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Kishan Valiya Patil Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 929 of 1965
Judge
Reported inAIR1967Bom89; (1966)68BOMLR182; ILR1966Bom483
ActsPreventive Detention Act, 1950 - Sections 3 and 7(1); Constitution of India - Article 22(5)
AppellantKishan Valiya Patil
RespondentThe State
Appellant AdvocateJ.D. Dholakia and ;B.V. Pandya, Advs.
Respondent AdvocateV.H. Gumaste, Addl. Govt. Pleader
Excerpt:
.....act, 1950 and article 22 (5) of constitution of india - petitioner challenged order of detention - grounds supplied to petitioner vague and insufficient to make representation against order - violation of section 7 (1) and violation of article 22 (5) - order of detention liable to be quashed. - - 1). the impunged order was passed on 15th june 1965, and it stated that the commissioner of police was satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. (3) in support of his contention that the commissioner of police did not apply his mind to the facts of the case before making the detention order, the petitioner made several allegations which were designed to show that he was..........did not apply his mind to the facts of the case before he made the order and, secondly, that the grounds supplied to the petitioner were vague and were not such as to enable him to make a representation against the order to the government of maharashtra.(3) in support of his contention that the commissioner of police did not apply his mind to the facts of the case before making the detention order, the petitioner made several allegations which were designed to show that he was required to complain against a certain. sub-inspector of police and that by way of retaliation he was involved by the police in a number of false cases. the commissioner of police, however, has filed an affidavit in which he has denied that he failed to apply his mind to the facts of the case before making the.....
Judgment:

Tarkunde, J.

(1) The petition has been filed under Article 226 of the constitution and section 491 of the Criminal Procedure Code in order to challenge an order of detention passed against the petitioner under the Preventive Detention Act, 1950, by the Commissioner of Police, Greater Bombay (respondent No. 3) and confirmed by the State of maharastra (respondent No. 1). The impunged order was passed on 15th June 1965, and it stated that the Commissioner of Police was satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. On the same day on which the order of detention was communicated to the petitioner, the Grounds on which that order was made were also communicated to him as required by section 7 (1) of the Preventive Detention Act. Those grounds were as follows:

'I That since December 1964, in the localities known as Mahadeobhai Desai Road and Akurli Road and the areas adjoining there to in Kandivli in Greater Bombay you have committed and are engaged in the commission of the following acts namely:

That you habitually commit robberies in the said localities and the said areas in that you approach the residents and passers-by in the said localities and the said areas and at the point of knife and/or by use of force and/or on threats of assault extort money from them or forcibly remove money from their possession.

That you use criminal force with intent to outrage the modesty of women in the aforesaid localities and areas

II. You have committed several acts of the nature mentioned above since December 1964.

III. The following are some of such acts in which you were so concerned.

(1) At about 11.30 p.m. on the 13th April 1965, you approached a member of the public at Mahadeobhai Desai Road, Kandivli (East) and demanded from him money for drinks. On his replying that he had no money to pay you, you kicked and fisted him and forcibly removed an amount of Rs. 17 which he had in his shirt pocket. The said member of the public was frightened and quietly left the place. While he was going away you threatened him that you would kill him in case he informed about his incident to any person.

(2) At 9 p.m. on the 2nd May 1965, you approached a woman at Mahadeobhai Desai Road Kandivli (East), and stopped her . You accused her that she was going to your locality for procuring young girls for the purpose of prostitution. She was alone. You caught hold of her and began to press breasts. She shouted for help and managed to free herself from your hands. While she was going away you shouted at her and threatened her with dire consequences if she reported this incident to the Police. IV. That in all probability you will continue to commit acts of the nature mentioned in sub-paragraphs (1) and (20 of paragraph III above'.

In the subsequent paragraphs of the document it was stated that the petitioner could make a representation against the order of detention to the Government of Maharashtra, if he so desired and that he had a right to claim a personal hearing before the Advisory Board constituted under the Preventive Detention Act.

(2) The order of detention was challenged before us on two grounds. It was urged firstly, that the Commissioner of Police did not apply his mind to the facts of the case before he made the order and, secondly, that the grounds supplied to the petitioner were vague and were not such as to enable him to make a representation against the order to the Government of Maharashtra.

