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inder Prakash and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ34
Appellantinder Prakash and ors.
RespondentEmperor
Excerpt:
- - that you are indulging in dangerous subversive activities, spreading alarmist statements and rumours and promoting communal and political friction and that it is most unsafe to allow you to remain at large. that you being a member of the rashtriya swayam sewak sangh, an unlawful association, are indulging in dangerous subversive activities, spreading alarmist statements and rumours and promoting communal and political friction and that it is most unsafe to allow you to remain at large. if i am satisfied on considering the representation made that it is no longer necessary to maintain the order, the order in question shall be cancelled. whereas i am satisfied from a report of s. 11, u, p, act iv [4] of 1947. all of them sent later two further grounds in similar terms and those two.....orderraghubar dayal, j.1. inder prakash and 21 other persons have applied individually from jail under section 491, criminal p. c. these persons are in jail under the orders of the district magistrate, etah, passed on various dates between 3rd and 14th february 1948, those ordered to be detained on 3rd february are ram adhar, ram charan, om narain, seoti prasad, parmeshwari dayal and ram prakash. inder prakash, ravindra kumar, shanti sarup, son of raghubar sahai, vishesh chandra, shanti sarup son of har prasad and shankar singh were arrested on 5th february. the rest were ordered to be detained after 5th february.2. the grounds of detention supplied under section 6, u. p. act iv [4] of 1947 to all the persons arrested on the 3rd and to all the persons arrested on the 5th february, except.....
Judgment:
ORDER

Raghubar Dayal, J.

1. Inder Prakash and 21 other persons have applied individually from jail under Section 491, Criminal P. C. These persons are in jail under the orders of the District Magistrate, Etah, passed on various dates between 3rd and 14th February 1948, Those ordered to be detained on 3rd February are Ram Adhar, Ram Charan, Om Narain, Seoti Prasad, Parmeshwari Dayal and Ram Prakash. Inder Prakash, Ravindra Kumar, Shanti Sarup, son of Raghubar Sahai, Vishesh Chandra, Shanti Sarup son of Har Prasad and Shankar Singh were arrested on 5th February. The rest were ordered to be detained after 5th February.

2. The grounds of detention supplied under Section 6, U. P. Act IV [4] of 1947 to all the persons arrested on the 3rd and to all the persons arrested on the 5th February, except Shanti Sarup son of Har Prasad, and Shankar Singh were as follows:

That you are indulging in dangerous subversive activities, spreading alarmist statements and rumours and promoting communal and political friction and that it is most unsafe to allow you to remain at large.

3. The ground supplied to the other detenus were In practically identical terms and were:

That you being a member of the Rashtriya Swayam Sewak Sangh, an unlawful association, are indulging in dangerous subversive activities, spreading alarmist statements and rumours and promoting communal and political friction and that it is most unsafe to allow you to remain at large.

4. All these orders under Section 5 further said:

You are further informed that you have the right of making a representation and you can make a representation to me at any time while the order is in force, against this order.

If I am satisfied on considering the representation made that it is no longer necessary to maintain the order, the order in question shall be cancelled.

5. The orders under Section 3 against all were in these terms:

Whereas I am satisfied from a report of S. O. of P. C. ... that ... resident of P. C. is acting in a manner prejudicial to the public safety, the maintenance of public order and communal harmony and it is necessary to detain him in order to prevent him from acting in this manner, I, Rama Kant, D. M., Etah, in exercise of the powers conferred upon me by Clause (a), Sub-section (1) of Section 3, U. P. Maintenance of Public Order (Temporary) Act, 1947, read with Notification No, A3797-XXV/CX (Confidential Department), dated 1st August 1947, hereby direct that . , resident of P. C, . . above mentioned be detained in the District Jail, Etah, for a period of six months unless this order is revoked earlier by me.

The above quoted order is a printed one. The blanks were suitably filled in.

6. All the detenu applicants alleged in their applications that the notice under Section 3 served on them did not specify the term of detention and that the grounds were vague, indefinite, false and without any foundation. They further said that there was nothing to suggest that the District Magistrate' acted under the delegated powers conferred on him under B. 11, U, P, Act IV [4] of 1947. All of them sent later two further grounds in similar terms and those two grounds are that the District Magistrate, Etah, was not himself satisfied that the petitioner was in any way indulging in subversive activities as was evident from the fact that the same was not clearly mentioned in the notice served on the petitioner and that the notice including the grounds which are themselves vague and indefinite had been typed beforehand with spaces left blank therein to be filled as occasion arose.

7. I shall first take up the question of the validity of the main order under Section 8, Sub-section (1), Clause (a) of Act IV [4] of 1947, and shall briefly deal with the points urged by Mr. Prem Mohan Verma.

