B.L. Hansaria, J.
1. The petitioner is the wife of C. Chaoba Singh. Her case is that her husband was arrested by some personnel of the 5th Bn. C.R.P.F. (Central Reserve Police Force) on 10-1-1981 at about 7.30 P. M. from her residence, As Chaoba Singh did not return even by 22-2-1981, the petitioner submitted an application on that day to the Deputy Inspector General of Police (Operation) to enlighten her about the whereabouts of her husband. There was no reply to this request and so the petitioner brought the matter to the notice of the local M.L.A. Shri Y. Kula Singh, who raised the matter on the floor of the Assembly by putting the following question on 31-7-1981:
Is it a fact that whereabout of Chan-dam Chaoba Singh, s/o late Gulamjat Singh of Pukhao Terapur (I. E.) who was arrested on 10-1-1981 by the C. R. P. F. from his residence at about 7-30 P. M. is not yet known ?
The Chief Minister answered the question in a single word "yes", A perusal of the concerned file which was produced by the learned Advocate General, Manipur, on our direction shows that Shri Kula Singh had put some supplementary questions and had wanted to know if Chaoba Singh was alive or dead. The Chief Minister had stated that the missing person was not arrested by the police and the Army Authority had also intimated that the individual in question was not in their custody. Shri Kula Singh further stated that though one person arrested alona with Chaoba Singh was released, it was not known whether Chaoba was alive or dead, and if he is alive, he asked the Chief Minister, to give information of his whereabouts. The Chief Minister agreed to look into the matter further. It is the case of the State that thereafter efforts were made to find out Chaoba Singh, or to know about his whereabouts, but nothing could be known. This has been stated in the affidavit on behalf of respondents 1. and 5 to 9 sworn by the Deputy Secretary (Home). Government of Manipur which was filed on 25-2-1982. The case of the Commandant, 5th Bn. C. R. P. F. is that Chaoba Singh had been arrested on the night between 13th and 14th of Jan. 1981, to be precise at about 1.30 A. M. and had been released at about 5.30 P. M. of 14-1-1981. AS such, it is submitted by the Commandant of the batallion that the writ petition does not lie and is liable to be rejected.
2. There is no doubt that if this Court were to accept that Chaoba Singh had been released on 14-1-81, or for that matter on any other date by the C. R. P. F., the petition has no legs to stand. On the other hand, if it be a case of "counterfeited release," writ as prayed for, could be issued. The latter proposition has the support of the high authority of Barnardo v. Ford (Gossage's case) (1891) 4 All ER Rep. 522, which is a decision of the House of Lords. This is not disputed by the learned Advocate-General, Assam, who has appeared for respondent No. 4.
3. The important question which has, therefore, to be decided is whether Chaoba Singh had in fact been released as contended by the Commandant. In support of his case, the Commandant seeks to rely on (1) the entries in Apprehension Register; (2) two sitreps dt. 14-1-1981 and 15-1-1981 : and (3) a letter dated 15-1-1981 addressed by the Adjutant of the Battalion to the Headquarters (M) Sector. These are Annexures-1, 3 to 5 of the affidavit filed by the Commandant. These documents tell that Chaoba Singh had been arrested on 13th/14th of Jan., 1981, along with two others from Pukhao area - the two others being Tharankou and L. Lala. Of these three two were released as directed by the Army authorities as they were 'white' - these being Chaoba Singh and Tharangou Singh. L. Lala was, however, handed over to the Army on 15-1-1981. The learned Advocate General, Assam, strongly contends that the case of respondent No. 4 being duly supported by contemporaneous documents which were maintained in the official course of business merits full acceptance by this Court. According to the learned Counsel, there is nothing to doubt the authenticity or veracity of these documents. Shri L. Nandakumar Singh, on the other hand, contends that the aforesaid documents had been manufactured to suit the case of respondent No. 4, and we should not place reliance on these cooked up documents. According to him. there was not even a whisper of release when the Chief Minister had answered the question of Shri Kula Singh on the floor of the Assembly on 31-7-1981 and as such it is a fake story.
4. Before adverting to the disputed questions of fact, it would be apposite to have a look at the relevant provisions of law. There is no denial before us that Chaoba Singh had been arrested by virtue of the powers conferred by Section 4(c) of the Armed Forces Special Powers Act, 1958, hereinafter the Act, That section reads:
4. Special powers of the armed forces. Any commissioned officer, warrant officer, non-commisioned officer or any other person of equivalent rank in the armed forces may, in a disputed area
(a) & (b) xx xx xx xx
(c). arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exits that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.
