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Prahalad Panda Vs. Province of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa
Decided On
Case NumberCriminal Misc. Petn. No. 152 of 1949
Judge
Reported inAIR1950Ori107; 15(1949)CLT78
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 491; Orissa Maintenance of Public Order Act, 1948 - Sections 2, 2(1), 2(2) and 3; Code of Criminal Procedure (CrPC) , 1898 - Sections 151; Orissa Maintenance of Public Order (Amendment) Act, 1949
AppellantPrahalad Panda
RespondentProvince of Orissa
Appellant AdvocateM. Mohanty and ;V. Pashayat, Advs.
Respondent AdvocateAdv. General
DispositionApplication dismissed
Cases ReferredRex v. Secretary of States
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....das, j.1. this is an application under section 491, criminal p. c., by a friend of one baishnab charan patnaik who has been arrested on 22nd august 1943 and kept in cuttack jail, complaining that the said arrest and the jail custody are illegal. for purposes of convenience, the said baishnab charan patnaik may be treated as the petitioner and will be referred to as such in the following.2. the petitioner was originally detained under section 2, orissa maintenance of public order act, 1948, by an order of the provincial government dated 28th october 1948. the said order was due to expire on 38th april 1949. before its expiry, however, the provincial government passed another order of detention against him on 20th april 1949 for a further period of six months, on substantially the same.....
Judgment:

Das, J.

1. This is an application under Section 491, Criminal P. C., by a friend of one Baishnab Charan Patnaik who has been arrested on 22nd August 1943 and kept in Cuttack Jail, complaining that the said arrest and the jail custody are illegal. For purposes of convenience, the said Baishnab Charan Patnaik may be treated as the petitioner and will be referred to as such in the following.

2. The petitioner was originally detained under Section 2, Orissa Maintenance of Public Order Act, 1948, by an order of the Provincial Government dated 28th October 1948. The said order was due to expire on 38th April 1949. Before its expiry, however, the Provincial Government passed another order of detention against him on 20th April 1949 for a further period of six months, on substantially the same grounds as those on which the first order of detention was made. The validity of this second order of detention was challenged by an application made to this Court in Cr. Misc. Application No. 119/49. This Court being of the view that the second order of detention dated 20th April 1949 was virtually an extension of the period of earlier detention beyond the statutory six months and therefore illegal, directed on 22nd August 1949 the release forthwith of the petitioner reserving to a later date the pronouncement of the reasons for the order. The judgment setting out the reasons was actually delivered on 14th September 1949. It would appear, however, that on the evening of 22nd August 1949 at 6 p. m., when he was brought out of the jail gate on release in pursuance of the orders of this Court, be was arrested by the Sub-Inspector of Lalbag Police Station under Section 151, Criminal P. C. It is stated in the affidavit filed in support of this application that on such arrest by that Sub-Inspector of Police, the petitioner was taken to the police station in the jail motor van which was waiting at the jail gate with a posse of constables and that he was subsequently brought back to the Cuttack Jail on the same night and lodged there. This assertion has not been denied on behalf of the Government. It is further stated to us at the time of the hearing, and is not denied, that on 22nd, an order of the District Magistrate of Cuttack, dated 22nd August 1949, purporting to be under Section 2 (2), Orissa Maintenance of Public Order Act, 1948, was served on the petitioner while in the Police Station, and that the grounds of this order of the District Magistrate were served on the petitioner in jail on 26th August 1949. A copy of the District Magistrate's order dated 22nd and the grounds dated 26th have been furnished to us by the learned Advocate. General appearing for the Government. On 26th August 1949, the present application which is under consideration before us has been Sled in this Court as stated at the outset by a friend of the petitioner making any reference to the District Magistrate's order, presumably in ignorance, of the fact that subsequent to the arrest by the Sub-Inspector on 22nd an order of detention was passed by the District Magistrate and that the grounds thereof were furnished on the 26th. On the 26th itself this Court admitted the application and made the following order :

'Admit. Issue rule to show cause why the detenu shall not be produced before us and be set at liberty and why the authority concerned should not be proceeded against for contempt of Court.'

