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Trimbak Shivrudra Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported inAIR1950Bom203; 1950CriLJ1372
AppellantTrimbak Shivrudra
RespondentThe State
Excerpt:
.....constitution the president is clothed with the power of issuing an order for the continuance of detention of & person who is already under preventive deten -tion and that as such an order has in fact been passed by the president, the contention must fail. article 392 (3) become non exercisable by the governor-general but the government of india aot of 1935 as well as the indian independence act of 1947, which provided for the appointment and functioning of the governor-general, stood repealed. clearly, therefore, the order which was published in the gazette of india could not have been made by the governor-general, at any rate on 26th january 1950. 7. after the order published in the gazette of india was brought to our notice in the course of arguments, the learned advocate-general..........the advisory board there contemplated is not required to be consulted before the expiration of the period of detention for three montha as is con. templated in sub-clause (a) of clause u) of article 22. finally, under the constitution, legislation pro-viding for preventive detention can be under, taken only by the parliament, whereas the public safety act was enacted by the former legislature of the central provinces and berar.15. the first question therefore ia whether this law has been preserved in its entirety by any provision in the constitution even though it ia partly inconsistent with article 22. the relevant provision is article 372 of the constitution, clause (1) of which provides as follows:notwithstanding the repeal by this constitution of the enactments referred to in article.....
Judgment:
ORDER

Hemeon, J.

1. This order will govern the decisions of Miscellaneous Criminal cases NoSection 18B, 209 and 229 of 1949 and 6 of 1960 also. In all these cases, orders in the nature of habeas corpus are sought Under Section 491, Criminal P. O. in respect of persons detained in different jails Under section a (1), Central Provinces and Berar Public Safety Act, 1948 (LXil [62] of 1948, by order of the former Provincial Government.

2. A preliminary point is raised before us to the effect that consequent on the inauguration of the Republic on 26th January 19J0, the Public Safety Act has become void as it is a law which is inconsistent with the provisions of Article 23 of the Constitution and that a writ of haleas corpus should be issued under Air. 226 of the Constitution in respect of each of the detenus.

3. On behalf of the State Government it is argued that under Article 373 of the Constitution the President is clothed with the power of issuing an order for the continuance of detention of & person who is already under preventive deten - tion and that as such an order has in fact been passed by the President, the contention must fail. In support of what he said the learned Advocate General produced a typed copy of the order which is purported to have been passed by the President on 26th January 1950

4. Shri Abhyankar, who very ably addressed the main argument on behalf of the detenus, pointed out that an order bearing the same number as the one relied on by. the Advocate. General and of the same date is published in the Gazette of India Extraordinary dated 26th January 19C0 and that it is shown as having been made by Shri 0. Rajagopalaehari, Governor-General. This, according to Shri Abhyankar, he could not do as he ceased to have any authority after midnight of 25th January I960. He readily conceded that under Clause 3 of Article 392 of the Constitution, the powers of the President to remove certain difficulties were exercisable by the Governor .General but, he pointed out, and quite rightly, that those powers had to be used before the commencement of the constitution. He also argued that the powers conferred on the President by Clause (1) of Article 392 did not enable him to pass the kind of order we have here.

5. Article 392 is in the following terms:

392. (1) The President may, for the purpose of removing any difficulties. particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as ma; be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:

Provided that no snob order shall be made after the first meeting of Parliament duly constituted under Chap. II of Part V;(2) Every order made under Clause (1) shall be laid fore Parliament;

(3) The powers conferred on the President by this article, by Article 334, by Clause (3) of Article 367 and by Article 391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India.

6. The powers conferred by this Article upon the President can be used only for the purpose of removing any difficulties during the transitional period. It does not appear that this Article confers upon the President any power to abridge any of the fundamental rights conferred upon a citizen of India under Part in of the Constitution. Again, cl, (3) of Article 392 enabled the Governor General to exercise only certain powers of the President, including those conferred by Clause (1) of this Article, but not including those conferred by Article 373. These powers, however, could be exercised by the Governor .General only before the commencement of the Constitution. Constitution Order No. 8 published in the Gazette of India Extraordinary under the signature of the Governor-General is dated 26th January 1950. By virtue of Article 894 the Constitution came into force on 26th January 1950. Thus, after the midnight of 26th January, not only did the power under. Article 392 (3) become non exercisable by the Governor-General but the Government of India Aot of 1935 as well as the Indian Independence Act of 1947, which provided for the appointment and functioning of the Governor-General, stood repealed. Clearly, therefore, the order which was published in the Gazette of India could not have been made by the Governor-General, at any rate on 26th January 1950.

