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In Re: Krishnaji Gopal Brahme - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application No. 507 of 1947
Judge
Reported in(1948)50BOMLR175
AppellantIn Re: Krishnaji Gopal Brahme
Excerpt:
.....of order-jurisdiction to interfere.;where the authority making an order under section 2 of the bombay public security measures act, 1947, asserts the existence of a state of mind and belief which satisfies the requirements of the section, the court cannot go beyond it and consider the adequacy or otherwise of the reasons which go to establish that state of mind.;in making an order under section 2 the authority concerned must say that the activities of the detenue affected the peace and tranquillity either of the province of bombay or any part thereof. it is only 'satisfaction' in this sense that it would give to the authority jurisdiction to make an order. where, however, the order omits to mention the place of the detenue's activity, the order is not bad if the place is..........5,1947. the order was made in exercise of the powers delegated to him under section 21 of the bombay public security measures act, 1947. under that section:the provincial government may by order direct that any power or duty, which is conferred or imposed on the provincial government, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority subordinate to it, not lower in rank than a deputy commissioner of police in greater bombay, or the district magistrate, or additional district magistrate elsewhere.2. the order of delegation is in these terms and is dated april 26, 1947:in the exercise of the powers conferred by section 21 of the bombay public security measures act, 1947, (bombay act.....
Judgment:

Rajadhyaksha, J.

1. This is an application in the nature of habeas corpus under Section 491 of the Criminal Procedure Code for the release of the petitioner, Krishnaji Gopiil Brahme, who has teen kept under detention by an order of the District Magistrate of East Khandesh dated August 5,1947. The order was made in exercise of the powers delegated to him under Section 21 of the Bombay Public Security Measures Act, 1947. Under that section:

The provincial Government may by order direct that any power or duty, which is conferred or imposed on the Provincial Government, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority subordinate to it, not lower in rank than a Deputy Commissioner of Police in Greater Bombay, or the District Magistrate, or Additional District Magistrate elsewhere.

2. The order of delegation is in these terms and is dated April 26, 1947:

In the exercise of the powers conferred by Section 21 of the Bombay Public Security Measures Act, 1947, (Bombay Act VI of 1947), the Government of Bombay is pleased to direct that the powers conferred and duties imposed on it by Sub-sections (1), (2) and (4) of Section 2 and by Sections 3 and 4 of the said Act shall also be exercised and discharged within their respective jurisdictions by the Commissioner of Politic, Bombay, in Greater Bombay and District Magistrates and the Additional District Magistrates elsewhere.

3. By virtue of this delegation the District Magistrate, purporting to exercise the powers of the Provincial Government under Section 2(1) and Sections 3 and 4 of the Act, issued an order under Section 2(1), Under Section 2(1):

The Provincial Government may, if it is 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, make an order-

(a) directing that he be detained.

4. In exercise of this power the District Magistrate, East Khandesh, passed an order dated August 5, 1947, in the following terms:

Whereas the Government of Bombay has directed by its order in the Home Department No. Section D. 671 dated the 36th April 1047 that the powers conferred on it by clause (a) of Sub-section(1) of section 2 of the Bombay Public Security Measures Act 1947 (Bombay Act VI of 1947) shall be exercised by the District Magistrate,

And whereas, I. L. G, Rajwade, I.C.S., District Magistrate, East Khandesh, am satisfied that the person known as K. G. Brahme of Amalner is acting in a manner prejudicial to the public safety and the maintenance of public order and tranquillity and is carrying on subversive propaganda,

Now therefore in exercise of the powers conferred by clause (a) of Sub-section (1) of section 22 of the said Act I hereby direct that the said K. G. Brahme be detained.

5. Under Section 3 of the Act,

where an order is made in respect of any person under Clause (a) of Sub-section (1) of Section 2, the Provincial Government shall, as soon as may be, 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 to the Provincial Government against the order and inform him of his right to make such representation and afford him the earliest opportunity of doing so.

6. In pursuance of this provision the District Magistrate, East Khandesh, addressed to Mr. Brahme, the petitioner, communication dated August 5, 1947, in the following terms:

Whereas the Government of Bombay has directed by its order in the Home Department No. Section D. 671 dated the 26th April 1947 that the powers conferred on it by sub-section(1) of section 2 of the Bombay Public Security Measures Act 1947, (Bombay Act VI of 1947) shall be exercised by the District Magistrates.

In pursuance of Section 8 of the Bombay Public Security Measures Act, 1947, you are hereby informed that the grounds on which the order of detention has been made against you under Clause (a) of Sub-section (1) of Section 2 of the said Act are:

(1) That you are an active leader of a subversive organisation at Amalner,

(2) That you have been carrying on subversive propaganda among the people to prepare and use illegal and violent ways,

(3) That you are thus acting in a manner prejudicial to the public safety and maintenance of public order and tranquillity in Amalner town.

2. You are also informed that you have a right to make a representation against the order under Which you are detained. If you wish to make a representation you should address it to the undersigned and forward it through the Superintendent of the Prison as soon as possible.

