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Balkrishna Kashinath Khopkar Vs. the District Magistrate - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Criminal Application No. 287 of 1956
Judge
Reported in(1956)58BOMLR614
AppellantBalkrishna Kashinath Khopkar
RespondentThe District Magistrate
Excerpt:
.....act (iv of 1950), section 7-constitution of india, article 22(5) and (6)- furnishing of grounds to detenu-facts which detaining authority considers irrelevant, superfluous or unnecessary and therefore refuses to disclose these-such non-disclosure whether renders grounds disclosed vague-detaining authority by general averment in order of detention stating that facts not disclosed, not disclosed as being against public interest-detenu challenging order on ground that he was prevented from making effective representation in absence of specific facts not disclosed- detaining authority in such case required to make affidavit dealing with each fact and claiming privilege in respect of it.; when the detaining authority wishes to make an order of detention under the preventive detention act,..........of particulars has been expressly made subject to sub-clause (6) and sub-cl, (6) permits the detaining authority to hold back any facts, which in its opinion, are against the public interest to disclose. it is true that sub-clause (6) may constitute a rather serious inroad upon the constitutional safeguard afforded to the detenu under sub-section (5) and it may be that it may not be possible to the detenu to make an effective representation, if with regard to certain material facts, a privilege is claimed. but as a privilege can only be claimed in public interest, the constitution has placed public interest above the private interest even though the private interest may mean the liberty of the citizen. it is, therefore, necessary to emphasize the fact that the detaining authority.....
Judgment:

M.C. Chagla, C.J.

1. This is a petition by a person detained under the Preventive Detention Act and the ground on which the order of detention is challenged is that the grounds furnished to the detenu are vague.

2. Now, before we consider the merits of the petition, it is necessary to lay down what the correct position in law is with regard to the furnishing of grounds to the detenu under the Preventive Detention Act, Section 7 of the Act provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than 5 days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government, and Section 7(2) provides that nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.

3. Now, this section, as will be noticed, practically reproduces the provisions of Article 22(5) and (6) of the Constitution. It is now well settled that Article 22(5) affords to the detenu two important constitutional safe-guarda-(1) to be furnished the grounds on which the detention order has been made and (2) to give him an opportunity to make an effective representation against the order of detention. It is also now well settled that in order that the detenu should be in a position to make an effective representation, the ground must be furnished to him with as full and adequate particulars as the circumstances permit. But the furnishing of particulars has been expressly made subject to Sub-Clause (6) and sub-cl, (6) permits the detaining authority to hold back any facts, which in its opinion, are against the public interest to disclose. It is true that Sub-Clause (6) may constitute a rather serious inroad upon the constitutional safeguard afforded to the detenu under Sub-section (5) and it may be that it may not be possible to the detenu to make an effective representation, if with regard to certain material facts, a privilege is claimed. But as a privilege can only be claimed in public interest, the Constitution has placed public interest above the private interest even though the private interest may mean the liberty of the citizen. It is, therefore, necessary to emphasize the fact that the detaining authority must act with a sense of responsibility when it claims a privilege under Sub-section (6) of Article 22. As we envisage the position, when the detaining authority wishes to make an order of detention and has the grounds before it which lead to its satisfaction required by the Act, it must at that stage consider which facts should not be disclosed to the detenu by reason of the fact that it would be against public interest to disclose those facts. Having excepted certain facts, with regard to the remaining facts it would again be for the detaining authority to decide whether to disclose all the facts or some of the facts. The detaining authority may take the view that some facts are irrelevant or they are superfluous or they are unnecessary. But in refusing to disclose these facts, the detaining authority takes the risk of its order being successfully challenged on the ground that some of the grounds disclosed are vague.

