Rajvi Roop Singh, J.C.
1. The 12 petitioners (1. Shri Biren Datta, 2 Shri Prabhat Deb Barma, 3. Shri Benoy Deb Barma, 4. Shri Pulin Deb Barma, 5, Shri Nagendra Deb Barma, 6. Shri Arjun Deb Barma, 7. Sri Mohan Choudhury, 8. Sri Sushil Dey, 9. Shri Saroj Chanda, 10. Shri Jagabrata Sen Gupta 11. Shri Promode Ranjan Das Gupta and 12. Shri Bidya Deb Barma) who are the detents, and who have been detained by the Administrator the Union Territory of Tripura under Rule 3o(i)(b) of the Defence of India Rules, 1962, read with Sub-rule (11) of Rule 2 of the aforesaid Rules made by the Central Government In exercise of the powers conferred on it by Section 3 old the Defiance of India Ordinance 1962 (No. 4 of 196a), have applied separately to this Court under Section 491(i)(b) of the Criminal Procedure Code.
2. All these 12 Criminal Miscellaneous Petitions (Nos. 15, 16, 17, 18, 19, 20, 24, 25, 26. 27, 28 and 29 of 1963) involve common questions of fact and law for determination therefore they shall be disposed of by this order.
3. Before dealing with the points which have been raised for decision in these petitions, it is necessary to give the succinct facts which gave rise to these petitions, and the issue of the proclamation under Article 352, and the order under Article 359(1) of the Constitution.
4. On the 8th of September, 1962, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India. That is why on the 26th of October, 1962, the President issued a proclamation under Article 352 of the Constitution. This proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. On the same day the Ordinance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on the 3rd November, 1962. On this day, the President issued the order tinder Article 359(1), suspending the rights of citizens to move any Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution for the period during which the proclamation of emergency, issued on the 26th October, 1962, would be in force. On the 6th November, 1962, the Rules framed by the Central Government were published. Then followed an amendment of the Presidential Order on the 11th November, 1962. By this amendment, for the words and figures 'Article 21' the words and figures 'Articles 14 and 21' were substituted. On the 6th December, 1962, Rule 30 as originally framed was amended and Rule 30-A added. Last came the Act on the 12th December 1962. Section 48(i) of the Act has provided for the repeal of the Ordinance Nos. 4 and 6 of 1962, Section 48(2) provides that notwithstanding such repeal and Rules made, anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made, done or taken under this Act as if this Act had commenced on the 26th October, 1062. That is bow the Rules made under the Ordinances continued to be the Rules under the Act, and it is under Rule 3o(i)(b) read with Sub-rule (11) of Rule 2 that the Administrator,, Union Territory of Tripura by his order dated 20thf November, 1962, detained several communists including the petitioners
with a view to preventing them from acting in a manner prejudicial to the defence of India and Civil Defence.
5. In pursuance of this order, 11 petitioners were arrested on 21-11-62 and Biren Dtta was arrested on 25-12-62; and they were committed to the custody of the Superintendent, Central Jail, Agartala.
6. Thereafter, in exercise of the powers conferred by Sub-rule (5) of Rule 30 of the Defence of India Rules, 1962, read with Sub-rule (11) old Rule 2 of the said Rules and all- others powers enabling in that behalf, Shri S. P. Mukherji, the Administrator, Tripura directed that all the detenus be transferred from Agartala Central Jail to Hazaribagh Central Jail, Bihar, for detention in that Jail until further orders. In compliance with that order all the petitioners were transferred from Agartala Central Jail to Hazaribagh Central jail, where they are still detained.
7. Out of 'the 13 petitioners, six. of them Bent their petitions on the 10th September 1963 while the rest sent similar petitions on the 27th and 29th September, 1963 respectively through the Jailor, Hazaribagh Central Jail to this Court under Section 491(i)(b) of the Criminal Procedure Code, with the allegation that they have been improperly and illegally detained. Their contention is that Rule 3o(i)(b), under which they have been detained is constitutionally invalid because it contravenes their fundamental rights under Articles 14, 21 and 22(4), (5) and (7) read with Article 13(2) of the Constitution of India, and so they 'have claimed that an order be passed in their favors directing the Tripura Government to set them at liberty.