8. It was argued that the District Magistrates were not competent to pass orders detaining persons upto six months. The power of the Government to delegate its power under Section 3 (l) (a) was not questioned. The contention was that the District Magistrates were subordinate to the Central Government and could not, therefore, be delegated this power under Section 11 of the Act. Wali Ullah J. decided this point against the contention in Sheo Narain v. Emperor Cri. Misc. case : AIR1948All422 . I agree with the view that the District Magistrate is not subordinate to the Central Government.

9. Next it was urged that Section 11 speaks of delegation to any officer or authority and does not refer to delegation to more than one person. I do not agree. The power can be delegated to any person to whom the Government wants to delegate power.

10. Next it is argued that the delegation did not achieve its object. The argument is that the words 'District Magistrate' if substituted for the words 'Provincial Government' in Section 3, the District Magistrate would just get the power to order detention and that power will be subordinate to the provisions of Clause (2) of the section, which provides that the District Magistrate may within his jurisdiction exercise the power conferred by Clause (a) of Sub-section (l), and an order be made by him shall be valid for a period not exceeding 10 days. When the District Magistrate exercises the delegated power under Section 3, Sub-section (l), there is no question of Sub-section (2) coming into play. The delegated power would have the extent provided for the power of the Provincial Government in Section 4 of the Act. The orders of the Government delegating the power do not say that the words 'District Magistrate' be substituted in place of the words 'Provincial Government' or they be just added to Sub-section (l) after the words 'Provincial Government.' I therefore do not agree with this contention.

11. It was argued that the detention was arbitrary and not preventive because detention is ordered by the detaining authority on being satisfied that the detention was necessary and that the adequacy of the reasons for the satisfaction could not be looked into by the Court. I do not agree. The Act itself is not ultra vires. This is not the contention. Detention is prima facie for preventing the detenu to act in a manner prejudicial to public order. The Court may not be able to look to the sufficiency of the reasons, but the Court looks to the reasons in order to find out whether the detaining authority has acted beyond its powers or has acted without applying its mind to the facts placed before it.

12. It has been argued that these orders are bad because they appear to be arbitrary on account of their being printed ones with common matter, blanks being filled in with the necessary details later on. I am of opinion that the mere fact that the form of the order in compliance with the requirements of law has been typed or printed or cyclo-styled is not sufficient to invalidate the order. Such a course can be adopted for the sake of convenience when it is expected that orders of detention under that particular provision would have to be passed against many people. Reference may be made to the case re-ported in Emperor v. Sibnath Banerjee . In that ease the detention orders referred to the various alternative considerations for detention and were said to be in cyclo-styled form in which the name and particulars of the person to be detained were filled in as need arose. It was observed by Zafrulla Khan J., with whom Varadachariar J. concurred, at p. 88:

It is possible that the ministerial officer responsible for the drawing up of the order merely copied into this part the relevant portion of the language of the rule itself; and failed to notice that though the word 'or' before the words 'efficient prosecution of the war' was perfectly in order in the rule, it was out of place in the orders of detention. It was suggested that some sort of reasonable meaning could still be read into this part of the orders of detention, but we see no reason to adopt a meaning different from that which would prima facie attach to the language used.

Assuming, however, that the orders are regular in form and are open to no objection on the face of them, there is no such material on the record showing that the requirements of Rule 25 were grossly violated in the making of the orders that it would not be safe to make any presumption regarding their validity.

Chief Justice Spens observed differently at p. 91:

In my judgment the form of recital is one which a layman might reasonably use when he was satisfied that the case must come within one or other of the specified categories without being prepared to pledge himself with legal exactitude to any particular one or more of the categories. Nor do I think that the cyclo-styling of the forms, having regard to the circumstances in which many of these orders may have been made, is sufficient to raise Serious doubts as to the validity of the orders. I do not think therefore that the form of the order discloses anything irregular on these grounds on its face.

13. The case went up to the Privy Council and its judgment is reported in Emperor v. Sibnath Banerjee . Their Lordships did not specifically discuss this matter, but they agreed with the view of the Chief Justice and -observed at page 163:

In common with the Chief Justice of the Federal Court, their Lordships have been unable to find anything-apart from the routine order - in these statements and answers of the Home Minister which affords evidence of improper procedure in the individual cases before the Court, even assuming that such evidence was admissible, which in the opinion of their Lordships was at least open to doubt.

14. Reference to routine order was to other facts. It would appear that the mere fact that detention orders are on cyclo-styled forms is not sufficient to invalidate the orders by saying that the orders were not passed in a bona fide manner.

