R.K. Manisana, J.
1. In these four (4) writ petitions, namely Civil Rules Nos. 2314, 2238 & 2415 of 1990, and Civil Rule No. 11 of 1991, the constitutional validity of the provisions of the Armed Forces (Special Powers) Act, 1958 (Act 28 of 1958) and the Assam Disturbed Areas Act, 1955 (Act 19 of 1955) are challenged. The validity of the two Acts were challenged earlier in this Court under Article 226 of the Constitution. But the proceedings were transferred from the Gauhati High Court to the Delhi High Court by the Supreme Court. A Division Bench of the Delhi High Court has in Indrajit Barua v. State of Assam reported in, AIR 1983 Delhi 513, held that the two Acts are valid except those relating to Assam Rifles under the Assam Act. While dealing with the above referred Civil Rules, a Division Bench of this Court has referred the following two (2) questions formulated in the order of reference to a larger Bench. Hence they are before us.
2. The. questions are:
'1. Whether the Army Authorities under the provisions of the Armed Forces Special Powers Act, 1958 (Act No. 28 of 1958) can arrest a citizen or an individual, male or female, without any invitation on the part of the police authority or without reference to police authorities of the State wherever and whenever the above Act 28 of 1958 is enforced?
2. Whether the decision rendered by the Delhi High Court in Indrajit Barua v. State of Assam (AIR 1983 Delhi 513) has binding effect on the Benches of this Court?'
3. The relevant provisions of the Armed Forces (Special Powers) Act, for short 'the Act' are these. Section 3 of the Act runs:
'If in relation to any State or Union Territory to which this Act extends, the Governor of that State or the Administrator of that Union Territory or the Central Government, in either case, is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may, by notification in the Official Gazette, declare the whole or such part of such State or Union Territory to be a disturbed area.'(Emphasis added)
The expression 'armed forces' is defined in Section 2(a) of the Act to mean the military forces and the air forces operating as land forces, and includes any other armed forces of the Union so operating.
4. Section 4 of the Act provides:
'Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,--
a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortify position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as training camp for armed volunteers or utilised as a hide-out by armed gangs or absconders wanted for any offence;
c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists 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;
d) enter and search without warrant any premise to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.'(Emphasis added).
Under Section 2(b) of the Act the 'disturbed area' means an area which is for the time being declared by notification under Section 3 to be a disturbed area.
5. Section 5 of the Act reads :
'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.'
6. The Central Government in exercise of the powers conferred on it by Section 3 of the Act issued notification dated 27-11-90 declaring the whole of the State of Assam to be a disturbed area. Thereafter, armed forces have been used or deployed.
7. In re Q (1),-- Learned counsel for the petitioners have submitted that the legislative intent of the Act is that the use of armed forces is to help or assist the civil power and, therefore, the army authority cannot arrest an individual, male or female, while exercising his power under the Act without invitation on the part of the police or without reference to police authorities because it will be against the provisions of the Code of Criminal Procedure with respect to arrest and search. The submission of Shri Nibaran Bora, the petitioner in Civil Rule 2238 of 1990, is that India being a democratic country civil administration is the supreme and at the same time the use of armed forces under the Act is in aid of civil power, and as such, army authority cannot arrest or search a person of his own accord or without being asked by the civil authority.
8. Let us now examine the relevant provisions of the Code of Criminal Procedure under which the armed forces can be used for arrest of arrestable person and the power of the army authority to arrest arrestable person of his won accord. Section 130, Cr.P.C. provides that if an unlawful assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct. Section 130, therefore, shows that where the armed forces are employed they are to assist the civil power or authority and are under the control of the civil administration.
9. A reading of Section 130 indicates that there is little authority concerning rights and duties of a member of armed forces, or an officer in command of any group of persons belonging to armed forces, in aid of the civil power, and what little authority there is would be duties of soldiers when the members of the armed forces are requisitioned or called upon to assist in controlling or dispersing a riotous assembly.