8. They also alleged that under Sub-rule (11) of Rule -2 of the Defense of India Rules, the Chief Commissioner is not entitled to detain any one. It is the Administrator, who is the detaining authority under the Defence of India Rules, therefore the order of their detention by the Chief Commissioner is illegal.
9. The 9 petitioners (Shri Biren Datta, 2. Shri Prabhat Deb Barma, 3. Shri, Benoy Deb Barma, 4. Shri Mohan Choudhury, 5. Shri Sushil Dey, 6. Shri Saroj Chandra, 7. Shri Jaga-brata Sen Gupta, 8. Shri Promode Ranjan Das Gupta and 9. Shri Bidya Deb Barma) further alleged that according to the provisions of Rule 30-A of the Defence of India Rules, 1962 every detention order made by an Administrator of the Union Territory, shall be reviewed by the Administrator himself at an interval of not more than six months. He shall decide on such review whether the order should be continued or not. But in the case of the petitioners neither any review was made nor any decision was taken by the Administrator of Tripura) within the specified -period, that is, 6 months, favoring the continued detention of the petitioners. Therefore, such detention without further orders tantamount to contravention of Rule 30-A of the Defence of India Rules, 1962, and hence the detention of the petitioners is illegal.
10. On receipt of the applications, notice was issued to the Administrator. The Government. Advocate appeared on behalf of the respondent and filed affidavits in all cases sworn by Jitendra Kumar Sen Gupta, Superintendent, Home Department, Government of Tripura. The respondent denied the allegations of the petitioners and all egged that the cases of the petitioners were reviewed quite in accordance with the provisions of law laid down in Rule 30-A of the Defence of India Rules. Their cases were first reviewed and confirmed on the 15th February, 1963; for the second, time they were reviewed and confirmed on the 3rd July, 1963 and again for . the third time they were reviewed and confirmed on the 25th September, 1963, by the Administrator. It was also contended that the petitions are not maintainable in view of Arti-1964 (2) Cri. L. T. D.F. 8 (2). 359(1) of the Constitution and Presideatial Order issued thereunder. Lastly - it was averred that the detention of each. of the petitioners was valid and they are not entitled to any relief under Section 491(1)(b) of the Criminal Procedure Code.
11. At the time of arguments, Shri Pulin Deb Barma, Shri Arjun Deb Barma and Shri Negendra Deb Barma also raised the objection under Section 30-A of the Defence of India Rules, by filing supplementary applications supported by affidavits, and the Government Advocate filed the return supported by affidavit against these applications.
12. In this case, the petitioners raised a number of legal objections, but at the time of arguments they and their learned Counsel Shri R. K. Garg waived them in view of the recent decision of the Supreme Court dated and September, 1963. The learned Counsel for the petitioners confined his argument solely on Sub-rule (8) of Rule go-A of the Defence of India Rules.
13. The sole point for determination in these Criminal Miscellaneous Petitions is whether the Administrator reviewed the detention orders of the detents at interval of six months and took decision upon such review whether the orders should be continued or cancelled.
14. It was contended on behalf of the petitioners that Rule 30 of the Defence of India Rules, 1962, does not prescribe the maximum. period for which a person may be detained, therefore, the Central Government, with a view to ensure that a person once detained under that Rule may not remain in detention for an indefinite period, has made provision in Rule 30-A for a periodical review of the cases of such detents. In the case of these detents, Sub-rule (8) of Rule 30-A applies. According to this Rule, it was imperative on the Administrator first to review the cases of the detents at an interval of not more than six months, and - then to take a decision, upon such review, whether the order should be continued or cancelled. In the instant case, the petitioners were arrested on 21-11-62, therefore, their cases should have been reviewed before the 20th May, 1963.
