Skip to content


Mrs. Chongtham Ongbi Sabita Devi Vs. State of Manipur and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMrs. Chongtham Ongbi Sabita Devi
RespondentState of Manipur and ors.
Prior history
B.L. Hansaria, J.
1. This usual habeas corpus application has some unusual aspects involved in it. The attack on the detention order is not on worn out grounds, but on a novel score. It is urged that the respondents could not have invoked the provisions of the National Security Act, 1980, for short the Act, because of the doctrine of promissory estoppel. To appreciate this, let the facts be stated first.
2. The detenu C. Gogo Singh alias Tikendrajit Singh was an underground member of 'Red Brig
Excerpt:
.....has become necessary because the learned advocate general took the stand that what is contained in annexurea/1 was not a promise at all, and in any case the detenu had not surrendered because of the assurances held out in annexure-a/l in support of the latter submission we are referred to the counter-affidavit filed by the secretary (home), government of manipur, as well as to some annexures in the petition stating that the surrender had come following a hot chase by the police. it may be that the circumstances had compelled the detenu to surrender ;but for this reason it cannot be held that the surrenderees like the detenu would be denied the facilities spoken of in annexures-a/1 and a/2. had it been that the detenu was caught, there could have been no question of his surrendering, in..........we have, therefore, no hesitation in rejecting the second part of the aforesaid submission of the learned government advocate general.5. there is another leaf of this part of the argument. according to the learned advocate general, the detenu is not entitled to the promises mentioned in the aforesaid document also because of the fact that the promises were not in his mind when he had surrendered. this is sought to be urged by submitting that had it been otherwise, the detenu would have claimed the rehabilitation grant mentioned in annexurea/2 ; but nothing of this sort was done. as to the non-claiming of the rehabilitation money, even if that be a fact, the same might have happened because the detenu was taken in custody within almost a fortnight of his surrender, and so he had no time.....
Judgment:

B.L. Hansaria, J.

1. This usual habeas corpus application has some unusual aspects involved in it. The attack on the detention order is not on worn out grounds, but on a novel score. It is urged that the respondents could not have invoked the provisions of the National Security Act, 1980, for short the Act, because of the doctrine of promissory estoppel. To appreciate this, let the facts be stated first.

2. The detenu C. Gogo Singh alias Tikendrajit Singh was an underground member of 'Red Brigade'. To persuade the extremists to join the national mainstream, some assurances were given by the Government if they were to come over-ground. The one assurance with which we are concerned is that 'All cases against them shall be withdrawn'. Such an appeal is said to have been distributed widely by the Director of Information and Public Relations, Manipur Government. This fact is not denied in so many words by the respondents. Annexure-A/l is the copy of the 'Appeal to the young Extremists' containing this facility. Annexure-A/2 dated 14-9-81 speaks of grant of rehabilitation money to the extremists. It may be stated that Annexure-A/1 itself speaks of 'Moriey and other aids to rehabilitate'. The case of the petitioner, who is the wife of the detenu is that her husband surrendered before the Deputy Chief Minister, Government of Manipur, on 20-11-82 in pursuance of the terms and conditions given in Annexures-A/1 and A/2. The detenu was however, arrested soon thereafter on 9-12-82 in connection with certain FIR cases. The impugned order of detention came to be passed on 1-2-83 with a view to prevent the detenu from acting in any manner prejudicial to the security of the State and the maintenance of public order.

3. The validity of the detention has been first assailed by the young counsel Shri S. Jayanta Singh on the score of violation of the promise held out in Annexure-A/2 that all cases against the extremists shall be withdrawn. It is urged that the respondents are estopped in law and in equity to pass the impugned order based on the activities which were allegedly undertaken by the detenu prior to his surrender. The doctrine of promissory estoppel is strongly pressed into service in this connection.

