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Nawabzada Mahmud Hasan Khan Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1949All406
AppellantNawabzada Mahmud Hasan Khan
RespondentRex
Excerpt:
.....among the muslims and that might lead to bad feelings and consequent breach of the peace. the district magistrate must have known full well that the applicant would be released on bail if he applied for it. clearly, however, in most of such cases, the act which led to man's prosecution, will also be the overt act, relied on or principally relied on to connect him with some subversive movement and justify the making of an order of detention and, if the official on whom the duty of making the order is cast, neglects to send for and study a copy of the judgment, it may very well be said that he has failed to act with due care and attention in the discharge of that duty. i am clearly of opinion that the orders passed in these cases were not mala fide. 15. the result is that all the..........learned sessions judge, however, granted him bail on 19th july 1948. on 28th july 1948, the district magistrate of moradabad, acting under sub-section (2) of section 3, u.p. maintenance of public order (temporary) act, 1947, ordered his detention for a period of fifteen days. before the expiry of this period, the provincial government, acting under clause (a) of sub-section (1) of section 3 of the above act, directed his detention for a period of six months. the grounds of detention communicated to him by the district magistrate were as follows:1. that you, in your capacity as vice president of the sambhal muslim league, have been holding secret meeting of prominent muslim leaguers and rabid communalists at your house in order to discuss and chalk out plans for attacking members.....
Judgment:
ORDER

Bind Basni Prasad, J.

1. This order will govern the three habeas corpus applications of Nawab Zada Mahmud Hasan Khan, Mohammad Yamin and Khalil Ahmad, all residents of Sambhal, District Moradabad, who were arrested and ordered to be detained as a sequel to the serious communal disturbances which took place there on 12th June 1948. The first applicant. Nawab Zada Mahmud Hasan Khan, was the Vice President of the Sabhal Muslim League and is an ex-Chairman of the Sambhal Municipal Board. The second applicant, Mohammad Yamin, states in his affidavit that he is assessed to an income-tax of Rs. 2700.

2. Nawab Zada Mahmad Hasan Khan was arrested soon after the riots for offences under Sections 302 and 148, Penal Code. He applied for bail to the Magistrate in charge of the inquiry. It was opposed by the prosecution and was reject-ed. Learned Sessions Judge, however, granted him bail on 19th July 1948. On 28th July 1948, the District Magistrate of Moradabad, acting under Sub-section (2) of Section 3, U.P. Maintenance of Public Order (Temporary) Act, 1947, ordered his detention for a period of fifteen days. Before the expiry of this period, the Provincial Government, acting under Clause (a) of Sub-section (1) of Section 3 of the above Act, directed his detention for a period of six months. The grounds of detention communicated to him by the District Magistrate were as follows:

1. That you, in your capacity as Vice President of the Sambhal Muslim League, have been holding secret meeting of prominent Muslim Leaguers and rabid communalists at your house in order to discuss and chalk out plans for attacking members of the sister communities in the town and have always taken prominent part in communal affairs.

2. That you took a leading part in the recent communal rioting at Sambhal and are alleged to have actually led the attack on a party of Hindus escorted lay Police by resorting to the use of fire arms.

3. That you yourself are a rabid communalist who is always prepared to excite communally minded Muslims and goondas to make mischief in order to endanger public peace in the town.

4. That your detention is absolutely necessary in the interest of public peace and communal amity and in order to prevent you from becoming a grave menace to public order and communal harmony.

3. The grounds of detention communicated to the applicant by the Provincial Government in pursuance of the provisions of Section 5 of the above Act were as follows:

(1) You have been holding secret meetings of rabid communalists in order to organize subversive activities.

(2) You are inciting Muslims to resort to violence and to attack members of the minority community in Sambhal.

(3) You actually led an attack on a party of the Hindus escorted by the police and resorted to the use of fire arms.

(4) Your actions are prejudicial to the public safety and maintenance of public order and communal harmony.

4. In a counter affidavit filed by Shri Nailwal of the District Intelligence Staff, Moradabad, it is asserted that the applicant was actually released on bail and was not in custody when the order of detention was passed.

5. Mohammad Yamin was arrested in connection with above riots on 16th June 1948. He applied for bail and it was granted to him. It is alleged in the affidavit filed by him and not controverted on behalf of the Rex that before he could be released on bail the District Magistrate, acting under Sub-section (2) of Section 3, U.P. Maintenance of Public Order (Temporary) Act, 1947, directed his detention for a period of fifteen days. Before the expiry of that period, the Provincial Government, acting under Clause (a) of Sub-section (1) of Section 3 of that Act, ordered his detention for a period of six months. The grounds of detention communicated to him by the District Magistrate were as follows:

1. That there are reasonable grounds to believe that on 12th June last you instigated a Muslim mob of about 400 in the town of Sambhal to commit acts of rioting, arson and killing, in general, and throwing of a Hindu patient firstly in the hospital well and then again in another well, in particular.

2. That since you have got an iron shop, it is strongly suspected that you were the manufacturer of the two country-made cannons and two country-made bombs which were recovered along with some material for the manufacture of bombs, from places very close to your house.