15. As the petitioners failed to get any intimation from the authorities about any action taken under this Rule, so they moved the Court under Section 491 of the Criminal Procedure Code. By this, the Court should draw an inference that their cases were not reviewed according to the Rules prescribed there under.
16. The learned Government Advocate in order to controvert this argument contended that in order to prove that the cases of the petitioners were reviewed and decision taken on them by the Administrator, the affidavits sworn by Shri Jitendra Kumar Sen Gupta, Superintendent, Home Department, Government of Tripura, were filed, in all these petitions. From these affidavits, it is clear that the cases of the petitioners were reviewed and confirmed by the Administrator on 15-2-63, 3-7-63 and 25-9-63. There is no counter affidavit to rebut them, therefore, it should be taken that what Shri Jitendra Kumar Sen Gupta has stated In his affidavits is correct.
17. The counsel for the petitioners next pointed out that in the replies submitted on behalf of the Administrator no document was produced evidencing the existence of the review orders as well as their communication to the petitioners within a reasonable time. If, the orders had been reviewed there was no sense in keeping them back from the petitioners, therefore it should be presumed that the orders were neither reviewed nor communicated to the petitioners or the Jailor.
18. As regards the question of production of the original orders, the Government Advocate contended that in the presence of the affidavits filed on behalf of the respondent, there was no necessity to file the original review orders. Moreover, it was never pressed on behalf of the petitioners that the original orders should be produced. The respondent has no objection in filing the original review orders. The Government Advocate placed the file before the Court for perusing the original review orders. But an objection was raised on behalf of the petitioners for not looking into the orders at this stage. In reply to the objection, the Government Advocate contended that the affidavits were filed for proving their existence, but still the petitioners question their existence, therefore, he wants to show them to the Court for its satisfaction that the original orders are in the file.
19. In the presence of the affidavits sworn on behalf of the respondent there is no doubt about their existence. Moreover, if there had been no such review orders in that case counter affidavit would have been filed on behalf of the petitioners. Besides that there is not much dispute on this point as the petitioners admit the presence of the documents, but their allegation is that they have been prepared afterwards.
20. The learned Counsel for the petitioners urged that in this case the petitions were sent by the Jailor to the State Government of Tripura on the 10th September, 1963 and after receiving these petitions, the reviewing authority realizing the lapse on its part manufactured the review orders to comply with the mandatory provisions of the Rules.
21. In order to controvert this argument, the learned Government Advocate vehemently urged that the counsel for the petitioners is himself in a fix as to what course to adopt in the presence ofhe review order. At one stage he admits the review of the cases and says that they have been manufactured, while at another stage he tries to show their non-existence by building up a story on his own whims and reasonings. As a rule, he should not be allowed to blow hot and cold in the same breath. When the petitioners admit the review of the orders, in that case, heavy burden lay on them to show that, the review orders were manufactured afterwards with a mala fide intention.
22. The Government Advocate further contended that the Chief Commissioner, who is the Head of the Administration and a most responsible Officer had no reason to go out of his way in order to manufacture the review orders with a view to keep them behind the bars, therefore, it is highly preposterous to presume that he got the review orders manufactured afterwards.
23. There is great force in the argument of. the learned Government Advocate. There is-absolutely no conceivable reason on the record to-doubt the bona fides of the Administrator. Moreover there is not an iota of evidence on the file to presume that they have been manufactured. If the orders had been manufactured as alleged by the petitioners, in that case, the Government Advocate would not have placed the file before the Court for scrutiny. This shows the bona fide of the respondent.
24. Besides this, the learned Government Advocate also pointed out that the cases of these petitioners as well as other detents were reviewed simultaneously by the Administrator on 15-2-63, 3-7-63 and 25-9-63, and the detention orders of some of the detents were cancelled and the result was communicated and on that they were released. If the review orders had been manufactured after 10th September, 1963, as alleged by the petitioners in that case how could have the orders been sent on 15-2-63 and 3-7-63 to the Jailor to release the detents whose detention orders were cancelled.
