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Madarametla Sitaramaiah Vs. Government of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1317 of 1965
Judge
Reported inAIR1967AP66
ActsDefence of India Rules, 1962 - Rules 9, 30(1) and 30A(2)
AppellantMadarametla Sitaramaiah
RespondentGovernment of Andhra Pradesh
Appellant AdvocateP. Ramachandra Rao, Adv.
Respondent AdvocateAdvocate-General
Excerpt:
.....decide later whether detention should continue or not - effective order of detention was served at time of arrest and review order was served subsequently - held, no illegality found with detention. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the..........validity of the order..................' * * * * it has not been contended before us that, at the time of arrest, g. o. ms. no. 1645, dated 28-12-1964 was not served on the petitioner. both sides argued on the basis that a copy of that order was served on the petitioner at the time of arrest. beyond doubt or dispute, a copy of g. o. ms. no. 1220, dated 15-6-1965 was not served on the petitioner at the time was not served on the petitioner at the time of arrest. in his affidavit, the petitioner has contended, on the basis of this failure to serve the review order at the time of arrest, that the review order was not passed at all by the date of arrest. the chief secretary has averred in his counter-affidavit that g. o. ms. no. 1220 was passed on the date it bears, viz., 15-6-1965. we see.....
Judgment:

Anantanarayana Ayyar, J.

(1) The petitioner, M. Sitaramiah, filed this petition under Art. 226 of the Constitution praying for issue of directions, orders or a writ in the nature of Habeas Corpus or any other appropriate writ for his release.

(2) On 28-12-1964, the Government of Andhra Pradesh passed G. O. Ms. Nos. 1645 and 1646 General Administration (SCD) Department as follows:-

'........................................................ Now, therefore, in exercise of the powers conferred by sub-r, 1 of R. 30 of the Defence of India Act 1962, the Government of Andhra Pradesh hereby directs that M. Sitaramiah be detained in the Central Jail, Rajahmundry'.

Subsequently, the Government passed G. O. Ms. No. 1220 dated 15-6-1965 as follows:-

'........................................................Now, therefore, in exercise of the powers conferred by sub-rule 9 of Rule 30-B of the Defence of India Act and Rules 1962 the Government of Andhra Pradesh hereby decides that the said detention order shall be continued'.

(3) On 2-7-1965, the petitioner was arrested. At that time, a copy of G. O. Ms. No. 1220, dated 15-6-1965 was not served on him. But later on 10-7-1965, when he was under detention in Central Jail, Rajahmundry, a copy of this G. O. was served on him.

(4) The petitioner has raised various contentions in his petition. On behalf of the sole respondent, namely, the Government of Andhra Pradesh, the Chief Secretary filed a counter affidavit denying the various allegations made in the petition other than the facts which we have mentioned above. We shall deal with the relevant averments of the affidavit and the counter-affidavit when dealing with the various contentions, if necessary.

(5) The most important contention and the only one which has been actually urged and argued before us is that the detention is unlawful because a copy of G. O. Ms. No. 1220, dated 15-6-1965 was not served on the petitioner at the time of his arrest.

(5A) Rule 30 of the Defence of India Rules, 1962 runs as follows:-

'The Central Government or the State Government, if it is satisfied with respect to any particular person.......................may make an order-

(b) directing that he be detained;

* * * *

(6-A) An order under Cl. (b) of sub-r. (1) may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1898'.

Sub-rule (2) of R. 30-A runs thus:-

'Every detention order shall be reviewed in accordance with the provisions hereinafter contained.'

Sub-rule (9) of R. 30-A runs thus:-

'Every detention order made by the Central Government or the State Government shall be reviewed at intervals of not more than six months by the Government who made the order and upon such review that Government shall decide whether the order should be continued or cancelled'.

Rule 141 of the Defence of India Rules, 1962 runs thus:-

(1) 'Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in pursuance of any of these Rules shall,......in the case of an order affecting an individual person (not being a corporation or firm) serve or cause the order to be served on that person-

(1) personally, by delivering or tendering to him the order, or

* * * *

(2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with sub-r. (1).

* * * *

(ii) shall not affect the validity of the order..................'

* * * *

It has not been contended before us that, at the time of arrest, G. O. Ms. No. 1645, dated 28-12-1964 was not served on the petitioner. Both sides argued on the basis that a copy of that order was served on the petitioner at the time of arrest. Beyond doubt or dispute, a copy of G. O. Ms. No. 1220, dated 15-6-1965 was not served on the petitioner at the time was not served on the petitioner at the time of arrest. In his affidavit, the petitioner has contended, on the basis of this failure to serve the review order at the time of arrest, that the review order was not passed at all by the date of arrest. The Chief Secretary has averred in his counter-affidavit that G. O. Ms. No. 1220 was passed on the date it bears, viz., 15-6-1965. We see no reason to disbelieve the statement. We can accept it.

(6) The further contention of the learned Counsel for the petitioner is that failure to serve notice at the time of arrest has rendered the detention invalid and that the petitioner can no longer be continued in detention and that he has to be released.