3. On the very same day the Provincial Government appear to have passed an order for detention of the petitioner under Clause (a), Sub-section (1) of Section 2, Orissa Maintenance of Public Order Act, 1948. This order is stated to have been served on the petitioner in the jail on the next day, that is, 27th. The grounds of the said order of detention were drawn up on 5th September 1949, and are stated to have been served on 13th September 1949. It is on these facts that the legality of the detention of the detenu falls to be considered,

4. It will be noticed that there are three stages relating to the present custody of the petitioner : (1) The arrest by the Sub-Inspector of Police at 6 P. M. on 22nd; (2) detention under an order of the District Magistrate dated 22nd August 1949 ; (8) detention under an order of the Provincial Government dated 26th August 1949. The application as filed calls in question only the legality of the first step. But in view of what has happened since, it is the legality of the third stage of the present custody that has to be considered if the petitioner is to get any relief. Learned counsel for the petitioner strenuously contended that the arrest of the petitioner by the Sub-Inspector on 22nd and the order of detention of the District Magistrate dated 22nd under which the petitioner was in custody by the date this application was filed were illegal and that the subsequent order of the Government dated 26th which was served on the petitioner on 27th cannot validate the custody which was illegal at the start and that the custody continues to be illegal. He contends, therefore, that all that is necessary for him to show is the illegality of the first two steps stated above. This contention, however, is opposed to the decision of the Federal Court in Basant Chandra v. Emperor, 1945 F. C. R. 81 at p. 90 : (A. I. R. (32) 1945 F. C. 18: 46 Cr. L. J. 569), where their Lordships stated as follows :

'If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner,'

5. It has also been attempted to be argued that if it be shown that the order of detention by the District Magistrate dated 22nd August 1949 is invalid, the order of the Government dated 26th August 1949 which is in the nature of an extension of the District Magistrate's order is also invalid. For that proposition, reference has been made to the case in In re Jayantilal Nathubhai, A I. R. (36) 1949 Bom. 319: (51 Bom. L. R. 663 F. B.). While no doubt an order of a District Magistrate under Sub-section (2) of Section 2 is usually made as a preliminary to one under Sub-section (1) (a) by the Provincial Government it is not necessarily so, and the Provincial Government's order cannot be treated ipso facto as a mere extension. Whereas in this case, the order of the Government dated 26th August 1949, is based on grounds substantially different from those for the order of the District Magistrate, it is clear that it is not an extension and cannot be pronounced invalid for that reason. The substantial question for consideration therefore is whether the order of detention by the Provincial Government dated 26th August 1949 is a valid order. The petitioner, however, is undoubtedly entitled to rely on the illegality, if any, of the arrest by one Sub-Inspector of Police and of the order of detention by the District Magistrate as circumstances which may justify his argument that his detention under the later order of the Government is not bona fide and therefore illegal.

6. The learned Advocate-General contends that in view of the latest amendment of the Orissa Maintenance of Public Order Act, 1948, by Orissa Act of VI [6] of 1949, this Court is precluded from canvassing the validity of the order of the Government made under Section 3 (1) (a) of the Act. The said amendment substitutes for the previous Section 4 a new section numbering it as Section 3 and it is as follows: -

'As soon as may be after a person is detained in pursuance of an order made under Clause (a) of Sub-section 2 (1) of Section 2, the authority making the order may, on application of the person affected by the order, communicate to him, so far as such communication can be made without disclosing facts, which the said authority considers to be against the public interest to disclose, the grounds on which the order has been made and such other particulars as are in its opinion sufficient to enable him to make a representation to the Provincial Government against the order; and such person may, within such time as may be specified by the Provincial Government make a representation in writing to them against the order and it shall be the duty of the Provincial Government to inform him of his right to make such representation and to afford him opportunity of doing so: Provided that neither the said order of detentionnor the detention of the said person thereundershall be deemed to be invalid or unlawful or improperon the ground of any defect, vagueness or insufficiencyof the communication made to such person under thissection.'