(3) In support of his contention that the Commissioner of Police did not apply his mind to the facts of the case before making the detention order, the petitioner made several allegations which were designed to show that he was required to complain against a certain. Sub-Inspector of Police and that by way of retaliation he was involved by the police in a number of false cases. The Commissioner of Police, however, has filed an affidavit in which he has denied that he failed to apply his mind to the facts of the case before making the order of detention and has stated that he made the order after taking into consideration the reports of various responsible police officers and other material relating to the activities of the petitioner. He denied that the petitioner's complaint against the Sub-Inspector of Police had any bearing whatsoever on the detention order. In view of the consents of this affidavit, we do not see any adequate reason to hol that the impugned order of detention was passed by the Commissioner of Police without applying his mind to all the relevant facts.

(4) In our view, however, the impugned order of detention requires to be quashed, because the Grounds and particulars supplied to the petitioner were not such as to enable him to exercise the right given to him under section 7 (1) of the Preventive Detention Act, and under Article 22(5) of the Constitution, of making a representation to the Government of Maharashtra against the said order. In our view, the grounds supplied to the petitioner are deficient in two respects.

(5) In the first place, it is clear from the Grounds supplied to the petitioner that the detention order was passed because, according to the Commissioner of Police, the petitioner had since December 1964, habitually committed robberies and used criminal force with intent to outrage the modesty of women in certain localities in Kandivli, and because it was apprehended that the petitioner in all probability would continue to commit such acts in the furture. While it is emphasised in the Grounds that several such acts were committed by the petitioner since December 1964, particulars were supplied to him of only one act of robbery alleged to have been committed on 13th April 1965 and one act of violating the modesty of a woman alleged to have been committed on 2nd May 1965. It is obvious that the above particulars supplied to the petitioner are not sufficient to enable him to make an adequate representation. This is because, even if he was able to show in his representation that the allegations with regard to his prejudicial acts on 13th April 1965 and 2nd May 1965 were untrue, he would still be unable to know that the order of detention was unjustified, that order having been passed on the basis that the petitioner had committed several such acts of robbery and violation of the modesty of women from December 1964, till the date of the said order. It must, therefore, be held that the detention of the petitioner is in violation of Article 22(5) of the constitution and Section 7 (1) of the Preventive Detention Act.

(6) On behalf of the respondents the learned Additional Government Pleader placed reliance on the decision of the majority of the Supreme Court in the State of Bombay v. Atmaram Sridhar Vaidya, : 1951CriLJ373 . In that case, after communicating the grounds of the detention order to the detenues the Commissioner of Police had supplied some additional particulars by sending him a separate communication. It was held that clause (5) of Article 22 of the Constitution confers two rights on the detenu. First the right to be informed of the grounds on which the order of detention was made, and second the right to have the earliest opportunity to make a representation against that order, and that although these rights are linked together they are two distinct rights. It was further found that the particulars which were subsequently supplied to the detenu together with such particulars as were contained in the grounds already supplied to him were sufficient to enable him to make a representation against the order of detention. In the present case, no particulars were communicated to the detenu other than those contained in the grounds which were supplied to him and which have been quoted above. Regarding the adequacy of the particulars which are required to be supplied to the detenu in order that he may have an opportunity to make a representation against the order of detention, Kania C. J. in delivering the judgment of the majority observed:

'In numerous cases that have been brought to out notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order . . . . . . . . while the Constitution gives the Government the privilege of not disclosing in public interest facts which it considers undesirable to disclose, by the words used in Article 22(5) there is a clear obligation ot convey to the detained person materials (and the disclosure of which is not necessary to be withheld) which will enable him to make a representation.. . . . . Under these circumstances, it is but right to emphasise that the communication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be disclosed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation from the intention underlying Article 22(5) of the Constitution.'

It was further held by the majority that the sufficiency of the particulars conveyed to the detenu is justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation 'which, on being considered, may give relief to the detained person.' These observations were re-emphasised by the Supreme Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi, : 1953CriLJ1241 .

(7) Our attention was also drawn to similar decisions of this Court in cases under the Preventive Detention Act. In Sushila Madiman v. Commr. of Police, Greater Bombay, : AIR1951Bom252 Chagla C. J. in delivering the judgment of a Division Bench referred to clause (6) of Article 22 which permits the detaining authority not to disclose such facts which he considers to be against the public interest to disclose, and went on to say 'But subject to that it is incumbent upon the detaining authority under sub-clause (5) to disclose all facts which would enable the detenu to make a representation against the order which has been passed depriving him of his liberty, and it would be for the Court to determine whether the facts disclosed are sufficient or not sufficient to give the detenu the necessary opportunity to make the representation under sub-clause (5)'. Similarly in Balkrishan Kashinath v. District Magistrate, Thana 58 Bom LR 614 the Court considered the adequacy of the particulars furnished to the detenu in regard to certain meetings in which he was alleged to have incited and instigated workers to resort to intimidation and violence. The Court applied the test as to whether the particulars given were 'as full and as adequate as circumstances would permit' and observed.

