Judgment

AYYANGAR, J. : (With him B. P. Sinha C.J.I., Mudholkar and Venkatarama Aiyar JJ.) This is an appeal by special leave against the judgment and order of the High Court of Allahabad by which it allowed a petition under S. 491 of the Criminal Procedure Code filed on behalf of the respondents.

2. We shall now narrate the facts which are not in dispute. The two respondents, who are husband and wife, were in Pakistan in March 1955. While there, they obtained a Pakistani passport on September 6, 1955, and obtained from the Deputy Indian High Commissioner on September 17, 1955 a visa to enter India which they did on September 22, 1955. The visa granted to them was of the C category i.e., for temporary stay, which permitted them to remain in India till December 16, 1955. By repeated applications they had the terms of the visa extended and continued to stay in India, on August 10, 1957 they applied for their registration as Indian citizens but the application was rejected on October 18, 1957. Thereupon they moved the High Court by a petition under Art. 226 of the Constitution to have this order of the rejection of their application set aside but the petition was dismissed in April, 1959. Thereafter orders were issued by the State Government and served on them asking them to leave India but they repeatedly applied for and were granted extensions of time for so doing. The last extension applied for was on December 22, 1959 but is was rejected and the government passed an order on July 7, 1960 requiring them to leave India within 24 hours after its service upon them. This order was served on them on July 20, 1960 at about 10 a.m. but they made no efforts to comply with it.

3. The order not having been complied with the police took the two respondents into custody on the evening of July 21, 1960 at about 6 p. m. and sent them on by tram to Amritsar for being deported to Pakistan. The respondents with their escort reached Amritsar in the early hours of July 23, 1960. The Head Constable who had the custody of the respondents produced them before the Reader of the District Magistrate, Amritsar as directed by the Senior Superintendent of Police, Kanpur and the Reader took them by about 10 a.m. to a Magistrate who ordered that they be kept in the Civil Lines Thana till further orders.

4. Meanwhile, after the departure of the respondents from Lucknow, proceedings were started on their behalf under S. 491 of the Criminal Procedure Code before the Lucknow Bench of the Allahabad High Court. This application was filed on July 22, 1960. The learned Judge before whom the application was placed directed notice to the State of Uttar Pradesh and required the State to take all possible steps to detain these two persons and produce them before the Court. It may be mentioned that the ground upon which the detention was challenged as illegal in this petition was that the respondents were "British subjects" within the meaning of the Foreigners Act and hence their arrest was illegal as they were citizens of India. In other words, what was challenged was validity of the deportation order. On the same day, i.e., on July 22, 1960 the petition was placed before the Bench dealing with the matter which fixed the date for the hearing of the petition as 10.15 a.m. on July 25, 1960 at which hour the respondents were directed to be produced before the Court. On July 23, 1960 a counter-affidavit was filed on behalf of the State, which was affirmed by a Sub-Inspector of Police who, after denying that there was anything illegal in the order of deportation, stated at the respondents had been taken into custody on July 21, 1960 and were immediately thereafter sent to Amristar and were therefore no more in Uttar Pradesh within the jurisdiction of the Court.

5. The petition under S. 491 of the Criminal Procedure Code was taken up for hearing by the Court on July 25, 1960 as originally fixed, and after perusing the counter-affidavit filed on behalf of the State, the learned