7. What is relied on is the proviso as above set out. The learned counsel for the applicant admits that the grounds of detention furnished by the Provincial Government do not suffer any defect or vagueness or insufficiency--indeed they are meticulously elaborate and fairly precise. He contends, however, that the order is not a bona fide one but is a fraudulent exercise of the statutory power in order to get behind the order of release made by this Court on 22nd August 1949. His contention virtually is that since the Court has adopted the view that a fresh detention on substantially the same grounds was invalid, a number of new grounds have been set forth in the statement of grounds dated 5th September as supporting the order of detention dated 26th August 1949, with a view to secure validity for its order dated the 26th without any basis in fact for any of these additional grounds and is thus a fraudulent exercise of its power. His argument is that the proviso above referred to does not take away the power of the Court to scrutinise all the circumstances and the facts relating to an order of detention and to pronounce the order as illegal, if it is satisfied that it is not bona fide, but is a fraudulent exercise of the power. The learned Advocate-General has not disputed that the proviso does not affect the authority and the duty of this Court to examine the bona fides of the order and to pronounce it invalid and direct the release of the detenu if it finds that the order is a fraudulent exercise of the Government's statutory power. Indeed this authority of the Court is so well established that the contrary can scarcely be contended. That the existence of bona fides in the exercise of the statutory power is the foundation for its validity is recognised in the leading cases in Liversidge v. Sir John Anderson, 1942 A. C. 206 : (1941-3 ALL E. R. 338) and Greene v. Secretary of State for Home Affairs, 1942 A. C. 284 : (1941 3 ALL E. R. 388). The Federal Court in its judgment in Basantchandra v. Emperor, 1945 F. C. R. 81 : (A. I. R. 132) 1946 F. C. 18: 46 Cr. L. J. 559), also recognise this in the following passage at p. 87:

'It was no doubt open to the detenu to show that the order was not in fact made by the Governor of Bihar or that it was a fraudulent exercise of the power.'

Bee also Kamlakant v. Emperor, 23 Pat. 252 : (A. I. R. (31) 1944 Pat. 354). The question, therefore, is whether this has been made out in this case.

8. The statement of the grounds of detention dated 6th September 1949 sets out that the plaintiff is an avowed communist; that he had contacts with revolutionary and terrorist workers of Bengal and Assam since 1942; that his contacts in Bengal, Assam and Bombay have gone underground and are preparing themselves for an armed insurrection in pursuance of the policy of the Communist Party of India and that he is eminently suited to link Orissa with Bengal for organising the Communists of this Province for an armed rebellion in furtherance of the plan ; that in the event of his 'release' at this juncture he would go underground and along with others foment agrarian trouble and sabotage food procurement policy and smuggle fire arms and ammunitions to this Province etc., etc., that the underground Communist Organisation has circularised fort he starting and fomenting of an 'Agricultural Revolution' and that there is information of an intended raid on police stations and that during the last two months, instances of forcible possession of lands and looting of granary by Communists had come to notice and that in view of all the above circumstances, it is detrimental to peace and order of the country to allow the petitioner to remain at large. The prior order of detention dated 20th April 1949 is not based on any of these grounds and as appears from the affidavit filed on behalf of the Government, the information relating to these grounds is said to be based on reports received subsequent to the order dated 20th April 1949. The contention of the learned counsel for the petitioner is that these new grounds and the reports on which they are said to be based, have been merely put forward without any basis in order to evade the previous decision of this Court. Learned counsel for the petitioner puts his argument in this way to substantiate the above. The arrest by the Sub-Inspector of Police is illegal and the order of the District Magistrate dated 22nd August 1949, is illegal. These illegalities are not mere matters of accident. They must have been committed under instructions from the Government, when it became known on 22nd August 1949, that the detenue was directed by the High Court to be released, because the Government were bent on not allowing the petitioner to be at large until they could prepare and pass a fresh order. When, however, this application was filed and it became known that a rule nisi was issued on 26th, the present order of detention, it is suggested, was post haste that very day. When it was later realised that the Court had also given notice for proceedings in contempt, the necessity for elaborate and fresh grounds became apparent. Consequently, it is said that after the lapse of ten days, fresh grounds must have been produced which there is every reason to believe were nonexistent by the 26th, These suggestions require careful consideration. The alleged illegality of the arrest of the Sub-Inspector and of the detention order of the District Magistrate which is the foundation for these suggestions may now be considered.

