Delhi High Court

Durlab Singh vs The District Magistrate, Delhi ... on 25 January, 1974

Author: B Misra

Bench: B Misra

JUDGMENT

B.C. Misra, J.

1. This judgment will dispose of two bunches of writ petitions, one bearing Nos. 3-D of 1966 and 16-D to 19-D of 1966 filed through Mr. V.S. Sawhney, Advocate and the other consists of Civil Writs 135, 170 and 752, all D of 1966 filed through Mr. A.S. Johar, Advocate. The petitioner in the second bunch is the same. In the first bunch, the petitioner in C. Ws. 3-D and 18-D of 1966 is the same, while the petitioner in Civil Writs 17-D and 19-D of 1966 is another and the petitioner in the remaining petition is a different person. These petitions raise a common question of law and so are being decided together.

2. The facts of the case material for the decision of the writ petitions are that against the petitioners before me, criminal complaints have been filed before criminal courts in Srinagar in the State of Jammu and Kashmir. The alleged offences against the petitioners in the first bunch are under Section 500 of the Penal Code prevalent there while the offences alleged in the second bunch are, inter alia under Section 406 of the Penal Code. The criminal Court at Srinagar has issued warrants of arrest in all the cases for the petitioners who are residing in Delhi. In one case, namely, C. W. 752-D of 1966, search warrants have also been issued. All these warrants have been received by the Additional District Magistrate in Delhi and he is seeking to execute them in exercise of powers under Section 105 (A) (2) of the Criminal P.C. applicable in India. In all these writ petitions, the petitioners have challenged the legality and validity of the action executing the aforesaid warrants.

3. The counsel for the petitioners have raised the following contentions:

1. Sub-Section (2) of Section 1 of the Code of Criminal Procedure provides that the Code will not extend to the territory of Jammu and Kashmir and so Section 105-A is in conflict with the said provision and is void.

2. Alternatively, Section 105-A is unconstitutional and ultra vires, since it contravenes-Article 370 (1) (b) of the Constitution.

4. Mr. S.S. Chadha and Mrs. Urmila Kapur, arguing for the respondents, have contended that Section 105-A of the Criminal P.C. is the law made by Parliament for dealing with the Indians by the Courts in India and this law has not been made for the State of Jammu and Kashmir and so the contentions of the counsel for the petitioners are misconceived and unsustainable.

5. Section 105-A is under a heading Chapter VII-A and has been inserted in the Criminal P.C. by Section 3 of the Code of Criminal Procedure (Amendment) Act XXV:I of 1968. The provision is reproduced below for ready reference:

"Chapter VII-A"

SPECIAL RULES REGARDING PROCESSES IN CERTAIN CASES.

105-A (1) Where a Court in the territories to which this Code extends (hereinafter in this-section referred to as the said territories) desires that:

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(d) a search-warrant, issued by it shall be served or executed at any place within the local limits of the jurisdiction of a Court in the State of Jammu and Kashmir or a Court established or continued by the authority of the Central Government in any area outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of Section 74 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories.

(2) Where a Court in the said territories has received for service or execution:

(a) a summons to an accused person, or

(b) a warrant for the arrest of an accused person, or

(d) a search-warrant, issued by a Court in the State of Jammu and Kashmir or a Court established or continued by the authority of the Central Government in any area outside the said territories, it shall cause the same to be served or executed as if it were a summons or warrant received by it from another Court in the said territories for service or execution within the local limits of its jurisdiction; and where:

(i) a warrant of arrest has been executed, the person arrested--shall, so far as possible, be dealt with in accordance with the procedure prescribed by Sections 85 and 86;

(ii) a search-warrant has been executed, the things found in the search shall, so far as "possible, be dealt with in accordance with "the procedure prescribed by Section 99.

This provision of law has got a legislative history. The Code of Criminal Procedure, by virtue of Sub-Section (2) of Section 1, applies only to India. Sections 73 and 74 and Sections 83 and 84 make provisions for execution of processes issued by the Courts exercising jurisdiction within certain territorial limits outside its territorial jurisdiction by other Courts. The said provisions, however, apply only to the Courts in various parts of India. In respect of Courts outside India, provisions had been made by Sections 93-A, 93-B and 93-C which were inserted by the Criminal Law (Amendment) Act 14 of 1941. Section 93-C prescribed: where a Court has received for service or execution a summons to, or a warrant for the arrest of, an accused person, issued by a Court established or continued by the authority of the Central Government in exercise of its foreign jurisdiction, it shall cause the same to be served or executed as if it were a summons or warrant received by it from a Court in the States for service or execution within the local limits of its jurisdiction. These sections were superseded by the insertion of a consolidated section number 93-A by the Criminal Procedure Code (Amendment) Act 1 of 1951. Sub-Section (3) of it was on the same lines. The section defined "internal Court" as any Court in India to which the Code of Criminal Procedure extended; while the expression "external Court" was defined as meaning any Court established or continued by the authority of the Central Government in exercise of its foreign jurisdiction. It also included any Court in the State of Jammu and Kashmir. The result was that under Sub-Section (3), a warrant issued by a Court in the State of Jammu and Kashmir could be executed within the local limits of the jurisdiction of any Court in India in accordance with the procedure prescribed by Sec-lions 85 and 86 of the Code.

