TMI Blog1948 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... would include the applications of Girraj Kishore and...others ... In these cases the grounds are mentioned in much less detail and it is also possible to argue whether on the basis of those grounds one can reasonably come to the conclusion that the detenu was expected to act in any of the prejudicial manners mentioned in Section 3 of the Act, This would raise the question whether it is open to the Court to enter into the question whether the District Magistrate could have been reasonably satisfied on the basis of the material before him. After having made these observations he formulated the points for reference to the Pull Bench. 2. The first point on which he wanted an authoritative decision is the requirement of Section 5 of the Act in the abstract, if possible, and with reference to the grounds furnished: In the cases referred to by him in particular, and also on the question whether it is open to this Court to question the satisfaction of the District Magistrate contemplated in Section 3 of the Act with respect to its being arrived at reasonably or otherwise. 3. In the cases that were referred by my brother, Wanchoo, he formulated three questions for answer; (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Maintenance of Public Order Ordinance 1 of 1946) which was later replaced by the United Provinces Maintenance of Public Order (Temporary) Act, (Act iv [4] of 1947). The preamble of the Act is as follows: Whereas for securing public safety, public order and communal harmony it is expedient to provide for preventive detention, imposition and recovery of collective fines, control of meetings and processions and of services essential to the life of the community and other purposes connected therewith; It is hereby enacted as follows. 8. We are mainly concerned with S3. 8 (1) and 5 of this Act. Section 3 (l) and 5 are as follows: Section 3 (I), The Provincial Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony it is necessary so to do, may make an order(a) directing that he be detained;... Section 5. As soon as may be after an order in respect of any person is made under clause (a) of sub-b. (1) of Section 3, the officer or authority making the order shall communicate to the person affected thereby the grounds on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er his detention the detaining authority has to give to the detenu information why he has been detained and to tell him that he has a right to make a representation to the detaining authority and give him every facility to do so at the earliest opportunity. The detaining authority is then required to consider the representation if any made by the detenu and, if satisfied, that he has been unnecessarily detained, direct his release. 13. The questions that have mainly come up for consideration before the Court are, firstly, when should this information be supplied, and secondly, what should be the nature and extent of the information, that is, how detailed and specific should be the information about the materials on a consideration of which the detain-ing authority was satisfied or came to believe that detention was necessary and took action. The object of Section 5, as I made clear in the first case that came up to this Court, Sumer Singh v. King. Emperor 1947 A. L. J. B. 496 : A.I.R. (35) 1948 all. 78: 49 Cr. L. J. 11), is to enable the detenu to satisfy the detaining authority that the information received by it against him was incorrect and there was no real reason for his de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the supply of the reasons to him afterwards. Non-compliance with a subsequent condition may make further detention illegal; but it would not be necessarily make the order under B. 3 void ah initio unless it can be assumed that as the pro. visions of Section 5 were not complied with the detention order under Section 3 was passed without any grounds whatsoever and was, therefore, not a bona fide order. I do not think that mere non-compliance with a subsequent requirement of the statute necessarily leads to the conclusion that the previous order of detention must have been without any justification and was not a bona fide act. I am of the opinion that ordinarily non-compliance with the provisions of Section 5 makes-further detention of the detenu illegal from the date of such non-compliance and it cannot have the effect of making the order void ab initio. I respectfully agree with the opinion expressed by the Full Bench of the Patna High Court in the case of Murat Patwa v. Province of Bihar A.I.R. (35) 1948 Pat. 135 : 49 Cr. L. J. 132 (FB.)) that it is the detention which becomes illegal if the grounds for the detention are not communicated to the detenu within a reasonable time. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to make a proper representation would depend in each case upon the circumstances of that case and upon the grounds that had satisfied the detaining authority of the necessity for such detention. It is difficult to lay down any hard and fast rule about it. 20. It is true that there is a fundamental difference between a criminal trial for an offence already committed and preventive detention. In the case of a criminal trial, the accused is being prosecuted for what he has already done and, since the prosecution is charging him with that offence, the prosecution should be in a position to give detailed information about the alleged offence. Clear particulars have to be given in the charge so that the accused may know the offence with which he is being charged. Sections 535 and 537, Criminal P. C, however, provide that failure