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In Re: Rajdhar Kalu Patil - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application No. 602 of 1947
Judge
Reported inAIR1948Bom334; (1948)50BOMLR183
AppellantIn Re: Rajdhar Kalu Patil
Excerpt:
.....intended by the legislature. 4. it is perfectly true that under section 3, while communicating grounds government is not bound to disclose facts which it considers against the public interest to disclose. it is therefore contended that as in this case one out of three grounds is bad, the order cannot stand. but if the two or even one of the two grounds are justified as coming within the competence of the indian legislature, i do not think it makes any difference to the validity of the order if the government of bombay proceed to give further reasons which are not well founded. power upon the government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon the mind of the detaining authority..........has been deprived of his liberty.4. it is perfectly true that under section 3, while communicating grounds government is not bound to disclose facts which it considers against the public interest to disclose. it is also true that government is also given the discretion to furnish only such particulars as are in its opinion sufficient to enable the detenue to make a representation to the government. without encroaching upon the right of government to decide what particulars to furnish and what particulars not to furnish, it is necessary to state that the grounds must be given with sufficient particularity for them to serve the purpose they were intended to serve. in our opinion grounds which are vague and indefinite and which contain no particulars whatever are no grounds at all within.....
Judgment:

M.C. Chagla, Ag. C.J.

1. This is an application under Section 491 of the Criminal Procedure Code for the release of the detenue, Rajdhar Kalu Patil, He was detained by Government by an order issued on June 5, 1947, under Section 2 of the Bombay Public Security Measures Act, 1947 (Bom. Act VI of 1947). On the same day under Section 8 the Government informed the detenue of the grounds on which the order of detention had been made against him and these grounds are:

(1) that you are an active member of the organisation at Amalner.

(2) that you threaten public peace and tranquillity of the' Amalner town by using violent methods.

(3) that you have been carrying on subversive propaganda among the people to prepare and use illegal and violent ways.

2. The order of Government itself is ex facie good and has not been 'seriously challenged by Mr. Patel for the applicant. But what has been contended before us. is that inasmuch as two of the three grounds furnished to the detenue are bad, notwithstanding the fact that the third ground might be good, the order of detention cannot be justified. In this case there can be no doubt that grounds Nos. 1 and 3 are vague and indefinite. It is equally clear in this case that the second ground is both precise and accurate.

3. In order to deal with the contention of Mr. Patel it is necessary in the first place to look at the scheme of the Act. The Act undoubtedly confers upon Government very wide powers. The duty of the Court must always be to protect the liberty of the subject and that it can only do by seeing to it that the Government exercises its powers within the four corners of the statute, that the order made is within the ambit and scope of the Act, and that every formality required by the legislation is complied with before the subject is deprived of his liberty. But, however anxious the Court may be to protect the liberty of the subject, it cannot trespass upon that province which the Legislature has marked out as belonging to the executive. Nor can it take upon itself the duty of considering questions of policy which are essentially for the executive and not for a judicial tribunal. The scheme of the Act is fairly clear. Section 2 confers upon the Provincial Government the power to make orders detaining or restricting the movements or actions of persons and that order can only be made if Government is satisfied that the person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquility of the Province or any part thereof. With regard to this it is the detaining authority that has to be satisfied and not the Court. Section 3 provides a very important and valuable safeguard to the subject. After the order of detention is made, it is incumbent upon the Government to communicate to the person affected by the order the grounds on which the order has been made. It is a statutory duty cast upon Government. The object of furnishing these grounds is to enable the detenue to make a representation to the Provincial Government against the order.. In our opinion the grounds furnished must be clear, precise and accurate; otherwise they would fail to serve the purpose for which they were intended by the Legislature. The grounds must be such as to make it clear to the person detained what he is charged with and what has moved the Government to deprive him of his liberty. We are most anxious that this safeguard afforded to the subject, which seems to be the only safeguard under this Act, should be maintained intact and should not be in any way whittled down. We therefore wish to impress upon Government the necessity of communicating the grounds to the detenue after careful consideration, and of couching them in language which is as precise and accurate as it can be., We have had occasion to notice in several applications under Section 491 that have been made to us recently that grounds are set out in slovenly language and no attempt is made at precision or accuracy. When one remembers that the only opportunity the subject has of fighting for his liberty is to make a representation to Government in respect of the grounds furnished to him, it will become apparent how important it is that everything should be done to see that the detenue knows why he has been deprived of his liberty.

4. It is perfectly true that under Section 3, while communicating grounds Government is not bound to disclose facts which it considers against the public interest to disclose. It is also true that Government is also given the discretion to furnish only such particulars as are in its opinion sufficient to enable the detenue to make a representation to the Government. Without encroaching upon the right of Government to decide what particulars to furnish and what particulars not to furnish, it is necessary to state that the grounds must be given with sufficient particularity for them to serve the purpose they were intended to serve. In our opinion grounds which are vague and indefinite and which contain no particulars whatever are no grounds at all within the meaning of Section 3 of the Act.

5. Under Section 4 of the Act it is left to the discretion of Government to annul or confirm the order or modify it or make any other order after considering the representation made to it by the detenue. The Court is not concerned with the merits of the representation nor with the propriety of the order made by the Government under that section.

6. It has been urged upon us that when there are several grounds given by Government and some of them are good and some of them are bad, the whole order is vitiated because it is impossible to say which of the grounds weighed with Government and to what extent. It is urged that it will be difficult to say what ultimately led to the satisfaction of the detaining authority required by Section 2 of the Act. It is therefore contended that as in this case one out of three grounds is bad, the order cannot stand. Reliance is placed for this argument on the observation of Sir Maurice Gwyer in the Federal Court in Emperor v. Keshav Talpade (1943) 46 Bom. L.R. 22 F.C. Sir Maurice Gwyer observed (p. 48):

If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.

7. This observation of the learned Chief Justice must be read with reference to a statement of the law which I enunciated in the judgment which I delivered when the matter was before this Court and in which the appeal was preferred to the Federal Court which the learned Chief Justice of India was deciding. This is what I said (p. 39):

As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in the Seventh Schedule. But if the two or even one of the two grounds are justified as coming within the competence of the Indian Legislature, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded.

8. Therefore, according to the learned Chief Justice of India, with whose opinion with respect we entirely agree, if a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the. power upon the Government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good, because something may have operated upon the mind of the detaining authority which is foreign and extraneous to the purpose of the Act, In that case the two grounds were not justified because they were not covered by any of the items in the seventh schedule in the Government of India Act and therefore those two grounds were ultra vires of the Legislature. But if some of the grounds given are not outside the scope and ambit of the Act but are merely vague and indefinite, it cannot be said that some extraneous consideration has weighed with the detaining authority in making the order it has made. Therefore, we must draw a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. In the latter case the ground has to be completely ignored as if no ground was furnished at all. If after eliminating the grounds which are no grounds at all, inasmuch as they furnish no precise information to the detenue, there still remain a ground or grounds which are precise and accurate and which can justify the order, then we see no reason why the order made by the detaining authority should not stand. If the Court can come to the conclusion that there is a ground or grounds which are within the ambit of the Act and which the detaining authority can legitimately consider in order to be satisfied that it is necessary to detain the person concerned, then the Court must uphold the order.

9. In this case although grounds Nos. 1 and 3 are vague and indefinite, it cannot be predicated of either of them that it is foreign to the purpose and scope of the statute. We therefore hold that eliminating grounds Nos. 1 and 3 because of want of precision and clarity, there still remains the second ground which is a perfectly good ground and which is sufficient to justify the order of detention. We therefore discharge the rule. Rule discharged.


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