10. Section 131, Cr.P.C. further provides that, when the public security is manifestly endangered by any riotous assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse the riotous assembly with the help of the armed forces under his command and may arrest and confine any person forming part of it. Therefore, under Section 131 the army authority can arrest a person of his won accord in the absence of the Magistrate where exigency arises.
11. A riotous assembly which is to be dispersed under Sections 130 and 131 may be formed by male or female or by both. Therefore, the army authority may arrest a female also.
12. There are provisions under the Code authorising police to arrest and search a person without the order of the Magistrate and without warrant. Under Section 43, Cr.P.C. any private person may arrest or cause to be arrested any person who in his presence committed a non-bailable and cognizable offence. The procedure of arrest of a person by a police or a private person is also provided. Section 37, Cr.P.C. provides that every person is bound to assist a Magistrate or police officer reasonably demanding his aid in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest. Under the law and in theory, it may be the duty of every citizen to arrest a person when an arrestable offence is committed in his presence, or assist the police as is provided under Section 37, and police also has the power to arrest a person who committed an arrestable offence or to take whatever reasonable measures available to him to prevent the commission of the crime. The question then is, -- Is the duty of the police or citizen one of perfect obligation in a disturbed area declared under Section 37 In our opinion, Section 3 makes it clear in itself that the duty may be one of imperfect obligation as it would not place the citizen or the police under any obligation to do anything by which he would expose himself to the risk of personal injury or death. In contrast to this a soldier who is employed in aid of civil power to search for criminals or to prevent from commission of arrestable offences, if so ordered by his superior officer, and to risk his own life. For the purpose of his duty, the soldier is armed with at least a fire arm or a self-loading rifle.
13. The statement of Pandit G. B. Pant, the then Union Minister for Home Affairs, in the Parliament when the Bill for passing the Act was moved may be noted. The relevant statement is as follows:
'In order to enable the armed forces to handle the situation effectively, wherever such problems arise hereafter, it has been considered necessary to introduce this bill. This is a very simple measure. It only seeks to protect the steps that the armed forces might have to take in the disturbed areas. It is not possible over such a vast area to depute civil magistrates to accompany the armed forces wherever there may be trouble, because it happens unexpectedly. They might intrude into any village and action has to be taken immediately.'
14. Now, coming to the contentions of the learned counsel for the petitioners that the use of armed forces is to aid or assist or help the civil power in view of the expression 'in aid of used in Section 3 of the Act, and that of Shri Nibaran Bora, the petitioner in Civil Rule 2238 of 1990, about the supremacy of the civil administration, the expression 'in aid of may be used in several senses in different context. According to the Concise Oxford Dictionary, the expression 'in aid of' means 'in support of'. Be that as it may, in the context of the Act we are of the opinion that the expression 'in aid of has been used to mean to supplement or support the civil power, i.e., civil power is to be supplemented or supported by the armed forces for the following reasons. Under Section 5 of the Act any person arrested and taken into custody by army authority in the exercise of his power under the 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. Therefore, the armed forces are employed order deployed for limited purpose as provided under Sections 4 and 5 of the Act. In other words, the army authority is only to exercise his power and perform his duties provided under Sections 4 and 5 of the Act only, and no more. The statement of the Minister for Home quoted above clearly indicates that the use of the armed forces is a measure to meet the exigencies or the urgent need in a disturbed area, and as such, the armed forces are employed or deployed for a limited purpose. Therefore, the supremacy of the civil administration or power is not abdicated in favour of the army authority. The formation of the opinion or satisfaction as to whether use of armed forces in aid of civil power is necessary is for the authority which has to declare the whole or any part of the State to be a disturbed area under Section 3. After declaring an area to be a disturbed area under Section 3 of the Act, the provisions of Sections 4 and 5 of the Act automatically operate.