7. After the order published in the Gazette of India was brought to our notice in the course of arguments, the learned Advocate-General requested time to ascertain from the State Government if any other order was passed in this regard. Time was given and the learned Advocate-General placed on record an order bear-ing the same number aa the one published in the Gazette of 26th January 1950 and of the same date but made under the signature of the President. He also showed us a covering letter from the Government of India in the Ministry of Law, addressed to the State Government, which is to the effect that there was an inaccuracy in the order published in the Gazette of India, that an 'errata slip' was being issued and that in the meanwhile a printed copy of the order actually passed was being forwarded to the Government of the State. Shri Abhyankar contends that we cannot take notice of this order because it does not bear any seal or authentication of the Government of India and that Under Section 81, Evidence Aot, we must presume that the order published in the Gazette of India is the genuine one,

8. Section 81, Evidence Aot, provides that Courts shall presume the genuineness of every document referred to therein. Official Gazettes are amongst the documents included in that section. It is therefore dear that we must raise an initial presumption that 0. 0. 8 which is published in the Gazette of India dated 26th January I960 is a genuine document. The presumption enacted by Section 81 is, however, a rebuttable one. That ia clear from the definition of the words 'shall presume' which ia given in Section 4, Evidence Act. According to that section:

Whenever it is directed by this Act that, the Court shall presume a fot, it shall regard such fact as proved, unless and until It is disproved.

9. The question then is whether we should regard the presumption as rebutted in this case. The printed copy of the order which is produced by the learned Advocate-General has all the appearances of an official Older. The inscription 'GIPD-L 878 M of L 3-2-6O-75O' at the bottom of the document shows that it has been printed in the Government of India PreBa. The covering letter accompanying it is signed by a Secretary to the Government of India who states that the the document enclosed by him is the correct order. The letter of the Government of India as well as the document accompanying it have been produced from proper custody as the learned Advocate-General has received them from the Government of the State. In the circumstances, we think that the presumption enacted by Section 81, Evidence Act, must be regarded as duly rebutted and the Gazette notification (showing the order as having been made by the Governor-General) aa not being a correct reproduction of of the original order.

10. The next question is whether the order of the President entitles the State Government to keep the detenus under detention after 26th January I960, It is argued, on the basis of ArtSection 13 (1), Si and 22 of the Constitution, that the Public Safety Act of 1948 is void and that the President has no authority even under Article 373 to order the continuance of the detention of persons who had hitherto been detained under that Act.

11. Article 18 (i) is in the following terms : 'All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Fart, shall, to the extent of such inconsistency, be void.'

It is said that the Public Safety Act is inconsistent with Acts. 21 and 22 and is, for that reason, void. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 sets out the procedure.

12. We think it desirable to reproduce the whole of Article 22 which runs thus

22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of guota arrest excluding the time necessary for the journey from the place ol arrest to the court of the Magistrate and no such person shall be detained in custody beyond the Said period without the authority of a Magistrate.

(3) Nothing in clauses (1) and (2) shall apply -

(a) to any person who for the time being is an enemy lien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise tbe detention of a person for ft longer period than three months unless -

(a) an Advisory Board consisting of persons who are, Ol have been, or are qualified to ba appointed as, Judge of a High Oourt, has reported before the expiration of be aaid period of three months that there is in its opinion euffieient cause lor snob detention ;

Provided that nothing in this sub-clause ahalf authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under subol. (b) of Clause (7); or(b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clause (a) and (b) of Clause (7).

(5) When any person is detained in pursuance of au order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in Clause (6) shall require the authority making any such order aB is referred to iu that clause to disclose facts which such authority considers to ba against the public interest to disclose.

(7) Parliament may by law prescribe -

(a) the circumstances under which, and the class on classes of oases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (ft) of Clause (4);

(b) the maximum period for which any person may in any class or classes of oases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under Sub-clause (ft) of Clause (4).

