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Siddareddi Venkata Rami Reddy Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1975CriLJ468
AppellantSiddareddi Venkata Rami Reddy
RespondentGovernment of Andhra Pradesh and ors.
Excerpt:
- - thereafter, the district magistrate proceeded to state that he was, therefore, satisfied that the detenu had been acting in a manner prejudicial to the maintenance of public order and it was necessary to detain him from further causing prejudice to the maintenance of public order. however, it is well known that the law relating to preventive detention has become so well settled 'that there are practically no dark corners left in it. time and again the highest court of the land as well as the different high courts have considered and decided all the aspects of that law with the consequence that there is very little scope for further doubt a to any aspect of preventive detention. 6. clauses lay to (d) of article 19(1) conferred on all citizens of india the basic rights like freedom.....ordersambasiva rao, j.1. we directed on 15-2-1973 that the detenu in this writ petition should be set free immediately;. but, we have said that we would give our reasons therefor later. we now proceed to give those reasons.2. by his order dated 13th january 1973, the district magistrate. nellore, ordered detention of the detenu in exercise of the powers conferred on him by sub-clause (ii) of clause (a) of sub-section (1) of section, 3 of the maintenance of internal security act. 1971. (hereinafter called the act) read with section 5 thereof. the grounds on which the detention was made were communicated to the detenu on 18-1-1973 who was kept in the secuderabad jail. the government of andhra pradesh approved of this detention under g.o. rt. no. 200. g.a.d. dated 22nd january, 1973.3. the.....
Judgment:
ORDER

Sambasiva Rao, J.

1. We directed on 15-2-1973 that the detenu in this writ petition should be set free immediately;. But, we have said that we would give our reasons therefor later. We now proceed to give those reasons.

2. By his order dated 13th January 1973, the District Magistrate. Nellore, ordered detention of the detenu in exercise of the powers conferred on him by Sub-clause (ii) of Clause (a) of Sub-section (1) of Section, 3 of the Maintenance of Internal Security Act. 1971. (hereinafter called the Act) read with Section 5 thereof. The grounds on which the detention was made were communicated to the detenu on 18-1-1973 who was kept in the Secuderabad Jail. The Government of Andhra Pradesh approved of this detention under G.O. Rt. No. 200. G.A.D. dated 22nd January, 1973.

3. The grounds started with stating in the preamble that the detenu was the President of the Action Committee of the Gudur Unit of the Andhra Praia Parishad the aim of which was to oppose the five point formula of the Prime Minister! of India and to achieve a sepa1-ra'te Andhra State by paralysing the Government by way of agitation in the form of strikes, bundhs stopping of trains and other Government transports etc. The detenu as a staunch separatist had been inciting and instigating the people to adopt violent methods thereby endangering the maintenance of Public Order. As evidence thereof six sets? of particulars were given. Thereafter, the District Magistrate proceeded to state that he was, 'therefore, satisfied that the detenu had been acting in a manner prejudicial to the maintenance of public order and it was necessary to detain him from further causing prejudice to the maintenance of public order.

4. The detention based on these grounds has been attacked by Sri M. V. Ramana Reddy. learned counsel for 'the petitioner stating that several of the grounds for detention are either vague or irrelevant. According to him irrelevancy of some of the grounds arises from the fact that they relate only to a law land order problem and not to maintenance of public order. That is the only line of attack taken up by the learned counsel. On the other hand, learned Public Prosecutor, defending the detention has argued that all material and relevant particulars are stated in the grounds and none of them suffers from the vice of irrelevancy.

5. These view points have been debated before us at considerable length and with the aid of quite a large number of decisions. We have therefore, thought it proper to consider them in some detail.

However, it is well known that the law relating to preventive detention has become so well settled 'that there are practically no dark corners left in it. Time and again the highest court of the land as well as the different High Courts have considered and decided all the aspects of that law with the consequence that there is very little scope for further doubt a to any aspect of preventive detention. The present consideration is only to recall and recapture the guiding principles laid down by the decided and binding cases.