(7) In Mohammad Afzal Khan v. State of J. and k., : 1957CriLJ320 , it was observed by the Supreme Court as follows (at p. 175):-

'We see no warrant for the contention that this decision of the Government must be communicated to the detenu. It has not been shown how the communication of this decision would have been beneficial to the detenu. Indeed in the case of Achhar Singh v. State of Punjab, Petn.No. 359 of 1951 (SC), this Court has expressed the opinion that the omission to convey the order made under S. 11 of the Indian Preventive Detention Act does not make the detention illegal or result in infringement of the petitioner's fundamental right. If that be the position under S. 11 of the Indian Preventive Detention Act, which provides for the making of a formal order all the more must the position be the same under S. 14 of the Jammu and Kashmir Preventive Detention Act, which does not in terms require any formal order to be made.'

(8) In Nandan Singh v. State of U. P., : AIR1964All327 , it was observed as follows (at p. 328):-

'There is no provision of law directing the State Government to communicate the result of such review to the detenu and, therefore, it cannot be said that on the mere ground that no specific information of the review...........was communicated to the applicant, his detention became illegal but it is definitely advisable that the result of such review should be communicated to the detenu because he is vitally interested in that order so that he may know his case is being reviewed according to law'.

(9) In Biren Dutta v. Chief Commr. of Tripura, : 1965CriLJ501 , it was observed as follows (at p. 600):-

'.........we would like to emphasise that even assuming that the decision recorded by the appropriate authority under R. 30-A (8) is not, as a matter of law, required to be communicated to the detenu, it is desirable and it would be fair and just that such a decision should in every case be communicated to the detenu. If the appropriate authority considers the question about the continuance of the detention of a particular detenu and decide that such continuance is justified, we see no justification for failing to communicate the said decision to the detenu concerned. If the requirement as to such communication were held to be necessary as a matter of law, non-communication would render the continuance of the detention invalid; but that is a matter which we are not deciding in these cases we are only emphasising the fact that it would be fair that such a decision should be communicated to the detenu'.

(10) In this case, the review order was passed even before the petitioner was arrested on 2-7-1965 and it was communicated to him on 9-7-1965, the communication was made only some days after he had been arrested and on 2-7-1965. Rule 30 (1) (b) gives power to the State Government to make an order that a person be detained without making it necessary to fix any period of detention and without fixing any limit to the period for which a person may be detained. Rule 30-A as well as sub-r, 6-A of R. 30 were introduced by an amendment in 1962. Under sub-rr, 2 and 9 of R. 30-A, the State Government while reviewing its own order of detention has to decide whether the original detention order should be continued or cancelled. When the Government, in exercise of those powers, decided that the original detention order should be continued in effect, it was the original detention order which continued to have effect, and which was the basis and authority for the detention of the petitioner irrespective of the fact that the period of six months has already elapsed from the date of the original detention order. It is not as if the original detention order, though it had not mentioned any period of detention and though it was not bound to mention a period of detention, was valid only for six months and ceased to have effect and as if another order, viz., review order subsequently came into effect as a fresh and sole independent basis for a fresh period of detention. Consequently, in view of the review order G. O. Ms. No. 1220, dated 15-6-1965 which the Government had passed in time, i.e., within a period of six months after the passing of the detention order, dated 28-12-1964, the latter order, dated 28-12-1964 was the effective detention order and was the order under which the petitioner could be arrested on 2-7-1965 and kept in detention subsequently. As observed in : AIR1964All327 , the petitioner had a right to know whether the order of detention actually continued to be in force by virtue of a review order and it is advisable that the order of review should be served on him. In any case, after the communication was made on 9-7-1965, it is not open to the petitioner to contend that his continuance in detention after that date is being done without the order being served on him.

(11) In : 1965CriLJ501 , their Lordships of the Supreme Court also observed as follows (at p. 598):-

'.........it also appears to us to be unnecessary to decide in the present group of R. 30-A (8) should be communicated to the detenu. We are satisfied that the decision to continue the detention of the detenue which it is urged on behalf of the respondent, was reached by him under R. 30-A (8), has not been recorded in writing as required by the said Rule; and there is no other evidence on record to show that such a decision had then been reached and reduced to writing. It will be recalled that, in the present proceedings, it is common ground between the parties that there has to be an order in writing indicating the decision of the appropriate authority reached by him after review the case of the detenu that the continuance of his decision should be ordered............'

In the present case, beyond doubt or dispute an order under R. 30-A namely, G. O. Ms. No. 1220, dated 15-6-1965 was passed and served on the petitioner after his arrest.

(12) Sri P. Ramachandra Rao, the learned counsel for the petitioner, has relied upon the decision in L. M. Wakhare v. Emperor, AIR 1945 Nag 159, where it was held that an omission to observe R. 119 makes detention of the petitioner under R. 26 of the Defence of India Rules illegal. That decision is not applicable to this case as, on facts, we have held that, in the present case, service of the effective order of detention, dated 28-12-1964 was made on the petitioner at the time of his arrest, that the review order was served on the petitioner subsequently and that it is sufficient to justify the continuance of detention of the petitioner.

(13) Some other contentions were raised in the affidavit of the petitioner but they were not actually urged and argued before us because every one of those contentions had been substantially considered and held to be untenable in earlier decisions of this Court which are binding on us.

(14) We find that none of the contentions urged in this petition is tenable. We, therefore, dismiss this petition.

(15) Petition dismissed.


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