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Faiyaz Ali and ors. Vs. District Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ224
AppellantFaiyaz Ali and ors.
RespondentDistrict Magistrate and anr.
Excerpt:
.....information to those places through courtiers and (c) that you are instigating the muslims of the indian dominion to migrate to pakistan by telling them that they are not safe in the indian dominion. the information to be conveyed to the detenu, which would be sufficient to enable him to make a proper representation, would depend upon the circumstances of each case and upon the grounds that had satisfied the detaining authority. thus, dealing with the applications of durga das, rajendra sharma, jagan lai and gyanendra, the full bench held that, if the place and time had been given, the detenu could have satisfied the detaining authorities that on the particular date or at the particular time they were at another place. if a reason is given for the detention of a person which is not..........narain bazar have formed an organisation with a view to weaken the administration of the indian union government and spread communal bitterness in the following manner:(a) that you are carrying on pro-pakistan and pro-hyderabad propaganda by tuning the radio at your shop in earn narain bazar to those places for news.(b) that you are working as agent of pakistan and hyderabad for sending all sorts of information to those places through courtiers and(c) that you are instigating the muslims of the indian dominion to migrate to pakistan by telling them that they are not safe in the indian dominion.you have persisted in such activities and your actions are prejudicial to the public safety and maintenance of public order and communal harmony.faiyaz ali:you in chamanganj have formed along.....
Judgment:
ORDER

Bind Basni Prasad, J.

1. These are four applications under Section 491, Criminal P. C., by Syed Ali Kabir, Safdar Husain-Khan, Faiyaz Ali and Munnu alias Abdul Latif. They are under detention in accordance with the order passed under Section 3, U. P. Maintenance of Public Order (Temporary) Act, 1917. Syed Ali Kabir is a resident of Banares and he is a dealer in silk cloth. Safdar Husain is also a merchant who inter alia deals in radios at Banares and Munnu is a dealer in steel trunks at Kanpur and Faiyaz Ali was an Assistant Director in the Industries Department of the Provincial Government at Kanpur.

2. Mr. Hamidullah Beg, who appears for the first two applicants, has raised several points but it is not necessary to deal with all of them. Two points which are common to all the four a applications are, in my opinion, sufficient for their disposal. The first contention is that the mandatory provisions of Section 6, of the aforesaid Act have not been complied with in any of these . oases. The second contention is that the orders passed by the detaining authorities in all these four cases are beyond the purview of the afore-said Act. I am of opinion that both these points have force.

3. Taking up the first point, it is necessary to Bet out the grounds which were supplied under Section 6 to the various applicants. They are as follows:

Syed Ali Kabir:

You have been holding secret meetings at different places in the city in order to carry on propaganda against the Indian Union. You have been inciting Muslims in such meetings against the Indian Union and advising them to commit acts of violence, to disturb the public peace and to disrupt the machinery of Government.

You have persisted in suoh activities and your actions are prejudicial to the publio safety and maintenance of publio order and communal harmony.

Safdar Hussain Khan:

You have been holding secret meetings at different plaoes in the oity in order to earry on propaganda against the Indian Union. You have been inciting Muslims in suoh meetings against the Indian Union and advising them to commit acts of violence, to disturb the publia peaoe and to disrupt the machinery of Government.

You have persisted in such activities and your aotions ate prejudicial to the publio safety and maintenance of publio order and communal harmony.

Munnu alias Abdul Latif:

You along with Shafi and others in Earn Narain Bazar have formed an organisation with a view to weaken the administration of the Indian Union Government and spread communal bitterness in the following manner:

(a) that you are carrying on pro-Pakistan and pro-Hyderabad propaganda by tuning the radio at your shop in Earn Narain Bazar to those places for news.

(b) that you are working as Agent of Pakistan and Hyderabad for sending all sorts of information to those places through courtiers and

(c) that you are instigating the Muslims of the Indian Dominion to migrate to Pakistan by telling them that they are not safe in the Indian Dominion.

You have persisted in such activities and your actions are prejudicial to the public safety and maintenance of public order and communal harmony.