15. A similar view was taken by Wanchoo J. in Pyare Lal Sharma v. Rex : AIR1948All342 .

16. There should be something else in such orders which may be an indication of the fact that the case of each person was probably not considered on individual merits. Though not pointedly mentioned in the arguments for the applicants, mention may be made of one fact on which some such contention could have been based. It is the fact that even the period of six months is printed in these orders, indicating thereby that the District Magistrate did not consider in each case over one matter of detail, namely, the necessary period for which a person should be detained, It may be said that either the District Magistrate arrived at a general con-elusion that in the circumstances all such persons should be detained for the maximum term of six months or that he did not think over the matter at all and mentioned the maximum period as it was always open to him to revoke the order within the term if he was satisfied that further detention was not necessary. I need not say anything further on the effect of this fact.

17. It may be, as argued by the learned Government Advocate, that the recitals in the order should be accepted in the absence of any prima facie evidence against their correctness and that if the District Magistrate says in the order that he was satisfied about the necessity of detaining a person his word must be accepted, and that it is not for the Court to enter into the question whether the District Magistrate should have felt satisfied or not after considering the material on which the order might have been based. I need not deal with this point in this case. The Court can, however, look into the question whether the District Magistrate acted in good faith or bona fide. The Court would enter into this question when the detenu alleges or shows from material that the District Magistrate had not acted in good faith or bona fide.

18. Such allegations may be easily made, but such material can be provided by a detenu only in very rare cases and possibly in those cases only where he knows that ulterior motives had been at work. He can, however, allege and give particulars if he be in possession of all the facts conveyed to authorities in information on the basis of which the order is made. In other cases such an attitude would have to be inferred from the material on the record, irrespective of the fact whether a detenu made such an allegation or not, for the simple reason that without knowing on what material the order has been passed by the District Magistrate the detenu cannot possibly say that the order was not passed in good faith in view of such and such considerations. The only thing that he can say is that he did not deserve the order and that it must be based on wrong information, which is a general statement of practically no value.

19. There is, however, a provision in the Act itself which requires that the detenu be provided with the necessary information on which the detention order is based. It is Section 6 of the Act. Section 5 provides that as soon as may be after the passing of a detention order under the Act, the officer or authority making the order shall communicate to the person affected thereby the grounds on which the order against him has been made and such other particulars as may in the opinion of such officer or authority be sufficient to enable him to make a representation against the order. It further provides that it shall be the duty of such officer or authority to inform the detenu of his right of making any representation and to afford him the earliest opportunity of doing so. Lastly it provides that if the Government be satisfied on considering the representation made that it was no longer necessary to maintain the order, the detention order shall be cancelled. This power of considering the representation and cancelling the order has been delegated by the Government to the District Magistrates and Additional District Magistrates to whom the Government has delegated its powers under Sections 3 and 4 of the Act.

20. The object of the provisions of Section 5 is clear and is that the detenu should be put in possession of information on which the detention order is based, so that if he considers the order unjustified, he may represent to the pro-per authority for revoking the order on considering his submissions about the allegations against him. Detenu can have full and proper say only if he knows all on which the order is based. He cannot deny, admit, criticise or explain what he does not know.

21. The provisions of Section 5, therefore, make it incumbent upon the District Magistrate not only to supply the grounds on which the order is based, but also such other particulars as may be necessary in his opinion to enable the detenu to make a representation. He must furnish all the grounds on which the order is based. He is given no option to keep back any ground from the detenu. He has the option to keep back certain particulars which he considers unnecessary for the purposes of the detenu's representation. Such an option is not to be arbitrarily or capriciously exercised. It has to be exercised cautiously, fairly and bona fide, keeping the interest of the detenu in the forefront. It is he who will suffer for want of necessary particulars. It is he whose liberty has been curtailed under an order of the Executive. The Legislature has provided the safeguard of a representation to him and the exercise of the option is not to nullify the safeguard which can be the only check on the possible abuse of the powers of the Executive under Section 3 and the only hope of securing redress either through representation to the authority itself or through this Court, There is a reason, and a good reason, behind the provisions of Section 5, and that reason, to my mind has a bearing on the interests of be to the Government and the subject. The detenu is satisfied that the extraordinary order of detention passed against him is justified and the people in general should not feel that the Executive is acting arbitrarily and abusing its powers. In case he does not feel satisfied of the justification for the order, he might make a representation against it, hoping that he may convince the authority of its mistake. Unless the facts which influenced him against the detenu be explained or clarified, he is not likely to be convinced of his mistake and is not likely to revoke the order. It follows that the option to keep back particulars must be exercised with great deliberation and responsibility. In short, the District Magistrate should ordinarily convey to the detenu all the information which influenced him to pass the order-be it to come under grounds or particulars. The whole purpose of the section would be defeated if the grounds and particulars supplied are vague, indefinite, incomplete or inaccurate. This is not a mere formality that the detenu be told something as a reason for his detention. It is clear, therefore, that the grounds and particulars to be furnished to the detenu must be as full, clear, precise and accurate as possible so that the detenu should be in possession of all the relevant material on which the order is passed against him.