25. In the presence of these facts there remains no dispute on this point. By this, it is quite clear that the cases of these detents were reviewed along with the cases of other detents by the Administrator as stated in the affidavits filed on behalf of the respondent.
26. It was further contended on behalf of the petitioners that Jitendra Kumar Sen Gupta, is not the person who reviewed the cases of the petitioners, so he is not a competent person to-swear the affidavits. In the cases of the petitioners, it was the Administrator who reviewed them, so he was the right person to swear the affidavits. As no affidavit has been sworn by the Administrator himself therefore, it should be presumed that the cases of the petitioners were not reviewed by him.
27. In order to rebut it the Government Advocate urged that in any suit or other proceedings by or against the Government, the plaint or written statement is signed by such person as-the Government may by general or special order appoint in that behalf and it is verified by the person whom the Government appoint or who is acquainted with the facts of the case. As regards this case, Jitendra Kumar Sen Gupta, who is in charge of the Section and is well-conversant with the facts and record of the case, was appoint ed in charge of the case. Therefore, he was the right person to file the affidavits on behalf of the respondent. In support of his argument, he cited Shiv Dutt v. State of Himachal Pradesh , wherein it was observed that a responsible Officer of the Government acquainted with the facts of the case should be entrusted with the task of signing and verifying the pleadings on behalf of the Government.
28. There is merit in this argument of the Government Advocate. As a fact, either the Administrator or the person well-conversant with the facts of the case should have sworn the affidavits. In this case, Jitendra Kumar Sen Gupta, being well conversant with the facts of the case sworn the affidavits, therefore it should be taken that they have been sworn by the right person. In the presence of these facts, the absence of the affidavit of the Administrator does not make any difference. If there had been an allegation by the petitioners that the affidavits sworn by Shri. Jitendra Kumar Sen Gupta were spurious in that case it would have become imperative for the Administrator to swear an affidavit to prove these facts, but it is not so in this case.
29. Lastly, the learned Counsel for the petitioners vehemently assailed the legality of the petitioners' detention on the ground that the decision of the Administrator to continue the detention of the petitioners beyond six months was neither reduced into writing nor communicated to the Superintendent, Jail, to whose custody they were committed or the petitioners themselves and because of non-compliance of this mandatory provision of law, the detention after 19th May, 1963, had become unlawful. In support of his argument, he placed reliance upon an unreported case of the Punjab High Court Harkishan Singh v. State of Punjab D/- 4-11-1963: (Since reported in AIR 1964 Punj 198).
30. The learned Government Advocate in order to meet this argument urged that in this case the Administrator not only reviewed the order but he reduced it into writing, as is evident by the record. Therefore, there was a full compliance of the Rules. In the alternative, he contended that if for the sake of arguments it be presumed that the decision had not been reduced into writing, even then the decision could not be invalidated as the Rule does not contemplate that the decision should be reduced into writing.
31. He next pointed out that this rule is silent as regards the communication of the review order to the detents. Therefore, as a rule only these detents should be informed of the result of the review who are to be released due to the cancellation of the detention order. Those in whose cases the orders are to continue it is not at all incumbent on the Reviewing Authority to inform them. He further urged that if for the sake of arguments it is presumed that the decision on the review order should have been communicated to the petitioners, in that case, the communication addressed to the detents by the Law Secretary vide his letter dated 26th September, 1963, fulfils that requirement and in view of that letter the petitioners' continued detention was perfectly valid.
