DR ABDUL GHAFOOR Vs. REX

JUDGEMENT

(1.) These are two applications under Section 491, Criminal P.C., by Dr. Abdul Ghafoor of Pilibhit and his wife Begam Abdul Ghafoor. On 18 August 1948, the husband and the wife were arrested under the orders of the District Magistrate passed under Sub-section (2) of Section 3, U.P. Maintenance of Public Order (Temporary) Act, 1947. Before the expiry of the period of fifteen days for which they were ordered to be detained by the District Magistrate, the Provincial Government on 1 September 1948, passed an order of detention for six months against them under Section 3 (1) (a) of the Act. The grounds of detention supplied to Dr. Abdul Ghafoor under Section 5 of the Act are as follows: You along with your wife have been in direct correspondence with undesirable elements hostile to the interests of the Indian Dominion. The correspondence which you so carried on reveals that you, with the help and guidance of certain persons of Pakistan, were planning to resort to treason and had designs over the Indian Dominion territory. It also reveals that you were out to create lawlessness within the Indian Union. You have constantly been trying to tamper with the loyalty of the Indian Muslims by preaching to them to is own their allegiance towards India and to take to wholesale murder of the Hindus. On a search being made of your house, two very objectionable and inflammable notices and an envelope, having the seal of the Pakistan Government, were recovered. Also, while being taken away to Kotwali, you cried from the tonga to the Muslims nearby that it was not possible for the Muslims to live honourably in the Kafir State of the Indian Dominion. You exhorted them to leave for Pakistan lest they were driven out by the present Indian Union Government. Your actions amount to treason and are likely to create communal animosity which may lead to breaches of the peace. They are also prejudicial to the public safety, maintenance of public order and communal harmony.

(2.) The grounds of detention under Section 5 communicated to Begum Dr. Abdul Ghafoor are almost in identical terms. She also has been accused of provoking the feelings of the Muslims to murder Hindus of the Indian Dominion and of planning treason. In her case also it has been alleged that, when she was being taken to Kotwali in a tonga, she cried to the Muslims nearby that it was not possible for Muslims to live in the Indian Dominion and that she also designated the present Government in Indian Dominion as that of Kafirs.

(3.) The first contention raised by learned Counsel for the applicants is that the grounds of detention communicated to the two applicants are beyond the scope and the object of the U.P. Maintenance of Public Order (Temporary) Act, 1947, as the grounds relate to matters "connected with defence, external affairs, or relations with acceding States, a subject which falls under Entry no. 1 of the Federal Legislative List, as contained in List 1 of the Schedule 7, Government of India Act, 1935, and not to the subject "connected with maintenance of public order" which falls under Entry No. 1 of the Provincial Legislative List of the said schedule. An analysis of the grounds communicated to the two applicants shows that they fall partly in the Federal Legislative List and partly in the Provincial Legislative list. In so far as those grounds charge the applicants for help to and from the Pakistan, they fall in the Federal Legislative List but, in so far as those grounds relate to treason, lawlessness, murder of the Hindus, and disowning of allegiance to the Indian Dominion, they fall in the Provincial Legislative List as they are connected with the maintenance of public order. Maintenance of public order is intimately connected with the stability of State and the stability of the State is intimately connected with the allegiance of the citizens. If the allegiance is weakened, the State is weakened and there is real danger of disorder. I can do no better than to quote the following from Salmond on Jurisprudence, Eighth Edition, at pp. 150 and 151: The relations between a State and its members is one of reciprocal obligation. The State owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a State in order that they be defended by it against each other and against external enemies. But this defence is not a privilege to be had for nothing, and in return for its protection the State exacts from its members services and sacrifices to which outsiders are not constrained. From its members it collects its revenue; from them it requires the performance of public duties; from them it demands an habitual submission to its will as the price of the benefits of its guardianship. Its members, therefore, are not merely in a special manner under the protection of the State, but are also in a special manner under its coercion. This special duty of assistance, fidelity and obedience is called allegiance. I am of opinion that he who excites treason commits an act likely to lead to disorder and falls within entry 1 of the Provincial Legislative List.