22. It is not really necessary, therefore, to discuss in detail the scope of the word 'grounds' and to say what the grounds mean and should include. Even if that be considered, it would appear that the word 'grounds' does not merely mean the conclusions or the abstract reasons for the action taken. Besides the conclusions arrived at or reasons for the action, they do comprehend the basis for those conclusions or reasons and thus they include the facts on which those con. clusions or reasons are based. The word 'ground' has as one of its meanings

A promise, reason or collection of data, upon which anything 1b made to rely for cogency or validity as facts are the ground of scientific theory or belief.

I may refer to my decision in Criminal Misc. Case no. 1661 of 1947 in which my expressions imply a somewhat different view. In view of the further consideration on the lines indicated above, I am now of opinion that that word 'grounds' includes the facts on which they are based. Any facts which are not the direct basis of the con. elusions or reasons which may be necessary for the purpose of representation can be furnished under the other item, that is the item of 'particulars.' 'Particulars' need not include merely the facts or considerations leading to the formulation of grounds. They may also include circumferences. Certain conduct or acts may not be objectionable in certain circumstances and may be objectionable in others. It is, therefore, necessary that the detenu be furnished with those circumstances in which his activities, though . unobjectionable ordinarily, are looked upon as objectionable by the executive and are considered ft necessary basis upon which be should be detained.

23. Even if it be held that grounds mean conclusion and reasons only and do not include facts on which conclusion and reasons are based, it must follow that such facts would then be necessary particulars to be communicated to the detenu. What is of importance, I may repeat, is the communication of full information to detenu and not under what category it is supplied. If such facts are not furnished under particulars, it would mean that the District Magistrate did not exercise his option fairly and bona fide. It is impossible to imagine that such facts be deemed by any reasonable person as unnecessary for the purpose of a representation. Such improper exercise of discretion will amount to non-compliance of the provisions of Section 5. It follows that whenever the information conveyed under Section 5 is vague, incomplete, indefinite or inaccurate, there has been no compliance of Section 5.

24. The learned Government Advocate Las contended that as the detenu knows his own activities and as the furnishing of grounds under B. 5, U. P. Act IV [4] of 1947 is not equivalent to the framing of a charge-sheet in a criminal case, it is not necessary to be very precise in the description of the grounds furnished to the detenu for his detention. The detenu be not on trial, but the furnishing of grounds amounts to framing a charge against him. He has to meet it by representation. I do not see why the grounds furnished need not be as full as the charge-sheet is supposed to be. In my opinion so far as practicable the grounds and particulars furnished should not give, in any case, facts less precise or less in ingredients than a charge-sheet gives. Even if the notice of grounds is not a charge-sheet, it does not mean that the grounds should be expressed in such form as to be universally applicable to all the people who on account of their particular activities for one reason or the other may bring themselves within the purview of this Act. Such general grounds can be no grounds. If it were left merely to the detenu to make an introspection and find out for himself what possible activities of his could have been contemplated by the detaining authority it appears to me that the provision of Section 6 need not have been enacted or need not have been in such detail. Section 5 could have merely been to the effect that a detenu shall have the right to make a representation against his detention and that the detaining authority may revoke the detention order if it felt satisfied with the representation. The very order passed under Section 3 should sufficiently convey to the person detained that the detaining authority considers his activities, which he ought to know, to be prejudicial to the public safety or the maintenance of public order or communal harmony. The whole object of the Act would be defeated if the detenus' right to be furnished with the grounds on which the order of detention is based be lightly treated. Special Acts affecting the liberty of a subject have to be strictly interpreted and enforced and action under them should also be taken in full conformity with the letter and the object of the Acts.

25. It has been held in various cases to which reference would be made just now that non-compliance with the provisions of Section 6 invalidates the detention, be it by invalidating the original order of detention or by making further detention improper.

26. The learned Government Advocate con-tends that this view is not correct. He urges that if the grounds and particulars communicated to the detenu are inadequate or vague for the purposes of his making a representation, it is for the detenu to ask for more grounds and particulars. He has further contended that the persona who are the best judges of the sufficiency of the grounds and particulars for the purposes of making an effective representation are the District Magistrate and the detenu and that unless the detenu makes a complaint of the inadequacy of the information supplied to him, the Court is not to look into it. I do not agree. These proceedings are criminal proceedings, and the detenu's conduct in objecting or not to the insufficiency of the information conveyed and asking or not for more information do not affect the question whether the information conveyed was, in fact, sufficient for the purposes of representation or not. If the Court finds that the information supplied was insufficient, it follows that the detenu was not afforded the opportunity which the law provided for his making an effective representation against the detention order. When the detenu is deprived of his right to make an effective representation, it follows that he is deprived of a right which the law gave him and which, if exercised, could have possibly made the authority passing the detention order revoke it. Thus the opportunity to show that his detention wad illegal or improper is denied to the detenu. It must follow, therefore, that even if the initial detention order is not invalidated on account of this deprivation of the detenu's right, the further detention of the detenu is improper, if pot illegal. Such a view is sufficient for the disposal of applications under Section 491, Criminal P. C.