13. It is clear from this Article that a duty is cast upon tbe authority making the arrest of a person other thin the one referred to in Clause (3) to inform the arrested person of the grounds for such arrest and to allow him a right to oonsulb and to be defended by a legal practitioner, to produce him before the nearest Magistrate within twenty four hours of such arrest and not to detain him in custody beyond that period without authority from a Magistrate. The Article further provides that no person shall be detained in custody for a period longer than three months unless an Advisory Board has reported before the expiration of that period that there is in it opinion sufficient cause for such detention, or unless euoh person is detained in accordance with the provisions of any law made by Parliament under sub-els, (a) and (b) of Clause (7).

14. The powers conferred upon the Provincial Government by the Public Safety Act are, to some extent, much wider than those permitted by the Constitution. Thus, while a person can be detained for an indefinite period under the-Act, under the Constitution a maximum period for detention has to be prescribed by any law made by Parliament. Further, no obligation in cast upon the Provincial Government by the Aot to disclose the grounds on which the order of detention is passed unless an application ia made in this behalf by the detenu. Under the Constitution, the authority making the arrest is-required to take the initiative in this regard and communicate the grounds of detention to the detenu as soon as may be after the arrest. Then, again, there is no provision in the Aot for the production of the arrested person within twenty four hours before a Magistrate and his detention only after obtaining an order from the Magistrate in this regard. Thus there is a conflict with Clause (2) of Article 32. Further, though the Public Safety Act was amended in october 1948 with the object of bringing the oases of detenus for scrutiny before the Advisory Board, no action has been taken thereon and the provision has remained a dead letter. Also, the Advisory Board there contemplated is not required to be consulted before the expiration of the period of detention for three montha as is con. templated in Sub-clause (a) of Clause U) of Article 22. Finally, under the Constitution, legislation pro-viding for preventive detention can be under, taken only by the Parliament, whereas the Public Safety Act was enacted by the former Legislature of the Central Provinces and Berar.

15. The first question therefore ia whether this law has been preserved in its entirety by any provision in the Constitution even though it ia partly inconsistent with Article 22. The relevant provision is Article 372 of the Constitution, Clause (1) of which provides as follows:

Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions ol this Constitution, all the law in force in the territory of India immediately before the of thin Constitution shall contiuue in force therein until altered or repealed or amended by a, competent Legislature or other competent authority.

Explanation l to Article 372 defines the expression 'law in force' thus:

The expression 'law in force' in this Article shall include a law passed or made by a Legislature or other competent authority in the territory of India before be of the Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Reading these together, it is clear that all the law in force in the territory of India made by an authority which was then competent to make it will continue in force notwithstanding the repeal of the Government of India Act, 1986 and other enaotmenta hut subject to the other provisions of this Constitution, Article 22 is one of such provisions and therefore the Public. Safety Act, in so far as it is inconsistent with that provision cannot be deemed to have been preserved by Article 372 (1).

16. The learned Advocate General refers ua to Clause of Article 372 which is in the following terms;

For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by nay of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified In the order, have effect subject to the adaptations and modi- fications so made, and any such adaptation or modification shall not be questioned in any Court of law.

No doubt, this clause empowers the President to make such adaptations and modifications of any law as may be necessary or expedient and1 provides that thereafter that law will have effect subject to the adaptations and modifications so made. It is also true that such adaptations or modifications cannot be questioned in any Court of law. But here we do not find any adaptations or modifications of Central Provinces and Berar Public Safety Act, 1948. What the President has done is to exercise under Article 373 the-powers of Parliament conferred by Arif, 32 (7) of the Constitution. This, in our view, is not the same thing as exercising any power under Clause (2) of Article 372. We therefore cannot accept the argument of the learned Advocate-General,

17. Coming now to Article 873 and Clause (7) of Article 22, we find that before provision ig made by Parliament under Clause (7) of Art 22 (or before the expiration of one year from the commencement of the Constitution, whichever is earlier), the President can himself make an order prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of the Advisory Board. Thus, the power ordinarily exercisable by Parliament can at the present moment be exercised by the President, Sub-clause (a) of Clause (7) assumes the existence of any law providing for preventive detention and entitles the Parliament and, a fortiori the President, to prescribe the various things contemplated in that clause. It is therefore argued that the words 'any law' must mean a 'law in force' and that the Public Safety Act being to some extent inconsistent with Article 22 of the Constitution, cannot be regarded aa 'any law' for the purposes of Clause (7).

