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Moturu Hanumantha Rao Vs. Government of Andhra Pradesh, Represented by the Chief Secretary, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Misc. Petn. No. 866 of 1965
Judge
Reported inAIR1966AP229; 1966CriLJ871
ActsConstitution of India - Articles 22 and 359; Defence of India Act, 1962 - Sections 44; Defence of India Rules, 1962 - Rule 30(4)
AppellantMoturu Hanumantha Rao
RespondentGovernment of Andhra Pradesh, Represented by the Chief Secretary, Hyderabad
Appellant AdvocateParty in person
Respondent AdvocateAdv. General
DispositionPetition dismissed
Excerpt:
.....- articles 359 and 22 of constitution of india and rules 30 (1) (b) and 30 (4) of defence of india rules, 1962 - government detained petitioner under rule 30 (1) (b) - petitioner claimed family allowance - claim rejected by government - detaining authority awards family allowance to dependants of detunes in fitting cases to avoid hardship - detunes cannot claim allowance as matter of right - held, high court cannot pass order directing award of allowance. (ii) subjective satisfaction - section 44 of defence of india act, 1962 and rule 30 of defence of india rules, 1962 - state government can validly act under rule 30 by independent consideration of material available before it - held, satisfaction required under rule 30 was subjective satisfaction of detaining authority. - - ..........now, therefore, in exercise of the powers conferred by sub-rule (1) of r. 30 of the defence of india rules. 1962 the governor of andhra pradesh hereby directs that the said moturi hanumantha rao he detained.' on the same date, the government also passed g. o. ms. no. 1402 in which they stated as follows:-' ......................................... he shall be placed in the 'special class'. he shall also be subject, as far as may be, to the conditions laid down in the andhra security prisoner's rules, 1954, notified in g. o. ms. no. 1537, home (central-b) department, dated 26-8-1954 except rules 21, 24 and 28 thereof.'2. the petitioner filed a petition dated 10-2-1965 for family allowance. the government of andhra pradesh passed an order dated 12-4-1965 rejecting that petition. the.....
Judgment:

Anantanaratana Attar, J.

1. The petitioner is Shri Moturi Hanumantha Rao. The Government of Andhra Pradesh passed G. O. Ms. No 1401, dated 28-12-1964 as follows:

'Whereas the Government of Andhra Pradesh are satisfied with respect to the person known as Sree Mottiri Hanumantha Rao, son of Lakshmi narayana, that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence and the efficient conduct of military operations, it is necessary to make the following order:- Now, therefore, in exercise of the powers conferred by Sub-rule (1) of R. 30 of the Defence of India Rules. 1962 the Governor of Andhra Pradesh hereby directs that the said Moturi Hanumantha Rao he detained.'

On the same date, the Government also passed G. O. Ms. No. 1402 in which they stated as follows:-

' ......................................... He shall be placed in the 'special class'. He shall also be subject, as far as may be, to the conditions laid down in the Andhra Security Prisoner's Rules, 1954, notified in G. O. Ms. No. 1537, Home (Central-B) Department, dated 26-8-1954 except Rules 21, 24 and 28 thereof.'

2. The petitioner filed a petition dated 10-2-1965 for family allowance. The Government of Andhra Pradesh passed an order dated 12-4-1965 rejecting that petition. The petitioner filed this petition under Article 226 of the Constitution for directions, orders or writs in the nature of Habeas Corpus, Mandamus or any other writ (1) for his release and (2) for providing for family maintenance allowance since the date of his arrest and detention. In his affidavit filed in support of the petition, he raised various contentions.

3. The sole respondent is the Government of Andhra Pradesh, represented by the Chief Secretary. The Respondent filed counter-affidavit dated 28-6-1965 signed by the Chief Secretary denying the various allegations in the petition. The petitioner filed an additional affidavit dated 9-8-1965. The petitioner was not represented by an Advocate. He chose to argue his case himself. He did so with force, precision, ability and dignity.

4. We are dealing below with the contentions actually urged before us. Under each contention, we refer to the relevant allegations in the petitioner's affidavit and those in the counter affidavit, wherever necessary.

5. The petitioner has contended that the action of the Government in passing G. O. Ms. No. 1402 wherein he was denied the right to legal advice is illegal. Though G. O. Ms. No 1537 dated 26-8-1954 is mentioned in G. O. Ms. No. 1402, that G. O. Ms. No. 1537 had been superseded by G.O. Ms. No. 1190 dated 28-10 1964. Both sides are agreed that G. O. Ms. No 1190 applies to the case & they relied on various provisions in that G. O. The provisions in G. O. Ms. No. 1190 regarding legal advice is contained in clause 26 which is substantially similar to the corresponding clause of G. O. Ms. No. 1537 which was referred to in G. O. Ms. No. 1402 relating to the petitioner.

6. Article 22 of the Constitution runs as follows:

'(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 denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) ......

(3) Nothing in Clause (1) and (2) shall apply....

(a) . ......

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

7. The petitioner is detained under Rule 30(1)(b) of the Defence of India Rules which is law providing for preventive detention. There is a Proclamation by the President dated 26-10-1962, declaring that a grave emergency existed. On 3-11-1962, the President issued an order under Article 359(1) of the Constitution suspending the rights conferred by Articles 21 and 22 of the Constitution for the period during which the Proclamation of Emergency would be in force.

8. Sri Hanumantha Rao contends that there was no real emergency. The Proclamation of existence of emergency issued by the President, in exercise of his powers under me Constitution, is in force and is not open to challenge. The Proclamation of Emergency and the Presidential Order as also the Defence of India Act have all been referred to in para 2 of the Judgment of the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 . Their Lordships held that the challenge to the validity of the Presidential Order was untenable. They also considered the question as to what was the true scope and effect of the Presidential Order and observed as follows:- (at page 398) :

'... .Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging the detention on the ground that the impugned Act (Defence of India Act) and the Rules are void because they contravene Articles 14, 21 and 22 (of the Constitution) are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens are precluded from moving any Court for the enforcement of the said specified rights.'

9. Sri Hanumantha Rao contends that Article 13 of the Constitution continues to be in force and that the provision in Rule 30(1)(b) for detention is not valid. The fundamental right alleged to be contravened is under Article 22 of the Constitution. In view of the above decision of the Supreme Court, the petitioner is precluded from urging in this Court that he is deprived of any right under Article 22 of the Constitution the contention of the petitioner in this behalf is not tenable.

10. It is next contended by the petitioner that the respondent-Government passed the order merely at the instance of the Government of India and, in particular, of the Home Minister, Shri G. L. Nanda, and not on account of being satisfied as required under Rule 30(1) (b). In the counter-affidavit filed on behalf of the respondent the Chief Secretary stated as follows;

'The State Government was satisfied that it was necessary to detain him and continue him under detention. This detention was not made at the instance of the Central Government or with nut due consideration of all the facts within the State Government's knowledge regarding the petitioner and his activities and propensities.'

11. We do not find sufficient reason to hold that this statement is not true. Regarding a similar contention, in Writ Petition No. 41 of 1965 (SC) Manjunath Shridhar Dhareshwar v. C. B. D. 'Mellow D/- 20-7-1965, their Lordships of the Supreme Court observed in their Judgment as follows:-

'The petitioner has also alleged that the detaining authority detained him because he was asked to do so by the Government of India. This allegation is denied in the affidavit filed by respondent 1 and a mere allegation that respondent 1 was asked by respondent 2 to detain the petitioner cannot help to establish the petitioner's case. We gee no reason to disbelieve the statement made by respondent 1.'

12. Shri Hanumanthia Rao urges that action was taken simultaneously by all the State Governments in India against a large number of persons, such fact does not necessarily mean that, regarding any particular detenu, the State Government which passed the order of detention did not consider the relevant material and did not satisfy itself as required under Rule 30(1)(b) before passing the order of detention. For action by way of detention taken by a Government in a state to be valid, it is not necessary that that Government must take the initiative or act with originality or in isolation or should not consider any ideas or proposals by the Central Government or any other Government or have consultation, correspondence or discussion with such other Governments. A State Government can validly act under Rule 30 of the Defence of India Rules by an independent consideration of material available before it regarding any person, while adopting certain views about whose correctness it is convinced though it cannot claim originality For those views.

13. Shri Hanumanatha Rao contended that the political party to which he belongs namely, the Communist Party of India (leftist) has not been banned and that, therefore, the order of detention is not valid. In the counter-affidavit, the Chief Secretary has stated as follows:

'The Government have received information which information the Government have reason to believe to be true, that the petitioner's own individual activities are anti-national and prejudicial to civil defence and to public safety. In the interests of the defence of the country, the information that the Government have received cannot be revealed in a court of law. The Government are satisfied, on the basis of material they possess, that, to prevent the petitioner from acting prejudicially 'to the defence of India, and for the efficient conduct of military operations, and in the interests of public safety, it is necessary to detain him.'

14. We cannot go into the correctness of the statement made by the Chief Secretary. The satisfaction required is the subjective satisfaction of the detaining authority.

15. Shri Hanumantha Rao has referred to various matters of politics and policies of the Congress party as well as the declared objects and policies of the Communist party. But, it is not proper or desirable that this court should go into or express any opinion on questions of politics or the policies of political parties the details of material on which the detaining authority felt satisfied regarding the petitioner have not been disclosed in the counter-affidavit. But it has been laid down in various decisions including decisions of the House of Lords, the Privy Council and the Supreme Court that, in cases of preventive detention under provision similar to Rule 30(1)(b), the Government is not bound to disclose the details of material on which it felt satisfied. The various decisions in the matter have been referred to by a Bench of this Court in W. P. No. 196 of 1965 etc., dated 23-7-1965 (Andh Pra).

16. In W. P. No. 41 of 1965 (SC) on the file of the Supreme Court, which related to an order of detention under Rule 30 of the Defence of India Rules, their Lordships held as follows:

'It appears that the petitioner asked for maintenance for his dependants and also asked the detaining authority to supply him with the grounds on which he was detained. The detaining authority pleaded inability to make any order for maintenance and said that he was not bound to supply the grounds of detention. Having regard to the law as it stands, we do not see now the petitioner can make anv grievance of these fads,'

Thus, in effect, the Supreme Court held that a detenu had no right in law to demand maintenance for his dependants and that the detaining authority was not bound in law to supply him the grounds of detention. So we find that this contention is not made out.

17. The decision of the Supreme Court in W. P. No. 41 of 1965 is also decisive on the next contention of Shri Hanumantha Rao that he is entitled to family allowance for maintenance of his dependants. That decision is enough to conclude the matter. But, all the same, as considerable amount of arguments have been advanced before us we proceed to deal with them.

18. Shri Hanumantha Rao relies on Section 44 of the Defence of India Act which runs as follows:

'Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence.'

This is a provision which has to be taken into account when an authority contemplates action under Rule 30 of the Defence of India Rules which provides for various alternative measures of which the most stringent against a citizen of India is detention under Rule 30(1)(b) Section 11 cannot be taken as laying down that, when a person is ordered to be detained under Rule 30(1)(b) whereby ho is not able to continue to practise his profession and thereby to earn emoluments the detaining authority is bound to make payment to his dependants to replace such emoluments or to see that the dependants of the detenu concerned are placed in the same position financially and maintained in the same manner as they would be if the detenu had not been detained and had been continuing to follow his profession and receive the emoluments by doing work in that profession.

19. Shri Hanumantha Rao relies on certain provisions in G. O. Ms. No. 1190 dated 28-10-1964 Under Clause 1(1), the detenus shall be kept in a separate class called Special Class Under Clause 32(1), all particulars relating to detenus shall be entered (without serial number) in the register of civil prisoners and all statistics of the detenus shall be shown separately in jail returns Clause 6 deals with 'Diet'. It reads:

'(a) Each detenu shall be allowed ration according to the scale prescribed by the Government for the A and B class prisoners in the Jail Manual.

(b) A sum of Rs. 10-00 per month shallbe allowed to each detenu for the purchase ofsmoke, betel, toilet articles, razor blades, cardsand the like ..... The personalallowance of Rs. 10-00 shall be paid in twoequal instalments, that is, on the 16th of themonth and at the end of the monthrespectively.......'

Clause 12 refers to 'Private Funds'. It is in the following terms:

'(1) A detenu may spend from private funds a sum not exceeding Rs. 20 per month to supplement his diet. Money spent on purchases other than those for supplementing diet shall not count against that sum

(2) Any amount received on behalf of a detenu shall be kept by the Superintendent and spent by him on behalf of the detenu. Amounts so received shall be held by the Superintendent in deposit on behalf of the detenu or may, at the discretion of the Superintendent, be paid to a nominee of the detenu .

(3) Amounts sent to a delenu in discharge of the liability of the sender to the detenu shall be received by the Superintendent and treated in the manner laid down in Sub-clauses (1) and (2) for the disposal of the amounts 'referred to therein'

Clause 31 mentions about 'Subsistence Allowance and says that the detenus shall be eligible to subsistence allowance at the rate applicable to Class 1 prisoners.

20. Shri Hanumantha Rao contends that his claim for maintenance of his dependants would come under Clause 31. That clause mentions subsistence allowance for detenus and not for their dependants. The learned Advocate-General explains that what Clause 31 refers to and provides for is that a sum of Rs. 3-50 np. can be claimed by a detenu daily towards the expenditure of food etc., for the days on which he is taken out of jail and does not get supply of food from the jail. The learned Advocate-General agrees that this amount is distinct and different from the amount concerned in Clause 6(1)(b) which is a monthly allowance for conventional personal needs of the detenu specified therein But, he points out that this provision in Clause 6(1)(b) is only for the detenu personally and not for his dependants. It will be observed that there is provision in Clause 12(2) for amount being paid, at the discretion of the Superintendent, to a nominee of the detenu from private funds referred to in that Clause, There is no provision in G. O. Ms No. 1190 for payment from any amount other than his private fund (under Clause 12) to any nominee or his. There is also no provision for maintenance to a member of the detenu's family.

21. Rule 30(4) of the Defence of India Rules runs as follows:

'So long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be detained in such place, and under such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline, as the Central Government or the State Government, as the case may be may from time to time determine.'

Obviously under this provision, the Government passed G.O. Ms No 1402 applying certain provisions of G. O. Ms. No. 1190 to the petitioner. As already stated, though the order mentioned in G. O. Ms. No. 1402 is G. O. Ms. No. 1387 (Home) dated 26-8-1954, the real G. O. which effectively applies is G. O. Ms. No. 1190 dated 28-10-1964. The word 'Maintenance' mentioned in Rule 30(4) above is obviously only the maintenance of the detenu and not of his dependants. Therefore, we are not able to agree with the contention of Shri Hanumantha Rao that the detaining authority has a legal obligation to pay maintenance to his dependants. We find that the detenu is not entitled us of right under the law to demand for provision of maintenance for his dependants by the detaining authority on the law as it stands.

22. All the same, we find that the Government has awarded maintenance to dependants of various other detenus; for example, the detenus concerned in Crl. M.P Nos. 1.175 and 1177 to 1180 of 1965. The Chief Secretary has explained in his counter-affidavit as follows:

'I submit that the petitioner has no vestedlight to demand the payment of allowance tohis family. The Government has made enquiriesin this regard .... before rejectinghis request for the grant of family allowance,the Government was fully satisfied that thefinancial condition of his family and of himselfwas sound.'

23. Shri Hanumantha Rao contends that the basis of fact on which the Government acted as a result of enquiry is not correct and that his financial circumstances are really such that his dependants should be given adequate main tenance to see that they do not suffer and, in particular, the education of his two daughters is not adversely affected. It is really laudable that the detaining authority do award family allowance to dependants of detenus in fitting cases to avoid undue hardship. But, on the law as it stands, the detenu cannot claim it as a matter of right and, therefore, this Court cannot pass any order directing the award of main tenance to dependants of a detenu. So we do not go into details of fact which have been urged regarding the nature and quantum of the income and the means which are available to dependants of the petitioner. It is open to the petitioner to approach the Government and bring to their notice any additional facts and circumstances and pray for re-consideration of then order in the light of those fads and circumstances.

24. In view of our findings on the variouscontentions urged by the petitioner, we dismissthis petition.


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