9. The Sub-Inspector has filed an affidavit before this Court in which he states that as Sub-Inspector of Police in Angul Police Station in 1942 and Athgarh Circle in 1948, he was aware of the violent and subversive activities of the petitioner and of his organizing capacity for the purpose; that the immediate policy and programme of the Communist Party of India is to create lawlessness in the country and sabotage and to keep an underground organisation for the purpose. That the Communist leaders and workers in Orissa have gone underground in large numbers to carry on such lawless activities and that some Communist leaders after their release under writs of habeas corpus have gone under, ground to carry out such lawless activities. He further states in the affidavit as follows:

'That in order to prevent him from joining and pursuing the policy and programme of violence and lawlessness of the Communist Party of India, I arrested him under Section 151, Criminal P. C. on 22nd August 1949 at 6 P. M.'

10. It is contended that there is no suggestion in the affidavit of the Sub-Inspector that he was aware of any design either of the Communist Party or of this petitioner to commit any offence and that a mere vague allegation that it was the policy of the Communist Party to create lawlessness by sabotage or an allegation that in the year 1942, he was aware of the subversive activities of the petitioner, are not at all enough be bring the case under Section 161, Criminal P. C., and to clothe the police officer with the authority to arrest without a warrant from the Magistrate. There is considerable force in this contention. Section 151, Criminal P. C., is in these terms:

'A Police Officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.'

Under this section, therefore, it is necessary :--(1) There must be a design be commit an offence and the offence so designed must be cognisable. (2) The Police-officer must have knowledge of that design; (3) The person arrested must be a party to that design ; (4) It must appear be the police-officer that the commission of the offence cannot be prevented otherwise than by such arrest.

11. It has been held in a resent case by a Beach of the Madras High Court in In re Om Prakasha Gupta, (1949) 1 M. L. J. 554: (A. I. R. (36) 1949 Mad. 744), that the question whether the police officer had the knowledge required and whether the commission of the designed offence could have been prevented otherwise than by the arrest are matters entirely within the purview of the police officer and are not capable of independent investigation by the Court. It is unnecessary to say whether this is correct. (See Gaman v. Emperor, A. I. R. (17) 1980 Lah. 348: (31 Cr. L. J. 894).) But no such difficulty arises where as in this case there is an affidavit from the very police officer who has made the arrest setting out his own justification for the arrest. It appears to me clear under Section 151 that a mere general information about the programme or tendency of the Communist Party be commit offence even if these offences were cognizable is not enough to justify the invoking of the powers under Section 161. What is required is 'knowledge' of a design i. e., of a plan for the commission of a particular offence and the particular person sought to be arrested must have been a party to that design, i. e., must have been associated with it in some way, however slight. To arrest a person because he belongs to a party and that party has a programme be commit some offences in general, is to exercise the power of preventive detention. The authority of a police officer under Section 151, Criminal P. C., is only a limited and exceptional power to prevent the commission of a cognizable offence by the individual concerned and is in no sense analogous be the power of preventive detention. But that is exactly what has been done on the Sub-Inspector's own showing when he says in his affidavit that he arrested the petitioner 'in order to prevent him from joining and pursuing the policy and programme of voilence and lawlessness of the C. P. I. 'Neither has the police officer power to keep a person under arrest in anticipation of and pending a contemplated order of detention; but that is what has been done in this case as appears from what the Government itself has abated in its grounds for detention, dated 5th September 1949, wherefrom it appears that the petitioner 'has been arrested for fresh detention' because there is information of his intention be escape from jail and to go underground. It is, therefore, clear to my mind that the arrest of the petitioner by the Sub-Inspector of Police at 6 P.M., on 22nd August 1949, is illegal and is an abuse of his alleged powers under Section 151, Criminal P. C.

