1. These are two petitions by the same woman, one under section 491, Cr. P. C. Challenging an order passed by the District Magistrate, Muzaffarabad, on 8-11-68 ordering her to leave her village and take up residence within the municipal limits of Muzaffarabad and the other against a similar order passed by his predecessor on 27-6-68 which expired on 27-9-68 and a revision against which to the Sessions Judge has failed. Both these petitions shall be disposed of by this judgment.
2. The petitioner was tried by the Sessions Judge, Muzaffarabad, alongwith other persons under section 302 of the Penal Code on the charge of having got her husband Nazir Ahmad, a Petition--- writer, murdered for furtherance and fulfillment of an alleged criminal intrigue with one Badar Munir, a co-accused. Sentenced to life imprisonment by the trial Court, the High Court on appeal acquitted them.
3. Subsequently, proceedings under section 108-A, Cr. P. C. Were initiated by relatives of the deceased. Consequently an order was passed by the District Magistrate, Muzaffarabad on 27-6-69 ordering the petitioner not to reside or remain within the limits of Police Station Danna and to reside within the municipal limits of Muzaffarabad. This order was to remain in force for 3 months but has since been mechanically repeated.
4. Section 108-A of the Criminal Procedure Code is reproduced below :- "Section 108-A, subsection (1).- Whenever the District Magistrate or a Magistrate of the Ist Class specially empowered in this behalf by the High Court is satisfied that there are reasonable grounds for believing that any person within his jurisdiction has acted; is acting or is about to act in a manner prejudicial to public safety or public peace, he may by order in writing and stating such reasons in the order give any one or more of the following directions; that such person---
(a) shall not enter, reside or remain in any area specified in the order ;
(b) shall reside or remain in any area specified in the order ;
(c) shall remove himself from, and shall not return to, any area specified in the order."
5. This section was inserted in the Criminal Procedure Code by the Maharaja's Government by the Amendment Act No. XXI(I of 1931. Initially intended to remain in force for 3 years, it was permanently inserted by Act No. I of 1935. It may be recalled that 1931 saw the beginning of our political movement for freedom from Dogra Raj. Thousands of people courted arrest that year. Thousands of Muslim volunteers from Punjab entered the State from all available directions as a demonstration of solidarity with the Muslims of the State. The insertion of this section was one of the hundreds of repressive measures adopted by the Dogra Regime for suppression of this movement.
6. With the declaration of freedom by the people of the State f, on the 24th of October 1947, all oppressive laws had come to an end and the new Criminal Procedure Code adapted in 1948 did not contain this section. Meanwhile the Government also adapted the Punjab Public Safety Act.
7. Section 5 of this Act is identical with section 108-A of the Old Criminal Procedure Code. Section 5 is reproduced below :- "The Government or the District Magistrate if satisfied with respect of any particular person that with a view to preventing him from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary to do so, may by order in writing give any one or more of the following directions, namely; that such person---
(a) shall not enter, reside or remain in any area specified in the order ;
(b) shall reside or remain in any area that may be specified in the order, ;
(c) shall remove himself from and shall not return to any area that may be specified in the order".
8. A preliminary objection has been taken that an application under section 491, Cr. P. C. Is not competent. Can a person deprived of her freedom of movement and freedom of residence be considered as being detained? Wharton's Law Lexicon 14th Edition, 1938 states at page 462 as reproduced in Chitaley's Criminal Procedure Code, Vol. III, 4th Edition at page 2750 " Besides the efficacy of the writ of 'Habeas Corpus' in `4 liberating the subject from illegal confinement in a public prison, it also extends its influence to remove other unlawful restraint on personal freedom in private life."
9. Undoubtedly every citizen enjoys the freedom of movement and the freedom of residence.
10. It is a distressing feature of our post freedom era all over Afro-Asia that the Governments have readily invested the executive with arbitrary powers adversely affecting the liberty of the citizen.
11. What is more distressing is that there is now a tendency throughout these countries to make the use of such arbitrary powers non-justiciable. While it is, no doubt, true that countries with newly won freedom and victims of Big Power chauvinism may be in need of extraordinary legislation in certain cases for the security, safety and consolidation of their freedom, yet instances may not be wanting when the executive officers have used these powers not so much for the defence and integrity of the country as for personal or political ends. It is, therefore, the bounden duty of a Court, wherever permissible, to find out whether the liberty of the citizen may not have been wrongly taken away. A citizen in any case is powerless against the mighty machinery of the executive and it is, therefore, primarily for such executive to satisfy the Court in such matters that the order restraining his liberty is bona fide and just.