3. That it is reported that you convened a few meetings of Muslims inside your house to discuss plans for assaulting Hindus. A Sub-Inspector actually saw a number of Muslims coming out of your house.

4. That you are a rabid communalist who is always prepared to make mischief to endanger public peace in the town.

5. That your detention is absolutely necessary in the interest of public peace and communal amity and in order to prevent you from becoming a grave menace to public order and communal harmony.

6. The grounds of detention communicated by the Provincial Government in pursuance of Section 5 of the above Act were in the same terms as those communicated by the District Magistrate with the only difference that some particulars mentioned by the District Magistrate were not given in the grounds supplied by the Provincial Government.

7. The case of Khalil Ahmad is identical in every respect with that of Mohammad Yamin.

8. All the three applicants deny the allegation contained in the grounds of detention communicated to them and assail the detention on the following two grounds: (a) Because the order of detention is mala fide, having been made to defeat the order of bail, (b) Because the grounds of detention are vague, indefinite and inaccurate and do not comply with the provisions of Section 5 of the Act.

9. So far as the question of incorrectness of the allegations in the grounds is concerned, this Court cannot go into it. It is for the detaining authority to consider the materials and to arrive at the conclusion whether or not there are sufficient grounds for ordering the detention. If, on the materials placed before it, it feels satisfied to order the detention this Court, acting under Section 491, Criminal P.C., cannot go into that question of fact. It is not sitting in appeal against the order passed by the detaining authority. This contention, therefore, fails.

10. As regards the plea of vagueness and indefiniteness, I am of opinion that the grounds communicated by the Provincial Government when read in conjunction with those supplied by the District Magistrate do contain sufficient information to enable the applicants to make effective representations to the Provincial Government. As observed in Rex v. Durga Das, the recent Full Bench case of this Court in cri. Misc. No. 915 of 1948, decided on 15th September ,1948 : A.I.R (36) 1949 ALL. 148, the particulars in the grounds communicated under Section 5 need not contain the particulars required in a charge framed under the provisions of the code of Criminal Procedure in a criminal trial. The Full Bench observed that it was difficult to lay down a hard and fast rule as to what particulars the grounds should contain. Bach case depended upon its own merits. The general principle to I be kept in view is that the grounds should contain sufficient information to enable the detenu to make out a proper representation to the detaining authority. All grounds of detention which have weighed with the detaining authority must be conveyed to the detenu. It is to be noted that in the present case the detention of the applicants was ordered as a sequel to the communal disturbances which broke out in Sambhal. The activities mentioned in the grounds relate to those disturbances. Nawab Zada Mahmud Hasan Khan was informed of the place where he held secret meetings of the Muslim Leaguers. He was fold that he had led an attack on a party of Hindus escorted by the police. Grounds Nos. (1) and (3) at least in his case, when lead in conjunction with the grounds supplied by the District Magistrate, cannot be said to suffer from vagueness or indefiniteness. Mohammad Yamin and Zhalil Ahmad were definitely told that on 12th June 1948, they instigated a Muslim mob of about 400 to commit various kinds of offences mentioned in the grounds and that they had held meetings in their houses to discuss plans for assaulting Hindus. These grounds contain sufficient particulars to enable them to make effective representations. The plea of vagueness and indefiniteness of grounds also fails.

11. I come now to the last ground, namely, that the order of detention is mala fide. The question which arises in these oases may be formulated as follows:

Where an undertrial prisoner is ordered to be released on bail and soon thereafter he is detained under the provisions of the United Provinces Maintenance of Public Order (Temporary) Act 1947, can his (detention in all such cases be held to be mala fide?