12. The next point raised is that the order of the District Magistrate, dated 22nd August 1949, is also illegal. It is pointed out that the statement of grounds for the District Magistrate's order, dated 26th August 1949, furnished to the petitioner, show that his order of detention was based on the same grounds as those for the prior order of detention, dated 20th April 1949, which was declared illegal by this Court by its order of release, dated 22nd August 1949. It certainly is surprising that a comparison of the grounds of detention for the order, dated 20th April 1949, and those, dated 5th September 1949, for the order of detention, dated 26th August 1949, discloses remarkable identity, the paragraph in each one of the statements of grounds specifying the actual grounds consists of seven sentences. The sentences are identical with the only difference that there has been transposition in the serial order of the sentences. Thus, sentence No. 1 in the present grounds is No. 2 in the earlier grounds and vice versa. Sentence No. 4 in the present grounds is No. 6 in the earlier grounds and vice versa. Sentences Nos. 3, 6 and 7 retain their order, but in sentence No. 6, there is slight inconsequential addition. It is obvious, therefore, that the criticism of the petitioner's counsel appears justified that not only are the grounds same, but there is deliberate attempt to camouflage by transposing the order of the sentences. It is said that the District Magistrate could not have been unaware (though the actual grounds of the order of release of the petitioner by this Court on 22nd August 1949, were not pronounced until much later) that the Court was inclined to uphold the view taken by one of us in the prior judgment of this Court in or. Misc. cases Nos. 61, 70, 71, 78, 74, 75, 82, 89, 98, 99 and 102 of 1949, dated 8th June 1949, to the effect that a second order on the same grounds amounts virtually to an illegal extension of the period of detention and is accordingly illegal. Whether or not the imputation that there was deliberate attempt to camouflage is strictly made out, there can be no doubt that the order of the District Magistrate, dated 22nd is illegal in view of the decision of the Special Bench of this Court in Cr. Misc. Case Nos. 119, 120 and 128 of 1949 pronounced on 14th September 1949. In the judgment of the single Judge, it was held that the fact of the fresh order of detention being on the same grounds as those for the prior order of detention, would show that the second order is prima facie illegal, but in the judgment of the Special Bench, dated 14th September 1949, the Court was prepared to consider that the Government would have been justified in passing fresh orders of detention, though on the previous grounds, if it appeared that there was fresh material giving rise to fresh occasion for passing the fresh order of detention. But in this case the order of the District Magistrate, dated 22nd August 1949, has not been attempted to be justified before us even on this limited footing. We are also conscious that the order of the District Magistrate has been passed subsequent to the amendment of the Act by Orissa Act VI [4] of 1949, but the order has not been attempted to be justified by invoking its provisions, obviously because the procedure specified therein under amended Section 4 thereof for extension of the period of detention has not been adopted. We have, therefore, no hesitation in holding that the order of the District Magistrate dated 22nd August 1949 is illegal.

13. In view of these illegalities committed by the Sub-Inspector and the District Magistrate, which according to the petitioner's counsel must have been patent to them if they bestowed any thought, the learned counsel argues that the said illegal action must have been taken thoughtlessly and recklessly as a result of inspiration from above. The learned counsel relies on the passage in the grounds of detention dated 6th September 1949, furnished by the Government to the detenu in which the following passage occurs:

'Under the circumstances and as there was an information of your intention to escape from jail to go underground it is considered detrimental to the peace and order of the country to allow you to remain at large and so you have been re-arrested for fresh detention.'