to frame a charge or a defective charge will not vitiate a trial unless the Court of appeal is satisfied that it has in fact occasioned a failure of justice. In the case of preventive detention, on the other hand, the accused is not always detained for what he has done but for what he is expected to do and the same detailed information may not always be poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give all the particulars whether they were necessary or not; and secondly, there may be cases where no particulars at all are needed. As the representation is to be made to the detaining authority itself, it is the best person to judge what details are necessary and should be communicated to the detenu, I have already said it and in view of its importance I may repeat it again that the discretion of the detaining authority is limited and it can rule out such particulars as may not be necessary in its opinion for a representation and this discretion has, there-.fore, to be honestly exercised. 22. It is not possible to lay down any detailed directions about the grounds and particulars supplied under Section 5 that may or may not be deemed sufficient compliance with the provisions of the Act. To my mind, the grounds and particulars cannot be treated as two entirely distinct and separate matters. There is some difference between the two which is obvious from the fact that in the same section both the words have been used. Grounds are probably the main reasons for the belief or satisfaction mentioned in Section 3, and particulars are the details thereof, but there may be cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with at all, further detention is bad. Further there may be a case where the communication under Section 5 may be so vague or indefinite that it does not give sufficient grounds and particulars to allow the detenu to make a representation, i. e., in form Section 5 has been complied with but in substance there has been a non-compliance. If the Court is of the opinion that in substance Section 6 of the Act has not been com. plied with it would, to my mind, amount to non-compliance with the provisions of Section 5 and would lead to the same result, i, e,, further detention of the detenu would become illegal or improper. 25. On behalf of the Provincial Government it has been urged that if the detenu has not complained to the detaining authority that the information supplied to him is vague and insufficient, he should not be allowed to make a grievance of it in Court and secondly, that if in the opinion of the Court the grounds and particulars supplied are vague, indefinite or insufficient we should give the detaining authority a chance to supply better grounds and particulars. We cannot accept any of these contentions. Section it has cast a duty on the detaining authority and if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r incomplete and must convey sufficient information to the detenu to enable him to make a representation that the detaining authority was wrong in its belief that his detention was necessary in the interest of public safety, etc. ; (c) the grounds and particulars supplied under 9. 6 should show that the detention is within the scope and object of the Act. If the detention is beyond the scope and object of the Act, the detention must be held to be illegal; (d) the detenu is not bound to complain first to the detaining authority that the information supplied is vague and indefinite before he can come to the Court ; (e) if, in the opinion of the Court, the grounds supplied are vague, indefinite and insufficient, the Court must hold that further detention is illegal or improper, except in such cases where the Court can come to the conclusion that the order under B. 3 was itself bad ; (f) if, in the opinion of the Court, such grounds and particulars have been supplied as enable the detenu to make an effective representation, so that the provisions of Section 5 have been substantially complied with, the detention would not be deemed to be illegal or improper merely because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court would presume in favour of its validity, provided the authority passing the order had the jurisdiction to do so under the Statute or under any properly delegated power. It is further open to the detenu to prove that he is not the person for the detention of whom the order had been made or that the order is mala fide or a fraud on the Act or where the information supplied under Section 5 shows that it is beyond the scope and object of the Act, The learned Advocate-General does not contest so far. He, however, has urged that it is not open to the Court to go into the question of the satisfaction of the detaining authority and that the section contemplates the satisfaction of the authority passing the order and, if that authority is satisfied, whatever the grounds on which such satisfaction is based, it is not open to the Court to go into that matter. 