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Noor Mohammad and ors. Vs. Rex. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ131
AppellantNoor Mohammad and ors.
RespondentRex.
Excerpt:
.....the maintenance of public order. this ground is, therefore, clearly connected with the maintenance of public order in kanpur, the second way in which the applicant was doing this was by spreading disaffection among the muslims against the indian union. in the case of this applicant, the grounds clearly show that his detention was of the kind mentioned in list ii, item 1 and not of the kind mentioned in list i, item i......and others an organisation which is secret with a view to weaken the administration of the indian union government and spread communal bitterness in the following manner : a) that you are inducing muslims to organise and to be prepared to stand by the hyderabad state in the event of any future emergency between the hyderabad state and the indian dominion; (b) that you were spreading disaffection among the muslims against the indian dominion; (o) that your behaviour in the past had also been of a very communal nature and that you organised stabbing in the charaanganj vicinity in march and september 1947, during the period- of communal tension in kanpur.3. the following grounds were supplied to noor-ul hasan:that you in chamanganj, have formed along with hakim noorani and others a secret.....
Judgment:
ORDER

Wanchoo, J.

1. These are three applications by Hakim Noor Mohammad alias Noorani, Noor-ul Hasan and Ahmad Salim Ullah of Kanpur under Section 491, Criminal P. C, against orders passed against them by the Provincial Government under Section 3 (l) (a) of U. P, Act IV [4] of 1947. I propose to take them up together as the points raised on behalf of the applicants are common.

2. It appears that the applicants were arrested on 6th June 1948 and detained by the order of the District Magistrate of Kanpur under Section 3 (2) of V. p. Act iv [4] of 1947 for fifteen days. The matter was then apparently referred to the Provincial Government and the applicants were thereafter ordered to be detained for a period of six months by an order of the Provincial Government, dated 17th June 1948. The grounds for detention were also supplied to the applicants by the Provincial Government immediately afterwards on 13th June. I propose to set out these grounds in detail. In the case of Ahmad Salim Ullah the grounds were as follows:

That in Chamnganj you have formed along with Hakim Noorani and others an organisation which is secret with a view to weaken the administration of the Indian Union Government and spread communal bitterness in the following manner : a) that you are inducing Muslims to organise and to be prepared to stand by the Hyderabad State in the event of any future emergency between the Hyderabad State and the Indian Dominion; (b) that you were spreading disaffection among the Muslims against the Indian Dominion; (o) that your behaviour in the past had also been of a very communal nature and that you organised stabbing in the Charaanganj vicinity in March and September 1947, during the period- of communal tension in Kanpur.

3. The following grounds were supplied to Noor-ul Hasan:

That you in Chamanganj, have formed along with Hakim Noorani and others a secret organisation with a view to weaken the administration of the Indian Union Government and spread communal bitterness in the following manner : a) that you have been advocating that the Muslim Government servants need owe no allegiance towards the Indian Union Government and that their first interest lies with the Muslim ruler of Hyderabad State; (b) that you have been preaching to retired Government officials that they should form an organisation to tamper with the loyalty of the existing members of Government servants, and (c) that you create panic in the city by spreading the rumour that there would be riot B throughout the Indian Dominion after 15th June 1948 when H. E. Lord Mountbatten would leave India.

4. The following grounds were supplied to Hakim Noor Mohammad aliaB Noorani:

That you have been holding private meetings in your shop along with others giving expression to pro-Hyderabad State sentiments and exhorting them to organise with a view to disturbing the public peace and public order in Kanpur in case the relations between the Indian Union and the Hyderabad State deteriorate. Tour behaviour in the past has also been of a very communal nature and you organised oases of stabbing in the vicinity of Chamanganj in March and September 1947, during the period - of communal tension in Kanpur, and you enlisted the support of the retired police officials and have also attempted to tamper with the loyalty of the existing members of the police force with a view to evoking their communal sentiments and advocating that they should resign from the services of the Indian Union Government and enlist in the Hyderabad State or revolt in case the Indian Union Government gets involved in a war with Hyderabad State.

5. The first point that has been urged on behalf of the applicants is that keeping in view the grounds that have bean supplied to the applicants for their detention, these cases do not come within the ambit cJ U. P. Act iv [4] of 1947 because that Act has been passed by the Provincial Government under its powers under List II, item 1, Government of India Act. 1935, while the grounds supplied to the applicants show that the detention of the applicants is of the kind mentioned in List I, item l of the said Act. List II, item 1 with respect to preventive detention reads as follows: 'preventive detention for reasons connected with the maintenance of public order'. List I, item 1 relating to the same subject reads as follows:

preventive detention for reasons of State connected With defence, external affairs or relation with Acceding States.