27. I am, however, of opinion that the effect of non-compliance with the provision of Section 5 of the Act inasmuch as the information communicated is vague and incomplete, would be to invalidate the detention order. The Act must presume that authorities will act on clear and definite information, which can really be of help in deciding as correctly as possible what the activities of a suspect are and whether it was necessary to pass detention order. No correct conclusions are possible on vague and indefinite or incomplete information. If one decides on such defective information, it must be presumed that he acted wrongly and irresponsibly and therefore not in good faith, meaning thereby malice in law and not malice in fact. If the grounds furnished to the detenu which must be deemed to consist of all the grounds on which the order is based and of particulars necessary, according to the opinion of the District Magistrate for making a representation and which must include, as discussed above, all factB which influenced the District Magistrate in passing the detention order against the detenu, are vague, indefinite, incomplete and inaccurate, it must follow that the District Magistrate did not apply his mind to the allegation and so did not act in good faith and that consequently the detention order is illegal.

28. I shall now refer to the cases of this Court having a bearing on the point under discussion. The first ease, and on which the learned Government Advocate mainly relies, is the case of Emperor v. Burner Singh, reported in : AIR1948All78 . The grounds mentioned in the notice under Section 5 served on the detenu in that case were:

That you during the last few days have been responsible for the communal disturbances in Kanpur city, and for attempting to bring law and order into con- tempt and in (?) introduce conditions in which breaches of peace cannot be avoided.

Malik J. as he then was, observed:

The object behind the section was that if the person arrested is supplied with the information giving the cause of his arrest, he may be able to satisfy the district authorities that the information received by them against him was incorrect and he should be released. The section was introduced for the protection of the public. The form introduced by the District Magistrate is in such general terms that it supplies no information whatsoever and all that the accused can do is that he can just say that he was not responsible. Neither the question nor the answer are likely to be of any assistance either to him or to the, district authorities. The law contemplates that the District Magistrate should apply his mind to the case and analyse the nature of the information received by him and give notice of that to the accused so that he may be able to submit an explanation. The form now introduced-I do not know who is responsible for it-defeats the object of the section and I consider that the District Magistrate would be well advised to discard this form and in future to apply his mind to individual eases.

29. These observations I may say with great respect put the whole position very clearly, laying stress on the information received by a District Magistrate, and on its communication to the detenu, irrespective of the fact how much of it comes under 'grounds' and how much under 'particulars'.

30. The final order passed by Malik J. in this case wa3 that he directed the District Magistrate to supply the information as required by Section 5 of the Act to the applicant within seven days. He did not pass an order releasing the detenu, though requested to do so on his behalf, for these reasons:

Mr. Pandey has urged that as the provisions of Section 5 have not been complied with his client must be released, but in these days of communal disturbances it may not be safe to release persons who may be responsible for public disorders. It is true that the letter and spirit of the section were not complied with, but then that may be because the District Magistrate was wrongly advised and this form it was thought would satisfy the requirements of the section without the authorities having to take the trouble to scrutinise individual cases.

31. He further directed that if the necessary information be not given within seven days, the detenu could move the Court again for orders.

32. It is contended by the learned Government Advocate on the basis of the form of the order passed in this case that the only order which this Court can pass on applications under Section 491, Criminal P. C, in cases where the provisions of Section 5, U. P. Act IV [1] of 1947 are not complied with is that the District Magistrate be directed to furnish further information to the detenu. I do not agree. The detenu was not ordered to be released in that case in view of the communal situation and in view of the consideration that the District Magistrate might have been wrongly advised about the form of communication to be conveyed to the detenu in conformity with Section 5 of the Act, In fact the implication from the observations and the farther direction to the detenu to apply if particulars be not furnished to him within seven days is that on account of this defective communication to the detenu the detenu could be released by this Court on the finding that his detention was illegal or improper. There could be no other idea behind the giving of such a direction to the detenu. To my mind the legal consequences of the non-compliance with Section 5 cannot depend on the conduct of the District Magistrate subsequent to any such direction given by the Court. The legal consequences would depend on the nature of the initial conduct and its effect in law.