Faiyaz Ali:

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 bitternees in the following manner:

(a) that you have been advocating that the Muslim Government servants need own no allegiance towards the Indian Union Government and that their first interest lies with the Muslim ruler of Hyderabad State and Pakistan.

(b) You are exhorting Muslims to organise and be prepared to stand by with the Hyderabad State in the event of a conflict between the Hyderabad State and the Indian Dominion and

(c) You create panio in the city by spreading the rumour that there will be disturbances throughout the Indian Union after the departure of H. E. Lord Mount-batten and that Muslims should be ready to face boldly all the aggressions of the Hindu Government.

You have persisted in such activities and your actions are prejudicial to the public safety and maintenance of public order and oommunal harmony.

4. Section 5 provides that:

As soon as may be after an order in respect of any person is made under ol. (a) of Sub-section (1) of Section 3 of the Act the officer or authority making the order shall oommunicate to the person affected thereby, the grounds on which the order against him has been made and suoh other particulars as may, in the opinion of suoh officer or authority, be sufficient to enable him to make, a representation against that order.

6. It is clear that the detaining authority has to communicate to the detenu not only the grounds but also the particulars thereof. It is true that discretion has been given to suoh authority to supply such particulars as, in his opinion, may be sufficient to make an effective representation, but where the grounds supplied under Section 5, contained no particulars at all, the provisions of that section cannot be said to have been complied with. In the recent Full Bench case, in Rex v. Durga Das, cri. Misc. Case Ho. 946 of 1948, decided on 15th September 1948 : A.I.R. (36) 1949 ALL. 148), it has been held by this Court that, though the detenu is not entitled to any evidence or the source of information, he must be furnished along with the grounds of detention. sufficient details to enable him to make out a case, if he can, for the consideration of the detaining authority. The detaining authority must give reasons for his satisfaction why the preventive action was necessary in the interest of public safety. It was further held that it was difficult to lay down a hard and fast rule. The information to be conveyed to the detenu, which would be sufficient to enable him to make a proper representation, would depend upon the circumstances of each case and upon the grounds that had satisfied the detaining authority. Vague and indefinite grounds were deprecated and it was held that all grounds of detention, which had weighed with the detaining authority, must be conveyed to the detenu. Applying the above principles, when the Pull Bench came to deal with the individual cases before it, it held that it was necessary, in appropriate cases, to give the time and places when and where the detenu is alleged to have indulged in the objectionable activities. Thus, dealing with the applications of Durga Das, Rajendra Sharma, Jagan Lai and Gyanendra, the Full Bench held that, if the place and time had been given, the detenu could have satisfied the detaining authorities that on the particular date or at the particular time they were at another place. Absence of such particulars led the Full Bench to declare that the further detention of those persons was illegal. In the case of none of the applicants before me the grounds show as to when and at what place the applicants indulged in the objectionable activities. I am of opinion that the grounds supplied to these four detenus do not contain sufficient particulars to enable them to make effective representations. Even if it be held that the notice under B. 5 fulfilled the requirements of that section, the second ground taken in the case is fatal to their further detention. As has been pointed out by the Full Bench in the above case, the Provincial Legislature can make a law for preventive detention only under Entry No. 1 of List 2 of Sch. 7, Government of India Act, 1936, which inter alia mentions 'Preventive detention for reasons connected with the maintenance of public order, persons subjected to such detention.' It is not within the purview of the Provincial Legislature to make any laws for 'preventive detention for the reasons of State connected with the defence' -or external affairs.' Such a law can be made only by the Dominion Legislature under Entry no. l of List I of Sch. 7, Government of India Act, 1935. It must be taken, therefore, that under the U, P. Maintenance of Public Order (Temporary) Act, 1947, preventive detention for reasons of State connected with defence order or external affairs was not intended. This provincial Act can be applied only where the preventive detention is sought to be made for the reasons connected with the maintenance of public order.