18. To meet this argument, it was argued by the learned Advocate-General that the powers Conferred by Article 373 on the President are wider than those conferred on Parliament by Clause (7) of Article 22 of the Constitution and that therefore' he can order the continuance of the detention of a person even in a case which is not covered by this clause.

19. We are unable to accept the argument for several reasons. For one thing, what Article 878 in effect provides is that for the word 'Parliament' occurring in clauses (4) and (7) of Article 22, one must read the word ''President' during a certain period. The result of this is to enable the President to exercise the powers conferred by these clauses on the Parliament, but no-more.

20. Then, again, had the Constituent Assembly intended to confer on the President powers more extensive than those conferred on Parliament. Article 873 or some other provision would have made that clear beyond doubt. Article 373 is not susceptible of the construction which the learned Advocate-General would have us accept and no other provision was referred to us, nor could we find one, which would justify our taking, what appears to us, the extraordinary -view that the President while exercising the powers of Parliament is not governed by the limitation placed by the Constitution on the powers of Parliament itself.

21. Finally, we may point out that the opening words of the Order in question make it clear beyond doubt that the President purported to exercise and in fact exercised the powers conferred on Parliament and not any extraordinary powers. These reasons should, we think, Buffice to negative the argument put forward by the learned Advocate-General.

22. There is, however, in our view, a satisfactory answer to the ingenuous argument advanced before us on behalf of the detenu. We have already pointed out that reading ArtSection 13 (1), 21, 22 and 872 (1) together, only those provisions of the Public Safety Act, which are inconsistent with the provisions of Part m have now become void. It follows therefore, that those provisions which are not inconsistent with the Constitution are not void.

23. The provision which enables the Provincial Government (now the State Government) to detain a person is Section 2 (1)(a), Public Safety Act. It is as follows:

The Provincial Government it satisfied that any person is acting or is likely to act in a manner prejudicial to the public safety, order or tranquillity, or ia fomenting of inditing strikes with intent to cause or prolong unrest among any group or groups of employees may, if it considers such order necessary, make an order:(a) directing that he be detained ....

24. Article 22 of the Constitution contemplates and permits the preventive detention of a person, though, subject to certain conditions. Therefore, Section 2 (1)(a), in so far as it provides for the detention of certain classes of porous, is not rendered void by the Constitution. What is rendered void, however, is the implied provision conferring a power to detain a person for an indefinite period because Sub-clause (b) of Clause (7) of Article 22 requires a maximum period to be fixed by the law governing preventive detention.

25. The power to detain a person and the power to detain a person for an indefinite period ate distinct and therefore, in oar view, the provi- sion conferring the former is not rendered void merely because the provision conferring the latter is void. As a consequence of the coming into force of the Constitution, what has happened is that the power to detain a person will be thenceforth automatically subjected to the restrictions and limitations imposed by the Constitution. But the power to order the detention of a person still remains.

26. Looking at the matter thus, we are of the view that Section 2 (1)(a), being still extant, is 'any law' within the meaning of the expression used in Sub-clause (a) of Clause (7) of Article 93. By virtue of the powers conferred upon the President; by Article 37S, he can, by order, prescribe 'the circumstances under which, and the claaa or classes of oases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4).'

27. The relevant portion of the order which the President has made is as follows:

(2) Where in any class of cases or under any circumstances specified in any law providing for preventive detention In force at the commencement of the constitution of India (hereinafter referred to as 'the Constitution') any person was, immediately before Booh commencement, or is at any time thereafter, in detention in pursuance of an order made under such law, such person may be detained for a paiiod longer than three months under such law without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4) of Article 22 of the constitution.

(3) The maximum period for which any such person, as is referred to in para. 2, may be detained, shall, in the case of a person in detention immediately before the commencement of the Constitution, be three months from suoh commencement, and in the case of a person detained in pursuance of an order made after euoh commencement, be three months from the date of such order.

28. Prom a comparison of the order with the provisions of the relevant clause, it is obvious that it provides for the various matters referred to in the sub-clause. The maximum period of detention for a person who is already detained is three months from 26th January 1950. The State Government are there-fore entitled to keep the detenus, on whose behalf the preliminary point has been raised, ia detention till 26th April i960. The preliminary objection, accordingly, fails. The applications will now be heard on merits on a date to be fixed in the office.


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