32. It is admitted that, if the detenu can prove that the detaining authority was in fact not satisfied, the order of detention would be illegal, as the basis of the power of detention is the satisfaction of the detaining authority. In other words, the power to issue a valid order depends upon the fulfilment of a condition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships of the House of Lords held that the words in the Regulation 'has reasonable cause to believe' in the context in which they are found, refer simply to the belief of the Secretary of State based on his view as to there being reasonable cause for the' belief which justifies the detention order and therefore, the question whether the Secretary of State bad reasonable grounds to believe or not? could not be mooted in Courts. There are, however, two distinguishing features in those cases-One of the grounds on which their Lordships based this decision was that the Secretary of State could not be called on to disclose his in. formation or grounds of belief, if he took the view that it would be contrary to the public interest to do so. The other important distinction is that the Regulations were passed not by the Parliament but by His Majesty by Order in Council under the Emergency Powers (Defence} Act, 1989, which gave His Majesty by Order in, Council power To make such regulations as appear to him to be necessary or expedient for securing the public safety, this-defence of the realm, the maintenance of the public order...for the detention of persons whose deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority' then obviously it is not possible for the Courts to interfere. For however flimsy, if there is some material it cannot be said that there was absolutely no ground for satisfaction. To my mind, 'satisfaction' only means that 'he must be in fact satisfied,' or, in other words, 'honestly satisfied' and not a dishonest satisfaction, which will be no satisfaction at all. We have to remember that the satisfaction has to be on the consideration of the materials available to the detaining authority which may not be legal evidence. 37. If the Legislature has used the words 'satisfied on reasonable grounds' and the meaning of the words was not cut down by the con-text in which they were used as in Liversidge's case, (1942 A. 0. 206:110 L. J. K, B. 724), or if there was no provision giving the detaining authority the right to keep back some facts, the Courts would be justified in going into the question whether there were reasonable grounds for the satisfaction and it would be for the authority passing the order of detention to satisfy the Court that it had such grounds. It would be in that case for the detaining authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the acid test, and I see no ground for attaching so much weight to so Blight a difference in words. 'Satisfied' must mean 'reasonably satisfied.' It cannot import an arbitrary or irrational state of being satisfied. I find the distinction between 'reasonably satisfied' and 'has reasonable cause to believe too tenuous....I do not find in the later edition any indication of evil to be cured, but, if defects are to be remedied, it was to be done by extending the Home Secretary's power on the one hand, and on the other enlarging the safeguards of the subject. It does not in terms provide for review by the Court. 38. I have extensively quoted from Lord Wright's judgment as the sentence 'satisfied' must mean 'reasonably satisfied' has been interpreted to mean that 'reasonably satisfied' is something 'more than satisfied,' while His Lord- ship appears to cut down the meaning of the words 'reasonably satisfied' and say B that it does not imply anything more than the mental satisfaction of the Home Secretary. 39. Subject to what I have said above, I am of the opinion that it is not open to the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticulars should be given, I may refer to the case of Ex parte Lees, (1941) 1 k, b. 72 at pp. 73 and 74 : 110 L. J. K. B. 42), where the grounds have been set out and particulars were separately given. I am, therefore, of the opinion that the particulars supplied in these four cases are wholly insufficient and Section 5, U. P. Maintenance of Public Order (Temporary) Act, 1947 (U. P. Act IV [4] of 1947) has not been complied with. 42. Coming now to the case of Shyam Sunder Tripathi the grounds and particulars supplied are almost similar to the grounds and particulars supplied to Hari Ballabh and others mentioned above. The only addition is that the detenu Is suspected of sending threatening letters to the-Hon'ble Ministers and other high officials of the Government for action taken against the Rashtriya Swayam Sewak Sangh. As regards the other information it is 'worded as follows: You are a zealous worker of the Rashtriya Swayam Sewak Sangh which has been declared unlawful and have persisted in the activities of this organisation. Your action are prejudicial to the public safety and maintenance of public order and communal harmony. Barring vague generalisations, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anization, the fact that it was declared unlawful, the nature of its unlawful activities and the fact that the detenu was taking part in them, but no particulars are given which would enable the detenu to make an effective representation. It has been mentioned that the detenu was attending private meetings; if the place and time had been given, the detenu could have satisfied the detaining authority that on the particular date or at the particular time be was at another place, i. e something in the nature of an alibi. The learned Advocate. General has relied on the decision in Ex parte Budd, (1942) 1 ALL B. B. 373 : 1942-2 K. B. 14), where Budd had been detained by reason of his membership of an organization known as the British Union before it was dissolved. In the case of Budd the organization known as the British Union had been effectively suppressed. The fact that it was effectively suppressed was admitted by the Home Secretary in the House of Commons. It was argued that if the organization had been effectively suppressed, there could be no reason for the detention of Budd on the ground that he was at one time a member of an organization which no longer existed. But as was poin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