7. The representation was made by the petitioner on August 8, 1947, to the District ' Magistrate of East Khandesh, who replied on August 14, 1947, that he was unable at that stage to agree to the petitioner's request to cancel the order of detention. Thereupon this application under Section 491 of the Criminal Procedure Code was filed in this Court on September 10, 1947.

8. Three points have been urged in support of this application.

(1) Firstly, it is argued that the general delegation of the authority of the Provincial Government as in their order of April 26, 1947, is illegal and therefore the exercise of the delegated power is of no effect.

(2) Secondly, it is contended that the order of detention dated August 5, 1947, is on the face of it bad, and

(3) Lastly, it is urged that the order of August 5, 1947, which communicated the grounds of detention to the petitioner did not comply with the requirements of Section 3 of the Act.

9. So far as the first point is concerned, we are of the opinion that there is no substance in it. The argument of the learned Counsel Mr. J.C. Shah is that the Provincial Government cannot make an order of unconditional delegation of its powers and duties but that the Provincial Government may direct that any power which is conferred upon it shall be exercised by the District Magistrates outside Greater Bombay only in such circumstances as may be specified in the order. The argument is that the words 'if any' in s, 21 govern the words 'such conditions' and not the words 'such circumstances,' and Mr. J.C. Shah would read the section as if the words 'and under such conditions, if any,' were in brackets. We are unable to accept this contention. In our opinion, the words 'if any' govern both the clauses 'in such circumstances' and 'under such conditions' and make it clear that the general delegation may, if the Provincial Government so choose, be qualified by such circumstances and conditions as may be specified. This construction is obvious from the fact that there is no comma after the word 'circumstances' and there is a comma after the word 'conditions,' making it clear that the following words 'if any' govern both these expressions. If the contention of the learned Counsel were correct, there should be a comma after the word 'circumstances' and no' comma after the word 'conditions.' It was argued by the learned Counsel that the use of the expression 'in such circumstances, if any,' made no sense. We are not impressed by this argument. It is quite possible that the Provincial Government may direct that their powers be exercised by the District Magistrate 'in such circumstances, if any, as may be specified,' say for example, only so long as a railway strike or a textile mill strike lasts. We are therefore unable to accept the contention of the learned counsel.

10. So far as the second point is concerned, the submission is this. It is argued. that the District Magistrate has not applied his mind to the order, and in so far as it omits to say that the petitioner was acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, it is without jurisdiction. The argument is that the Act authorises detention if the Provincial Government is satisfied that the detenue 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. Therefore it is urged that unless the order says that the activities of the petitioner are prejudicial to the peace and tranquillity of the Province or any part thereof, there is no foundation for the jurisdiction purported to be exercised. The correct way of looking at these orders of detention has been frequently considered by various Courts. In Rex v. Secretary of State for Home Affairs: Greene, Ex parte (1942) 1 K.B. 87 Lord Justice MacKinnon said (p. 108):

The power of the Home Secretary to issue a valid order depends on the fulfilment of a condition. The nature of that condition is very material. It is not the existence of an objective fact, for example, that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary, that is, that he has reasonable grounds for believing certain facts to exist, and, by implication, that he honestly entertains that belief. If an order asserting the existence of that state of mind arid belief, in valid form, has been made, the onus on the applicant of disproving its existence is obviously more difficult than would be the disproof of an objective fact, for example, that the man is an alien. Evidence of the applicant that he does not know that there are any reasons for the Home Secretary's belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the Home Secretary to explain and justify the assertion of his order.

11. These observations were quoted with approval by Lord Wright in the House of Lords in the case of Liversidge v. Sir John Anderson . In the case of Emperor v. Sibnath Banerji (1945) 48 Bom. L.R. 1 their Lordships of the Privy Council quoted with approval the dictum of the learned Chief Justice of. the Federal Court of India in which he said (p. 8):

It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenue to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.

12. In the present case the District Magistrate of East Khandesh asserts the existence of a state of mind and belief. If this, satisfies the requirements of the section, this Court cannot go beyond it and consider the adequacy or otherwise of the reasons which go to establish that state of mind. This Court observed in the case of Emperor v. Bajirao Yamanappa : AIR1946Bom32 as follows (p. 677):

It is not competent to the Court to inquire into the sufficiency of the materials and the reasonableness of the grounds on which the detaining authority was satisfied that it was necessary to make the order.

13. The question therefore is whether the recital as regards the state of mind and belief conforms to the requirements of the law. 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 mate an order. It was argued by the learned Government Pleader that the reference to Section 2(1) of the Act under which the District Magistrate purported to act would cure any defect as it would by implication incorporate in the order the requirements of the section which authorises action, viz. danger to the peace and tranquillity of the province or any part thereof. But when the District Magistrate has specifically given the description of his state of mind, the omission of any reference to peace and tranquillity of this Province would be a serious defect. When the territories of an Indian State and of this Province are so interwoven, the order should make it clear that the basis for taking action is the satisfaction of the District Magistrate that the detenue is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of this Province or any part thereof. However, we do not consider that the defect is a fatal one, as on that very day a communication under Section 3 was served on the petitioner giving the grounds for the order of detention, and this made it clear that the District Magistrate had satisfied himself that the petitioner was acting in a manner prejudicial to the public safety and tranquillity of Amalner and that what was sought to be maintained was the public order and tranquillity of that town. Under the particular circumstances of this case, we think that the defect pointed out by the learned Counsel is a more or less technical one but not of any real substance.