XX XX XX
Section 5 is also very material for our purpose. It provides:
5. Arrested persons to be made over to the police. Any person arrested and taken into custody under this Act shall 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.
As in this case, even according to respondent No. 4 the arrest was at about 1.30 A. M. of 14-1-1981 and the release was at 5.30 P. M. of the same date, a question does arise whether the mandate of Section 5 was violated or not. Though a petition for a writ of habeas corpus is not meant to be punitive, we have to advert to this aspect as it has come to our notice that the present is not the only case of this nature. It has to be remembered that Article 21 has created an embargo on deprivation of liberty except in accordance with the procedure established by law. The learned Advocate General, Manipur contends by referring to Saptawna v. State of Assam that we may not examine a question which does not survive for our answer. This submission is founded on the case of the respondents that Chaoba Singh was released. We shall examine this contention a little later. Even assuming that he was released, law has to be explained to the authorities who have been given the power to curtail the liberty of citizens so that they may act in accordance with law. and not as deemed expedient by them. This Court as a custodian of the constitutional rights of the people will be failing to discharge its duty if it were not to lay down succinctly the limit beyond which detention by armed forces will amount to curtailment of liberty in violation of Article 21 of the Constitution.
5. According to us, there is absolutely no ambiguity in Section 5 of the Act which requires in clear terms that any person arrested under the Act has to be made over to the nearest police station without delay. The phraseology of "with the least possible delay" has been used because in some cases it may not be possible to hand over the arrested person to the nearest police station for one reason or the other. The delay permitted by the section is in our view due to some physical impossibility to carry its command. Needless to say that the reasons must be cogent, genuine and relevant. Let it be said clearly that the section does not permit the arresting armed force to keep the arrested person in custody for the purpose of interrogation, or to be fully satisfied whether the concerned person was really involved in the matter which had led to his arrest. This satisfaction has to precede the arrest, and not to follow it. This is clear from Clause (c) of Section 4 which has conferred the power of arresting a person who has either committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence. This would show that the members of the armed forces cannot arrest each and every person they choose, but can exercise their powers only against those who fall in either of the aforesaid two categories. It is apparent that Chaoba Singh was not a person who had committed a cognizable offence at best he was a person against whom a reasonable suspicion might have existed that he was about to commit a cognizable offence. After a person is arrested on the requirements of cl, (c) of Section 4 being fulfilled, no necessity of his further interrogation to find out his probable involvement is left. It is because of this that Section 5 requires his immediate handing over to the police with a report of the circumstances occasioning the arrest. The submission of the learned Advocate General, Assam that only such persons against whom a prima facie case is found after further interrogation following arrest are required by Section 5 to be handed over to the police does not merit our acceptance, because the prima facie satisfaction must precede arrest, as already stated, it cannot be allowed to follow it. A horse cannot be put behind the cart. If we were to concede to this submission of the learned Advocate General, we would virtually be giving untramelled power of arrest to the armed forces much beyond what is permitted by Section 4(c) of the Act.
6. The contention that the arrested person will go to further misery etc. at the hands of the police if handed over to them without proper satisfaction about his involvement is apparently advanced as a humanitarian argument but in reality is a disguised contention the real idea is to clothe the armed forces with more power than what has been conferred by the Act, The human history has been one of assumption of more and more power in the name of doing good to others. We would rule out any power in the armed forces to detain an arrested person with them for any period beyond that which they may reasonably take to hand over the arrested person to the nearest police station. From the additional affidavit filed by respondent No. 4, we are glad to note that they have understood the legal provisions in correct perspective. But that came little late.
