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In Re: Pandurang Govind Phatak - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application No. 172 of 1948
Judge
Reported inAIR1949Bom84; (1948)50BOMLR446
AppellantIn Re: Pandurang Govind Phatak
Excerpt:
..... - 1. this is an application by one pandurang govind phatak who was ordered to be detained by the district magistrate at thana on february 6, 1948, under section 2(1)(a) of the bombay public security measures act, 1947. that order stated that, whereas the district magistrate was satisfied that the said person was acting in a manner prejudicial to the maintenance of public order, the district magistrate directed that he be detained. under section 2 the detaining authority has to be satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the province or any part thereof, before it can make an order directing that he be detained. when he, therefore, says that he was satisfied that the petitioner mr. in that..........2(1)(a) of the bombay public security measures act, 1947. that order stated that, whereas the district magistrate was satisfied that the said person was acting in a manner prejudicial to the maintenance of public order, the district magistrate directed that he be detained. in the statement of grounds furnished to the detenu under section 3 of the act it was stated:you engage in objectionable and harmful activities and incite people to violence.under section 2 the detaining authority has to be satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the province or any part thereof, before it can make an order directing that he be detained. the satisfaction, therefore, is of the authority making the.....
Judgment:

Sen, J.

1. This is an application by one Pandurang Govind Phatak who was ordered to be detained by the District Magistrate at Thana on February 6, 1948, under Section 2(1)(a) of the Bombay Public Security Measures Act, 1947. That order stated that, whereas the District Magistrate was satisfied that the said person was acting in a manner prejudicial to the maintenance of public order, the District Magistrate directed that he be detained. In the statement of grounds furnished to the detenu under Section 3 of the Act it was stated:

You engage in objectionable and harmful activities and incite people to violence.

Under Section 2 the detaining authority has to be satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, before it can make an order directing that he be detained. The satisfaction, therefore, is of the authority making the order, and the Court is not entitled to consider whether the grounds of the order (so far as they can be ascertained) are such as would satisfy itself. But the Court, when the order is challenged, is entitled to enquire, whether the alleged satisfaction is real satisfaction or something else indicating an omission on the part of such authority to apply its mind to the facts of the case and to draw legitimate conclusions therefrom. If the authority has not applied an unbiased mind to the facts, it must be held that it is not a case of real satisfaction. In nearly every case in which the District Magistrate makes an order under Section 2 of the Act he does so on a report made by the police without hearing the possible defence of the detenu. For this reason it has been enacted in Section 3 that the detaining authority shall, as soon as possible after the order has been made, communicate to the person affected by the order the grounds on which the order has been made, without disclosing facts which it considers against the public interest to disclose, and such other particulars as are in its opinion sufficient to enable him to make a representation against the order and inform him of his right to make such representation and afford him the earliest opportunity of doing so. It is next provided in Section 4 that on receipt of a representation under Section 3, the said authority may either annul or confirm the order or modify it or make any other order which it could have made under Sub-section (2) of Section 2. Accordingly, it was remarked in In re Krishnaj Gopal Brahme (1947) 50 Bom. L.R. 175 that the order made under Section 2 is in the nature of a preliminary order against which the detenu can make a representation on being furnished with the grounds supplied to him under Section 3, and that, on such representation having been considered by the authority in question, a final order is to be passed under Section 4. If, therefore, the District Magistrate has from the beginning applied an unbiased mind to the facts, he would want to be as fair as possible to the detenu, and this would ordinarily be shown, when he furnishes the grounds of detention under Section 3, by his giving him (subject to the reservations indicated in the said section) as clear and precise grounds as reasonably possible. It is, however, important to bear in mind that as regards the 'other particulars,' he has the discretion to withhold such of them as are not, in his opinion, necessary for the purpose of enabling the detenu to make the representation.

