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Emperor Vs. Purshottam Trikamdas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application No. 480 of 1945
Judge
Reported inAIR1946Bom333; (1946)48BOMLR159
AppellantEmperor
RespondentPurshottam Trikamdas
DispositionApplication allowed
Excerpt:
.....order of december 22, 1942, was an order passed under two parts of rule 26 of the defence of india rules, namely, clause (b) of sub-rule (1) and sub-rule (a). under clause (b) of sub-rule (j) the central, or the provincial government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of british india, the public safety, the maintenance of public order, his majesty's relations with foreign powers or indian states, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, it is necessary so to do, may make an order directing that he be detained, under sub-rule (5 a), where the power to determine the place of detention is exercisable by the provincial..........of an order made by the said government on december 22, 1942, under rule 26 of the defence of india rules directing his detention. the applicant is a member of the indian (national congress and the bombay provincial congress committee. in his application he has stated the following facts. on november 19, 1942, he was arrested in connection with the congress movement following the resolution of the all-india congress committee dated august 8, 1942. on december 2, 1942, an order was made against him under rule 26 of the defence of india rules and he was transferred for detention to the lahore central jail. on december 22, 1942, there was a further order of the government of bombay under which the inspector general of prisons, punjab, was authorised to detain him in any jail in the.....
Judgment:

Sen, J.

1. This is an application under Section 491 of the Criminal Procedure Code made by Mr. Purshottam Trikamdas, Barrister-at-Law, and an advocate of the Original Side of this Court, who is at present under detention in the Arthur Road Prison, Bombay, in accordance with an order passed by the Government of Bombay on July 12, 1945, under Section 9 of the Restriction and Detention Ordinance, 1944 (No. III of 1944), continuing the operation of an order made by the said Government on December 22, 1942, under Rule 26 of the Defence of India Rules directing his detention. The applicant is a member of the Indian (National Congress and the Bombay Provincial Congress Committee. In his application he has stated the following facts. On November 19, 1942, he was arrested in connection with the Congress movement following the resolution of the All-India Congress Committee dated August 8, 1942. On December 2, 1942, an order was made against him under Rule 26 of the Defence of India Rules and he was transferred for detention to the Lahore Central Jail. On December 22, 1942, there was a further order of the Government of Bombay under which the Inspector General of Prisons, Punjab, was authorised to detain him in any jail in the Punjab. On October 19, 1943, he was brought back from the Punjab and since November 7, 1943, he has been kept in detention in the Yeravda Central Prison. Some time in February, 1944, after the Restriction and Detention Ordinance (Ordinance III of 1944) had been made, he was informed, in accordance with the provisions of Section 7 of the said Ordinance, of the grounds of his detention. On July 12, 1944, an order was made by the Government of Bombay, in exercise of the powers conferred on them by the proviso to Section 9 of the said Ordinance, to the effect that after a further consideration of all the circumstances of the case the said Government was pleased to direct that the order of detention made on December 22, 1942, should continue in force. Similar orders were made also on January 9, 1945, and on July 22, 1945. Latterly he has been brought from the Yeravda Central Prison to the Arthur Road Jail in Bombay. A few days after the petition had been filed, the applicant filed an affidavit alleging certain other facts which had not been stated in the original petition. They included statements regarding his having been kept in solitary confinement in certain jails in the Punjab, and it was asserted that the grounds which were communicated to him by Government as the grounds of his detention, which had been characterised in the petition as utterly vague, had been put forward falsely and mala fide. One of the grounds on which the application is based is that in the altered situation in India after the war, and after the Indian National Congress as well as the All-India Congress Committee and other committees of the Congress had become legal organisations and members of the Working Committee of the Congress had been released, there was no further ground for keeping the petitioner any longer in detention. Mr. G. G. Drewe, I.C.S., Secretary to the Government of Bombay, Home Department, has made an affidavit in reply to the allegations made on October 3, 1945, and he has stated therein inter alia that the orders in question, particularly the orders with regard to the extension of the order made on December 22, 1942, were made after the Governor of Bombay had agreed that the petitioner was to be kept in further confinement, that the petitioner's detention was and is necessary with a view to preventing him from acting in a manner prejudicial to the public safety and to the maintenance of public order and that His Excellency the Governor was personally satisfied that the petitioner must be detained accordingly.