7. As there is no ambiguity in the language of Section 5, we are really not called upon to say as to why such a provision was made, because object of an enactment becomes relevant as a tool of interpretation if there be a double meaning in the provision. Even so. we may say that as the armed forces were being given special and wide powers by the Act, these were sought to be confined within essential limits, and were not contemplated ,to supplant the ordinary machinery for enforcing law and order or to detect crimes. The necessity of arming armed forces with the power of arrest is grounded on the prevailing situation in the territory where the forces ordinarily meant for this purpose may not be able to rise to the occasion or deliver goods. But once the tainted person is apprehended from the disturbed area, the difficult terrain or surcharged and hostile surroundings, the job assigned t0 the armed forces is well done and it was perhaps thought that the general powers given to the other forces could finish the remaining task. It has also to be remembered that the basic task of the brave armed forces is to defend the frontiers of the country and their services are requisitioned for maintenance of law and order when there is "disturbed and dangerous condition'' and that too "in aid of the civil power" as stated in Section 3 of the Act. The legislature has, therefore, laid down the limit up to which aid is needed - this far and no farther. It is not within our competence to enlarge the arena. Let it be said that our interpretation cannot stand in the way of combing or mopping up operations mention of which was made by the learned Advocate General, Assam, in support of his submission about the width of power under Section 5; and which aspect has been highlighted in the additional affidavit of the respondent No. 4. This is so because though it may as well be that in the exercise of the above type innocent persons are also restrained or confined, but only those are ultimately arrested, or can be so done, against whom a reasonable suspicion about involvement in the offence in question exists, either because their screening causes this suspicion or something indiscriminating is found to connect them with the crime.
7A. Before parting with the legal aspect, we have no hesitation in stating that the entire nation is indebted to the armed forces for their assistance rendered in distress and difficult days; and there can be no two opinions about their contribution in quelling even internal disorders. But a harmony has to be struck. A balance between crushing of violence and crushing of liberty has to be found. And the legislature has itself done so. It may also be remembered that we have been a free and democratic country for over 35 years by now. Ours is a matured Republic. We occupy a place of pride in the comity of nations. We are a signatory to the International Covenant on Civil and Political Rights. Our armed forces have a bright image,, They are disciplined and imbibed and imbued with the spirit of service and sacrifice. Let them undergo the discipline of fundamental rights also when operating against their own countrymen.
8. Now to the facts. The main disputed point relates to release of Chaoba Singh. As already indicated, respondent No. 4 has pressed into service the Apprehension Register and two sitreps in the main to satisfy this Court about the release of Chaoba Singh, who was admittedly taken into custody by them. Whether the accused was arrested on 10th or 13th night is not material for the case at hand. What is material is whether he was released or not. To satisfy ourselves fully as to whether we can hold, relying on the aforesaid documents, that Chaoba Singh had been released, we had called for an additional affidavit from respondent No. 4, which has been duly filed. This affidavit makes it clear that the persons to arrest Chaoba Singh were the then Commandant of the Battalion and the Adjutant Shri R. K. Dua. After the arrest, the affidavit says that the Commandant instructed Dy. S.P. Shri Chandrabhan to interrogate the apprehended persons, including Chaoba Singh and left the camp along with Sri R. K. Dua for the Battalion HQ reaching there in the early hours of 14th Jan. 1981. At about 3 PM, the Camp informed the Battalion HQ, which is at a distance of 27 KMs, that nothing incriminating was found against Thorongua and Chaoba Singh. The Commandant, thereafter, verbally discussed the matter with the army authorities who, in turn, directed the Commandant to release these two persons : and Dy. S.P. Shri Chandrabhan was accordingly informed over radio telephone to release them and they were so released at 5. 30 P. M. On the basis of this information the sitreps were prepared and entries in the Apprehension Register were made. Thus, the sitreps and Apprehension Register are not primary documents in this regard. We had specifically asked in our order dt. 31-8-82 to annex with the affidavit if the knowledge of release had been derived through any written message from the Camp in question. This has not been done, because, according to the Commandant, the information was verbal and had emanated from Shri Chandrabhan. Dy. S.P. As such, the best person to tell about the release is, undoubtedly, Shri Chandrabhan, whose affidavit is not on record. It is verbally submitted by the learned Advocate General, Assam, that Chandrabhan is not posted here now and, as such, no affidavit from him could be filed. But then, it has to be remembered that the Rule in the case was issued on 23-11-1981 and as such the respondents got almost 10 (ten) months' time by now to file his affidavit. Thus, apart from what is stated in the sitreps and the Apprehension Register, we have no other material to satisfy us about the release of Chaoba Singh. In this connection, we cannot forget that when the question was raised on the floor of the Assembly as late as 31-7-1981, which was about six-and-a-half months after the arrest, nothing was said to the people about release of Chaoba Singh. It can well be presumed by the Court that if Chaoba Singh would have been released, he would have come to his family, he being a middle-aged man of about 43 years with 7 (seven) children. Such a presumption would undoubtedly be normal and reasonable, though this is rebuttable.