32. As regards the Ruling cited on behalf of the petitioners, the learned Government Advocate contended that the facts of that case were somewhat similar to the instant case. But in that case, the four affidavits sworn by the Home Minister, Home Secretary, Deputy Secretary and the Superintendent, Emergency Branch, C. I. IX, Punjab, were palpably spurious, therefore no reliance was placed on them. In that case the detention orders were not properly reviewed and the date on which the detention orders were alleged to have been reviewed was wrong. Besides that the Government did not produce the original documents though ordered by the Court. The other serious -defect in that case was that the orders were not in the name of the Governor, therefore, there was no other alternative for the Court but to grant relief to the petitioners under Section 491, Cri. P. C.
33. In support of his contention, the learned Government Advocate, cited an unreported casa of Calcutta High Court -- Sm. Kamala Basu on behalf of Shri Jyoti Basu v. State of West Bengal Case No. 87 of 1963, D/- 18-12-1963 (Cal). He pointed out that in that case the detents contended that the detention was invalid due to review not having been made, and communication of the result thereof not having been made at six monthly intervals. Subsequent attempt of validation by any fresh order for review at a subsequent six monthly interval would not be of any avail and would not cure the defect. In discharging the rule, their Lordships overruled the contention made on behalf of the detents. Their Lordships further observed that the reviews were done by Mr. P. C. Sen, Chief Minister, in his capacity as Home Minister and the defect in the form, if any, in which the decision was sought to be communicated to the detents could not invalidate the decision. It was further observed that the Act was silent regarding the communication or form of formal order.
34. There is a good deal of force in this argument of the learned Government Advocate. But before dealing with the arguments advanced by the Advocates, it would be better to examine the Sub-rule (8) of Rule 30-A of the Defence of India Rules, 1962.
35. The Sub-rule (8) of Rule 30-A, which is relevant for our purpose runs as under:
(8) Every detention order made by an Officer empowered by the Administrator and confirmed by him under Clause (b) of Sub-rule (6) and every detention order made by the Administrator himself, shall be reviewed at intervals of not more than six months by the Administrator who shall decide upon such review whether the order should be continued or cancelled.
36. According to this Rule, it is imperative for the Administrator to review every detention order within a period of six months and decide upon such review whether it should be cancelled or continued. The non-compliance of this rule amounts to illegality.
37. As discussed above, the case of all the detents were reviewed and confirmed by the Administrator according to the provisions of Sub-rule (8) of Rule 30-A of the Defence of India Rule, on T5-2-63, 3-7-63 and 25-9-63. I therefore, find that the detention orders have been reviewed and they are in the file.
38. Now the question that arises for consideration is whether it is imperative for the Reviewing Authority to reduce into writing the decision of the review of the detention order.
39. The sub-rule is silent on this point. It does not prescribe the form of the order. It also does not lay down that the formal order embodying the result of the review is necessary. In view of this lacuna, its non-compliance could not invalidate the decision of the Government or the Administrator. But as a rule of prudence, whenever any decision is taken on any matter it should be reduced into writing.
40. In the instant case, the review order has been reduced into writing as pointed out by the Government Advocate, therefore, the question of illegality does not arise in the case.
41. As regards the question of communication of the review order to the detents, the rule is again silent, and this is the reason that the Punjab and Calcutta High Courts have taken different views. But in view of the language of the rule, 1 am in respectful agreement with the view taken by the Calcutta High Court.
42. From the language of the Rule and the object for which it was made, it does not appear incumbent on the Reviewing Authority to communicate the review orders to the detents whose cases have been reviewed and allowed to continue in detention, as their further detention would neither become illegal nor cause prejudice to them by non-communication of the review orders within six months. But intimation of the review order, is imperative in the cases of the detents whose detention orders have been reviewed and cancelled, as their further detention becomes unlawful.
43. In the instant case as discussed above, the orders of review were communicated to the detents within reasonable time whose detention orders were cancelled, and others were informed afterwards. There was, therefore, no illegality in this case.
44. No other point was raised on behalf of the petitioners.
45. In the result, I find that the petitioners are legally and properly detained and are therefore not entitled to relief under Section 491 of the Criminal Procedure Code, The petitions fail and are dismissed.