HUKAM CHAND Vs. DISTRICT MAGISTRATE NEW DELHI

JUDGEMENT

(1.) Hukam Chand, petitioner has submitted this application under section 491 of the Code of Criminal Procedure on the allegation that he has been illegally and improperly detained in public custody by respondent No. 3, the Superintendent, Central Jail, Tehar, New Delhi under the orders of respondent No. 1, the District Magistrate, Delhi acting on behalf of the Administration of the Union Territory of Delhi and praying that he be ordered to be set at liberty. The order of the District Magistrate, Delhi, dated 20th October, 1965 by which the petitioner has been detained under rule 30 of the Defence of India Rules, 1962 is in the following terms:-

(2.) In pursuance of the above mentioned order the petitioner was arrested on October 20th, 1965. His case was reviewed by the Administrator of the Union Territory (Chief Commissioner, Delhi) on 21st October, 1965 and his detention was confirmed. Information about the confirmation of the detention order was communicated to the petitioner by the District Magistrate, Delhi on 27th October, 1965. Though various grounds had been taken up in the petition forwarded by the petitioner from the Jail Shri D. Latifi, Advocate, who appeared for him he. fore me expressly stated that he was not pressing the same. He urged only the following four grounds against the petitioner's detention;-

(3.) In order to decide the first two questions raised by the learned counsel for the petitioner, both of which are inter-connected, certain statutory provisions and rules may first be noticed. Part XVIIT of the Constitution (Articles 352 to 359) deals with the emergency provisions. The declaration of emergency is left by Article 359(1) to the President of India. It is not disputed that emergency under that Article was declared in this country on October 26, 1962 immediately on the out-break of hostilities with China. Article 359(1) provides that where aproclamation of emergency is in operation the President may by order declare that the right to move any Court for the enforcement of any of the fundamental rights (conferred by Part III of the Constitution) as may he mentioned in the order shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. In exercise of the powers conferred by Article 359(1) of the Constitution the President of India issued a notification on the 3rd of November, 1962 providing that the right of any person to move any Court for the enforcement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 of the Constitution on 26th October, "1962 remained in force if such person has been deprived of any such rights "under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.".