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Mannava Venkayya and ors. Vs. Kanneganti China Punnaiah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ624
AppellantMannava Venkayya and ors.
RespondentKanneganti China Punnaiah
Excerpt:
.....deals precisely with a similar situation and provides limitations on the exercise of the power of preventive detention and safeguards for personal freedom which are absent from section 123, cr. the fact that imprisonment follows as the result of a failure or refusal to give security does not make it a punishment inflicted for a crime. chapter viii of the criminal procedure code deals with less important folk like vagrants, roughs and bad characters whose activities are not likely to be of so serious a character from the point of view of public safety or the maintenance of public order but who nevertheless indulge in antisocial activities in their own humble way in their neighbourhood or in a limited sphere. code, is part of the ordinary and well-established criminal procedure and has..........to his satisfaction by the evidence and after a full judicial enquiry.under ch. viii, cr. p. code, detention can be avoided by giving security while in preventive detention, there is no choice and there is a compulsory deprivation of freedom. the inquiry under ch. viii, cr. p. code, is held in open court; the charge has to be explained to the person proceeded against before the enquiry starts; the rules of evidence have to be followed; the person against whom proceedings are taken has a right to engage a pleader of his choice and cross-examine witnesses who depose against him; he has a right to lead evidence in rebuttal; arguments could be addressed on the evidence; and if an adverse order demanding security is made there is a right of appeal under section 406, cr. p. code, to the.....
Judgment:
ORDER

Viswanatha Sastri, J.

1. This is a petition for quashing the order of the Sub-Divisional Magistrate, Guntur, in M.C. No. 89 of 1955 passed under Section 112, Cr. P. Code, calling upon the petitioners to show cause why they should not be ordered to execute a bond for Rs. 500/- each with two securities for Rs. 500/- for keeping the peace for period of one year under Section 107, Cr, P. Code. It was urged that Sections 107, 112 and 123, Cr. P. Code had become void under Article 13 of the Constitution by reason of their repugnancy to Articles 22(4) to (7). The argument proceeded somewhat on the following lines : Section 107 Cr. P. Code enables a Magistrate, who has received information that a person within the local limits of his jurisdiction is likely to commit a breach of the peace or disturb the public tranquillity, to require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding One year as the Magistrate thinks fit.

Section 117 provides for an enquiry by the Magistrate into the truth of the information and Section 118 directs that if upon such enquiry, it is proved that it is necessary for maintaining the peace that the person concerned should execute a bond, with or without sureties, the Magistrate shall make an order accordingly. Section 123, Cr. P. Code provides that if any person ordered to give security under Section 118 does not give such security on or before the date on which the period for which the security is to be given commences, he shall be committed to prison until the expiry of such period or until security is given.

Detention in prison under Section 123, Cr. P. Code is not punitive detention by way of punishment following a conviction for an offence but is preventive detention imposed as a precautionary measure on default of furnishing security. No offence is proved, nor is any charge formulated and the justification for such detention is suspicion and not a conviction for any offence based on legal evidence. Article 22 of the Constitution deals precisely with a similar situation and provides limitations on the exercise of the power of preventive detention and safeguards for personal freedom which are absent from Section 123, Cr. P. Code. The absence in Ch. VIII of the Cr. P. Code of a provision corresponding to Article 22(4) of the Constitution which provides that no person could be detained for more than threw months unless an Advisory Board consisting of persons who are or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention, was a serious omission operating to the prejudice of the petitioners.

2. I am in agreement with the contention of the learned Advocate for the petitioners that detention in prison as a result of orders under Sections 107, 118 and 123, Cr. P. Code is a kind of preventive detention and a sort of precautionary measure and not a punitive detention. The fact that imprisonment follows as the result of a failure or refusal to give security does not make it a punishment inflicted for a crime. The reason for the imprisonment imposed under Section 123, just as in the case of detention under Preventive Detention Acts, is the maintenance of public safety or public peace, though other reasons might also justify an order of preventive detention. The fact that a person proceeded against under Sections 107, 117 and 123, Cr. P. Code could avoid imprisonment by security, if he chose, shows that the detention under Section 123 is precautionary and preventive and not punitive.

3. It does not, however, follow from this circumstance that Sections 107, 117 and 123, Cr. P. Code, are repugnant to Article 22 of the Constitution for, in my opinion, they deal with different situations and different classes of persons. Article 21 of the Constitution runs as follows:

No person shall be deprived of his life or personal liberty except according to procedure prescribed by law.