6. This provision was apparently not found to be satisfactory. The reason is that it did not make a provision for execution of summonses and search warrants issued by the Courts in Jammu and Kashmir. Consequently on 5th June, 1958, the Code of Criminal Procedure (Amendment) Ordinance 2 of 1958 was issued. This was followed by the Code of Criminal Procedure (Amendment) Act 26 of 1958, which was passed on 3rd September, 1958 and was deemed to have commenced on 5th June, 1958, being the date of the promulgation of the Ordinance. It directed the omission of Section 93-A of the Code as well as repeal of the aforesaid Ordinance. The provisions were, therefore, enacted as extracted above.

7. Before the enactment of the aforesaid provision, the only provision how a foreign Court could obtain the presence of the accused was by extradition proceedings, but Jammu and Kashmir is not a foreign State, it is part and parcel of the Indian Union: see Article 1 and Entry 15 of the First Schedule of the Constitution. This State, however, occupies a special position in the Indian Union. Before the enactment of Section 93-A or 93-C, its warrants could not be executed in India: see Emperor v. Karim Baksh Rehmatkhan AIR 1941 Sind 20 : 42 Cri LJ 326 (FB). After the enactment of Section 93-A in 1951, as mentioned above, these warrants could be executed by the Courts in India. In re Ramnath Bholgothra , a learned Single Judge of that Court had a warrant issued by a Magistrate in Jammu and Kashmir for consideration. The warrant was not challenged on the ground of unconstitutionality or violation of Article 370 of the Constitution. However, the learned Single Judge held that the warrants could not be executed by the Commissioner of Police in Madras since he was not a Court and Section 93-A did not clothe him with the requisite jurisdiction. It is, however, interesting to notice that in Abul Hasan v. Rex , v. Bhargava, J., (as he then was) held that Bhopal in April, 1949 was a State under a ruling Prince and on 1st June, 1949, the Central Government had assumed its administration under a notification issued in exercise of powers conferred by Sections 3 and 4 of the Extra Provincial Jurisdiction Act 47 of 1949, as a result of which the Courts of Magistrates and Judges in the State of Bhopal were directed to be continued under the authority of the Central Government and so they were covered under the definition of Sub-Section (1) of Section 93-C of the Criminal Procedure Code. The learned Judge, therefore, held that a warrant of arrest received from a Court in Bhopal before its administration was assumed by the Central Government, could, after the assumption, be executed under Section 93-C as if it were a warrant received from the Court in the Indian Union and no question of exemption arose.

8. These decisions only illustrate the legislative background of the provisions. So far as the State of Jammu and Kashmir is concerned, Section 105-A has made the position absolutely clear. In express terms, it provides that if a warrant for the arrest of an accused or a search warrant or summons ses has been issued by a Court in the State of Jammu and Kashmir * * *, it shall be served and executed as if it were a summons or a warrant received from any Court in India to which Code of Criminal Procedure extends for service or execution within the local limits of its jurisdiction. In exercise of the power conferred by this section, the Additional District Magistrate, in Delhi has jurisdiction and power to execute the warrants of arrest and search issued by the Criminal Court in Srinagar in the State of Jammu and Kashmir.

