TMI Blog1975 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... s.3 of the Maintenance of internal Security Act, 1971 (Act of 1971) (her r called the MISA, for short). The two criminal adventuress of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 1971. The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc., and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations. On the first occasion, which was during broad daylight, the miscreants were challenged 'by the R. S. Members' but were scared away by the petitioner and his gang repeated the theft of traction wire etc., at stone throw. On the second occasion, which was at about mid-night about the same spot 'When resisted by the duty RPF Rakshaks with the help Of villagers, ballasts were pelted at them by the violent in uders who made good their escape with the gains of robbery. on these two frightful episodes, the detaining authority came to the requisite conclusion about danger to the community, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reached his mental result in the face of a 'release report' by the police. For, the legal label that the satisfaction of the executive authority about potential prejudicial activity is 'subjective' does not mean that it can be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under Art. 32 of the Constitution. If material factors are slurred over, the formula of 'subjective, satisfaction' cannot salvage the deprivatory order. Statutory immunology hardly saves such invalidity. After all, the jurisprudence of 'detention without trial is not the vanishing point of judicial review. The area and depth of the probe, of course, is conditioned by the particular law, its purpose and language. But our freedoms axe not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations. We may here refer to what a bench of five Judges of this Court observed in the vintage ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion without trial, for long spells as in this instance, is undemocratic has its limitations in modern times when criminal individuals hold the community to ransom, although vigilant check of executive abuse becomes a paramount judicial necessity. We, as judges and citizens, must remember that, in law as in life, the dogmas of the quiet past are not adequate to the demands of the stormy present and the philosophy and strategy of preventive detention has come to stay. We may merely observe that we are not legally impressed with counsel's persistent point that solely or mainly because the petitioner has been discharged in the two criminal cases he is entitled to be enlarged from preventive captivity. Even so, it does not follow that the extreme view propounded by the counsel for the State that the termination of the proceedings in a criminal case on identical facts is of no consequence is sound. In this connection, we may draw attention to a few decisions of this Court cited at the bar. Chandrachud J., speaking for the Court, recently observed in Srilal Shaw v. The State of West Bengal(Writ Petition No. 453 of 1974, decided on 4-12-74), dealing with a situation somewhat li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of proving guilt in court is unfair abuse. If as the petitioner has asserted, he was discharged because t 'here was no material against him and not because witnesses were afraid to give evidence against him, there would be apparently no rational basis for the subjective satisfaction of the detaining authority. It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the detention order. But, as stated already, the District Magistrate Malda, who passed the order in this case, has not affirmed the affidavit that has been filed on behalf of the State. There was reference at the bar to the ruling reported as Golam Husvain v. Commissioner of Police([1974]4 S.C.C. 530) where the Court clarified that there was no bar to a detention order being made after the order of discharge by the criminal court, but emphasized the need to scan the ,order to prevent executive abuse in the following words: Of course, we can visualise extreme cases where a Court has held a criminal case to be false and a detaining authority with that judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or mindless mood of the alleged satisfaction of the authority is to see if the articulate 'grounds' are too groundless to induce credence in any reasonable man or to frivolous to be brushed aside as fictitious by a responsible instrumentality. The court must see through mere sleights of mind played by the detaining authority. ' (6) More concretaly, if witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society. (7) But if on a rational or fair consideration of the police version or probative circumstances he would or should necessarily have rejected it, the routinisation of the satisfaction, couched in correct diction, cannot carry conviction about its reality or fidelity, as against factitious terminological conformity. And on a charge of malafides or misuse of power being made, the court can go behind the facade and reach at the factum. So viewed, how does the petitioner's case stand? The petitioner's identit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken to by him, particularly in a situation where the circumstances of the non- prosecution strongly militate against the reality of the petitioner's involvement in the occurrence. After all, merely to allege that witnesses were panicked away from Testifying to truth cannot be swallowed gullibly when the witnesses Themselves are members of a railway protection force and the offenses against public property are of a grave, character. The observations of Chandrachud J. in Srilal Shaw, quoted earlier, are in point. In the case of non-officials, maybe they are afraid to give evidence against dangerous characters for fear of their life but such an excuse or alibi is ordinarily unavailable where the witnesses are para-police public servants. If the District Magistrate had sworn an affidavit that he identity of the petitioner, as participant in the crime, was not known of the railway protection force and that other villagers made them out is the gang was decamping with the booty, something may be said for he plea. There is no such averment in the counter-affidavit and the pare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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