15. Under Section 5, Cr.P.C. nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. There are three components under Section 5, Cr.P.C. First, the procedure Code generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, the special or local law will be saved and will prevail. Thirdly, if there is a specific provision to the contrary, then that will override the special or local law see Maru Ram v. Union of India, AIR 1980 SC 2147 : (1980 Cri LJ 1440). The terms 'special law' and 'local law' are not defined in the Code. However, Section 2(y), Cr.P.C. provides that words and expressions used therein and not defined but defined in the Penal Code (45 of 1860) have the meanings respectively assigned to them in the Penal Code. Under Section 41, I.P.C. a 'special law' is a law applicable to a particular subject, and Section 42 defines 'local law' to mean a law applicable only to a particular part of India. The Act is applicable only to the North East States, viz, Arunachal Pradesh, Assam, Manipur, Meghalaya, Nagaland and Tripura, and, therefore, the Act is a 'local law'.
16. It has already been concluded that if a special or local law exists covering the same area or field, the special or local law will be saved and will prevail unless there is a specific provision to the contrary. As regards 'specific provision', the Supreme Court in Maru Ram, AIR 1980 SC 2147 : (1980 Cri LJ 1440) (supra) has held that 'specific provision' is stronger than 'express provision' and has said 'that 'specific' is specific enough and even though 'special' to 'specific' is near allied and thin partition do their bounds divide '.......'. In that view of the matter 'a specific provision to the contrary' means that there must be a particular provision in the Code clearly indicating in itself and not merely by implication, in order to affect the special law of local law.
17. The question which, therefore, arises for consideration is whether the Act covers the same area or field occupied by the Code in so far as 'arrest' is concerned. On a comparative study of the Code and the Act, we are of the view that the Act covers the same area and field so far it relates to 'arrest'.
18. Learned counsel Ms. Haksar has contended that under Sub-section (2) of Section 51, Cr.P.C. if a female is to be searched, the search shall be made by another female with strict regard to decency, and that search relates to arrest as after the search a female may be arrested. Referring to Section 51(2) she has contended that the provisions of Section 51(2) is a specific provision to the contrary and, therefore, army authority cannot search a female for the army has no female force, and as such, State Police should be invited or referred to, so that arrangement may be made to comply with the provisions under Section 51(2) of the Code. We prefer to leave this question to be dealt with later, if ever alleged, as the question relating to search is not a subject of the questions referred to us.
19. Ms. Haksar has referred us to an instruction issued by the Military Operations Directorate, Army Headquarters New Delhi dated 31-3-82 (Annexure-'G' to Civil Rule 11 of 1991). The instruction relates to 'aid to civil authorities' with reference to the provisions under Section 130, Cr.P.C. We are of the view that these instructions cannot be considered for the purpose of construing or interpreting the Act as it was issued by the Army Headquarters and the same was not a contemporaneous document.
20. It is settled that if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases declare the intent of the lawgiver. In other words, when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. In that view of the matter, if the meaning of the statute is plain, effect must be given to it irrespective of consequences, whether unjust or oppressive. The language employed in Sections 4(c) and (d) quoted above is plain and unambiguous and capable of one construction only and, therefore, it would not be open to the Courts to adopt any other hypothetical construction on the ground that consequences would be unreasonable, unjust, or oppressive. In such a situation, Section 4(c) and (d) do not contemplate invitation on the part of a police authority or reference to a police authority of the State.
21. For the reasons stated above, the army authority can arrest a citizen or individual, male or female, without any invitation on the part of the police authority or without reference to the police authority of the State, wherever and whenever the Act is enforced. The question (1) is answered accordingly.
22. Before parting with this question, we would like to observe regarding the question raised by Ms Haksar that the question (1) may be referred back to the Division Bench before which the four (4) petitions are pending, so that it may decide the question because the question referred to cannot be discussed properly without going into the questions relating to Constitutional validity of the Act. We are to answer the question assuming that the Act is valid, because, if the Act is invalid, the question would not arise. Therefore, we were not inclined to accept the contentions of the learned counsel and proceeded to examine the question.