4. Now, in our opinion, it is not sufficient for the detaining authority to satisfy the Court that a privilege has been claimed with regard to all facts not disclosed by some omnibus averment in the order that other facts than those disclosed have not been disclosed because they are against public interest. If in the petition challenging the order the detenu makes a grievance of the fact that certain specific facts have not been disclosed which has prevented him from making an effective representation, it is incumbent upon the detaining authority to make an affidavit and to deal with each of these facts and to say that a privilege is claimed with regard to these facts. The Court must be in a position to judge that privilege has been bona fide claimed with regard to any particulars, the failure to disclose which has led to the prejudice of the detenu.

5. Now, turning to the authorities, we have first State of Bombay v. Atma Ram Sridhar Vaidya : 1951CriLJ373 which is really the starting point of all discussion with regard to detention orders.

6. At p. 182, the learned Chief Justice points out that the detaining authority is given a special privilege in respect of the facts which are considered not desirable to be disclosed in public interest. As regards the rest, their duty is to disclose facts so as to give the detained person the earliest opportunity to make a representation against the order of detention, and at p. 184 the learned Chief Justice discusses as to what is meant by 'vague', and in his opinion it is the antonym of 'definite', and the learned Chief Justice says:.If the ground which is supplied is incapable of being understood or denned with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case.

Then comes the passage on which the Advocate General has strongly relied: (p. 184)

It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case.

Now, we will, with respect to those observations, say that ordinarily a ground is not a proper ground and is a vague ground if the only answer that thedetenue can give is a bald denial. There may be cases, extra-ordinary cases or cases depending on peculiar facts where the Court may take the view that even a ground which could only be answered by a bald denial is a sufficient and adequate ground, and the learned Chief Justice himself goes on to say that if on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague, and at p. 188 the learned Chief Justice further clarifies the matter by saying that under the circumstances it is but right to emphasize 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. Therefore there is an obligation upon the detaining authority to furnish particulars with regard to the grounds on which the order is made, which are full and adequate and to the extent that they are not full and adequate, this can only be justified provided a privilege is claimed by the detaining authority with regard to those particulars which have not been disclosed.

7. Then we come to the later judgment of the Supreme Court which is reported in Ujagar Singh v. The State of Punjab : [1952]1SCR756 and the view there taken by Mr. Justice Chandrasekhara Aiyar following upon the ruling of Vaidya's case is (p. 763) :-.that mere Vagueness of grounds standing by itself and without leading to an inference of mala fides or lack of good faith is not a justiciable issue in a court of law for the necessity of making the order, inasmuch as the ground or grounds on which the order of detention was made is a matter for the subjective satisfaction of the Government or of the detaining authority.

Now, with very great respect, we do not read Vaidya's case as laying down that vagueness of ground is not a justiciable issue and this is made clear by a subsequent decision of the Supreme Court in. Dr. Ram Krishan Bhardwaj v. The State of Delhi : 1953CriLJ1241 . There the Supreme Court not only held that the question of vagueness of a ground was justiciable but went further and also held that if one of the several grounds furnished to the detenu is vague, then notwithstanding the fact that other grounds are definite and precise, the order of detention could not be sustained, and this decision was arrived at on the principle that the detenu had a statutory safeguard with regard to each ground, and if he could not make an effective representation with regard to each ground, then the statutory safeguard given to him by Article 22(5) was denied to him. But it may be pointed out that even in Bhardwaj's case, the learned Chief Justice emphasizes the fact that the right under Article 22(5) is subject to the claim of privilege under Sub-Clause (6) and at p. 713, the learned Chief Justice says:.In this case, the petitioner has the right, under Article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention 'sufficient to enable him to make a representation which on being considered may give relief to him.' We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under Clause (6) of Article 22.

Now, applying these principles to the facts before us, the first ground which is furnished to the detenu is:

Since May 1955 you have at secret and open meetings been inciting and instigating workers of Mills and other Industries in Thana and adjoining villages to resort to intimidation and violence against officials of the Mills and industries and workers who would not act according to your instructions. As a direct result of incitement and instigation by you there were several cases of intimidation and violence indulged in by the aforesaid workers in Thana and adjoining villages. Some of these cases are described below.