12. Writ jurisdiction has not so far been conferred on the Azad Kashmir High Court. While it is for the Government to decide whether the time is or is not opportune for the conferment of such powers, the citizens should have some speedy and summary remedy available for what they may consider as the arbitrary curtailment of their fundamental rights which are inherent in every free society, by executive action. Therefore within the four-corners of law, section 491, Cr. P. C., in my opinion, ought to receive a liberal interpretation. Freedom of movement and freedom of residence are among the most valued incidents of a modern political State. Man has undergone untold sufferings and privations from the dawn of history both for the achievement as well as the sanctification of these freedoms. Here in Azad Kashmir the people are still engaged in a life and death struggle against the denial of their rights to a great majority of their brethren just across the uneasy cease-fire line.
13. Where therefore these rights are unceremoniously taken away by executive action, it is not only the right but also the High Court's duty t as the fountain of justice to come to the aid of the citizen under its extraordinary powers under section 491, Cr. P. C. Therefore, while I am of the opinion that section 491, Cr. P. C, is available to the petitioner for seeking redress from this Court, I think it is more appropriate to proceed in this case under the revisional powers of the High Court because orders passed under Chapter 8 of the Criminal Procedure Code are revisable by the High Court.
14. If a person. Is proceeded against under section 107, 108, 109 or 110 of the Criminal Procedure Code, a procedure is laid down in this very Chapter for the Courts to follow. If the Magistrate is satisfied that proceedings ought to be taken, he has to make an order in writing under section 112 setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any), required. If the person against whom such an order is made happens to be present in the Court then under section 113 it has to be read over to him or explained to him. In case he is not present in the Court then under section 114, Cr. P. C. The Magistrate has to issue a summon or, if necessary, a warrant for his appearance in his Court. On the appearance of such person, the Magistrate has to proceed under section 117 to inquire into the truth of the information upon which action has been taken and to take such further evidence as may b., necessary and it is only after it is proved that it is necessary to pass an order under one of these sections that the Magistrate may pass an order under sec--petition 118. Thus it is clear that the Magistrate does not have an arbitrary power to dispense with the procedure or to pass an order to the detriment of the person sought to be proceeded against without tangible evidence and without giving him a proper and E fair opportunity of showing cause against such proceedings. It is, no doubt, true that while the Government chose to insert section 108-A, it did not amend section 112 of the Cr. P. C. Section 118 reads as under :- "When a Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the in--formation received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required."
15. The omission is unfortunate, but I have no doubt that it was not deliberate. It was urged by the learned Government Advocate that since section 112 had not been amended so as to include section 108-A, it was not necessary for the District Magistrate to adopt the procedure laid down in the Chapter. Relying upon the dictum generalia specialibus non derogant the learned Government Advocate argued that section 108-A was of a special nature and the non-amendment of section 112 showed that section 108-A was a special law within the meaning of the dictum and the procedure prescribed under Chapter 8 of the Criminal Procedure Code was not, therefore, applicable to it. In this connection he referred to AIR 1936 Rang. 350 wherein it was held that :- "Section 533 of the Criminal Procedure Code being a special provision contrary to section 164, Cr. P.
16. C. And section 91 of the Evidence Act, prevents it (confession) from being ruled out as incapable of proof.
17. Section 164 clearly leaves it optional to the Magistrate whether he records a confession or not. If he does record it, then the section makes it compulsory that he shall record in a certain way. As, however, section 91 of the Evidence Act, only so far as this matter is concerned, refers to all cases in which any matter is required by law to be reduced to the form of a document, it has no application.
18. In case where it does apply, that is when the confession has been recorded in writing but section 164 has not been fully complied with, then of course, section 533, Cr. P. C. Becomes in turn `a special provision' referred to in section 1 subsection (2), Cr. P. C. And prevents the confession being ruled out as entirely incapable of proof."
19. I share the doubt expressed by the learned author Mr. Chitaley about the correctness of this proposition. On the contrary it is reasonable to assurrie that the Legislature could not have used the term "special law" in section 1, subsection (2) in such a sense as to include any provision of the Cr. P. C. Itself. 1t may be noted that subsection (2) of section 1 of the -Cr. P. C. Is just a reproduction of this latin phrase. 1n my opinion the absence of the amendment of section 112 of the Cr. P. C. Does not make the Court powerless and should not P be allowed to defeat the dictates of justice. After all, all procedures are meant to advance and not to impede the administration of justice. That is why it has been held that the Cr. P. C. Is not exhaustive and if on any particular point it does not provide a procedure the Court does not become powerless. It was observed by Justice Mahmood in 11 All. 267: "It may be true as the learned Pandit said that hard cases make bad law but I hope that it is equally true that the technicalities of the law are not to be so employed as to override the obvious ends of justice and instead of being ancillary to such ends, defeat them."