2. One thing which the authority has to apply its mind to is the question of its jurisdiction. From this point of view the place where the detenu is regarded as having been acting in any of the manners mentioned in Section 2 assumes importance; this is one of the particulars which would be required to be stated in the detention order or the statement of grounds. In In re Krishnaji Gopal Brahme it was remarked (p. 178):

Obviously, if the activities of the petitioner were prejudicial to the tranquillity of say, the Province of Madras or of the territories of the Indian States, the District Magistrate would have no jurisdiction to pass any order under the Act. When he, therefore, says that he was satisfied that the petitioner Mr. Brahme 'was acting in a manner prejudicial to the public safety and the maintenance of public order and tranquillity and was carrying on subversive propaganda,' he must say that the activities of the petitioner affected the peace and tranquillity of this Province. It is only 'satisfaction' in this sense that it would give to the District Magistrate the jurisdiction to make an order.

In that case, though the place of the detenu's activities was not mentioned in the order under Section 2, the defect was not considered fatal and was regarded as cured because the place was mentioned in the statement of grounds furnished under Section 3. The view taken, therefore, was that it was not altogether essential to mention the place of the detenu's objectionable activities in the order itself, the Court being satisfied from the evidence of the statement of grounds that the District Magistrate had actually considered the activities of the detenu with reference to a specific place or area. In this case, however, the place of the detenu's activities is not mentioned either in the order passed under Section 2 or in the grounds of detention furnished under Section 3, or even in the affidavit of the District Magistrate which has now been filed.

3. It may be said that normally a District Magistrate would not take into account the detenu's activities outside his jurisdiction, and that in any case in this ease it is not alleged by him that he went out of the district in recent months. But the District Magistrate has to be alive to the fact that his order is liable to be challenged, and that when the order comes to this Court it would want to be satisfied that the important question of jurisdiction was present in his mind, particularly if the point is taken in arguments before it. Prima facie the fact that the place of the detenu's activities is mentioned neither in the order or in the grounds of detention nor in the affidavit is an indication that the question was not present in the District Magistrate's mind when he made the detention order. At least at the stage when he made the affidavit his legal advisers would be expected to inform him of the importance of the question which is being discussed, particularly after the decision in Brahrhe's case on October 8, 1947. The power that the Legislature has placed in the hands of Government, and in case of delegation of their authority, of a District Magistrate or other officer, to interfere with the liberty of a subject is so great that such authority must be capable of justifying the exercise of such power when it is challenged by showing that it applied its mind to the material facts and to the appropriate considerations, and the Court must scrutinize the justification thus offered with the greatest care and anxiety. The application of the detaining authority's mind to the relevant facts and considerations being the necessary pre-requisite to its satisfaction, it is open to the detenu to contend and to show that the application of its mind was non-existent or so faulty as to render the alleged fact of its satisfaction questionable and uncertain.

4. In a proper case, e.g. Liversidge v. Sir John Anderson [1942] A.C. 206, where the power of detention was exercised by a high official of the State like the Secretary of State, who was answerable to the British Parliament in carrying out his duties, and where the Court was concerned with an emergency war measure, in enacting which the legislative Act had recognised the temporary need for subordiating the liberty of the individual to the safety of the realm, the well-known presumption omnia esse rite acta would apply, and the order would be taken prima facie to have been properly made, the requisite conditions having been complied with. But when under a statute enacted in more peaceful and normal times an executive officer of the status of a District Magistrate has been given the authority to interfere with the liberty of a subject, and it has become manifest to this Court in numerous instances that such an officer is often proved to be careless, arbitrary and mechanical, and even to act mala fide or with an ulterior object, in making use of the power of detention conferred on him, we should not, we think, be justified in relying on the said principle. In such circumstances it becomes our plain duty to scrutinise the order made and the grounds given therefor with the utmost care and anxiety and to make every legitimate inference in favour of the subject.

5. In view of the facts of this case we are unable to hold that the District Magistrate was satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order at any place within the area with reference to his acts or activities in which a valid order of detention could be made against him. In that view, we need not go into the merits of the other points urged before us on behalf of the detenu. The petition succeeds on the one ground which we have considered and and must be allowed.

6. We direct the detenu to be set at liberty forthwith. He will get his costs of this application from Government.


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