It is suggested that this would indicate if it does not prove that the arrest by the Sub-Inspector and the order of detention by the District Magistrate have been specifically inspired by instructions from Government with a view to give themselves time for finding out fresh grounds far detention; that the higher authorities must have made up their mind on receiving intimation of the High Court's order of release that the petitioner should not be allowed to have his liberty at all in spite of the High Court's order. It is also said that if there were in fact additional grounds for detention by 32nd or 26th, it is most unlikely that the District Magistrate would not have known them or not have been informed about them and that the grounds furnished by him on 26th to the petitioner would not have disclosed them. It has also been pointed out that under the amended Section 2 (3) when an order is made by the District Magistrate, he should report forthwith the fact to the Provincial Government together with the grounds on which the order has been made. It is said that these grounds furnished by the District Magistrate on 26th to the petitioner must have been available to the Government immediately and that if on 26th, the Government had all the grounds which they purport to set out in their statement of grounds dated 5th September, it is most unlikely that they would not have immediately taken step to point out the same to the District Magistrate and instructed him to rectify the same. It is also pointed out that the District Magistrate and indeed the Government themselves, as the law stands under the amended Act, are under no obligation to furnish the grounds and that therefore if they had at the time different grounds in their possession, they would even have stopped the service of the grounds on the petitioner on 27th.

14. The whole chain of the above argument however, depends on various links every one of which is a mere conjecture and a bare assumption. The first assumption is that the arrest by the Sub-Inspector of Police and the order of the District Magistrate have been inspired by the Government. The second is that the District Magistrate would have put himself in communication with the Government when passing his order of detention dated 22nd and before furnishing his grounds dated 26th. The third assumption is that the grounds furnished by the District Magistrate would have been forwarded and received by the Government on that very day and that the Government would have taken steps to prevent communication of the grounds to the petitioner. There is absolutely no foundation for any of these assumptions. Apart from the bate facts that the arrest by the Sub. Inspector of Police and the detention order of the District Magistrate dated 22nd ate found to be unauthorised and illegal, there is no material to connect these illegalities with the action taken by the Government later and nothing at all in support of the various conjectures suggested above. The commission of illegalities by subordinate officers is not by itself any reason for imputing bad faith to the Provincial Government. It must be remembered that before the order of the Government can be pronounced to be a fraudulent exercise of its power, the same must be proved like any other fact. It has been suggested that all that a detenu under these circumstances has to do or can do is to place material before the Court which would raise suspicion and that once this is done, the onus is on the Government to make out that the order is perfectly bona fide and is not a fraudulent exercise. It is said that this is the more so, because all the relevant material can only be in the possession of the Government. This view of the onus however cannot be accepted. As has been laid down in the Liversidge case, (1942 A. C. 206 ; 1941-3 ALL E. R. 338) and the Greene's case, 1942 A. C. 284: (1941-3 ALL E. R. 388), the burden of substantiating the plea of want of bona fides is on the detenu. It may be that the burden on the detenu to make out the want of bona fides on the part of the Government is not so heavy as the burden would be on the Government to prove its bona fides, in case there is sufficient material on the side of the detenu to shift the onus on to the Government. Such a position may conceivably be maintained on the analogy of the case in Rex v. Carr-Briants, 1943-1 K. B. 607: (1943 2 ALL E. R. 156). But even in such a view mere suspicion and conjecture cannot take place of tangible Material required for shifting the onus. The argument that since the relevant material will normally be within the knowledge and possession of the Government the onus is to be thrown on the Government has been noticed and repelled by the Federal Court in Basanta Chandra v. Emperor, 1945 F. C. R. 81 at p. 87 : (A. I. R. (32) 1946 P. C. is : 46 Cr. L. J. 559). Apart, however, from any question of burden of proof there is in this case, the affidavit of the Additional Home Secretary filed by the Government in Para. 3 of which he has categorically stated that there were confidential reports and information received after the previous order of detention dated 20th April 1949, which were placed before the Hon'ble Minister in charge, when the order dated 20th August 1949 was passed and on which the Hon'ble Minister was satisfied that the detention order was necessary as a preventive measure against the petitioner engaging himself in subversive activities. There is absolutely no reason not to accept the truth of this affidavit. It has been suggested that if such confidential reports were available, their existence would have been mentioned to this Court in the affidavit filed before this Court by the Additional Home Secretary on 22nd August 1949, at the hearing of the prior application Cr. Misc. No. 119/49. It must, however, be pointed out that what we then required was not information as to any material that may have been received subsequent to the order of detention dated 20th April 1949 but reports in between the first order of detention dated 23rd October 1948 and the second order of detention dated 20th April 1949 on which the second detention might have been based. There is, therefore, no scope for any suggestion that the affidavit of the Additional Home Secretary filed in this application is not to be accepted. On the other hand, a perusal of the grounds of detention dated 5th September 1949 which is comprehensive in its details is itself in some measure convincing that the information contained therein was not likely to have been faked up. Indeed if we remember that under the amended Act, the Provincial Government were not at all bound to furnish to the petitioner the grounds of detention, the very fact that they did furnish the grounds to the petitioner is the clearest indication of the bona fides of the order. It must, therefore, be held that there is absolutely no reason for pronouncing the order of detention of the Provincial Government against petitioner Baishnab Chandra Patnaik to be invalid or to direct his release from custody. The petition is accordingly rejected.