'If the detaining authority had materials before him with regard to speeches made by this detenu at public meetings and if his detention order was passed upon those materials, then there was not the slightest difficulty in the way of detaining authority furnishing the detenu with those particularts.'

(8) In the present case the particulars furnished to the detenu were obviously not as full and as adequate as the circumstances would have permitted, If the Commissioner of Police had materials before him regarding a number of robberies and number of violations of the modesty of women by the petitioner, there was not a slightest difficulty in his way in furnishing the petitioner with those particulars.

(9) Moreover, the grounds and particulars furnished to the petitioner appear to us to be deficient in another respect. The terms of Section 3 of the Preventive Detention Act, make it clear that the authorities mentioned in that section can make an order of detention if they find that it is necessary to detain the person concerned in order that he may be prevented from resorting to certain types of prejudicial activities. Hence, the subjective satisfaction of the detaining authority which is the pre-condition for the making of an order of the detention under Section 3, must be twofold . The detaining authority must be satisfied that the person to be detained is likely to act in a certain prejudicial manner, and the detaining authority must be further satisfied that it is necessary to detain the said person in order that he may be prevented from so acting. In other words, if the detaining authority is satisfied that a certain person is likely to act in a certain prejudicial manner, the detaining authority would not be justified in making an order of detention unless he is further satisfied that in order to prevent the said person from acting in that manner his detention is necessary. Since this twofold satisfaction of the detaining authority is necessary for a valid order of detention under section 3, it follows that the Grounds of the order communicated to the detenu and the particulars given to him under section 7 of the Act must furnish the basis of the said twofold satisfaction of the detaining authority. In the present case the grounds and particulars supplied to the petitioner relate to the satisfaction of the Commissioner of Police that the petitioner would continue to commit the prejudicial acts mentioned therein, but it is not a possible to ascertain from those grounds and particulars as to why the Commissioner of Police felt that it was necessary to pass an order of detention in order that the petitioner may be prevented from resorting to such acts. Even in the case of habitual offenders, the provisions of the ordinary law, such as the Indian Penal Code and the Code of Criminal Procedure, are normally adequate for the punishment as well as the prevention of offences. The grounds and particulars furnished to the petitioner do not disclose why the normal provisions of the Criminal law were found insufficient for preventing the petitioner from having resort to criminal acts, and why the unusual remedy of preventive detention was felt necessary in his case. In the affidavit, which the Commissioner of Police filed in reply to the petition, he has referred to the two incidents mentioned in the Grounds supplied to the petitioner and has stated. 'As the victims and other witnesses in the two cases mentioned above refused to give evidence in open Court no cases could be filed against the petitioner.' If that was the reason why the commissioner of Police felt satisfied about the necessity of passing the impugned order of detention, it was necessary to include it in the Grounds supplied to the petitioner and to give the particulars thereof, in order to enable the petitioner to make a proper representation against the order of detention. If the Grounds supplied to the petitioner had contained an allegation that it was not possible to prosecute him in the normal way as witnesses were not willing to come forward to give evidence against him in open Court, the petitioner might have been able to show that that allegation had no foundation in fact. We must, therefore, hold that the grounds and the particulars supplied to the petitioner are inadequate, not only because they are vague and insufficient in so far as they relate to the prejudicial activities of the petitioner, but also because they do not disclose why the detaining authority was satisfied about the necessity of passing the order of detention in order to prevent the petitioner from resorting to the alleged prejudicial activities.

(10) We must make it clear that it is not our view that in every case the Grounds and particulars supplied to a detenu must contain separate grounds and particulars of the twofold satisfaction of the detaining authority. In many cases the expected or anticipated prejudicial activities of a detenu may be such that the necessity of his detention is clear from the very nature of those activites. A person for instance may be detained because, according to the detaining authority, he was fomenting a railway strike, and it is obvious in such a case that the necessity of his detention can be inferred from the very nature of the prejudicial activity which was expected or anticipated by the detaining authority. In the present case, however, the Commissioner of Police had anticipated that the petitioner would commit certain types of ordinary offences, and no reason was furnished in the Grounds and particulars as to why the extra-ordinary remedy of preventive detention was resorted against him.

(11) We are accordingly of the view that the detention of the petitioner is in contravention of S. 7 (1) of the Preventive Detention Act and is violative of the petitioner's right under clause (5) of Article 22 of the Constitution. The impugned order of detention is, therefore, quashed. The petitioner be released forthwith. Rule made absolute.

(12) Rule made absolute.


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