In my opinion, the answer to this question cannot be an unqualified affirmative. Every case depends upon its merits. Courts consider the question of bail in the light of the provisions contained in chap. 89, Criminal P.C. Section 496 provides that when a person accused of a bailable offence is arrested and is prepared to give bail he must be released on bail. Section 497 provides for non-bailable offences. It is in the discretion of the Court to grant or refuse bail to a person accused of a non-bailable offence. The law further provides that if a person is accused of an offence punishable with death or transportation for life and there are reasonable grounds for believing that he has committed such an offence, ho shall not be granted bail, unless the accused is below the age of sixteen or is a woman or is sick or infirm. The object of bail is to secure the appearance of the accused. In considering the question of bail the Court keeps in view the seriousness of the charge, the nature of the evidence, the severity of the sentence prescribed for the offence and sometimes character, means and standing of the accused. Usually bail is not refused unless the accused is likely to absence or terrorize the prosecution witnesses or commit similar or other serious offence. On the other hand, authorities empowered under the United Provinces Maintenance of Public Order (Temporary) Act, 1947, are guided by considerations laid down in the preamble of the Act, namely, whether or not it is necessary to order the detention of a person with a view to preventing him from acting in any manner prejudicial to public safety and maintenance of public order and communal harmony. The Courts when granting bails under the provisions of the Code of Criminal Procedure and the executive authorities when ordering detention under the aforesaid Act fact in different spheres guided by different considerations and actuated by different objectives. The Courts are charged with the judicial determination of an offence already committed and in that connection to consider whether or not to grant bail to the accused. The detaining authorities on the other hand while acting under the above Act have before them the object of taking preventive action in the interest of maintenance of public order and safety and communal harmony. Their fields of activities are not concur-L rent. They are largely exclusive of each other. The overlapping area is small, Only to the extent that the detaining authority takes into consideration the commission of an offence by a person for the purpose of deciding whether or not to order his detention does the question of overlapping arise. It arises only incidentally when considering the past conduct of that person. It may be that a Court on a consideration off the relevant matters and in the light of the provisions in the Code of Criminal Procedure may consider the grant of bail as proper, whereas the Provincial Government or the District Magistrate acting under the U.P. Maintenance of Public Order (Temporary) Act, 1947, may consider his detention necessary in the interest of public order, safety and communal harmony. In such a case, the order of detention cannot be said to be mala fide. But where it appears that the detention order was passed to defeat the order of the Court granting the bail and not for purposes mentioned in the U.P. Maintenance of Public Order (Temporary) Act, 1947, it is mala fide. Here I may refer to two decided and unreported cases of this Court which have been relied upon at the Bar. In Amir Hasan v. Rex Misc. No. 1504 of 1947, decided on 13th January 1948, the applicant was charged for kidnapping a girl. Bail was granted to him by this Court on 10th November 1947. Pour days later, on 14th November 1947, the District Magistrate ordered his detention under the U.P. Maintenance of Public Order (Temporary) Act, 1947. The grounds of detention communicated to him were that he had been in custody as an under-trial prisoner and that in case he was released on bail, he would spread false propaganda among the Muslims and that might lead to bad feelings and consequent breach of the peace. From the papers produced in this Court, it appeared that it was two days after the order of bail passed by this Court that the police, which was prosecuting Amir Hasan, reported to the District Magistrate the above apprehension. It was in these circumstances that the order of detention was held to be mala fide. It was clear in that case that the object of detention was not to achieve so much the purposes of the U.P. Maintenance of Public Order (Temporary) Act, , but to keep Amir Hasan in custody during the trial.

12. In Amir Hasan v. Dist. Magistrate, Allahabad, Misc. No. 1783 of 1948, decided on 16th September 1948, the applicant was charged with an offence under Section 19, Arms Act, and was granted bail on 20th April 1948. On 23rd April 1948, the District Magistrate passed an order of detention against him. It was argued in this Court that the order of detention was mala fide, as it was passed to deprive him of the bail. Wanchoo J. observed as follows:

It must, however, be remembered that an offence under Section 19, Arms Act, is a bailable offence. The District Magistrate must have known full well that the applicant would be released on bail if he applied for it. It cannot, therefore, be said that the order passed on 33rd April 1948, intended to deprive the applicant of the benefit of the order of bail in his favour dated 20th April 1948. Nor am I prepared to accept the contention that, if a person is arrested for a bailable offence, the order passed under Section 3, after his arrest, must in every case be held to be mala fide because the order would have the effect of preventing the grant of bail to such a person.

13. Learned Counsel for the applicants relies also upon Kamla Kant Azad v. Emperor A.I.R. (31) 1944 Pat. 354 at pp. 364 and 365. That was a case under the Defence of India Rules. Shearer J. observed:

When a man is arrested and brought up before a Court on some definite and specific charge, it seems to me very undesirable and indeed quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence finally determined. If he is convicted and sentenced, the necessity for any order of detention ceases to exist, at least until he has served out his sentence, by which time conditions may have entirely altered. If, on the other hand, he is acquitted, and an order of detention is sought against him, surely, the official, on whom the responsibility of making such an order rests, should obtain and study a copy of the judgment. I do not say that, in no case, where a man has been acquitted, should or can an order of detention be made. Prosecutions may break down, and acts of the person against whom an order is sought, other than the act or acts which led to his being prosecuted, may, quite properly, have to be taken into consideration. Clearly, however, in most of such cases, the act which led to man's prosecution, will also be the overt act, relied on or principally relied on to connect him with some subversive movement and justify the making of an order of detention and, if the official on whom the duty of making the order is cast, neglects to send for and study a copy of the judgment, it may very well be said that he has failed to act with due care and attention in the discharge of that duty.

14. Every ruling must be interpreted in the light of the facts of that particular case. The position in these three cases is that a serious communal disturbance had broken out in Sambhal. The executive authorities in the discharge of their duty to maintain public order and communal harmony thought it necessary to take preventive action against persons whom they considered as fomentors of the trouble. While they started cases against them for the punishment of offences already committed by these applicants, they thought it necessary in order to prevent them from acting in any manner prejudicial to the public safety and maintenance of public order and communal harmony to pass detention orders also against them. They were faced with a difficult situation. Quick action had to be taken and the trouble had to be nipped in the bud. If in these circumstances they passed the detention orders against these three applicants, they; cannot be said to have acted mala fide. They were passed in the honest discharge of the public duty. The circumstances of the Patna case referred to above were quite different from those of the present one. I am clearly of opinion that the orders passed in these cases were not mala fide.

15. The result is that all the three applications fail and they are hereby dismissed.


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