33. In Jamil Ahmad v. Emperor : AIR1948All225 , Sankar Saran J. ordered the release of Jamil Ahmad in view of the inordinate delay in supplying the grounds under Section 5 to him and in not informing him of his right to make a representation. He did not accept the argument for the Crown that all this was a mere slip and the applicant had not been prejudiced. He observed:

I cannot ignore the f Act. that this enactment is a serious encroachment upon the liberty of the subject and although it might have been enacted to meet an extraordinary and abnormal situation, it is the business of this Court to see that the terms of the statute are strictly construed and as far as may be in favour of the subject, In this ease, however, there had been a violation of the mandatory provision of the law.

The next case to consider Section 5 of Act iv [4] of 1917 is Cri, Misc. case No, 222 of 1948, Gauri Nandan Upadhya v. Rex : AIR1948All414 ). In that case Wali Ullah J. observed that the provisions of Section 5 were complied with and there was no formal defect in the notice served under Section 5 of the Act. He did observe in his discussion of the question:

The grounds as set out in the notice in the present ease might certainly have been more fully expressed, but in the absence of any specific provision in the Act. itself, it is difficult to lay down a bard and fast rule about this matter, Obviously the object which the Legislature has in view is that the detenu should know what it is that is alleged against him. As mentioned above, in the present case the applicant on the very next day of the service of the notice on him in jail made a very full and detailed representation to the District Magistrate. He made no complaint of any sort or kind that he had not got sufficient particulars about the allegations made against him on which the order of detention proceeded. It seems to me, therefore, that in this case the provisions of Section 5 were complied with and there was no formal defect in the notice served under Section 5 of the Act.

There is nothing in the judgment which goes against the view expressed by me above. It does not necessarily follow from this judgment that unless a detenu objects in the first instance that the grounds supplied to him did not enable him to make an effective representation, the Court cannot look into it or that non-compliance of the provisions of Section 5 will not make the detention illegal.

34. The next case is or. Misc. case No. 680 of 1948, Swami Hariharanand Saraswati v. The Superintendent, Central J ail, Banaras : AIR1948All435 . In this case Wanchoo J. agreed with the Patna view in the case of Murat Patwa v. Province of Bihar, (A.I.R. (35) 1948 Pat. 135: 49 Cr.L.J. 132 (F.B.)) that the detention would become illegal if the grounds for the detention were not communicated to the detenu within reasonable time. He then referred to the Bombay cases mentioned above and the-case of Emperor v. Sumer Singh : AIR1948All78 and then observed:

A consideration of these authorities will show that all Courts are agreed as to the principles governing the application of Section 5 of U. P. Act. IV [4] of 1947 and similar provisions in similar Acts in other provinces1 and each case has to be considered on the merits of the-grounds and particulars supplied in that case.

He then considered the grounds and particulars supplied to the detenu in the case and noted his conclusion thus:

I am, therefore, of opinion that though it might perhaps have been more advisable to have been a little more precise in the notice and to have mentioned the period of time within which the speeches had been made and some of the places where they had been made, the grounds and particulars supplied in this case were sufficiently clear, precise and accurate for the purposes of Section 5 of the Act. Under these circumstances the continued detention of the applicant cannot be held to be improper for the reason that there has not be en sufficient compliance with Section 3 of the Act.

35. It would follow from the above remarks that in view of the general agreement about the principles governing the application of Section 5 of U. P. Act. IV [4] of 1947 and similar provisions in similar Acts of other provinces, the detention could be said to be improper if the grounds supplied were not sufficiently clear, precise and accurate, and that, therefore, there is no divergence between his views and those expressed by me above.

36. He, however, further observed that if the detenu feels that the particulars supplied to him by the authorities were insufficient to make a representation, there was nothing to prevent the detenu from asking the authorities concerned to supply him with sufficient particulars, and that if the authority even then failed to supply him grounds and particulars which would be sufficient for the purposes of Section 5, it might then be possible for the detenu to make out a case for re-lease for non-compliance with the mandatory provisions of Section 5 of the Act. These observations do not mean that if a detenu does not ask for further particulars from the District Magistrate he cannot as a matter of law ask this Court for release on the ground that his detention was improper. Later decisions of Wanchoo J. support my inference. In or. Misc. Case no, 968 of 1948, Mahendra Pratap Singh v. Rex, 'Wanchoo J. ordered the release of the detenu observing:

A notice is given to a detenu under Section 5 of U. P. Act, IV [4] of 1947 be that he may make such representation as he desires, to the authorities concerned. The object of providing this is that the detenu may also have a say as the order under Section 3 is always passed ex parte. As such it is very necessary, If Section 6 is to have any value, that the notice shuld contain grounds and particulars which should be sufficient to enable the detenu to make a representation. In this particular notice, besides adding the words 'activities in Bareilly' there is practically the repetition of the order under Section 3. It seems to me that it is impossible for a detenu to make any representation on such a notice. One does not know what sort of activities the detenu in this case was supposed to be carrying on which were prejudicial to the public safety of Bareilly. The notice in this case is very vague and does not comply with the provisions of Section 5 of the Act.

