Bagh recommended to the police authorities at Rawalakot that the accused who was detained by the Military authorities should be removed out of Azad Kashmir under the order of the District Magistrate, but a Police Inspector at Rawalakot, in his wisdom, ordered the police at Bagh to register a case against the accused under section 3/26 of the Civil Defence Act. Section 3 of the Civil Defence Act does not define or describe any offence itself. There is nothing on record to show as to which rule, order or notification had been contravened by the accused for which he was placed before the Court.
3. Section 26 prescribes punishment for defiance of any order or rule, etc. For which there is no sentence provided by the Civil Defence Act. As the allegation against the accused person is not of a serious nature affecting the property or person as also no activity prejudicial to the defence or security of the State is attributed to him, it will not be proper for the prosecution to detain the accused for a long period so as to proceed against him by hiring the services of an interpreter and that too doubtful whether they will be able to procure the services of anyone within a reasonable time. In the circumstances when a helpless man has suffered illegally in custody of Military as well as police considerably for a long time, I feel it my duty to see that abuse of process of law is reduced to naught. Therefore, proceedings against the accused person before the trial Court are hereby quashed and as such he stands acquitted. The learned Advocate-General is directed to lead Madrasi to the District Magistrate, M'Abad, who will arrange his going back towards his native place' wherever it may be.