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Zamir Qasim Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All285
AppellantZamir Qasim
RespondentEmperor
Excerpt:
.....by section 3. the important point, however, is that there has to be a release consequent on the revocation before a fresh order can be passed. it can very well be argued on behalf of the applicant that the appropriate authority when considering say that three months' detention would be sufficient in the first instance thought that this period of detention would have sufficient effect on the person detained and that he would not act in a manner prejudicial to public safety after his re-lease......argued on behalf of the applicant that the appropriate authority when considering say that three months' detention would be sufficient in the first instance thought that this period of detention would have sufficient effect on the person detained and that he would not act in a manner prejudicial to public safety after his re-lease. it must not be forgotten that an order of detention is passed not only because of a certain atmosphere prevailing in the district or the province, but also on the ground that the particular person concerned is likely to act in a certain, manner in that atmosphere. by ordering a further detention of the person by a fresh order without releasing him and giving him a chance to act normally and thus proving that the period for which the appropriate authority.....
Judgment:
ORDER

Wanchoo, J.

1. This is an application by Syed Zamir Qasim under Section 491, Criminal P.C. The applicant was arrested in October 1947, and was ordered by the District Magistrate of Allahabad to be detained for three months from 13th October 1947, under Section 3(1)(a), U.P. Maintenance of Public Order (Temporary) Act, 4 of 1947. As the period of detention was expiring, a fresh order was passed by the District Magistrate on 5th January 1948, and was communicated to the applicant on 8th January 1948, and his further detention for a period of three months was ordered.

2. It is not in dispute in this case that the provisions of Sections 3 and 5 of Act 4 of 1947 have been complied with. The contention on behalf of the applicant, however, is that there is no provision in the Act for extension of the period of detention and that the District Magistrate could not pass a fresh order for his detention on the same materials on the basis of which he had passed the previous order and had considered that it would be sufficient to detain him for & period of three months.

3. The point raised in this case is of general importance because it may arise in a number of cases. There is no provision in Act 4 of 1947 which provides for the extension of an order, made under Section 3(1)(a). The contention, on behalf of the Crown, is that this is not an extension but that a fresh order has been passed detaining the applicant for a certain further period. Technically, it is true that the order under which the applicant has now been detained is a fresh order, having been passed on 5th January 1948; but in reality, it merely extends the period of detention from three months to six months. It seems to me that if it was the intention of the Act that orders of detention were to be passed successively in bits, the Act would have specifically provided for an extension of such orders. The provisions of Section 4 of the Act are, in my opinion, of assistance in determining this question. That section reads as follows:

An order made under Section 3 by the Provincial Government shall, unless revoked earlier, remain in force for a period of six months from the date of such order:

Provided that any such revocation shall not prevent the making under Section 3 of a fresh order, to the game effect.

4. The first part of Section 4, therefore, clearly shows that the order of the Provincial Government would remain in force for a period of six months, ipso facto, unless it was revoked earlier. The revocation of the order would naturally re-suit in the release of the detenu. Therefore, it was made clear in the proviso that after such revocation and release, it would be open to the Provincial Government to make a fresh order to the same effect, provided, of course it was satisfied as required by Section 3. The important point, however, is that there has to be a release consequent on the revocation before a fresh order can be passed. The intention of the proviso appears to have been that if after an earlier release a person acts in such a manner as to give rise to an apprehension that his actions would be prejudicial to public safety, etc., he can be detained again. It seems to me however, that a release for some time is necessary before a fresh order can be passed against the same person.

5. It has been urged on behalf of the Crown that the detention of a person by the Provincial Government, or by the District Magistrate (in case of a delegation of power to him) takes place on account of two conditions:

1. that the person concerned is likely to act in a manner prejudicial to public safety, etc., and

2. that the atmosphere in the district or the Province is such that his remaining at large might be prejudicial to public safety, etc

It is further urged that when the first period of detention expires, the District Magistrate or the appropriate authority may still consider that the atmosphere in the district or the province is such that it would be prejudicial to public safety, etc. to release the man and would, therefore, be justified in passing a fresh order. This argument, however, presumes that the detention of a person for the first period of say three months would have no effect whatsoever on him and he is bound to act in the same manner in which he would have acted before the first order of detention was passed against him. It can very well be argued on behalf of the applicant that the appropriate authority when considering say that three months' detention would be sufficient in the first instance thought that this period of detention would have sufficient effect on the person detained and that he would not act in a manner prejudicial to public safety after his re-lease. It must not be forgotten that an order of detention is passed not only because of a certain atmosphere prevailing in the district or the province, but also on the ground that the particular person concerned is likely to act in a certain, manner in that atmosphere. By ordering a further detention of the person by a fresh order without releasing him and giving him a chance to act normally and thus proving that the period for which the appropriate authority considered he should be detained in the first instance had the right effect on him, the authority concerned is merely looking to the atmosphere prevailing in the district or the province without giving due weight to the likely action of the person detain, ed. It seems to me, therefore, that it could not be the intention of the Act that the authority concerned should act in this manner rather unjustly towards a detenu and that is why no provision was made for extension of the period of detention.

6. There is another aspect from which a fresh order made under Section 3 (l)(a) has to be considered. A fresh order which has been passed without releasing a detenu would naturally be based, on, more or less, the same materials on which the previous order had been based. On passing of a fresh order of detention fresh grounds under Section 5 have to be supplied. These grounds would also be, more or less, the same as those which must have been supplied to the detenu in the first instance. Now, if the detenu had made any representation with respect to the grounds supplied to him in the first instance under Section 5 and that representation had been rejected, the position on the second occasion, when more or less the same-grounds are supplied, comes to this that the detenu's representation against the grounds will be, more or less, a farce. The representation which a detenu can make on such a fresh order which has been passed continuing his detention would be more or less, the same as he had already made on the first occasion and it is bound to be rejected considering that the representation on the first occasion had been rejected. Thus the right of the detenu to make a representation under Section 5, in case of a fresh order in such circumstances, would be illusory and would actually be taken away. It could not be the intention of the framers of the Act that the right to make a representation under Section S should be rendered illusory or practically non-existent by means of fresh orders which merely amount to an extension of the first order of detention. I am, therefore, of opinion that, as the Act makes no specific provision for extension, a fresh order detaining a person further without releasing him, which amounts in reality to an extension of the period of detention is not contemplated by this Act and is, therefore, illegal. In this view of the matter, the applicant's detection on the basis of this fresh order, dated 5th January 1948, is illegal and he is entitled to be released.

7. I, therefore, order that the applicant be released under Section 491, Criminal P.C., as his detention now is illegal after the expiry of the first period of detention.


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