It must, therefore, be held that no grounds and particulars as required by the Act have been furnished to the applicant.

Under these circumstances further detention of the applicant is improper.

37. In Cri. Misc. case no. 708 of 1948, Ramesh Chander and Ors. v. Rex, Wanchoo J. released the detenu for non-compliance of Section 5 of the Act, observing that the notice that was given to the applicants on 4th May 1948, did not sufficiently comply with the provisions of Section 5 of the Act, and gave no grounds and particulars which would enable the applicants to make a representation to the authority concerned. Similar was his order in Cri. Misc. case no. 974 of 1948 (dated 8-6-1948).

38. It would appear, therefore, that though directions have been issued or it has been suggested that further detailed information about the grounds and particulars on which the order is based be supplied to or obtained by the detenu, detention has been held to be illegal or improper and detenus have been ordered consequently to be released when it has been found as a fact that the provisions of Section 5 of U. P. Act iv [4] of 1947 have not been complied with.

39. Other High Courts have expressed similar views. The Bombay High Court held in the case of Krishna ji Gopal Brahme, reported in 50 bom. L. E. 175 : A.I.R. (35) 1948 bom. 360: 49 Cr. L. J. 524), that the authority must give sufficient indication to the detenu of the reasons which move it to take action and that the grounds and the particulars should be sufficiently precise so as to make it possible for the detenu to make a representation and if possible to remove any misapprehension on the part of the authority. A Full Bench of the Bombay High Court held in the case of Rajdhar Kalu Patil, reported in 50 Bom. L. Rule 183 : A.I.R. (35) 1948 bom. 884: 49 Cr. L. J. 465 (P. B.)) that it was incumbent upon the Government, after an order of detention was made, to communicate to the person affected by the order the grounds on which the order had been made in order to enable him to make a representation to the Provincial Government against the order, and that the grounds furnished must be clear, precise and accurate and must be such as to make it clear to the person detained what he was charged with and what had moved the Government to deprive him of his liberty. It was further held that grounds which were vague and indefinite and which contained no particulars whatever were no grounds within the meaning of Section 3, Bombay Public Security Measures Act (Bom. Act vi [6l of 1947). It may be mentioned here that Section 3 of that Act corresponds to Section 5 of U. P. Act IV [4] of 1947, with one difference, and that is that the Bombay Act gives discretion to the authority passing the detention order not to disclose such grounds to the detenu which it considers against the public interest to disclose. There is no such restriction in the U. P. Act.

40. In the first Bombay case reported at p. 17S : A.I.R. (35) 1948 bom. 860: 49 Cr. L. J. 624) the detention order was held to be defective in view of the defective communication of the grounds to the detenu. The reason for holding the final detention order bad was on the ground that the first detention was to be confirmed under Section 4 of the Bombay Act after considering the representation. When a proper representation could not be made, the final order based on a representation made on such a defective communication was held to be bad. The Full Bench had not to consider this aspect of the case as it had held that one of the grounds communicated to the detenu was a good ground. It observed as follows at p. 188:

In this case, although grounds Nos. 1 and 3 are vague and indefinite, it cannot be predicted of either of them that it is foreign to the purpose and scope of the statute. We therefore hold that eliminating grounds Nos. 1 and 3 because of want of precision and clarity, there still remains the second ground which is a perfectly good ground and which is sufficient to justify the order of detention.

It is not clearly provided in the U. P. Act that after considering the representation the Provincial Government would confirm or annul the order. But it does provide that if it be satisfied on considering the representation made that it be no longer necessary to maintain the order, the order made under Section 3 would be cancelled. Practically the provision is to the 'same effect as the provision of the Bombay Act. If the order is not revoked it means that it is maintained in spite of the representation, and if the initial order is maintained on a consideration of a representation based on defective information con. veyed to the detenu, the order must be bad in view of the Bombay decisions with which, I may say with respect, I find myself in complete agreement.

41. A Full Bench of the Patna High Court in Murat Patwa v. Province of Bihar A.I.R. (35) 1948 Pat. 135 : 49 Cr. L. J. 135 (P.E.)), held that when there had been undue delay in the -communication of the grounds of detention the authority concerned did not comply with the provisions of Section 4, Bihar Maintenance of Public Order Act corresponding to Section 5 of the U. P. Act and that therefore, the detention was illegal. In the Patna case the question of the terms of the in-formation conveyed to the detenu did not come up for decision, but their Lordships observed at p. 148 that the grounds were stated in very general terms and it would seem that it should have been possible to give more precise and detailed particulars of the act of which the detenu was suspected.