8A. To rebut this, as already stated, the respondents have relied on the aforesaid documents; and also on the affidavits of Dy S.P. Shri R. K. Dua and the aforesaid Tharongou. Shri Dua had admittedly no personal knowledge about the release and as such his affidavit does not advance the matter. Of course. Tharongou has claimed in his affidavit which was filed on 31-5-1982 (though sworn on 26-4-1982) that Chaoba Singh was released along with him and both of them had thereafter walked from the C. R. P. F. camp towards their respective villages; and for about a month he had seen Chaoba Singh on 2/3 occasions in market at Imphal. Shri Nandakumar Singh contends that this affidavit does not merit any acceptance inasmuch as even the entire machinery of the State had failed to locate Chaoba Singh as is clear from the affidavit of the Deputy Secretary (Home) Government of Manipur. He further submits that if Chaoba Singh would have travelled with this deponent towards his village, he must have reached there soon as his village is only about 3 Kms from the Camp as stated in the additional affidavit of respondent No. 4. in such a contingency it is only natural to presume that he must have gone to his own house in which case his wife would not have missed him. The logical conclusion of this sequence of events is if Tharon-KOU is to be believed that this petition is a false one, and all the representations of the petitioner right from the approach to the Deputy Inspector General of Police (Operation) and contact with the local M. L. A. and raising of the question on the floor of the Assembly were all pretended and motivated exercise. We just cannot think of all these. It may be stated that being not satisfied with the averments made in this affidavit, we have not conceded the prayer of Shri Nandakumar Singh to direct the State to produce Thorongua for cross-examination. We may also put on record that the petitioner had prayed to examine the abovenamed L. Lala in support of her case and though this prayer had been allowed he could not be ultimately examined for reasons beyond the control of the poor petitioner.
9. In view of the above, we are constrained to hold that we are not satisfied if the authorities had released Chaoba Singh as is their case, it is thus a case of "counterfeited release" and on the authority of Brarnardo v. Ford 1891-4 All ER Rep 522 (supra), a writ can issue. Had it been that, according to us, Chaoba had in fact been released even by the date of hearing of this petition, we would not have examined the matter because of what has been stated in Kanu Sanyal v. District Magistrate and Keshav Talpade v. Emperor AIR 1944 FC 24 (1), which were referred by the learned Advocate General, Manipur.
10. The question now is about the appropriate order to be passed or the appropriate writ to be issued on the above facts. This aspect has troubled us as it had done the learned Judges of the Kerala High Court in what is commonly known as Rajan's case, Eachara Varier T.V. v. Secretary to the Ministry of Home Affairs 1978 Cri LJ 86. Having come to the conclusion that Chaoba Singh was really not released, we can think of only three alternatives as to what might have happened with him-(1) he is still in custody; (2) he Rscaped from custody, or (3) he is dead. Of these, we shall rule out the second, as, if he would have escaped, respondent No. 4 would have said so and Chaoba would have, in all probability, got in touch with the members of his family. Of the two situations left, as taking into custody is admitted, it may be presumed that Chaoba Singh has continued in custody. In such a contingency, 'the issue of writ of habeas corpus presents no problems. But, if Chaoba Singh had died while in custody or even afterwards, writ of habeas corpus would have no meaning. It is, however, nobody's case that Chaoba Singh is dead, though Shri Kula Singh had hinted about it in his Assembly questions. So, we are left with no alternative, as presently advised, except to come to the conclusion that he continues in custody. In such a situation we will be failing in our duty if we were not to issue the writ as prayed for. If for any reason it would not be possible for the respondents to comply with this writ, it would be open to them to explain to this Court with better evidence as to why they are unable to do so. Though this is an unusual order we have passed, but on the facts and circumstances of the case we do not think if we could have done anything else.
11. Accordingly, the petition is allowed as aforesaid.
After the judgment is pronounced, the learned Advocate General, Assam, prays for a certificate for appeal to the Supreme Court under Article 134 of the Constitution. As we have decided the petition on a pure question of fact, namely whether Chaoba Singh was released or not, we do not think if the certificate can be issued by us. Accordingly, the prayer is rejected.