4. The learned Advocate General, Manipur, appearing for the respondents has assailed the aforesaid contention by submitting that the doctrine of promissory estoppel has no play in a case of the present nature. Before we consider this aspect of the matter, let us clear the deck. This exercise has become necessary because the learned Advocate General took the stand that what is contained in AnnexureA/1 was not a promise at all, and in any case the detenu had not surrendered because of the assurances held out in Annexure-A/L In support of the latter submission we are referred to the counter-affidavit filed by the Secretary (Home), Government of Manipur, as well as to some annexures in the petition stating that the surrender had come following a hot chase by the police. Mention has been made of chasing in Annexure-A/3, and para 5 of the aforesaid counter. It may be that the circumstances had compelled the detenu to surrender ; but for this reason it cannot be held that the surrenderees like the detenu would be denied the facilities spoken of in Annexures-A/1 and A/2. Had it been that the detenu was caught, there could have been no question of his surrendering, in which eventuality he could not have laid his claim on the facilities or allurements mentioned in these annexures. But, the present was admittedly a case of surrender simpliciter, may be because of the difficulties being faced in the underground life ; nonetheless it was a case of surrender. Any other view oh these annexures would really be against the larger interest of the State and Society inasmuch as the extremists coming over-ground and willing to join the national main-stream would lose their confidence on any such type of appeals to surrender. We have, therefore, no hesitation in rejecting the second part of the aforesaid submission of the learned Government Advocate General.

5. There is another leaf of this part of the argument. According to the learned Advocate General, the detenu is not entitled to the promises mentioned in the aforesaid document also because of the fact that the promises were not in his mind when he had surrendered. This is sought to be urged by submitting that had it been otherwise, the detenu would have claimed the rehabilitation grant mentioned in AnnexureA/2 ; but nothing of this sort was done. As to the non-claiming of the rehabilitation money, even if that be a fact, the same might have happened because the detenu was taken in custody within almost a fortnight of his surrender, and so he had no time and mental make up to think of rehabilitation money. As such, we cannot hold that merely because no claim was advanced for the rehabilitation money, the detenu did not have the promises held out in Annexures-A/1 and A/2 in his mind when he had surrendered. Therefore, what has been stated at pages 44 and 45 of the Law of Contract by Cheshire and Fifoot (6th Edition) and Lalman v. Gauri 1913 19 Ind Cas 576 (All.) cannot assist the respondents.

6. Coming to the question of promissory estoppel, the first submission made by the learned Advocate General is that what has been stated in the aforesaid two documents does' not amount to a promise at all. There can be no dispute that for promissory estoppel to operate, the words spoken of or the assurances given must amount to 'clear and unequivocal promise' as was stated in Motilal Padampat v. State of U.P. : [1979]118ITR326(SC) which was quoted with the approval in Gujarat State Financial Corporation v. Lotus Hotels : AIR1983SC848 . According to the learned Counsel what is contained in these two documents was only an offer ; and not a promise. We are referred in this connection to the definition of 'promise' in Section 2(b) of the Indian Contract Act. As per this provision, a proposal When accepted becomes a promise. In view of what has been stated already, we would hold that any extremist surrendering voluntarily must be deemed to have accepted what has been stated in Annexures-A/1 and A/2, even if what has been stated therein can be regarded only as offer and even if the aforesaid definition were to apply in the present context. May we also say in this connection that we have found no force in the submission of the learned Advocate General that what is contained in Annexure-A/2 is reflection of only an internal arrangement, and the same was really not meant for the knowledge of the extremists. We have said so because Annexure-A/2 itself requires wide publicity to be given to the decision contained in it as would appear from the copy of this notification to the Director of Information and Public Relations, Government of Manipur. Because of all these, we have no hesitation in holding that the contents of Annexures-A/1 and A/2 were clear and unequivocal promises towards the extremists actually coming over-ground.