42. The Avadh Chief Court has held in Cri. Misc. Appln. no. 47 of 1948, Ghulam Husain v. Rex, decided on 14th April 1948, that the grounds of detention and the additional particulars required to be furnished under Section 6 must not be furnished in instalments, but at one time soon after the order under Section 3 (l) has been made. It was also held that the grounds and the particulars mentioned in Section 5 must not be general, vague or indefinite so as to deprive the detenu of the opportunity of making a representation and clearing his character of such imputations as are made against him. They must be clear and explicit on the face of it, otherwise the safeguard provided under Section 5 for the benefit of the detenu will be rendered nugatory. They further held in considering the case of Ch. Sraj Ahmad:

We are dear, therefore, that the communication of the ground being defective, the order cannot be regarded as a valid order. It does not show that the District Magistrate applied his mind to the case. He did not analyse the nature of the information supplied to him by his information and contented himself merely with a vague allegation as to the activities of the detenu. We are satisfied that the order is vitiated.

43. I, therefore, hold that if the grounds and particulars supplied to the detenu are vague, general, inaccurate and are not clear, precise and accurate, there is no compliance of Section 5 of the Act and that the detention is illegal.

44. That brings us then to the consideration of the grounds furnished to the detenu in this case. I consider them to be vauge and general lacking in necessary precision, accuracy and clarity as would enable the detenu to make an effective representation, against the order. It is not clear what the dangerous subversive activities of the detenus are, what sort of statements and rumours they were responsible for and how they were promoting communal and political friction. The detenu should have been told the particular activities which were considered subversive, the particular statements which were considered alarming and also what were their activities which led to the promotion of communal and political friction. The addition of the statement in the grounds supplied to certain detenus to the effect that they being members of the Rashtriya Swayam Sewak Sangh, an unlawful association, were indulging in such activities does not improve the position. Mere membership of an unlawful association would not mean that any particular member is acting in such manner as to necessitate his detention. Considering that the grounds issued to all the detenus are the same it would appear that the declaration of the Rashtriya Swayam Sewak Sangh , an unlawful association was just utilised to get support for the view that the detention of the persons was necessary. The activities suggested in the other notices issued before the declaration of the Sangh to be an unlawful association appear to have been considered to be sufficient to detain the person. If it was so, there was no necessity to bring into prominence the declaration of the Sangh as an unlawful association in connexion with other persons whose activities were similar but who were ordered to be detained after the declaration of the Sangh as an unlawful association.

45. It will serve no useful purpose to com-pare the grounds furnished in one case with the grounds furnished in the other and which grounds have been held to comply with the provisions of the Act, I may just refer to the grounds held to be sufficiently clear, precise and accurate in criminal Misc. case No. G30 of 1948 : AIR1948All435 , on which the learned Government Advocate relied to show that the grounds mentioned in this case do satisfy the requirements of Section 5 of U. P. Act IV [4] of 1947. The grounds in that case were in these terms:

Whereas you have been making speeches in other districts which are likely to be incitement to acts of violence and disturbance of the public tranquillity, and whereas I am satisfied that you Hariharanand Sarasvati alias Karpatriji are likely to make such objectionable speeches or Act. in a manner that is likely to cause breach of the peace or endanger public safety, in Banaras.

Speeches are something different from alleged spreading of rumours or news, Speeches are not expected to be too. many to be forgotten, or to be fabricated. Wherever they are delivered there is be und to be a much larger audience than the supposed audience of a rumour-monger. Reference to speeches is not such a vague reference as a reference to one's activities in general, even though such activities be described as subversive. I do not, as said above, consider the interpretation of particular expressions in a case to be of any value in the interpretation of other expressions in other cases.

46. In view of the above opinion that the grounds furnished to the detenus are not dear, precise and accurate, I hold that practically no grounds have been furnished to the detenus and that Section 5 of the U. P. Act iv [4] of 1947 has not been complied with and that, therefore the detention of the detenus is illegal and improper, be it considered to be illegal from the very beginning on the ground that on such vague and indefinite material the District Magistrate could not have bona fide come to the conclusion that it was necessary to detain these persons or on the ground that the detention is improper on account of the deprivation of the detenus' right to represent their, case effectively in the absence of precise, clear and accurate grounds.

47. I, therefore, allow this petition and order that the 22 persons detained and whose applications have been grouped together in this case be released from custody forthwith. A copy of this order will be sent to the Superintendent of the Jail, Etah, and to the Superintendent of the Jail at Fatehgarh where Parmeshwari Dayal and his son Ravindra Kumar are said to be in detention, and a copy given to the applicants according to law.


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