6. A comparison of these two Lists clearly shows the difference between the two kind a of preventive detentions. It is obvious that the Provincial Government can only pass detention orders for preventive purposes with respect to the maintenance of public order. At the same time, it must not be forgotten that these two kinds of preventive detention may overlap in the sense that what may appear to be preventive detention in connection with defence etc., may primarily be preventive detention for reasons connected with the maintenance of public order. The mere fact that in the grounds a mention is made of war or of relations with Hyderabad State is not enough for holding that the detention, in this case, could only be provided for by legislation under List I, item 1, Government of India Act. It will still have to be seen in each individual case whether in spite of such references, the detention in the particular case is primarily connected with the maintenance of public order in these provinces. If it is so connected, the fact that there is a reference to war or to the Indian Union Government or to the Hyderabad State would not make that detention of the nature specified in List I, item 1, Government of India Act. I shall, therefore, examine the grounds in each case at the end to see whether they show that the detention is for reasons connected with the maintenance of public order.

7. The second point that has been urged is that the District Magistrate having detained the applicants under Section 3 (2) of the Act, it was not open to the Provincial Government to extend that period under Section 3 (l) (a) and reliance, in this connection, has been placed on the case of Syed Zamir Qasim : AIR1948All285 . This argument has, in my opinion, no force. In the first place, power of extension has now been specificially provided by an amendment of the Act in April 1948 and these orders of detention are of June 1948. But I am further of opinion that even it there had been no amendment of the Act, an order passed by the Provincial Government under Section 3 (1) (a) is an entirely independent order and i3 not an extension of the order passed by the District Magistrate under Section 3 (2). The scheme of the Act clearly is that the District Magistrates are invested with powers under Section 3 (2) to detain a person for fifteen days. Further, though the Act does not say so in so many words, it is obvious that where a District Magistrate considers that a person should be detained for more than fifteen days, he can report the matter to the Provincial Government for an order of detention under Section 3 (l) (a) for a period of six months. It is true that the District Magistrates have been invested with powers under Section 3 (l) (a) by a Notification under Section 11 of the Act. But I am of opinion that that Notification doe3 not take away the power of the District Magistrates to act under Section 3 (2) in the first instance, and of the Provincial Government to pass an order under Section 3 (l) (a) in the same case. I am, therefore, of opinion that Zamir Qasim's case : AIR1948All285 has no application to circumstances like these as it was held, in that ease, that an order of extension by the same officer under the same provision of the law, namely, Section S (l) (a) was not contemplated by the law, as it then stood.

8. The next point that has been urged is that under Section 4 of the Act, the detention cannot exceed a period of six months, while in this case the total period of detention will exceed sis months and, therefore, the order of the Provincial Government is illegal. The applicants were first arrested on 6th June 1948 and detained under Section 3 (2) by the District Magistrate. Thereafter, the Provincial Government passed their orders under Section 3 (l) (a) on 17th June 1948 for a period of six months from the date of the order. The two period B taken together are certainly more than six months. Bat Section 4 which limits the power of the Provincial Government to detain a person for six months does not say that this period will include the period of 15 days mentioned in Section 3 (2). The power which is exercised under Section 3 (2) is conferred by the Act on a different officer for a fixed period of 15 days. The Provincial Government can, under B, I, pass an order of detention for six months from the date of the order and this must be in addition to the period of 15 days provided in Section 3 (2), unless Section 4 of the Act says otherwise. As Section 4 does not provide that the period under Section 8 (2) will also be included, under that Act the order of the Provincial Government detaining the applicants for six months from the date of the order is, in my opinion, valid even though the applicants may have been already detained for a period of 15 days or less by the order of the District Magistrate under Section 3 (2).

9. Act VI [4] of 1947, makes it clear that disturbance of communal harmony also amounts to disturbance of public order and that a person can be detained for trying to disturb communal harmony which would, in its turn, disturb public order. If, therefore, the grounds supplied, in this case show that the applicants were acting . in a manner which would suggest that their actions were likely to disturb the public tranquillity or communal harmony, they would clearly be liable to preventive detention for reasons connected with the maintenance of public order as mentioned in List II, item l, Government of India Act.