7. Let us now come to the crux of the controversy. As to when a promise would give rise to an estoppel, has been a subject matter of great deliberation in this country. The present is not a fit case to go into the finer aspects of this matter. There have been ups and downs as to the applicability of promissory estopped vis-a-vis Government actions. A broad view was taken in Anglo Afghan Agencies AIR 1968 SC 718 ; Century Spinnirig and Manufacturing Co. : [1970]3SCR854 and Turner Morrison Co. : [1972]85ITR607(SC) . All these cases were relied in Motilal Padampat : [1979]118ITR326(SC) (supra). Jitram Shivkumar : [1980]3SCR689 , has however differed from the broad view in Motilal Padampat. The scope of doctrine of promissory estoppel against the Government was summed up in pard 39 of Jitram by laying down five propositions in this regard. The learned Advocate General has pressed into service the second of these propositions which states :

(2). The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.

It is urged that in the present case the Government was exercising its statutory functions under the National Security Act, 1980, and as such the doctrine of promissory estoppel has no application. As, however, the order of detention was passed by the District Magistrate, the afore said proposition cannot assist the respondents whole hog though it is urged by the learned Advocate General that the District Magistrate while exercising the powers under the Act has to be regarded as an agent of the Government, we are not satisfied with this submission inasmuch as if the District Magistrate were to be held as an agent, he would be bound by the directions of his principal ; but as is known, the subjective satisfaction while passing an order of detention has to be of the detaining authority itself and he cannot act on the direction of any outside authority. Of course, there is force in the submission that the act of approval of the impugned order (without which it would have expired after 12 days) was that of the Government, and in doing so it was exercising statutory function, because of which the aforesaid proposition expounded in Jitram would have its full play. It may be pointed out that in Jit Kumar the act of approval by the Government of a resolution passed by the Municipal Committee in question was held to be beyond the pale of promissory estoppel, as, while approving the resolution and passing further order the Government was exercising a statutory duty.

8. This is not all. The concerned promise was only to withdraw, and that too all casesagainst the detenu. So, it is submitted for the respondents that the assurance did not bar institution of new cases, as withdrawal can be of pending cases alone. True ; but whether new casescould be instituted for offences committed before surrender, is a matter on which there could be two views. It could reasonably be urged that the whole idea behind this promse was to allow the home-comers to starttheir lives on a clean slate, withot the past haunting them. We do not, however, propose to express any opinion on this vexed aspect, as in the present proceeding we are not concerned with any case as such. Detention with the aid

of the provisions of the Act cannot be called institution of a case against the detenu. Howsoever, liberal interpretation we may give to the promises mentioned in the aforesaid annexures, to which they are entitled, it cannot be conceded that the parties had non-user of even preventive detention law in mind while giving the offer or accepting the same. For promissory estoppel to operate, the promise must be clear and unequivocal, as already noted. Annexures-A/1 and A/2 do not say in clear language, really not even in whispering words, that the provisions of the Act would not be used against the overgrounds.

9. In view of all the above, we cannot, accept the contention that the impugned order is hit by the doctrine of promissory estoppel. The only other point urged before us by Shri Jayanta Singh is that the detenu alone was picked up and detained whereas his associates were not, which according to the learned Counsel was an act of discrimination. We do not, however, find any material before us to uphold this contention. In fact, no such allegation has been made in the petition, not to speak of giving any detail about the persons who were treated favourably as compared to the detenu, though they were equally situated with him. The mere allegation of violation of Article 14, that too in passing (see, para 12 of the petition) without unfolding the necessary facts, does not raise a triable issue in this regard.

10. The petition is, therefore, dismissed. But before parting we have three observations to make. First, if the detenu is physically or mentally unfit, as submitted by the learned Counsel for the petitioner, all reasonable care of his health will be taken. Secondly, the authorities shall ascertain whether the detenu has been singled out in either detaining or presenting him, though other undergrounders like him have been given carte blanche in this regard. Finally, it is a matter for serious consideration whether prosecution of the detenu in the cases, which were pending when he surrendered, should continue in view of Annexure-A/1.

N. Ibotombi Singh, J.

11. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //