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In Re: Anant Mahadev Mandekar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCrown Side Petition of 1947
Judge
Reported in(1948)50BOMLR590
AppellantIn Re: Anant Mahadev Mandekar;indradatta Jogendranath Sen
Respondent;commissioner of Police
Excerpt:
bombay public security measures act (bom. vi of 1947), section 3 - order of detention-notice giving grounds for order-validity of notice.;in furnishing grounds for detention, in a notice as required by section 3 of the bombay public security measures act, 1947, the detaining authority said :-;that you i.e., detenu] have been inciting workers to commit acts of violence and thereby acting in a manner prejudicial to the public safety and tranquillity of greater bombay.;on the question whether the ground was a valid one:-;(1) that the notice was bad on the ground that it was vague and indefinite and did not comply with the provisions of section 3 of the act, inasmuch as it was not such as to enable the detenue to make a representation to the provincial government against the order; ;in re..........judgment said:when we come to ground (2) it will be noticed that it does not state the class of workers whom the person detained is alleged to be inciting; nor does it state the place at which these workers are supposed to be working. 'workers' is an extremely comprehensive and all-embracing expression. in these days one might almost say that everybody is a worker, and it seems difficult to understand why such an expression was used when proper and adequate information could easily have been supplied to the person detained by the use of a proper expression. the government pleader has contended that further to particularise 'workers' would have been really to give particulars or to state facts which the government might not have wanted to do in public interest. we cannot accept that.....
Judgment:

Desai, J.

1. The petitioner is the editor of an English fortnightly called 'new Spark' and he is a close friend of one Anant Mahadeo Mandekar, the detenu in this case, who is hereinafter referred to as the detenu. Prior to his detention, the detenu was a record clerk in the New Kaiser-i-Hind Mills. In pursuance of a detention order dated May 12, 1947, issued against him by respondent No. 1, who is the Commissioner of Police, Greater Bombay, the detenu has been detained since May 15, 1947, under Clause (a) of Sub-section (1) of Section 2 of the Bombay Public Security Measures Act, 1947. The petition is filed for an order that the detenu be set at liberty.

Section 2 of the Bombay Public Security Measures Act, 1947, provides as follows :

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.

Section 3 of the said Act provides that 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.

2. The order No. XXXVIII of 1947 under Section 2(1)(a) of the said Act served on the detenu is on a stereotyped form in which the name of the detenue is inserted.

3. The notice served on the detenue under Section 3 of the said Act dated May 12, 1947, is in the following terms :

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

That you have been inciting workers to commit acts of violence and thereby acting; in a manner prejudicial to public safety and tranquillity of Greater Bombay.

4. It will be observed that under Section 3 it is the duty of the Provincial Government to communicate to the person affected by the order the grounds on which the order has been made as also to give particulars. In Emperor v. Keshav Gokhale (1944) 47 Bom. L.R. 42 a full bench of our High Court decided as follows:

Where, on a perusal of an order passed under Rule 26 of the Defence of India Rules, 1939, it becomes clear that the authority or officer making the order has not applied its or his mind as required by the rule, the order is invalid.

King-Emperor v. Sibnath Banerjer (1944) F.C.R. 1 followed.

The obligation to consider reasons or grounds for making an order and to be satisfied upon materials laid before the officer or authority making it or within his cognizance is a condition precedent to the making of an order, which in absence of the condition is a nullity.

Rex v. Secretary of State for Home Affairs: Ex parte Green [1942] 1 K.B. 87, followed.

Hence, where a District Magistrate takes a ready made cyclostyled form, which sets out mechanically the four conditions prescribed by Rule 26, and which refers by its language to a plurality of persons, and fills in the schedule the name of the person ordered to be detained, the Magistrate does not exercise any executive discretion or make a quasi-judicial consideration of the facts pertinent to the case, and the order passed is no order at all.