6. Clauses lay to (d) of Article 19(1) conferred on all citizens of India the basic rights like freedom of speech and expression, freedom of movement, freedom of assembly and freedom to form associations or unions. All the same the founding fathers of the Constitution were fully conscious and were indeed even very particular that these fundamental rights of the individual citizens should not over-ride the interests of the security of the State or the well being of the community. The policy of harmonising individual freedom with social well-being is in no manner a new concept. The Constitution itself has endeavoured to establish a happy synthesis between the rights of the individual and the welfare of the society and the security of the State as a whole. It is in the course of that endeavour clauses (2) to (i6) of Article 19 have been made integral and important parts of Article 19 itself. These clauses provide for reasonable restrictions on the basic freedoms of the citizens in the interests of the security of the State and the well being of the Society. For instance Clause (2) leave scope for making laws which impose reasonable restrictions on the exercise of the right conferred by Clause (,1) (a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court. defamation or incitement to an offence. This happy mosaic of individual liberty and social good is high lighted not only by adding a whole part (part IV) laying down directive principles which should guide the State in the governance of the country but also by Articles 21 and 22 which are of Part III relating to fundamental rights. Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. Having stated this, the Constitution hastens to lay down certain provisions relating to preventive detention. Preventive detention is arrest without trial. Law relating to such detention has been made permissible under clauses (4) to (6V of Article 22. Clause (4) provides for the. period of detention and 'the Constitution of Advisory Boards and Clause (5) insists on communication of the grounds for detention to the detenu as soon as may foe, so 'that he is afforded earliest opportunity of making a representation against the order. The Parliament made the Preventive Detention Act even in 1950. After some years it ceased to be in force. In 1971 the present Act has been made in the name of the Maintenance of Internal Security Act of 1971. Section (3) of the Act empowers the Central Government or the State Government to detain a person, if such Government is satisfied that 'the detention of the person is necessary in order to prevent him from acting in any manner prejudicial to the defence of India etc. Sub-clause (ii) of Clause (a) of Sub-section (1), of the section, relates to the security of the State or the maintenance of public order. It may be usefully recalled here that interests of public order is one of the purposes for the sake of which laws can be made imposing reasonable restrictions on the right enshrined in Article 19(I)(a). As we have already noticed it is under this sub-clause the detenu in this case has been detained on the around that he is likely to behave in a manner prejudicial to the maintenance of public order. Section 8 provides that grounds of order of detention should be disclosed to the person affected by the order and requires that such grounds should be communicated to the detained person as soon as may be. but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention. That is for affording him the earliest opportunity of making a representation against the order to the appropriate government. Subsection (2) of the Section, however, exempts the detaining authority from disclosing facts which it considers to be against public interest to disclose.

7. It is to be noted that nowhere In the Constitution or in the Act it is provided that the grounds should not be vague or irrelevant. But1 the Courts have invariably construed the requirement of affording the detenu the earliest opportunity of making the representation against the order, as a requirement to state the grounds in a clear and precise manner containing all the material particulars so that the detenu is enabled to make an effective representation against his detention. It should be remembered that this representation which he makes will not be considered by any court of law. but will be placed only before an advisory board. Further. sub-edition (4) of Section 11 makes it clear that a detenu will not be entitled to be represented before the Advisory Board by any legal practitioner. Consequently, what is available before the Advisory Board is only the written representation made by the detenu. Thus, the only opportunity that is made available to the detenu by way of showing cause against his detention is through his written representation. It does not require much though or reasoning to come to the conclusion that when such is the case, the grounds made available to the detenu showing the reason for his detention should furnish to him all the material particulars on the basis of which the detaining authority has come to the conclusion that the detenu was likely to act prejudicial to the maintenance of public order or security of the State. If those particulars are not furnished to him. it would clearly be tantamount to denying to the detenu the right and safeguard of making a representation against his detention assured to him not only by Section 8 (11 of the Act but by Clause (51 of Article 22 of the Constitution. In such a case, the right to make a representation will be nothing but illusory.

8.Likewise, neither the Constitution nor the Act empowers the Government or any officer authorised by the Government to detain a person for preventing him from acting in any manner prejudicial to sin-role law and order. The authority in this behalf is only to detain a (person in order to prevent him in acting in any manner prejudicial to maintenance of public order. Therefore, the authority cannot detain a person under the guise of a threat to the maintenance of public order on grounds which merely relate to maintenance of simple law and order. At the same, time, it should also be recognised that in some cases it is difficult and even impossible to draw a dividing line between a mere law and order situation and a threat to public order. In view of this delicate balancing of the individual rights vis-a-vis the welfare of the State and the Society, and the need to distinguish between law and order and public order. Courts have gone into these questions on innumerable occasions. In order to find out the guiding principles relating to these two aspects of preventive detention we will now proceed to refer to a few of the leading decisions.

9. The earliest of these pronouncements and in all probability the very first if them is by a Bench of the Supreme Court consisting of six Judges in State of Bombay v. Atmararn : 1951CriLJ373 where several questions relating to preventive detention including that of vagueness were considered threadbare. The Court decided that the satisfaction of the Government must be based on some grounds. There can be no satisfaction if there are no grounds for the same. If the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a Court, All the Judges having agreed in laying down the above principle, the majority proceeded to state that Clause (5) of Article 22 postulates two rights. The first part of that clause gives a right to the detained person to be furnished with the grounds on which the order has been made and that has to be done as soon as may be. The second right is to afford an earliest opportunity of making a representation against the order. Those grounds should be those on which the detaining authority was satisfied that it was necessary to make the order. Those grounds, therefore, must be in existence when the order was made. But, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make & representation to the authority is a matter within the jurisdiction of the Court's enquiry and subject to the Court's decision-The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds i. e. materials on which the detention order was made. The test to be applied in respect of the contents of the grounds are two. The first of them is whether they are sufficient to satisfy the authority; the second is whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. The information conveyed to the detained person must be sufficient to attain the object of enabling the detenu to make a representation against his detention and should, therefore, be intelligible to him to meet the charges. Without getting such sufficient information it is not possible for him to make any representation. If such information is denied to him the right to make representation will become illusory. By their very nature, the grounds are conclusions of facts and not complete detailed tecitals of all the facts. These conclusions are the 'grounds' and they must be supported by facts. No part of such 'grounds' can be held back, nor can any more 'grounds' be added thereto. If the representation by the detenu has to be intelligible to meet the charges contained in the grounds, the information conveyed to him must be sufficient to attain that object. Whenever a question arises whether the statement furnished to the detenu is vague or indefinite, the test to be applied in answering the question is whether it is sufficient to enable him to make an effective representation against his detention. That is to say, the communication made to the detained person should. consistently with the privilege not to close facts which, are not desirable to be disclosed in public interest be as full and adequate as the circumstances permit and should be adequate as soon as it can be done.

10. At the same time, the majority clarified as to what is meant by the expression 'vague'. They stated that it is antonym of 'definite'. If the ground which is supplied is incapble of being understood or defined with sufficient certainty, it can be called vague. It is not possible to state affirmatively more of the question of what is vague. It must vary according to the circumstances of the case.

11. We have thought it necessary to extract, rather copiously, from this decision for the reason that it had not only set the pattern for later decisions, but also laid the basic guidelines of the law of preventive detention the solid rails on which subsequent judicial review of such detention has rolled by.

12. We will now very briefly refer to some cases on the point decided later on.

13. In Ram Krishna v. State of Delhi. : 1953CriLJ1241 , Patanjali Sastri. Section 4 who had earlier in State of Bombay v. Atmaram Shridhar Vaidya : 1951CriLJ373 expressed dissent from the majority view, stated the Law in the following terms:

The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed.'.... In this case, the petitioner has the right, under Article 22(5) as interpreted by this Court by a majority in Atmaram's case : 1951CriLJ373 to be furnished with particulars of the ground of his detention sufficient to enable him to make a representation which on being considered may give relief to him.

14. B. P. Sinha. J. (as he then was) observed in Naresh Chandra v. State of West Bengal : 1959CriLJ1501 that an order of detention would usually consist of two parts, namely the preamble and the grounds, but it may also consist of third part, the particulars, if and when they are required or found to be necessary Vagueness is a relative term. What may be said to be vague in one case may not be so in another. If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannot be said that it is vague. Hidayatullah J. (as he then was); reiterated the same view in Rameshwar Lai State of Bihar. AIR 1968 SC 1303. by observing that since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention. It is needless to refer to more precedents on this aspect. Suffice it to mention that applying the aforesaid principles the Supreme Court and this Court as well, have had innumerable occasions to examine the validity of preventive detention. Three such cases of this Court are W. P. No. 1288 of 1969 (Andh Pra) and batch decided by Jaganmohan Reddy Section 4 (as he then was) and Sambasiva Rao J. on 25-4-1969. W. P. No. 2379 of 1969 (Andh Pra) by Kumarayya. Section 4 and Ramachan-dra Rao J. D/- 25-8-69 and W- P. No 5066 of 1971 (Andh Pra) by Vaidya and Lakshmayya, JJ.. on 31-12-1971. In all these matters, the detentions were either set aside or affirmed considering the question of vagueness of the grounds having regard to the facts and circumstances of each case.

15. There is. however, another Point which is allied to the aspect of vagueness of grounds, which requires some consideration. Learned Public Prosecutor has maintained that vagueness or irrelevancy of the grounds served on the detained person will have to be judged on reading the whole of the statement without isolating each ground from the others and the preamble. It is, on the contrary contended by learned counsel for the petitioner that even if one ground is found to be vague or irrelevant, the detention must be found to be illegal and not upto the requirements of the law. Learned Public Prosecutor has invoked to his aid certain observations of the Supreme Court in Atmaram's case : 1951CriLJ373 , in Naresh Chandra v. State of W. B. : 1959CriLJ1501 . and those of this Court contained in WP No. 5066/71. The learned Chief Justice in Atmaram's case : 1951CriLJ373 observed that if. on reading the grounds 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. In Naresh Chandra's case : 1959CriLJ1501 . Sinha, J.. (as he then was) Observed that a statement of reasons for detaining a person which is communicated to him is generally in two parts, viz-, the preamble and the conclusions of fact which have led to the massing of the order. This court in WP No. 5066 of 1971 opined that the statement should be read as a whole in order to find out the reasons for detention. On the other hand, in Ram Krishnan v. State of Delhi : 1953CriLJ1241 . it was contended for the State of Delhi that the grounds must be read as a whole and if so read, the ground which was said to be vague would become reasonably clear, Patanjali Sastri CJ repelling this argument stated that the detenu toeing a layman can hardly be expected without legal aid which is denied to him to interpret the ground in the light of the entire statement. Jaeannadha Das J , was more explicit in Dwaraka Das v. State J!. & K. : 1957CriLJ316 on this problem. Whatever power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. It is so because, as pointed out by the Federal Court in Keshav Talpade v. Emperor. AIR 1943 FC 72 : 44 Cri LJ 719.

It can never be certain to what extent the bad reasons operated on the mind of the aluthority or whether the detention order would have been made at all if only one or two good reasons had been before them.

This principle was reiterated by the Supreme Court in a large number of later pronouncements, e. e. Rameshawar Lai V-State of Bihar AIR 1968 SC 1303 and P Mukherjee v. State of West Bengal. : 1970CriLJ852 .

16. But this so-called conflict is more apparent than real. Actually the two view points are in harmony with each other In order to appreciate and understand the background and the circumstances in which the authority has been subjectively satisfied that a person should be preventively detained, the whole communication with its preamble and conclusions should be read together. Also it may be a succeeding conclusion, may be a sequence of its predecessor and may bear reference to it. In such a case they will have fb be read together to understand them. However, that subjective satisfaction, particularly one relating, to the detention of a free citizen of this country without trial, should be founded on some existent grounds which are relevant to the purpose of detention. Each such ground is a charge or a cause of action as it were against the detained person which makes a specific allegation against him and accuses him of some overt behaviour which is pertinent tio the purpose sought to be served by the detention. Such being the case, each instance of such conduct which forms a ground by itself musit contain all essential particulars, in order to enable the detenu to exercise his con- stitutional right or to out it in other words, to effectively utilise the safeguard assured to him toy the Constitution. Likewise each one of them should not only be existent but also bear reasonable nexus with the object of detention. Otherwise, preventive detention tends to become arbitrary and the constitutional safeguard guaranteed to the citizen illusory. This, in our opinion, is the proper perspective through which the grounds for detention should be approached and tested.

17. This leads us to the Question of the dichotomy between 'law and order' on one side and 'public order' on the other. It is undoubted that preventive detention is permitted for maintenance of 'Public Order' and not for keeping 'law and order'. Since maintenance of order is common to both, difficulty arises sometimes in drawing a dividing line between the two Disorder is a broad spectrum, which includes all disturbances of order. Broadly distinguished, 'law and order' relates to individual or sectional disorders, while 'public order' relates to public disorders which affect the community as a whole. Once again, the Supreme Court has illuminated this partition line by some of its pronouncements. It may suffice here to briefly refer to a few of tftieim). Hidayatullah, J., (as he then was) discussed the distinction thus in Ram Mamohar Lohia v. State of Bihar : 1966CriLJ608 :

The contravention of law always affects order, but before it can be said to affect public order, it must affect the community or the public at large.' The same learned Judge, as Chief Justice stated the position in the following terms in Arun Ghosh v. State of West Bengal : 1970CriLJ1136 .

The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. An act by itself is not determinant of its own. gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Individual act can be a ground for detention only if it leads to disturbances of the current of life of the community so as to amount to a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.

Public order embraces more of 'the community than law and order, Public order is the even tempo of the life of the (community taking the country! as a whole or even & spe- cified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance land its effect upon the life of the community, in a locality which determines whether the disturbance amounts only to a breach of law and order.

18. The following principles relating to preventive detention in so far as they are material to the writ petition thus emerge from the foregoing consideration:

1. Preventive Detention. 'though permissible must conform to the constitutional safeguards and the procedures prescribed under the law made in this behalf.

2.Grounds for such detention should be communicated to the detained person as soon as may be.

3. Those grounds should not only be existent but also toe relevant to the purpose of detention.

4. The grounds are required to be communicated to the detenu to afford him the earliest opportunity of making a representation to the Advisory Board against his detention.

5. Therefore, those grounds though conclusions of fact, should contain all material particulars which are necessary for the detained person to make an effective representation.

6. Whether a communication in a particular case satisfies these requirements should be decided with reference to the facts and circumstances of that case.

7. Even if 'the entire communication has to be read to understand the background of detention, each one of instances stated as a ground for detention should be clear, precise, existent and relevant and also consist of material particulars. Even if one or some out of the several grounds stated therein suffer from the lack of these requisites the detention itself will be bad.

8. In contradistinction from disturbances of law and order, only those acts which possess the potentiality of disturbing the tranquillity of the society and the current of life of the community will amount to disturbance of the public order.

19. Focussing these principles on the grounds made out for the detention of the detenu in this case, we will now examine to what extent they fulfil the requirements. Petitioner's learned counsel points out that ground No. 6 is irrelevant to the maintenance of public order and at the worst is tantamount to holding out a threat to an individual officer which is nothing but a law and order problem. The said ground reads:

On 2-1-1973 evening you along with your followers went to the house of the Tahsildar, Gudur and enquired about him. As his wife did not know the whereabouts you threatened to burn his house if the Tahsildar could not be traced by that evening. The same night when a mob went to attack Gudur Railway Station you also led a group to the Railway, station to destroy the same and stop reinforcements from going to Nellore. You met the Tahsildar there, caught hold of him and threatened to our petrol and burn him saying that he killed your sons meaning that he had given orders to open fire, which was not true.

We are not at all inclined to accede to this criticism. The ground alleges that the detenu had led a group of persons to the railway station at Gudur for destroying it and for stopping reinforcement being sent to Nellore. In the course of the raid, he is alleged to have met the Tahsildar and threatened the latter to burn him alive as he had given orders to fire at young agitators. Apart from the fact that this is a threat held out to a Public servant to make him desist from discharging his official duties, the threat to the officer, is part of the raid on the railway station for burning it. It is undoubtedly a threat to the tranquillity of the community and as such to public order as well. So this argument fails.

20. We see. all the same, considerable force in the learned counsel's contention that at least some grounds are vague and do not contain material particulars. In particular he emphasises on the first and second grounds. They are as follows :

(1) On 18-12-1972 on the day of Bundh 'called for by the Andhra Praja Parishad at Gudur you instigated the people to trespass into the Government offices defying prohibitory orders under Section 144 Criminal P. C. and hoist 'Jai Andhra' flags and when they tried to carry out the acts instigated by you they were arrested.

(2) On the same day you instigated and you yourself personally led a large group of people in Gudur town and got some shops, that were kept open, closed down by threat and force.

We are satisfied that the learned counsel is justified in complaining that failure to have particulars in ground No. 1 as to when the instigation took place, who the .people that were instigated were and into which Government offices they were prompted to trespass, severely restricts the effectiveness of the representation which the detenu is expected to make. Likewise, in ground No. (2) the names of iper-6ons whom the detained person is alleged to have led and what shops were forced to be closed down, where they were located are not disclosed. Disclosure of the persons who trespassed into Government offices would, indeed, not have been difficult for. it is stated that they were arersted. It is possible to postulate that had these pieces of information been supplied the detenu would have been in a position to deny any contact with those individuals or shops and that he had no connection with the named persons and places. Denying him these particulars has placed him in a position where he cannot effectively represent against the accusations made against him. He is thus obliged to fight a shadow and the opportunity of making representation ostensibly given to him is illusory. These two grounds must, therefore, be held to be vague.

21. Then, it follows from the legal position examined above, the detention becomes illegal and invalid. The writ petition 'is consequently allowed and the detenu has already been directed to be set free.


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