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S.G. Sardesai Vs. the Provincial Government - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1949All395; 1949CriLJ637
AppellantS.G. Sardesai
RespondentThe Provincial Government
Excerpt:
.....was denied. ' we find in this ease that the home secretary took about 27 days to reply the applicant's letter of 23rd august 1948. if this piecemeal method of the communication of the grounds of dejjention and particulars thereof at such long intervals is accepted, then it may well be that the whole of the period of detention may be exhausted in the exchange of correspondence-between the detaining authority and the detenu. the object of section 5 may thus be defeated. freedom of speech with certain well-known restrictions is recognised by law. the general words like 'inciting kisans against government and zamindars1 and 'preaching hat-red against the government' do not contain sufficient particulars. a party which has strength by organising itself well is likely to gain its points...........of section 5 of the act makes further detention illegal or improper. in a case where the detaining authority has not supplied the grounds or particulars within a reasonable time section 5 will be deemed as not having been complied with. the act makes a serious enoroaohment on the liberties of the subjects and empowers the executive to keep a man in custody without trial. the provisions of the act have, therefore, to be strictly interpreted and must be fully complied with. where the detaining authority has not complied with any mandatory provision of the act further detention becomes illegal or improper. it cannot be disputed that the pro-visions of section 5 are mandatory. they give the detenu a valuable right to know why action has been taken against him and to make a.....
Judgment:
ORDER

Bind Basni Prasad, J.

1.This is an application under Section 491, Criminal P. C, by one S. G. Sardesai with the prayer that his detention being illegal, he may be set at liberty. The applicant is a member of the Communist Party of India. He is a Maharaahtrian and his permanent residence is in Bombay. On 15th July 1948, he was arrested in Azamgarh without any warrant and without any intimation to him as to under what law he was being arrested. After 13 days' custody, an order was passed by the Provincial Government on 27th July 1948, under Clause (a) of Sub-section U) of Section 3, United Provinces Maintenance of Public Order (Temporary) Act. 1947, directing his detention for six months. The same day a notice under Section 5 of the Act communicating to him the grounds of detention was drawn up and was handed over to the applicant on 31st July 1948. The grounds mentioned in that notice are:

You have been inciting kisans against Government and the zamindars. You have also been preaching hatred and violence against the Government as by law established. In several speeches at different places in this province you advised the kisans to take possession of land by force. On 15th July 1948, you were arrested in the Azamgarh district under auspicious ciroum-stances along with Jai Bahadur Singh, an absconder, from whose possession an unlicensed D. B. B, L. gun was recovered at the time.

2. On 14th September 1948, the habeas corpus application was made to this Court. An affidavit was sworn in by one S. K. Das in support of the application. It was admitted in that affidavit that the applicant is an active member of the Communist Party of India and his area of acti-vity comprehends the whole of the Indian Dominion, and that he has to work in all the provinces and States, It was contended that the grounds of detention communicated to the applicant were vague and indefinite inasmuch as they did not give the dates, the places and the substance of speeches alleged to have been delivered by the applicant. It was asserted that Government was detaining the Communists so that all criticisma of the bureaucracy and the Government might, be silenced, Itwas denied that Jai BahadurSingh was an abaconder. The recovery of the gun from his possession was also denied. The validity of the notice issued under B. 5 was questioned also on a legal ground inasmuch as it was not issued in the name of the Governor. A supplementary affidavit was filed on behalf of the applicant on 28th September 1928. It was mentioned in it that the applicant did not deliver any speeohes in this Province since the beginning of 1947. It was mentioned that the applicant had asked the Home Secretary twice to furnish him with copies of his alleged objectionable speeches, but the Home Secretary did not send any reply.

