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Dr. Abdul Ghafoor Vs. Rex. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ393
AppellantDr. Abdul Ghafoor
RespondentRex.
Excerpt:
- - i can do no better than to quote the following from salmond on jurisprudence, eighth edition, at pp. 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. therefore, we must draw a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. if the court can come to the conclusion that there is a ground or grounds which are within the ambit of the act and which the 'detaining authority can legitimately consider in order to be satisfied that it is necessary to detain a person concerned, then the court must uphold the order......grounds are interconnected and it is not possible to separate one from the other and some of which grounds fall within the central field, then, in such a case, it can be said that the .court cannot be certain as to what would have been the effect upon the mind of the detaining authority of the grounds which fall within the provincial field, but where, as in the present case, the grounds falling within the provincial field are by themselves sufficient to lead a reasonable mind to pass a detention order, the fact that some of the grounds fall within the central field, can be no justification for a reversal of that order.6. learned counsel contends that the charge of treason is connected with the other charges which fall in the central field and, as such, they should not be taken in.....
Judgment:
ORDER

Bind Basni Prasad, J.

1. These are two applications under Section 491, Criminal P. C., by Dr. Abdul Ghafoor of Pilibhit and his wife Begam Abdul Ghafoor. On 18th August 1918, the husband and the wife were arrested under the orders of the District Magistrate passed under Sub-section (2) of Section 8, U. P. Maintenance of Public Order (Temporary) Act, 1947. Before the espiry of the period of fifteen days .for which they were ordered to be detained by the District Magistrate, the Provincial Government on 1st September 1948, passed an order of detention for six months against them under 8. 3 (l)(a) of the Act. The grounds of detention supplied to Dr. Abdul Ghafoor under Section 8 of the Act are as follows:

You along with your' wife have been in direct correspondence with undesirable elements hostile to the interests of the Indian Dominion. The correspondence which you so carried on reveals that you, with the help and guidance of certain persona of Pakistan, were planning to resort to treason and had designs over the Indian Dominion territory. It also reveals that you were out to create lawlessness within the Indian Union. You have constantly been trying to tamper with the loyalty of the Indian Muslims by preaching to them to disown their allegiance towards India and to take to wholesale murder of the Hindus. On a search being made of your house, two very objectionable and inflammable notices and an envelope, having the seal of the Pakistan Government, were recovered. Also, while being taken away to Kotwali, you cried from the tongs to the Muslims nearby that it was not possible for the Muslims to live honourably in the Kafir State of the Indian Dominion. You exhorted them to leave for Pakistan lest they were driven out by the present Indian Union Government.

Your, actions amount to treason and are likely to create communal animosity which may lead to breaches of the peace, They are also prejudicial to the public safety, maintenance of public order and communal harmony.

2. The grounds of detention under Section 5 communicated to Begum Dr. Abdul Ghafoor are almost in identical terms, She also has been accused of provoking the feelings of the Muslims to murder Hindus of the Indian Dominion and of planning treason. In her case also it has been alleged that, when she was being taken to Kotwali in a tonga, she cried to the Muslims nearby that it was not possible for Muslims to live in the Indian Dominion and that she also designated the present Government in Indian Dominion as that of Kafirs.

3. The first contention raised by learned -counsel for the applicants is that the grounds of detention communicated to the two applicants are beyond the scope and the object of the U. P. Maintenance of Public Order (Temporary) Act, 1947, as the grounds relate to matters 'connected with defence, external affairs, or relations with acceding States, a subject which falls under Entry no. l of the Federal Legislative Liat, as contained in List l of the son. 7, Government of India Act, 1935, and not to the subject 'connected with maintenance of public order' which falls under Entry No. 1 of the Provincial Legislative List of the said schedule. An analysis of the grounds communicated to the two applicants shows that they fall partly in the Federal Legislative List and partly in the Provincial Legislative list. In so far as those grounds charge the applicants for help to and from the Pakistan, they fall in the Federal Legislative List but, in so far as those grounds relate to treason, lawlessness, murder of the Hindus, and disowning of allegiance to the Indian Dominion, they fall in the Provincial Legislative List as they are connected with the .maintenance of public order. Maintenance of public order is intimately connected with the stability of State and the stability of the State is intimately connected with the allegiance of the citizens. If the allegiance is weakened, the State is weakened and there is real danger of disorder. I can do no better than to quote the following from Salmond on Jurisprudence, Eighth Edition, at pp. 150 and 151:

The relations between a State and its members is one of reciprocal obligation. The State owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a State in order that they be defended by it against each other and against external enemies. But this defence is not a privilege to be had for nothing, and in return for its protection the State exacts from its members services and sacrifices to which outsiders are not constrained. From its) members it collects its revenue; from them It requires the per. formance of public duties; from them it demands an habitual submi8s.on to its will as the price of the benefits of its guardianship. Its members, therefore, are not merely in a special manner under the protection of the State, but are also in a manner under its coercion. This special duty of assistance, fidelity and obedience is called allegiance.

I am of opinion that he who excites treason commits an act likely to lead to disorder and falls within entry l of the Provincial Legislative List.

4. So far as incitement for the commission of murder of Hindus is concerned there can be no gainsaying that it was an act likely to create serious disorder.

5. learned Counsel relies upon the Full Bench case of In re Bajdhar Kalu Patil, A, I. R. (35) 1948 be m. 334 : (49 Cr. L. J. 465 P.B.) in support of his contention that where grounds of detention supplied to a detenu fall partly within the scope of the Act and partly beyond it, he is entitled to release. The relevant passages of the Court are in these terms:

Therefore according to the learned Chief Justice of India, with whose opinion with respect we entirely agree, if a reason is given for the detention of a person which is not within the scope and ambit of the Act conferring the power upon the Government to detain, then the whole order is vitiated notwithstanding the f Act. 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.

In that very judgment the learned Judges go on to observe:

But if some of the grounds given are not outside the scope and ambit of the Act but are merely vague and indefinite, it cannot be said that some extraneous -consideration has weighed with the detaining authority in making the order it has made. Therefore, we must draw a sharp distinction between a ground which is outside the purview of the statute and a ground which is bad because it lacks precision and accuracy. In the latter case, the ground has to be completely ignored as if no ground was famished at all. If after eliminating the grounds which are no grounds at all, inasmuch as they furnish no precise information to the detenu, there still remain a ground or grounds which are .precise and accurate and which can justify the order, then we see no reason why the order made by the detaining authority should not stand. If the Court can come to the conclusion that there is a ground or grounds which are within the ambit of the Act and which the 'detaining authority can legitimately consider in order to be satisfied that it is necessary to detain a person concerned, then the Court must uphold the order.

Every ease depends upon its own merits. If the several grounds are interconnected and it is not possible to separate one from the other and some of which grounds fall within the central field, then, in such a case, it can be said that the .Court cannot be certain as to what would have been the effect upon the mind of the detaining authority of the grounds which fall within the provincial field, but where, as in the present case, the grounds falling within the provincial field are by themselves sufficient to lead a reasonable mind to pass a detention order, the fact that some of the grounds fall within the central field, can be no justification for a reversal of that order.

6. learned Counsel contends that the charge of treason is connected with the other charges which fall in the central field and, as such, they should not be taken in isolation. It is not the motive, operating in the mind of the detenu, which is relevant. If the result of his apprehended activities in whatever field they fall is liekly to cause disorder, he comes within the provincial field. In the Full Bench case of Durgadas, recently decided by this Court in Misc. Case No. 1739 of 1948 : (R. I. S. (36) .1949 all. 148) it was observed:

If the grounds and particulars supplied show that there is no connection between them and the maintenance of public order then only the order must be held to be a fraud on the Act and the detention of the detenu, an illegal detention.

It has been shown above that the acts of the detenu in the present two cases have connection with the maintenance of public order.

7. The second ground taken is that the charges are vague and indefinite. I am of opinion that in these two cases the grounds do not suffer from any vagueness and indefiniteness. The grounds refer to certain documents and correspondence recovered from the possession of the applicants. They definitely informed the applicants the kind of action that they were taking to create disorder. They were told that they were going to excite treason and to instigate the murder of the Hindus. They were told the utterances made by them when, after their arrest, they were being taken to the kotwali.

8. The grounds communicated to the applicants thus fall partly within the be ob and the object of the above Act and were sufficient for their detention and they do not suffer from any vagueness and indefiniteness. The two applications are dismissed and the order of detention is upheld.

9. learned Counsel asks for a certificate under Section 205, Government of India Act, 1935. The certificate is granted.


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