14. The last argument has, in our opinion, a good deal to be said in its favour. Section 3 requires the authority 'to communicate to the person affected 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 to the Provincial Government against the order.' The authority need not disclose all the facts, but the communication must give sufficient indication to the detenue as to the reasons which impelled the authority to take action. The section draws a distinction between the grounds and the particulars. With regard to the latter, the section makes the authority the sole judge of their sufficiency or otherwise to enable the detenue to make a representation. The whole object of the section is to convey to the detenue the conclusion which the Authority has drawn from the facts placed before it and such other particulars as would, in its opinion, be sufficient to enable the detenue to make representation. Although they may not be exhaustive, the grounds and the particulars should be sufficiently precise, so as to make it possible for the detenue to make representation, and, if possible, remove any misapprehension on the part of the District Magistrate. The District Magistrate in this case purports to give 'grounds' and not 'particulars,' butitis possible to argue that the reasons communicated contained both the grounds and other particulars. Even so, the question arises whether the grounds communicated can be said to be sufficiently precise.

15. The grounds communicated to the petitioner were:

(1) that he was an active leader of a subversive organisation at Amalner,

(2) that he had been carrying on subversive propaganda among the people to prepare and use illegal and violent ways, and.

(3) that he was thus acting in a manner prejudicial to the public safety and maintenance of public order and tranquillity in Amalner town.

16. Of these the third cannot be regarded as any thing more than a repetition of the preamble contained in the original orderand does not give any additional information to the detenue. We need therefore only consider the first two grounds. The first ground is that he was an active leader of a subversive organisation at' Amalner. In order to enable the detenue to make a representation about this, can it be said that it is sufficiently precise? The first question which naturally arises is: subversive of what? If the order refers to an organisation which is subversive of, say, foreign domination or blackmarketing,' it may be a very desirable thing to belong to and be a leader of such an organisation, and it could not be that the District Magistrate had such an organisation in mind. The learned Government Pleader argued that though the ground was not as clearly expressed as it might have been, the word 'subversive' meant subversive of the present order of society. That again would be much too vague. What order of society has the District Magistrate in mind-social, economic, political or religious? If the detenue belonged to or was a leader of more than one such organisations, with reference to which of these was he to read the communication addressed to him by the District Magistrate? The learned Government Pleader said that in such a case the detenue was to ask his own conscience. But even if he did, how was he to discover which organisation the District Magistrate had in mind when he passed the order? We, therefore, think that the ground conveyed no precise information to the detenue and did not enable him to make proper representation to the District Magistrate.

17. The second ground is that 'he had been carrying on subversive propaganda among the people to prepare and use illegal and violent ways.' The sentence is a little ungrammatical and somewhat cryptic, and we have found some difficulty in ascertaining the real meaning sought to be conveyed. How does one prepare 'illegal and violent ways '? The learned Government Pleader conceded that the language used was unfortunate and does not convey properly the thought of the 'District Magistrate. He said that the idea was clear though the vehicle for conveying it was weak. The learned Government Pleader has paraphrased the ground as meaning that the detenue carried on 'subversive propaganda among the people (so as) to prepare (them in the) use of illegal and violent means.' If this was the real meaning of the District Magistrate's communication, it is obvious that it should have been properly expressed so as to convey to the detenue a clear idea of the reasons which prompted the District Magistrate to take action against him. It was pointed out to us that the expression used by the District Magistrate appears to have been borrowed from the wording adopted by his predecessor in making similar orders. This argument only gives opportunity for contending that the District Magistrate did not apply his own mind to the issue and the wording of his order. For, if he had, the unsuitability of the wording would not have escaped his notice. We are not here concerned with the adequacy or otherwise of the reasons which the District Magistrate gave. We are not sitting here in judgment over the propriety or wisdom of the District Magistrate's order. So long as the District Magistrate purports to observe all the requirements of the law and applies his own mind to the facts of each case, it is not open to this Court to question the decision which the legislature has deliberately left to the executive.

18. It is possible to argue that though the communication under Section 3 may be bad for want of precision, the order under Section 2 under which the detenue was detained is good. The learned Government Pleader did not urge this argument clearly for the reason that it ignores the fact that the order under Section 2 is' in the nature of a preliminary order against which a detenue can make a representation on. being furnished with the grounds of detention under Section 3. After this representation is considered, then the final orders are passed under Section 4 confirming, modifying, or rescinding the order under Section 2. The detenue has stated in his application that 'the alleged notice gave him no adequate idea as to the grounds on which he had been detained.' As we hold that the communication under Section 3 is defective, the final order based on the representation made on such a defective communication cannot be held to be good.

19. We, therefore, allow this application, make the rule absolute and direct that the detenue be. released forthwith.

20. There will be no order as to costs.


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