3. A counter-affidavit has been filed on ba. half of the Government. It is sworn in by Shiv Bahadur Rai, Sub-Inspector, Police Lines,. Azamgarh. It appears from the counter.affidavit that when the first grounds of detention were communicated to the applicant he addressed a letter to the Home Secretary bringing to his notice the vagueness of those grounds, In reply 'to that letter the Home Secretary aant the applicant a detailed letter on 20th September 1948, in which greater particulars of the grounds mentioned in the notice dated 27th July 1948, were given and some additional grounds were also mentioned. The dates and the places of the meetings alleged to have been addressed by the applicant were mentioned in this letter of 20th September 1948. In the counter-affidavit it was admitted that Jai Bahadur Singh was not an absconder in the true sense of the word. It was explained that he was described as an absconder because he was not traceable in spite of attempts to trace him or to get hold of him. The allegation in the supplementary affidavit that the applicant bad not delivered any speeches in Province was denied.

4. The case has been argued at length at the bar. At the request of the applicant he was also allowed to address the Court in person. The following grounds have been urged by (and ?) on behalf of the applicant : (l) Having regard to the delay in the communication of the second instalment of grounds this Court should ignore them. (2) The grounds communicated to the detenu by the notice dated 27th July 1948, being vague ani indefinite are not in compliance with the provisions of Section 5 of the Act, and his further detention, therefore, is illegal. (3) The grounds communicated to the applicant having been not issued in the name of the Governor are invalid. (4) The grounds supplied on 27th July 1948, supplemented by those communicated on 20th September 1948, do not afford valid basis under the law for the detention of the applicant. (5) The detention of the applicant is mala fide.

5. From the dates mentioned above it will be seen that the second instalment of grounds were communicated to the detenu two months and five days after his arrest. Section 5 of the Act requires that the grounds of detention should be communicated 'as soon as may be'. In the full Bench case of Rex v. Durga Das decided by this Court on 15th September 1948, (A.I.R. (36) 1949 ALL. 148) it was held that the information required to be supplied under Section 5 should be given within a reasonable time and non-compliance with the provisions of Section 5 of the Act makes further detention illegal or improper. In a case where the detaining authority has not supplied the grounds or particulars within a reasonable time Section 5 will be deemed as not having been complied with. The Act makes a serious enoroaohment on the liberties of the subjects and empowers the executive to keep a man in custody without trial. The provisions of the Act have, therefore, to be strictly interpreted and must be fully complied with. Where the detaining authority has not complied with any mandatory provision of the Act further detention becomes illegal or improper. It cannot be disputed that the pro-visions of Section 5 are mandatory. They give the detenu a valuable right to know why action has been taken against him and to make a representation that his detention is not justified, even though the representation is to the same authority that has directed his detention. In the Full Bench case of Murat Patwa v. The Province of Bihar A.I.R. (35) 1948 Pat. 135 : (49 Or L, J. 182), the words 'as soon as may be,' which occur in Section 5, United Provinces Maintenance of Public Order (Temporary) Act, and which occur, red also in Section 4 of the parallel Act of that Province, came in for interpretation. TMb phrase was interpreted as meaning 'as early as is reasonable in the circumstances of the particular case.' It was observed that it should ordinarily be possible to communicate the grounds to the detenu within a comparatively short period of time and after the lapse of such a period the onus will shift to the authorities in question to show that grounds were served as soon as reasonable. The learned Deputy Government Advocate haa contended that prior to the pro-nouncements of this Court in Emperor v. Inder Frakash (A. I. K. (36) 1919 ALL. 87: 50 Or. L, J. 34), or by the Full Bench on 15th September 1948, Bex v. Durga Das (a. i. e. (36) 1949 all. 148), the detaining authority was not quite clear in its mind as to the requirements of Section 5 and that is the reason why fuller particulars were not communicated to the applicant by the notice dated 27th July 1948, but after the pronouncement of the Full Bench on 15th September 1948, Bex v. Durga Das (a. i. e. (86) 1949 all. 148), the detaining authority gave fuller particulars to the applicant by its letter dated 20th September 1948. Pronouncements by this Court only interpret the law as it is and not that they make the law. The detaining authority should have known that they had not only to give the grounds of detention but also particulars thereof to the applicant to enable him to make an effective representation. The contention that they did not understand the law cannot be accepted as a valid excuse for the non-compliance of the law, The delay of two months and five days in communication of the fuller particulars is thus not supported by any valid reasons. The question is as to what is the effect of this delay, I am of opinion that we should ignore the second set of grounds in considering this habeas corpus application. These grounds were supplied to the applicant after he had made the application to this Court. These grounds were not available to the applicant within a reasonable time to enable him to make a representation to the detaining authority. These grounds did not comply with the words 'as soon as may be' occurring in Section 5. 16 is the duty of the detaining authority to communicate to the detenu the grounds of detention 'as soon as may be.' We find in this ease that the Home Secretary took about 27 days to reply the applicant's letter of 23rd August 1948. If this piecemeal method of the communication of the grounds of dejjention and particulars thereof at such long intervals is accepted, then it may well be that the whole of the period of detention may be exhausted in the exchange of correspondence-between the detaining authority and the detenu. The object of Section 5 may thus be defeated.