2. Several contentions have been urged before us in support of the petition, but it seems to us that we are really concerned with only one of them; and that is that the order of December 22, 1942, was superseded by an order made by the Government of Bombay on October 19, 1943, so that the earlier; order must be deemed to have ceased in its operation, and that if that was so, it was not possible for the Local Government, by passing the orders that were made on July 12, 1944, January 9, 1945, and July 12, 1945, to revive it or to keep it in operation after October 19, 1943. The order that was made on December 22, 1942, reads thus:

Whereas the Government of Bombay is satisfied with respect to the person known as Purshottam Trikamdas that with a view to preventing him from acting in a manner prejudicial to the defence of British India, the public safety, and maintenance of public order, and the efficient prosecution of the war, it is necessary to make the following order:-

And whereas the consent of the Government of the Punjab has been obtained to the detention of the said Purshottam Tricumdas in a jail in the Punjab;

Now, therefore in exercise of the powers conferred by Rule 26 of the Defence of India Rules and in supersession of the order No. S. D. V. VI-2956 dated 2nd December 1942, the Government of Bombay is pleased to direct that the said Purshottam Tricumdas shall be detained in any jail in the Punjab appointed by the Inspector General of Prisons, Punjab.

The following is the text of the order dated October 19, 1943:

Whereas the Government of Bombay is satisfied with respect to the person known as Purshottam Tricumdas that with a view to preventing him from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred by rule 26 of the Defence of India Rules and in supersession of its order No. S. D, VI-3S95 dated the 22nd December 1942, the Government of Bombay is pleased to direct that the said Purshottam Tricumdas shall be detained in the Yeravda Central Prison until the further orders of the Government of Bombay.

It has been contended by the learned Advocate General that the original order of December 22, 1942, was an order passed under two parts of Rule 26 of the Defence of India Rules, namely, Clause (b) of Sub-rule (1) and Sub-rule (A). Under Clause (b) of Sub-rule (J) the Central, or the Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, it is necessary so to do, may make an order directing that he be detained, Under Sub-rule (5 A), where the power to determine the place of detention is exercisable by the Provincial Government, the power of the Provincial Government includes the power to determine a place of detention outside the [Province. The contention of the learned Advocate (General is that the order of December 22, 1942, directed not only the detention of the applicant, but also that he be detained in a jail in the Punjab, that the order of 'October 19, 1943, was necessitated merely because it was found necessary or expedient to transfer the applicant from the Punjab to the Yeravda Central Prison, and that, therefore, it cannot be said that the whole order of December 22, 1942, was superseded or that there was any intention on the part of the Government to abrogate or cancel the same, the object of the second order merely being to transfer the applicant in exercise of the powers conferred on the Provincial Government by Rule 26(5). That sub-rule states that so long: as there is in force in respect of any person who has been ordered to be detained an order of his detention, he shall be liable to be detained in such place, and under such conditions as to the maintenance, discipline and the punishment of offences and breaches of discipline, as the Central Government or the Provincial Government, as the case may be, from time to time determine. It is argued that it being perfectly within the competence of the Provincial Government to determine from time to time the places where the applicant was to be detained, nothing more was sought to be done by the order of October 15, 1943, and that though the expression ' in supersession of its order,' etc. occurs in the said order, it should not be interpreted as a fresh order taking the place of the earlier order. There is no doubt that having passed an order under Rule 26(1) (b) it was open to the Provincial Government to make an order that the applicant should be transferred from the jail where he had been detained for the time being to another jail; and if that was done, it would not have been possible to say that the original order of detention has been superseded. We feel, however, that in this case it is not possible to take that view. In the first place, if the object had been as contended by the Advocate General, we should, in the preamble to the order, have got some reference to the power of Government under Rule 26(5), or to the considerations which apply in the application of that sub-rule. Instead of that, however, we find that the preamble to the order of October 19, 1943, states that ' the Government of Bombay is satisfied with respect to the person known as Purshottam Trikumdas that with a view to preventing him from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order.' This preamble has reference to the requirements of Rule 26(1)(b) and not to the objects of Sub-rule (5). Secondly, there is no specific, reference to Sub-rule (5)' at all. Besides, in the statement of grounds in the preamble we find that out of the four grounds stated in the order of December 22,. 1942, namely, the defence of British India, the public safety, maintenance of public order and the efficient prosecution of the war, two have been dropped and the reference is merely to the other two, namely, the public safety and the maintenance of public order. The petitioner has alleged that he was brought to the Yeravda Central Prison on some representation that had been made to Government by his wife. It would, therefore, appear that before making the order of October 19, 1943, Government considered the facts concerning the applicant afresh and thought it necessary to pass a new order. If that was so-and the form of the order justifies such a conclusion -there was an actual supersession of the order of December 22, 1942. In terms the latter order supersedes not only the order as to the place where the applicant was to be detained, but also the whole of the earlier order. In this connection it is instructive to refer to an order made by the Government of Bombay on December 2, 1942, which is referred to in the order of December 22, 1942, as having been' superseded, and it has not been contended on behalf of Government that in, spite of such language the order of December 2, 1942,, has not been superseded and that order still continues to be in force. In a case of this nature, where the circumstances are nearly all in favour of the interpretation for which the applicant has contended, and where possibly two interpretations can be put on the order of October 19, 1943, we should be inclined to give preference to the interpretation which is in the applicant's favour.