A person can be punitively detained after a trial for an offence and after his guilt has been established by the decision of a competent Court of Justice, if the law constituting the offence prescribes the penalty of imprisonment. An imprisonment of this kind is a deprivation of personal liberty according to law within the meaning of Article 21.

The confinement of an undertrial prisoner or the arrest and detention of a person by the police under Sections 54 - 57 and 151, Cr. P. Code, are not by way of punitive detention but such arrest and detention are also authorised by law within the meaning of Article 21. Article 21 does not guarantee the right to life and personal liberty as an absolute right but as a right liable to be abridged or qualified in accordance with the procedure prescribed by law, that is to say, by the exercise of their legislative power by Parliament and the States under Article 246 of the Constitution.

It is obvious that Article 22, Clauses (1) and (2) of the Constitution do not deal with the punitive detention following a conviction by a Court but lay down the minimum requirements which Parliamentary or State Legislation sanctioning the arrest and detention of a person not convicted of a crime should conform to. The safeguards provided in Articles 22(1) and (2) were to a large extent covered by the existing provisions of the Criminal Procedure Code but their incorporation in Article 22 of the Constitution, has the effect of making them inviolable by ordinary legislation. Construing Articles 22(1) and (2) in The State of Punjab v. Ajaib Singh : 1953CriLJ180 (A), the Supreme Court observed:

The language of Articles 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Articles 22(1) and (2) that it was designed to give protection against the act of the executive or other non-judicial authority.

4. Clauses (1) and (2) of Article 22 give a man who is arrested the right to be informed regarding the grounds of arrest, to consult and to be defended by a legal practitioner of his choice, to be produced before a Magistrate within 24 hours and to freedom from detention beyond that period except by order of the Magistrate.

These minimum safeguards have no application to the case of persons arrested and detained under any law providing for preventive detention. Article 22(4) to (7) form an exception to the general provisions enacted in Articles 22(1) and (2) and therefore have reference only to arrest and detention by an order of an executive authority. The preventive detention contemplated under Article 22(4) to (7) is not a detention made by an order of Court but detention as the result of an executive order made under an enactment authorising such detention,

5. A reference to Sections 107, 112, 117, 118, 121, 123, 124 and 125, Cr. P. Code, shows how radically different a proceeding and detention under these sections is from the preventive detention envisaged by Articles 22(4) to (7) of the Constitution. Preventive detention under Articles 22(4) to (7) is detention without an order of Court and without judicial enquiry, whereas an order under Sections 118 and 123, Cr. P. Code, has to be made by a Magistrate sitting as a Court of Law for sufficient reasons established to his satisfaction by the evidence and after a full judicial enquiry.

Under Ch. VIII, Cr. P. Code, detention can be avoided by giving security while in preventive detention, there is no choice and there is a compulsory deprivation of freedom. The inquiry under Ch. VIII, Cr. P. Code, is held in open Court; the charge has to be explained to the person proceeded against before the enquiry starts; the rules of evidence have to be followed; the person against whom proceedings are taken has a right to engage a pleader of his choice and cross-examine witnesses who depose against him; he has a right to lead evidence in rebuttal; arguments could be addressed on the evidence; and if an adverse order demanding security is made there is a right of appeal under Section 406, Cr. P. Code, to the High Court or Sessions Court and in the latter case, a revision also lies to the High Court where the correctness, legality or propriety of the Magistrate's order or the regularity of the proceedings before him could be challenged.

It is conceivable that a person against whom an adverse order is made under Section 118, Cr. P. Code, might bring it even before the Supreme Court in an appropriate case. Pending an appeal or revision, the execution of the order or sentence of imprisonment might be suspended at the discretion of the appellate or revisional Court.

Under Article 22(4) to (7) of the Constitution, detention precedes notice of the grounds of detention to the person effected; facts telling against the detenue which the detaining authority considers to be against the public interest to disclose, need not be communicated; the rules of the Evidence Act do not apply; tile detention might continue for three months without any inquiry and longer, if an Advisory Board reports that in its opinion there is sufficient cause for such detention; there is no right to adduce evidence in defence or to be represented by a legal practitioner, the only right being to 'make a representation against the order' of detention; and there is no right of appeal or revision. An order of preventive detention has to be 'reported upon', not adjudicated upon by an advisory Board which might consist of persons qualified under Article 217 of the Constitution to be appointed as Judges of the High Court, whereas an appeal or revision against order under Section 118, Cr. P. Code, is judicially decided by appellate or revisional Court.