9. I am of the view that the aforesaid provision of law has been made by the Parliament in exercise of its powers under Articles 245 and 246 of the Constitution under entries 1 and 2 dealing with criminal law and criminal procedure occurring in Concurrent List III of the Seventh Schedule. ! 1 he provision of law thus made can, by virtue of clause (2) of Article 245, not be deemed to be invalid on the ground that it would have extra-territorial operation. Consequently it cannot be denied that the Parliament possesses the fullest power to make the law for the Indian inhabitants to be dealt with by the Courts in India, even in respect of offences alleged to have been committed by them outside India or within the State of Jammu and Kashmir. By inserting this provision, it is obvious that the Parliament is not making any law for the State of Jammu and Kashmir or in respect of the Courts exercising jurisdiction within that territory. In this behalf, it has been brought to my notice that there is a separate Code of Criminal Procedure governing procedure of the Courts in the State of Jammu and Kashmir and the same has been amended to contain the provisions complementary to Section 105-A (1) and (2) of the Code, but that is an entirely different matter. By no stretch of imagination, can it be said that Section 105-A (2) makes the law for the State of Jammu and Kashmir or for the Courts exercising power and jurisdiction in that State. The Magistrate in Jammu and Kashmir who has sent the warrants has exercised the powers under the Criminal Procedure Code applicable to that State which is not the Indian Criminal Procedure Code, though it is stated to be pari materia. The Additional District Magistrate in Delhi who has received the warrants from the Court at Jammu and Kashmir for execution is not exercising any jurisdiction in the territory of the State of Jammu and Kashmir, but in Indian territory where the Indian Criminal Procedure Code is undoubtedly in force. He is in fact exercising his powers conferred by Section 105-A (2) of the Code on him which is plainly intra vires of the Constitution and the powers of the Parliament and is not curtailed by Article 370 of the Constitution. This distinction clearly demolishes the basis on which the contention of the counsel for the petitioners has been raised. My conclusion is that Section 105-A (2) of the Code of Criminal Procedure under which the impugned warrants are being sought to be executed by the Magistrate in Delhi is neither in conflict with Sub-Section (2) of Section 1 of the Code of Criminal Procedure, nor is it in conflict with Article 370 of the Constitution. In this view of the matter, it is not necessary to embark on an enquiry as to whether or not the President has passed any constitutional order envisaged by Sub-clauses (i) and (ii) of clause (b) of Article 370 (I) of the Constitution, justifying enactment of the impugned provision, although a number of constitutional orders appear to have been issued.

10. During the course of arguments, some authorities of the Supreme Court have been cited. I shall respectfully notice them. In Wazir Chand v. The State of Himachal Pradesh, , it was held that in view of the provisions of Article 370 of the Constitution, it was doubtful if an offence committed in the State of Jammu and Kashmir, could be investigated by the police in India. The authority has no application to the facts of the present case. In the instant case, the Additional District Magistrate at Delhi is exercising powers conferred by Section 105-A of the Code to execute the warrants issued by a Court at Srinagar. He is not enquiring into, nor is the police investigating any offence committed in the State of Jammu and Kashmir in exercise of any other powers available under the Code. This decision, therefore, does not assist the petitioner. On the other hand, the insertion of the express provision in Section 105-A of the Code would appear to pay respect to the said authority. Another decision to which reference has been made is reported as Sampat Prakash v. State of Jammu and Kashmir, . In this case, the Supreme Court considered the ambit of the powers under Article 370 of the Constitution and found that the power given under Clauses. (2) and (3) of the said Article is to be exercised from time to time and includes within its ambit the power to add, amend, vary or rescind and the said power could be exercised by the President in spite of applicability of Article 368 of the Constitution to the State of Jammu and Kashmir. The authority does not help the petitioner.

Reliance has also been placed upon State of West Bengal v. Jugal Kishore More . In this case, the Supreme Court was concerned with the construction of Section 82 of the Extradition Act and Section 3 of the Fugitive Offenders Act. The Court found that it was not illegal or irregular on the part: of the Chief Presidency Magistrate to issue a warrant of arrest and send it to the Secretary, Home Department. for onward transmission to the Government of India for taking further steps for securing the presence of the accused in India from Hong Kons; to undergo trial. The said dscision. therefore, has no application to the facts of this case. Mr. V.S. Sawhney has relied upon Chaturbhai M. Patel v. The Union of India , to contend that the Court must consider the pith and substance of the legislation; this decision, however, does not help the petitioners at all on the facts and circumstances of the case.

11. The counsel for the petitioners further submitted as a last resort that the provision of Section 105-A is discriminatory as it subjects them to the penalty of being arrested and sent to the Court of a Magistrate in Jammu and Kashmir while it does not enable them to move the Supreme Court under Section 527 of the Code of Criminal Procedure for transfer of their cases from the Court of Jammu and Kashmir to any other Court in India. This argument again has no force. It is not being contended that the whole of the Code of Criminal Procedure has been extended to the State of Jammu and Kashmir and in that extension, for any reason, Section 527 of the Code has been omitted. Had that situation arisen, it might, with some justification, have been examined. As noticed above, the criminal Court in the State of Jammu and Kashmir, in sending the impugned warrants, does not purport to exercise any powers under the Indian Criminal Procedure Code, nor does the Court: of the additional District Magistrate at Delhi purport to exercise any powers under any law applicable within the territory of Jammu and Kashmir. He is exercising the powers under Section 105-A of the Code which 1 have found to be constitutionally valid. There is, therefore, no scope for the argument that Section 105-A is void on account of any discrimination and the contention is rejected.

12. As a result, I do not find any merit in the writ petitions and so dismissed all of them without any order as to costs.