3. It may be useful to point out that this is not the first instance in which this Court has been enabled to come to the assistance of a detenu under the Defence of India Act or Ordinance III of 1944 because the order under which the detenue purported to. have been detained was invalid on the face of it or in view of certain patent or obvious, circumstances. See, for instance, the cases of Emperor v. Keshav Gokhale (1944) 47 Bom. L.R. 42 and Emperor v, Bajirao Yamanappa : AIR1946Bom32 In Keshav Talpade v. King Emperor [1944] F.C.R. 57: 46 Bom. L.R. 22, the Federal Court remarked that where the recital of a duly authenticated order of detention contained a statement as to the existence of the condition necessary to the valid making of that order, such a recital will in the normal case, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled, and that ' the presence of the recital in the order will place a difficult burden on the detenue to prove admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.' This view was approved by their Lordships of the Privy Council, who also referred in this connection to the rule of presumption enacted in Sub-section (2) of Section 1 of the Defence of India Act, a provision which has been reproduced in Sub-section (5) of Section 10 of Ordinance III of 1944. The difficult position in which a detenue is placed in such circumstances, therefore, makes it incumbent on the authority directing the detention to apply all possible care and attention to the materials placed before it before making the order of detention; and even a slight error or evidence of carelessness would tend to show that the necessary amount of care and attention had not been bestowed in the examination and consideration of such materials by such authority. Such a conclusion would indeed be regrettable in a case in which the executive is given almost unlimited power and discretion 'to deprive His Majesty's subjects of their liberty without the intervention of the 'Courts of law,' to use the words used in a case recently decided by this Court (Emperor v. Bajirao Yamanappa). We feel constrained to observe that such a conclusion is not excluded in the circumstances of the present case.

4. Apart, however, from this consideration, in view of the conclusion we have arrived at that the order of December 22, 1942, must be deemed to have come to an end and lost all operation by virtue of the order dated October 19, 1943, it is obvious that it was not in existence either on the date on which Ordinance III of 1944 was made or promulgated, namely, January 15, 1944, or on any of the subsequent dates on which orders were made purporting to be under the proviso to Section 9 of the said Ordinance and purporting to continue the operation of the order of 1942. It cannot, therefore, be said that the present detention of the applicant is justified by any order or orders validly passed by Government. The application will, therefore, be allowed, and we direct that the petitioner be set at liberty forthwith.

5. In view of the opinion we have arrived at concerning the merits of the contention with which we have dealt, it becomes unnecessary for us to mention or to discuss the merits of any of the other contentions which were raised in support of the petition.

6. We make no order as to costs.


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