It need hardly be emphasised that the right to make a representation to the detaining authority is (sic) far removed from a right to be heard by an independent judicial tribunal against the correctness, propriety or legality of a detention. A revision has to be heard by a sitting Judge of the High Court while an Advisory Board under Article 22 of the Constitution might consist of persons who are only qualified to be Judges, say, by ten years' practice at the Bar.

It follows from what has been said above that a person proceeded against under the provisions of Ch. VIII of the Cr. P. Code, has all the benefits of a normal criminal trial before a Court which are substantially denied to a person proceeded against under Article 22(4) to (7) of the Constitution. There is therefore no denial of equal protection of the laws to persons dealt with under Ch. VIII, Cr. P. C.

Far from this being the case, the procedural law confers on persons sought to be proceeded against under Ch. VIII, Cr. P. Code, substantial rights and advantages to which a person detained under preventive detention laws enacted under Article 22(4) to (7) of the Constitution is not entitled.

6. It is not without significance that while the Preventive Detention Act was almost the first target of attack on the ground of its unconstitutionality after the coming into force of the Constitution, A. K. Gopalan v. State of Madras : 1950CriLJ1383 , the provisions of Ch. VIII of the Cr. P. Code, were not challenged as unconstitutional till recently. The provisions of Article 22(4) to (7) must have been intended to apply to abnormal situations in the country and to dangerous groups of persons whose activities might endanger the defence of India, the security of a State, the maintenance of public order or the maintenance of supplies and service essential to the community.

Therefore an Advisory Board functioning in camera and riot bound to give a personal hearing to the defence or even to communicate to him information which it is considered to be against the public interest to disclose, is set up under Article 22(4) of the Constitution. Chapter VIII of the Criminal Procedure Code deals with less important folk like vagrants, roughs and bad characters whose activities are not likely to be of so serious a character from the point of view of public safety or the maintenance of public order but who nevertheless indulge in antisocial activities in their own humble way in their neighbourhood or in a limited sphere.

Chapter VIII deals with the four classes of persons, disturbers of public peace, vagrants, habitual offenders and bad characters and provides for taking security for their keeping the peace or maintaining good behaviour. Detention follows only if security is not furnished and could be avoided or terminated by furnishing security. Article 22(4) to (7) applies to cases where detention is compulsory and cannot be avoided by giving security.

7. I hold therefore that there is a rational basis of classification or differentiation between the persons dealt with under Ch. VIII of the Criminal P. C. and those dealt with under Preventive Detention laws and that the provisions of Ch. VIII of the Criminal P. C. and Article 22(4) to (7) of the Constitution apply to different situations and classes of persons.

The classification is not arbitrary but rests upon differentia having a rational relation to the purpose and object sought to be attained by the two sets of provisions. The guarantee against the equal protection of the laws merely means that there should be no discrimination between one person and another if, as regards the subject-matter of the legislation, their position is the same.

Chapter VIII of the Cr. P. Code is not repugnant to Article 22 of the Constitution. Nor is it discriminatory in character. I am further of the opinion that far from persons proceeded against under Ch. VIII, Cr. P. Code, being unfavourably discriminated against, they are given substantial procedural rights and advantages which the detenus under Preventive Detention laws do not have.

Chapter VIII, Cr. P. Code, is part of the ordinary and well-established criminal procedure and has for a long time been a part of the general law of Criminal Procedure in this country. It has its counter part in the vagrancy laws of other countries. In : 1950CriLJ1383 , referring to Articles 22(3) to (7) of the Constitution, Patanjali Sastri, J., said:

This sinister-looking feature, so strangely out of place in democratic constitution which invests personal liberty with the sacro-sanctity of a fundamental right and so incompatible with the promise of its preamble is doubtless designed to prevent an abuse of freedom by anti-social and subversive elements which might imperil the national welfare of the infant Republic.

8. The mischiefs which Ch. VIII, Cr. P. Code, were intended to prevent were neither so grave nor had they such far-reaching consequences as those which Preventive Detention laws were intended to avert.

Indeed, the primary purpose of the proceedings under Ch. VIII is to take security for keeping the peace or for good behaviour after a judicial inquiry while the primary object of Preventive Detention laws made in conformity with Article 22(4) to (7) of the Constitution is to imprison a person by executive action without judicial enquiry.

9. For these reasons, I dismiss the Criminal Miscellaneous Petition.


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