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Kulamoni Mohanty Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. No. 97 of 1950
Judge
Reported inAIR1951Ori20
ActsPreventive Detention Act, 1950 - Sections 7; Code of Criminal Procedure (CrPC) , 1898 - Sections 107 and 491
AppellantKulamoni Mohanty
RespondentThe State
Respondent AdvocateGovernment Adv.
Excerpt:
.....set up of things should not be whittled down in the manner, of which the present case is the type. , and that he was later detained under the orders of the district magistrate, who failed to supply him the grounds of detention under schedule (3) of the act but must have made a report to the state government, make it doubtful if the informations that reached the government at the time of his arrest were sufficient to warrant his detention. besides it can be said that the grounds like these can be taken to have been extended against every member of the communist party orissa......the order, ....and in a case where it has been made by .... an officer subordinate there to (state government) to the state government.'it is apparent that since 28th february till 16th may, his detention was insisted upon without affording him the necessary opportunity of making a representation to the state government.3. the petitioner also avers in the penultimate paragraph of his petition that there is every reason and proof to believe that the grounds supplied to him are not even genuinely misconceived notions of the government regarding him, and they are but formal recitals of a fixed formula for justifying the detentions of such persons against whom the government cannot find any actual ground; the petitioner submits this because he finds the grounds of his detention to be.....
Judgment:

Ray, C.J.

1. The petitioner (Kulamoni Mohanty) has been ordered to be detained for one year by the Government of Orissa from 28-2-1950 under Schedule (1), Preventive Detention Act (IV [4] of 1950). Long after this detention, that is on 19-6-1950, he was served with a copy of the grounds as contemplated in Schedule of the Act, wherein he was told that he had a right to make a representation against the order of detention.

2. We have no information if he has made any such representation. In his petition to this Court, he asserts that he had been holding a service in B.N. Rly, for the last eleven years and had not been officially suspended or dismissed. This assertion is intended to convey that he is a man who is following peaceful avocation of life and no blemish has been found in his career as a public servant by his immediate superior. He further says that he was first arrested on 24-2-1950 under Schedule 07, Criminal P. C. but no proceeding under the section was started. He was then put under detention for three months by the District Magistrate of Cuttack as per his order No. 354. Res. of 28-2-1950. He further says that just prior to the termination of this period of detention, the Chief Secretary to the Government; of Orissa revoked the above mentioned order of detention by the District Magistrate. Then came the present order which is now the subject of consideration. This order is dated 16-5-1950, but it prescribes his detention as under the order to take effect from 28-2-1950. It does not appear that the District Magistrate gave him copy of the grounds for the detention order passed by him. It is imperative under Schedule of the Act. The section says:

'7 (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order, ....and in a case where it has been made by .... an officer subordinate there to (State Government) to the State Government.'

It is apparent that since 28th February till 16th May, his detention was insisted upon without affording him the necessary opportunity of making a representation to the State Government.

3. The petitioner also avers in the penultimate paragraph of his petition that there is every reason and proof to believe that the grounds supplied to him are not even genuinely misconceived notions of the Government regarding him, and they are but formal recitals of a fixed formula for justifying the detentions of such persons against whom the Government cannot find any actual ground; the petitioner submits this because he finds the grounds of his detention to be completely and entirely a faithful copy of the grounds (even including the numbers of the orders containing them in some cases) supplied to four other detenus who are now in this (Cuttack) Jail along with the petitioner : the detenus concerned are Shyamaghan Ray Chowdhury, Govinda Chandra Sarangi, Graja Tripathy and Jaldhar Nanda.

4. In the background of this statement made in the petition which the State Government has not taken care to controvert, the validity or otherwise of the grounds has to be examined. The grounds, in a nut shell are that the petitioner is an avowed member of the Communist Party who are out to follow the policy of the Communist Party of India and are describing the present agitation of the Communist as 'Civil War' and are making every attempt to collect the weapons and foment disorder etc., and that the petitioner is likely to go underground to further the plans of the Communist Party, namely, commission of sabotage and violence. The learned Government Advocate, in supporting the State's case, urges that the grounds could not be any the more specific inasmuch as any further information might disclose facts which the State considers to be against the public interest to disclose. This provision, however, has to be read along with the provisions which prescribe the object for which the grounds are to be supplied. Preventive detentions are cases in which individuals are deprived of their liberty without a trial. The provision which compels the detaining authority to supply them grounds and the provision that they will be given an opportunity to avail of the grounds in order to make representation for the purpose of clarifying their position and repudiating the grounds urged against them to a prescribed authority and periodical review of their cases by the Advisory Board are meant to be considered, in the circumstances, as substituted for trial. As it has always been said that the weapon in the hands of the Government is very powerful, the minimum of liberty that has been given to the detenus in the set up of things should not be whittled down in the manner, of which the present case is the type. I can easily conceive that the grounds could have been more specific without disclosing the facts which are against the public interest to disclose. He should have been said when, where and with whom he had been planning. If the fact that he was going to plan was based upon any statement made by him or any document or correspondence from which it appeared, without disclosing specifically those documents or statements, it could have been said that those documents had been discovered or the statements had been verified, and that therefrom it appeared that he intended planning sabotage and violence. The grounds, as they stand, are too vague to be availed of for the purpose of making a representation.

5. The circumstances that he was first of all arrested in anticipation of a proceeding under Schedule 07, Criminal P. C., and that he was later detained under the orders of the District Magistrate, who failed to supply him the grounds of detention under Schedule (3) of the Act but must have made a report to the State Government, make it doubtful if the informations that reached the Government at the time of his arrest were sufficient to warrant his detention. Besides such orders of detention have always been held to be sham orders. If people are arrested on charges of offence or mis-behaviour likely to prejudice the public peace within the meaning of S.107, Criminal P. C., and then the proceedings against them are dropped and recourse is taken to the provision of Preventive Detention Act for their detention, they are entitled to have it adjudged that the grounds are not true. Besides it can be said that the grounds like these can be taken to have been extended against every member of the Communist Party Orissa. Such grounds, it they exist, as in the nature of things they should, would be sufficient for a Party to be declared unlawful That the Party has not been declared unlawful makes it clear that it cannot be predicated that every individual member of the Communist Party is either a sabotageous or violent. Under the circumstances, to tell of a particular communist that he is so because he is an avowed communist would be nothing but vague. The State has not made out a case of any clear immediate danger happening to the maintenance of public order by allowing the petitioner to remain at large. Under the circumstances, we direct his release forthwith.

Narasimham, J.

6. I agree.


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