6. Having arrived at this finding the question arises whether the first set of grounds com-municated to the applicant on 27th July 1948, was in compliance with Section 6. It has been quoted above in extenso, Learned Deputy Government Advocate contends that the applicant admits having made apeeohea in this province and when-he admits his arrest in the district of Azamgarh it was not neoessary in the oircumstahces of this case to give any further particulars of the date, place and the purport of those speeches, It will be seen that according to the Provincial Govern-ment itself the applicant made no speeches in this Province after December 1917, and the speeches alleged to have been made by the applicant in Azamgarh were those in August 1916, at a time when the constitution was quite different and the country was still under foreign rule. Sufficient particulars of the substance of the speeches were of great importance. As a member of the Communist Party the applicant claims a right to advocate a certain change in the present system of the Government. He thinks that the change is necessary for the amelioration of the condition of the masses and also for the improvement of the present economic position in the country with its high prices. He thinks that every one should have the freedom to possess arma. He claims a right to propagate his views. He asserts that it is a fundamental right of every citizen to agitate for the above purposes. He denies having ever advocated the use of violence or the overthrow of the present Government. The mere admission of the applicant to have made speeches is not enough. Freedom of speech with certain well-known restrictions is recognised by law. Communist Party as such is not banned by law. Only when they make speeches prejudicial to public safety, public order or communal harmony, they become liable to detention under the above-mentioned Act. Where a person is detained only for making certain speeches, it is necessary to inform him as nearly as possible the substance of the remarks made in the speeches. The general words like 'inciting kisans against Government and zamindars1 and 'preaching hat-red against the Government' do not contain sufficient particulars. What may be an honest and permissible criticism of the Government and the zamindars may be regarded by a sensitive person as an incitement against them and as ten-ding to spread hatred against them. If a zamin-dar harasses his tenants and the speaker draws attention of the audience to it stating at the same time that necessary steps were not being taken by the Government, that is a ventilation of a grievance in public interest. Such remarks undoubtedly involve a criticism of the zamindars and the Government, but they can hardly be construed as incitement against them or spread, ing hatred against them. To do so would be to shut out even healthy criticism of the Government, which certainly is not one of the objects of the above mentioned Act. Where the words used by a person in a speech are the gravamen of the accusation, it is important that the substance of those words, if not the words themselves, should be communicated to him to enable him to make effective representation.

7. Then it is stated that the applicant advised the kisan to take possession of land by force. The applicant denies this. He says that what be stated in his speeches made in 1947 was to have referred to the proverb 'Jiski lathi uski bhains' and by this he meant that it was necessary for the kisans to organise themselves in order to bring pressure upon the Government to legislate in their interests. The proverb means that it is power which matters in this world. A party which has strength by organising itself well is likely to gain its points. It does not necessarily mean the use of lathi for achieving the objects.