5. It is contended that for the reasons stated in the said case (Emperor v. Keshav Gokhale) respondent No. 1, though he gave the grounds on which he made the said order, failed to apply his mind as required by law and, therefore, the grounds given by respondent No. 1 cannot be deemed to be any grounds at all and that therefore the order is bad. For the reasons hereinafter stated, it is not necessary for me to give any finding as regards this contention.

6. The second contention raised by the petitioner is that the notice under Section 8 of the said Act is bad on the ground that it is vague and indefinite and does not comply with the provisions of Section 3 of the said Act.

7. So far as this contention is concerned, there is the judgment delivered in In re Bhayyaji Kulkarn (1947) Criminal Application No.524 of 1947 by the learned Chief Justice and Mr. Justice Gajendragadkar, where their Lordships had to consider the language of the notice under Section 3 given by the District Magistrate, East Khandesh, which was in terms very similar to the language used in the present case. Ground No. 2 given in the said notice is as follows :

That you are acting in a manner prejudicial to the public safety and maintenance of public order and tranquillity of Amalner town by inciting workers to violence.

As regards this, the learned Chief Justice in his judgment said:

When we come to ground (2) it will be noticed that it does not state the class of workers whom the person detained is alleged to be inciting; nor does it state the place at which these workers are supposed to be working. 'Workers' is an extremely comprehensive and all-embracing expression. In these days one might almost say that everybody is a worker, and it seems difficult to understand why such an expression was used when proper and adequate information could easily have been supplied to the person detained by the use of a proper expression. The Government Pleader has contended that further to particularise 'workers' would have been really to give particulars or to state facts which the Government might not have wanted to do in public interest. We cannot accept that argument. The whole object of furnishing grounds would be frustrated unless they are definite and precise. They are intended to serve a definite purpose under Section 3, and that purpose cannot be served unless the detenue knows what exactly has moved Government to deprive him of his liberty. In our opinion therefore ground (2) is also vague and indefinite.

8. I consider myself bound by that judgment, and I respectfully agree with what their Lordships said. I hold that for the reasons aforesaid the notice given under Section 3 of the said Act in this case was vague and indefinite and that the particulars given were not such as to enable the detenue to make a representation to the Provincial Government against the order and afford him the earliest opportunity of doing so. It is undoubtedly true that the particulars to be given are such as are in the opinion of the Provincial Government sufficient. But the Government nevertheless is bound to give particulars. Such particulars as the Government did give in this case were vague and indefinite and therefore could not be described as any particulars at all.

9. It will be observed that the notice does not mention the class of workers or the locality in which the workers were residing or working. Supposing that the workers were residing or working in a locality, which the detenu could prove to the satisfaction of the proper authority he never visited, or that the class of workers whom it was alleged that he incited were workers with whom he never came in contact or were workers who were not likely to listen to the detenu by reason of their social status or political views, then the authority concerned might, on a proper representation being made by the detenu and after the necessary investigation held by him in that behalf corns to the conclusion that there was no case made out for keeping the detenu in detention. The next point to notice is that it is not mentioned in the particulars the time during which the detenu is supposed to have incited the workers. If those particulars had been given, the detenue might have satisfied the authority concerned that at that particular period of time he never visited the locality at all but that in fact he was busily engaged in a totally different locality from the locality in question. This shows how necessary it is that proper particulars should have been given to the detenue.

10. I asked the learned Advocate General how he proposed to distinguish the language of the notice in this case from the language of the notice given in the full bench case under Section 8 of the said Act, but he was unable to point out any distinction.

11. This being my view, I think the order of detention cannot be justified. I therefore order that the detenu be set at liberty immediately and that respondent No. I may be ordered to pay to the petitioner the costs of the petition.

12. Respondent No. 2 in this ease is the Superintendent, Worli Temporary Prison. But I do not think it is necessary to pass any order for costs against respondent No. 2 and indeed no such order is asked for against him.


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