23. In re Q (2),-- Transfer of pending proceeding from one Court to another imports that the business of the Court is transferred to another Court and the business is continued in the transferee Court. That being the position, the transferee Court steps or stands in the shoes of the transferor Court, i.e., the transferee Court is 'successor in office' for the purpose of the proceeding transferred. At this stage, it may be helpful to refer to the decision of the Supreme Court reported as Howrah Insurance Co. v. S. M. Dasgupta, AIR 1975 SC 2051, in which it has been held that the subordinate Judge to whom a suit was transferred by the District Judge is the successor of the District Judge for the purpose of the transferred proceedings although the 'successor in office' would mean the successor of the District Judge in the post or office of the District Judge. The decision of the Supreme Court supports the view taken by us. That apart, under Section 150, CPC, save as otherwise provided, where the business of any court is trnasferred to any other Court, the transferee Court has same power and is entitled to perform the same duties as those respectively conferred and imposed by the Code of Civil Procedure upon the transferor Court. Although, Section 150, CPC is not applicable to a proceeding under Article 226 of the Constitution, we are of the opinion that the principle underlying therein can be considered in such a case or the principle underlying Section 150 should be extended to such a case in the interest of administration of justice.
24. Keeping the above principle in-view, let us now examine the case on hand. The proceedings under Article 226 of the Constitution which were pending before the Gauhati High Court were transferred to the Delhi High Court and the Delhi High Court continued the proceedings until they were finally decided. Therefore, the Delhi High Court became the successor of the Gauhati High Court and was performing the duty of the Gauhati High Court so far as those I proceedings transferred were concerned. In that view of the matter, the decision of the Delhi High Court referred to above will be binding on this Court as one of this Court unless the decision is modified in accordance with law.
25. Let us examine the question from another point of view. The writ proceedings which were pending before the Gauhati High Court were transferred to the Delhi High Court by the Supreme Court. Under Article 226 of the Constitution of India, notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. The subject-matter which was before the Gauhati High Court could not be decided by the Delhi High Court as it was out of territorial jurisdiction of the Delhi High Court. But, the jurisdiction so far it relates to those cases was transferred to the Delhi High Court by the order of transfer made by the Supreme Court. After the transfer of the proceedings from the Gauhati High Court to the Delhi High Court, the proceedings pending before the Gauhati High Court were continued in the Delhi High Court till the termination of the proceedings. If any writ was issued, it would be binding on the executive and the individuals in Assam. In the corollary, if the writ was refused, that order of refusal would also be binding on the executive and the individuals in Assam. Therefore, the law laid down by the Delhi High Court has become the law of the State of Assam and the order rendered by the Delhi High Court was complied with by the State of Assam or its executive and the individuals. Since the Acts were declared to be valid by the Delhi High Court, the provisions of the Act and the notification made under Section 3 of the Act continued or remained in operation, i.e. the Government of Assam and the individuals of Assam were abiding by the consequences of the decision rendered by the Delhi High Court. No one in Assam could lawfully do that which would be against the decision of the Delhi High Court and, therefore, the law laid down by the Delhi High Court, which should have been laid down by the Gauhati High Court but for transfer, became the law of the State of Assam, and as such, it would be the policy of the law to make the law declared by the Delhi High Court binding on the Gauhati High Court as one declared by it in the interest of the administration of justice.
Let us take the instance. Under Article 228 of the Constitution of India, if the High Court is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, it may deal with it as provided thereunder. Therefore, if a proceeding pending before the Gauhati High Court in which the validity of an Assam Act is to be decided is transferred to the Delhi High Court by the Supreme Court under Article 139A of the Constitution, the decision of the Delhi High Court would be binding on the Court subordinate to the Gauhati High Court as if it has been made by the Gauhati High Court.
26. For the foregoing reasons, it is held that the decision made by the Delhi High Court is binding on this Court unless the decision is modified or varied in accordance with law. The question (2) is answered accordingly.
27. Let the matters be placed before the appropriate Bench and a copy of this order be placed on the records of each of the petitions.
S. Hoque, J.
28. I agree.
J.M. Srivastava, J.
29. I agree.