Then we have the instances of the result of incitement. But it will be noticed that no further particulars are given of this ground than what is already stated. Prima facie the ground is vague. In the first place although the order is made on February 6, 1956, no particular time of the activities of the detenu is mentioned and all that he is told is that between May 1955 and February 1956 he has been carrying on these activities. Then he is told that he has been inciting and instigating workmen to resort to intimidation and violence and this incitement, according to the detaining authority, has taken place at secret and open meetings. Now, whatever may be the position with regard to secret meetings, it is indeed surprising that if the detenu carried on this prejudicial activity at open meetings, which we understand to mean public meetings, no particulars with regard to these meetings should have been given at all. If there were public meetings, they must have been held somewhere, they must have been held some time, they must have been attended by some people. But nothing whatever is mentioned except the fact that at these public meetings apart from secret meetings, instigation was made by the detenu.

8. Now, how could it possibly be said with regard to these meetings that the particulars given are as full and as adequate as circumstances would permit. 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 the detaining authority furnishing the detenu with those particulars. The Advocate General realised that the ground furnished is not sufficiently specific or precise and therefore he falls back upon what is stated in the ground that it is not in the public interest to disclose any further facts. Now in the petition, the petitioner has specifically contended that the grounds are vague with the result that it was not possible for the petitioner to make an effective representation against his detention and he goes on to say that

in the ground (a) he is not told when and where the alleged secret and open meetings took place. He is not told which workers did he instigate. There are a number of mills and industries in Thana and adjoining villages and it is difficult to understand which workers does the respondent No. 1 want to refer. Even the incidents mentioned therein lack in material particulars.

The District Magistrate, in the affidavit he has made, states:

The allegations made in para. D-4 are denied. The grounds supplied to the petitioner are specific. Relevant particulars of the same are given in sub-paras, (i) and (ii) to para (a) of the said grounds.

Now, this denial is very significant. What is denied is the grievance of the petitioner that the ground is vague. The District Magistrate does not say and indeed he cannot say that all the particulars with regard to which the complaint is made had not been furnished to the detenu because it would be against public interest to disclose those facts. If the District Magistrate had said so, the matter would have stood entirely on a different footing. But in the absence of a claim of privilege, it is for the Court to consider whether the ground furnished is a definite and precise ground or a ground which is vitiated by its vagueness. This affidavit was made on March 24, 1956, and perhaps realising that this affidavit may not achieve the result which it was expected to achieve, an additional affidavit was made by the same gentleman on March 31, 1956, and that affidavit is notable for its brevity and the affidavit is:

I.H.A. Khan, B.A. (Hons.), District Magistrate, Thana, state on solemn affirmation that the following be added to my affidavit dated 24th March 1956, which has been omitted through oversight by the Typist:-

It was and is not in public interest to disclose any further facts.

This is exactly what the District Magistrate had stated in his order. What the District Magistrate was called upon to meet was specifically the averment with regard to failure to supply specific particulars and privilege should have been claimed with regard to those specific particulars. This statement in the affidavit is as bald and as unmeaning as it is in the order itself.

9. We should have expected the District Magistrate either to have applied his mind to the grievance of the petitioner and state that each one of the particulars required by the petitioner was denied to him in public interest or he should have frankly admitted that some of the particulars could not be denied to him in public interest but for other reasons, those particulars were not supplied. But this general, unspecific and bald averment of public interest is not what the Constitution or the law requires. Although the question of public interest is not justiciable and although the Constitution and the Act has left it to the detaining authority to decide what facts should be withheld, the Court must at least be satisfied that the authority has applied its mind and has come to the conclusion with regard to public interest bona fide and not arbitrarily or capriciously. It is because of this that we expect a proper affidavit to be filed by the detaining authority whenever a ground is challenged as being vague.

10. Under the circumstances, we are of the opinion that this order cannot be sustained.

11. The result is that the detenu is entitled to be set free and we direct that he should be released forthwith. Government to pay the costs.


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