GIRIJA BARUAH Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus directing respondents 2 and 3 representing Ahoy authorities not to visit her residence and create disturbance to the domestic peace of her family. In her earlier writ petition Civil Rule 2402/91 this court passed an interim order directing that petitioners son Utpal Kumar Barua shall not be arrested without permission of the court and subsequently made the interim order absolute. In the Present writ petition she alleges that Army Personnel are visiting her house in search of her another son Dulal Baruah and her husband Rajendra Kumar Baruah with a view to arrest them. One of us (Manisana, J.) who heard petitioners prayer for an order restraining the Army authorities from arresting her husband and eldest son felt that the question whether such an order could be passed requires examination by a larger Bench. Since similar orders had been passed by a Division Bench, the Chief Justice placed the matter before a Full Bench of three Judges. In view of the importance of the question arising for decision, we issued notice to Advocates General of Meghalaya, Assam, Arunachal Pradesh and Nagaland and the Government Advocates representing Mizoram, Tripura and Manipur Governments. We have heard Sri S.N. Medhi, learned counsel for the petitioner, Sri A.H. Saikia, learned AddI. Central Government Standing Counsel, Sri N.M. Lahiri, Advocate General, Meghalaya, Sri A.R. Barthakur, Advocate General, Assam, Sri A.M.Mazumdar, Advocate General, Arunachal Pradesh and Sri N.G. Phukan, learned Government Advocate, Mizoram.

(2.) The question referred to the larger Bench is whether this court can pass any order directing the Army authority exercising jurisdiction under relevant laws not to arrest any person without the permission of this court.

(3.) Armed Forces (Special Powers) Act, 1958 (for short T1the Act) enables certain special powers to be conferred upon members of the Armed Forces in disturbed areas in the States of Arunachal Pradesh, Assam, Manlpur, Meghalaya, Mizoram, Nagaland and Tripura. By virtue of Section 3, Governor of a State,. Administrator of a Union Territory and the Central Government in either case, may, by notification in official gazette declare the whole or such part of the State or Union Territory to be a disturbed area if of the opinion that the whole or any part of such State or Union Territory is in such a disturbed or dangerous condition that the use of Aimed Forces in aid of the civil power is necessary. Section 4 confers on any commissioned officer, Warrant Officer, non-commissioned officer or any other person of equivalent rank in the Armed Forces in disturbed areas, the powers enumerated in Clauses (a) to (d). Clause (a) empowers officers of Armed Forces in contingencies contemplated therein to use force. Clause (b) authorises them in certain contingencies to destroy and arms dump or fortified position or shelter or structures. Clause (c) empowers such members of Armed Forces in a disturbed area to 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 to use such force as may be necessary to effect the arrest. Clause (d) empowers the officers to enter and search without warrant-any premises 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 for that purpose to use such force as may be necessary. Section 5 requires that any person so arrested and taken into custody 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.