20. It was observed in AIR 1923 Cal. 724 that: "So far as it deals with any point specifically, the Code of Criminal Procedure must be deemed to be exhaustive and the law must be ascertained by reference to its provision but where a case arises which obviously demands interference and it is not within this for which the Code specifically provides, it would not be reasonable to say that the Court had no power to make such orders as the ends of justice require."
21. And again it was held in AIR 1940 Nag. 390 that: "The Criminal Procedure Code is an exhaustive one only with regard to matters specifically dealt with by it. Absence of any provision on a particular matter does not mean that there is no such power, and the Court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law."
22. This argument therefore is without any force. While under section 107, 108, 109 or 110 the Court can at its extreme call upon the person proceeded against to execute a bond either for keeping peace or for good behaviour, under section 108-A the person proceeded against can be banished from his place of residence and forced to take up residence at a place of the District Magistrate's choosing where the poor fellow might be torn away from his near and dear ones and may be without any source of subsistence. After all the Government is neither obliged under law nor does it normally provide such a person with a house to live in or with the means to keep his body and soul together.
23. He may be the only bread earner of his family and look at the fate of such a family. Thus the action contemplated under section 108-A is far more drastic and in consequences far more distressing than contemplated under any other section of this Chapter. Therefore, to hold that the procedure provided in the Chapter ought to be dispensed with in the case of a person proceeded against under section 108-A is not only to misplace the section but also to interpret it out of its context: Even oh general principles of law-no person can be condemned unheard. This is especially so when a person is proceeded against under the normal law of the land and Criminal Procedure Code is certainly not an extraordinary) legislation in the sense in which preventive detention laws area f' understood to be.
24. It is pertinent to note that in this case no show-cause notice at all was issued to the petitioner by the District Magistrate. No evidence at all was recorded by him and no opportunity at all was provided to the petitioner to show cause why she should not be proceeded against. The record shows that the report of the Superintendent of Police is dated 24th of June 1968 and the District Magistrate passed the order under dispute on the 27th of June.
25. The second order of November 1968 passed by another District Magistrate was parsed under similar circumstances. A request from the S. P. Is dated 5th November 1968 and the District Magistrate acting thereon repeated the unfortunate order of the banishment of the petitioner on the 7th of November. There has thus been a total non-compliance with the procedure laid down in Chapter 8 of the Cr. P. C.
26. A perusal of the record shows that one Muhammad Ishaq made an application to the S. P., Muzaffarabad on 23rd January 1968 alleging that Mst. Walayat Jan had illicit relations with one Badar Munir; that in furtherance of this intrigue they murdered her husband; that his brother Saleem was an approver in the case and that on account of his evidence she was threatening him with dire consequences and therefore he prayed that she should be made to leave the village and reside within the municipal limits of Muzaffarabad. Muhammad Saleem, Badar Zaman, Sumandar Khan, Kala Khan, Abdul Jalil, Mushtaq Ahmed and Talib Hussain supported this application in their statements before the S. P. Mst. Walayat Jan examined Mir A.I Lambardar in addition to herself He stated that Badar Munir the alleged paramour of the woman was not in the village and had gone to Punjab, that he knows of no bad habit in the woman; that the application of Ishaq was not correct; that Ishaq is a servant .Of one Mr. Muhammad Shafi, Executive Engineer who wants that Mst. Walayat Jan should be forced out of the village so that they could take over her property.
27. Thereupon the Police made a somewhat colorful report to the District Magistrate requesting for her externment from the village on .The ground that the relations between the petitioner and the witnesses in the murder case, some of whom are also witnesses in this case, were very strained. It is really ironical that a widowed mother of 7 children and grand mother of 8 children should have been considered a source of danger to so many men of position, influence and means, one of them being an Executive Engineer one of, whose sons is a Divisional Forest Officer. It is really surprising that her stay in her own home on her own property, in the absence of any concrete overt act whatsoever, should have been condemned as an act prejudicial to public safety or public peace resulting in her illegal and unjust banishment from her village. I am convinced that even the evidence recorded by the Police does not show that the District Magistrate was justified in passing an order under section 108-A because every citizen has freedom of residence and unless it is shown that this freedom is prejudicial to public safety or public order, it cannot be denied. That some people would not like her to stay in her village is no ground for denying her the freedom of residence but to the) contrary the fact that these people are men of influence, calls) for greater vigilance on the part of law enforcing agency to protect her rights. If she commits an offence the law is always there to take care of.
28. I, therefore, accept both the petitions and set aside the orders passed by the District Magistrates under section 108-A of the Criminal Procedure Code and restore the freedoms of movement and residence of the petitioner.
29. S. A. H.