15. Before closing the case, however, it is necessary to mention two things. I have held that the arrest by the Sub-Inspector of Police is this case under Section 151 is illegal. Other instances of similar use of Section 151 as a step preliminary to a formal order of detention have come to my notice in dealing with similar applications. It is, therefore, necessary to draw the attention of the authorities to the fact that this is an abuse of powers. The Orissa Maintenance of Public Order Act itself does not contain any such provision for an anticipatory arrest in view of an order of detention. The lacuna, if any, cannot be made up by the abuse of powers under Section 161 which are meant for a totally different purpose. One can understand the anxiety of the Government to re-arrest a person of this kind forthwith on release in view of what is stated to be their previous experience of such persona with reference to their propensity and capacity to go underground. But the apprehension of the Government in this behalf cannot be justification for illegal arrest, The Legislature may be taken to have thought that a judicious use of some of the other provisions of Section 2 (1) of the Act are enough to meet such a situation. The second matter that requires more serious notice is the illegality committed by the District Magistrate in passing the order of detention dated 22nd. As already pointed out above, it is based on the same grounds with what appears as an attempt to camouflage by transposing the order of the sentences in the grounds. Such an attempt if deliberate is an insult to the intelligence of any judicial tribunal that may be called upon to scrutinise it. The order may have been passed even with the best of motives in view of the apprehension that the detenu, after release, may go underground. But it would none the less be contempt of Court prima fade, if any authority, however high placed, directed the immediate re-arrest of a person who has been ordered to be released by this Court, by passing a camouflaged fresh order of detention on the same grounds which have been pronounced to be invalid. That a person who has been released from custody on a writ of habeas corpus, cannot be subjected to a second detention on the same grounds has been recognised in the case in Rex v. Secretary of States for Home Affairs; Ex parte Budd, 1942-2 K. B. 14 : (1942-1 ALL E. R. 373). That a re-arrest on the same grounds amounts to contempt of Court is also laid down as early as in Queen Elizabeth's time in the English Courts: vide Searches Case, (74 E. R. 65.) We cannot, therefore, let the matter rest without adequate explanation from the District Magistrate concerned. A rule nisi for contempt committed by him by his order dated 22nd August 1949 must accordingly issue.

Narasimham, J.

16. I agree.

Panigrahi, J.

17. I agree.

Ray, C.J.

18. I have considered the judgment of my learned brother Das J. I agree with his conclusions except that the arrest by the Sub-Inspector under Section 151 was illegal. Das J. is of opinion that it must be the Police Officer's knowledge of a design to commit a particular (specific) offence that will entitle him to effect the preventive arrest. I am not at one with him in this respect. In every . . . there is a political party who for the purpose of fulfilment of their party objects have the settled design of committing various acts of violence in order to bring about confusion and chaos into the society and in order to obstruct the citizens in their lawful pursuit of avocations and to sabotage the transport facilities, food supplies and the regular supply of other essential services, necessary not only for the social but also administrative up keep of the country, it would amount to quite good a design within the meaning of the section to commit cognizable offences. If a Police Officer has good reasons to believe, that any particular person unless detained will join the same party and partake of the same design for the purposes of commission of such offences I do not think he will exceed his jurisdiction in arresting him without a warrant in order to prevent the commission of the offences about the likelihood of which he is, to the best of his discretion, thoroughly convinced.


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