8. The applicant is also said to have advocated violence against the Government. It is not indioated in what form and manner the use of violence was advocated.

9. The grounds dated 27th July 1948, thus suffer from vagueness and indefiniteness inaa-much as they give no particulars of the dates and places of the meetings alleged to have been addressed by the applicant, the substance of the words used by him and the manner in which the use of violence was advocated. The ground that an absconder was with the applicant was latterly withdrawn by the Government, It was accepted that Jai Bahadur Singh was not an absconder. It was not alleged in the grounds that on 15th July 1948, the applicant actually addressed any meeting at Azamgarh. There was only an apprehension in the mind of the detaining authority. They entertained only a suspicion. Suspicion is different from belief or satisfaction, Evidently the applicant was detained as he was an active member of the Communist Party. Membership of this party per se is no good ground for detention, as the law stands at present.

10. For the reasons stated above I hold that further detention of the applicant is illegal. If in future he preaches violence or the overthrow of the Government established by law it would be open to the Provincial Government to take action against him according to law

11. As regards the contention that the com. munication of the grounds was illegal because they were not issued in the name of the Governor, I am of opinion that it has no force. Section 5 requires the detaining authority or officer to communicate the grounds of detention. learned Counsel for the applicsathas relied upon Shripad Amrit Dange v. SirHarsiddhbhai V. Divatia and others A.I.R. (35) 1948 be m. 20 : (49 be m. L.E. 468). That was a case which in facts was quite different from the present one. At an eleotion for a seat allotted to the Bombay city the petitioner was declared elected a member of the Bombay Legislative Assembly. Respondent & was one of the contesting candidates and he preferred an eleotion petition to His Excellency the Governor of Bombay. Commissioners for the trial of the petition were appointed. In the Notification of appointment it was mentioned that the Government of Bombay had appointed the Oommis. sioners. It was held in that case that as the order of appointment was not issued in the name of the Governor, the appointment was invalid. The relevant provision under which the Com-misaionera were appointed is para, 4 of part III, Government of India (Provincial Elections Cor-rupt Practices and Election Petitions) Order, 1936, which provides:

Unless the Governor, exercising his individual judgment, dismisses a petition for non-compliance with the prescribed requirements, he shall, exercising his individual judgment, appoint as Commissioners for the 'trial of the petition three persona who are or have been, or are eligible to be appointed, Judges of a High Court, and shall appoint one of them to be the President.

The important point to note is that the word 'Governor'occurs in the above provision; whereas according to Section 3, U. P. Maintenance of Public Order (Temporary) Act. 1947, the detaining authority is the Provincial Government or the District Magistrate, the word 'Governor' as such does not appear either in Section 3 or in 8. 5. When the words 'Provincial Government' have been used in Section 3, with reference to which Section 5 is' enacted, a Secretary to the Government can, in my opinion, communicate the grounds of detention to the detenu. There is another aspect of the question. The real executive act is the order of detention and that in the present case was issued in the name of the Governor, as required by Section 59(l), Government of India Act, 1985. The communication of the grounds under Section 5 was a ministerial act and a Secretary to the Government could do it in accordance with rules made under Sub-sections (2) and (3) of a. 59, Govern. ment of India Act, 1935.

12. learned Counsel has also relied upon the Province of Bengal v. S. L. Puri, 51 o. w. N. 753. On an interpretation of Section 175(3), Government of India Act. 1935, it was held that a contract is not binding upon a Provincial Government unless it has been entered into in the name o the Governor. In S, 175 (8) also the word 'Governor' and not the words 'Provincial Government1 have been used.

13. It is not necessary to deal with the other points raised in the case as on the finding that the grounds dated 27th July 1948, are indefinite and vague the further detention is illegal.

14. The application is allowed and I hereby direct that the applicant be set at liberty unless required in connection with any other matter.


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