10. Noor-ul-Haaan was told that he had formed a secret organisation with a view to weaken the administration of the Indian Union Govern-ment and spread communal bitterness. These two grounds clearly relate to maintenance of public order. Weakening the administration of the Indian Union Government (in which term must be included the Provincial Government) means that maintenance of public order would be jeopardised. 'Spreading communal bitter-ness' clearly means that the relations between the. two communities would be disturbed which would again lead to the disturbance of public order. The grounds, therefore, that were sup. plied to Noor-ul Hasan were clearly connected with the maintenance of public order. The manner in which he was doing these two things was further specified in the three particulars which were supplied to him. He was told that ha was advocating that the Muslim Government servants need owe no allegiance towards the Indian Union Government and that their first interest lay with the Muslim ruler of Hyderabad State. If this propaganda was spread among part of the Government servants, it was bound to weaken the administration including the main, tenance of public order. The second way in which this was being done was that Noor-ul. Hasan was preaching retired Government officio is to tamper with the loyalty of the existing members of the Government servants. That is, more or less, similar to the first method with this difference that an attempt was made not only to tamper with the loyalty of Muslim Government servants but with the loyalty of all Government servants through an organisation of retired Government servants. Thirdly the applicant was creating panic in the city of Kanpur by spreading a rumour that there would be riots throughout the Indian Dominion after 15th June 1948 when Lord Mountbatten would leave India, The spreading of such a rumour was certainly a dangerous thing and was likely to lead to disturbance of public order. The reasons, therefore, that were supplied to Noor-ul-Hasan are primarily all concerned with the maintenance of public order in the city of Kanpur- I am not prepared to hold that they are vague, So far, therefore, as Noor-ul-Hasan is concerned, his case is not covered by preventive detention as mentioned in List I, item l. It is dearly covered by preventive detention as mentioned in List II, item 1 and he has been rightly detained.

11. The next is the case of Ahmad Salira Ullah. The grounds supplied to him were also the same as to Noor-ul Hasan, namely, that he was trying to weaken the administration of the Indian Union Government and spreading communal bitterness. These grounds obviously are connected with the maintenance of public order as mentioned by me above. The way in which Ahmad Salim Ullah was carrying out these objects was specified further in the three particulars that were supplied to him. He was, in the first place, inducing Muslims to organise and to be prepared to stand by the Hyderabad State in the event of any conflict between the Hyderabad State and the Indian Dominion. If a person is preparing such a body of men in Kanpur, the obvious intention must be to disturb the peace of Kanpur in case of a conflict between the Hyderabad State and the Indian Union. This ground is, therefore, clearly connected with the maintenance of public order in Kanpur, The second way in which the applicant was doing this was by spreading disaffection among the Muslims against the Indian Union. This particular may be said to be connected with the first particular though it is more general in terms. Spreading of disaffection amongst a class of persona would certainly lead to communal bitterness and consequent danger to' maintenance of public order. These two grounds, therefore, are primarily connected with the maintenance of public order in Kanpur. The third ground refers to the past activities of Ahmad Salim Ullah which also were connected with the disturbance of public order. In the case of this applicant, the grounds clearly show that his detention was of the kind mentioned in List II, item 1 and not of the kind mentioned in List I, item I. The grounds and particulars supplied under Section 5 cannot be said to be vague. Under these circumstances, the detention of Ahmad 8alim Ullah also is proper.

12. The last case is that of Hakim Noor Mofaammid alias Noorani. Ho was told that he had been holding private meetings in his Bhop along with others giving expression to pro-Hyderabad State sentiments and exhorting his audience to organise with a view to disturbing the public peace and public order in Kanpur in case the relations between the Indian Union and the 'Hyderabad State deteriorated. It is very obvious that this is primarily connected with the maintenance of public order in Kanpur. It is true that it speak of a time when the relations between the Indian Union Government and Hyderabad State might deteriorate. But the order is primarily directed against a person who was trying to create conditions in which there might be disturbance of public order in Kanpur. Another ground supplied to the applicant was that he attempted to tamper with the loyalty of the members of the existing police force with a view to evoking their communal sentiments and advocating that they should resign from the service of the Indian Union Government and -enlist in {lie Hyderabad State or revolt in case the Indian Union Government gets involved in a war with Hyderabad State. This also is primarily connected with the maintenance of public order in Kanpur. Lastly, the applicant was told that his previous conduct had also been of a very communal nature. The grounds and particulars, therefore, supplied to the applicant are primarily connected with the maintenance of public order in Kanpur. Therefore, the detention of this applicant is also of the nature contemplated in List II, item 1, Government of India Act, 1935, and not of the nature contemplated by It I, Item 1 of the same Act. I am further of opinion that the grounds and particulars supplied to the applicant are not vague. The applicant be, therefore, been rightly detained.

13. I, therefore, dismiss the applications of Hakim Noor Mohammad alias Noorani, Noor-ul Hasan and Ahmad Salim Ullah under Section 491, Criminal P. C.


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