Teja Singh, C.J. - (1.) TWO habeas corpus petitions have been referred to the Full Bench because of important questions of law involved therein.
(2.) THE first petition relates to Mst. Krishna alias Naziran and the petitioner is Sohan Singh. The allegation of Sohan Singh are that Mst Krishna was originally a Mohammaden, that she was converted to Hinduism and was married to him long before the partition of the country & the note, that a Sub -Inspector of Police arrested Mst. Naziran on 8 -12 -1951 on the ground that she was an abducted woman and that she was transferred to Abducted Women's Camp. The petitioner also alleged that the Abducted Persons (Recovery and Restoration) Act under the provisions of which the Police took action against Mst. Krishna was 'ultra vires' the Constitution, that Mst. Krishna was not an abducted person, that her arrest was illegal and in contravention of the provisions of the Act as well as the Constitution and that consequently she should not be kept into custody or detention. On these allegations it was prayed by Sohan Singh that Mst. Krishna be released and it should be ordered that she and the two children that she had borne to the petitioner could not be taken outside the jurisdiction of the Court. The other petition is by Teja Singh and relates to Mst. Surjit Kaur. His allegations are that Mst. Surjit Kaur was arrested on 11 -1 -1952 and was later on transferred to the abducted persons camp and questions the arrest and detention only on two grounds; (i) that the Act under which the arrest was made was 'ultra vires' the Constitution and (ii) that she was not an abducted person within the meaning of the said Act.
(3.) AS regards the constitutionality of the Abducted Persons (Recovery and Restoration) Act the matter has now been set at rest by a recent pronouncement of their Lordships of the Supreme Court in - 'The State of Punjab v. Ajaib Singh', : AIR 1953 SC 10 (A). The appeal arose out a decision of the Full Bench of the High Court of Judicature at Simla in which it had been held that the Act offended against the provisions of Art. 22 of the Constitution. Their Lordships of the Supreme Court over -ruled the view of the Punjab High Court and held that the Act was perfectly valid. Mr. Nehra who appears for the petitioner in both the cases admits that in view of the decision of the Supreme Court it is no longer open to him to contend that the Act was illegal because it violated the provisions of Art. 22 of the Constitution, but he contends that it contravened part 1 of Art. 15 of the Constitution and was bad for this reason. Fart 1 of the said Article reads as follows: ''The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. '' It appears from the judgment of the Supreme Court in the above mentioned appeal that in the Punjab case the contention that the Act was opposed to the provisions of Art. 15 had been spurned and though the point was raised before the Supreme Court, the counsel who appeared for the respondent did not urge it. Accordingly their Lordships of the Supreme Court did not feel called upon to give a detailed decision on the point. With all this they appeared to be of the view that the finding of the Punjab High Court was correct. This is what they said: ''Sri Dadachanji (counsel for the respondent) has not sought to support the views of Bhandari J. regarding the Act being inconsistent with Art. 19(1)(g). Nor has Learned Counsel seriously pressed the objection of unconstitutionality based on Art. 15, which, in our view, was rightly rejected by the High Court. '' I am in respectful agreement with the observations because the Act applies to abducted persons and as I read the definition of "Abducted Person" given in S. 2(1) of the Act it appears to us that it does not discriminate against any person merely because of religion. According to the definition 'abducted person' means ''a male child under the age of sixteen years or a female of whatever age who is, or immediately before the 1st day of March, 1947 was, a Muslim and who, on or after that day and before the 1st day of January, 1949 has become separate from his or her family and is found to be living with or under the control of any other individual or family, and in the latter case includes a child born to any such female after the said date. '' It is true that no person other than a Muslim can be treated as an abducted person according to the definition, but merely being a Muslim is not sufficient and only that Muslim person whether, female or male, would be regarded as an abducted who was separated from her or his family and was found to be living with or under the control of any other individual or family etc. This means that two conditions have to be satisfied for a person to be regarded as an abducted person, (i) that he or she was a Muslim and (ii) that she or he became separated from his or her family in the circumstances narrated in the definition. This being the case, I do not see: how it can be held that there was a discrimination in favour of persons on the ground of religion. This contention is therefore, over -ruled and we hold that the Act was perfectly constitutional and valid.;