6. Having stated the legal position, I proceed now to deal with the individual cases.

7. Syed Ali Kabir was told that (l) he was holding secret meetings in the city to carry on propaganda against the Indian Union, (2) he had been inciting Muslims in such meetings against the Indian Union and (3) advising them to commit acts of violence, to disturb the public peace and to disrupt the machinery of Government. So far as the first two accusations and concerned they are certainly matters which fall under 'reasons of State connected with defence and external affairs.'

8. The third ground supplied to him certainly falls in the Provincial sphere but the detaining authority was influenced by all the three considerations and not only by the third consideration. We must take it that the cumulative effect of all the grounds supplied to the detenu weighed with the detaining authority when it passed the order of detention. In this connection I may refer to the Full Bench case in re Rajdhar Kalu Patil A.I.R. (85) 1948 Bom. 334 : 49 cr.L. J. 465 F.B.). It was held in that case that grounds of detention furnished to the detenu must be clear, precise and accurate so as to make it clear to the person detained what he is charged with and what has moved the Government to deprive him of his liberty and should be communicated after careful consideration. The grounds which are vague and indefinite and which contain no particulars whatsoever are no grounds at all. If a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the powers upon the Government to detain, then the whole order is vitiated notwithstanding the fact that the other reasons given are good because something may have operated upon the mind of the detaining authority which is foreign and extraneous to the purpose of the Act. Hence in a case where out of three grounds, two are beyond the purview of the Act under which the detention has been ordered and one-is within the purview of that Act the detention order is illegal.

9. Syed Ali Kabir should, therefore, be set at liberty.

10. Safdar Husain Khan's case is identical that of Syed Ali Kabir and for the same reasons he should also be released.

11. Faiyaz Ali's case is still clearer. The grounds supplied to him have been set out above. The first and the second grounds are beyond the purview of the Act. They relate to reasons of State connected with defence or external affairs. In the first ground he has been accused of advocating that the Muslim Government servants need owe no allegiance towards the Indian Union Government and that their first interest lies with the Muslim rulers of Hyderabad State and Pakistan. Prom the Government of India Act, 1936, as adapted by the India (Provisional Constitution Order, 1947, it will be seen that there is no such expression as 'Indian Union Government.' Probably Indian Dominion Government was meant. Now Indian Dominion Government would mean 'the Dominion Executive' dealt with in part l, chap, 2, as distinguished from 'the Provincial Executive' dealt with in part 2, chap, 2 of that Act.

12. The second ground was that the detenu was exhorting Muslims to stand by Hyderabad. The essence of the first and second grounds is that the applicant was an advocate of the cause of Hyderabad and Pakistan with which the Indian Dominion had some differences. That is certainly not a matter which falls in the Provincial sphere. It clearly falls under Entry no. 1 of .List 1 of sch. 7, Government of India Act, 1935.

13. The third ground is devoid of necessary particulars to enable the applicant to make an effective representation. It does not indicate time and place, He is also, therefore, entitled to be released.

14. Lastly there is the case of Munnu. I asked learned Assistant Government Advocate to show me any order which prohibited the tuning of the radios to Pakistan and Hyderabad stations. He baa shown me today the order, dated 7th June 1948, by which the District Magistrate of Kanpur acting under Section 144, Criminal P. 0, prohibited thirteen things. We are concerned only with paras. 9 and 10 of this order. They are as follows:

(9) No person shall hear in a public place radio broadcast from the Pakistan radio. (10) No persona shall play his radio or a loud speaker with such velocity that Pakistan radio can be heard in a. public place.

15. It will be seen that the tuning of radios to Hyderabad station has not been prohibited by this order. Then the applicant Munnu was arrested on 5th June 1948 and on that date this prohibition was not in force. It came into force two days later. His detention order on the ground of tuning radios to Pakistan and Hyderabad stations was, therefore, illegal.

16. The second ground was that Munnu was working as an agent of Pakistan and Hyderabad for sending all sorts of information. As already stated above, this ground is not within the purview of the Provincial Act.

17. The third ground was that he was instigating the Muslims of the Indian Dominion to migrate to Pakistan. That also did not come within the purview of the Act. It relates to external affairs. Munnu is also entitled to be released.

18. For the reasons given above, I allow all the four applications and direct that they be set at liberty forthwith.


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