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Kuni Dora Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 912 of 1984
Judge
Reported in1984(II)OLR612
ActsConstitution of India - Article 226; National Security Act, 1980 - Sections 3(2)
AppellantKuni Dora
RespondentState of Orissa and ors.
Appellant AdvocateR.N. Mohanty and J.K. Mohanty
Respondent AdvocateR.K. Patra, Addl. Govt. Adv.
DispositionApplication allowed
Cases ReferredIn H.G. Ravindra and Anr. v. State of Karnataka and Anr.
Excerpt:
.....of the district magistrate on december 10, 1983. he forwarded the representation along with the comments on december 19, 1983. there is no explanation whatsoever for the period from december 10, 1983 to december 19, 1983. though an opportunity was afforded and the district magistrate filed an affidavit, he failed to discharge the' obligation, so, the delay of 9 days at the level of the detaining authority has not been explained at all. the representation was received by the government on december 20, 1983 and was endorsed to the chief minister on december 26, 1983 and in the meanwhile it was travelling from one table to another. no explanation has been offered for december 22 and 23, 1983. there was also delay after the representation was endorsed to the chief minister. we are,..........for the period from 30. 11. 83 till 19. 12. 83 when the representation was forwarded by him to the state government. we would deal with the affidavits and the documents filed by way of explaining the delay a little later.10. coming to the legal position ; it is well settled that no rigid or inflexible period of time within which the representation of the detenu shall be considered and disposed of, can be fixed. the question is not to be considered with reference to any set formula or by a mere arithmetical counting of dates. each case would depend upon its own facts and circumstances. the principle underlying, however, is that it shall be shown to the satisfaction of the court that the representation has been considered with reasonable dispatch and diligence. if on examination the court.....
Judgment:

R.C. Patnaik, J.

1. In this application for habeas corpus, the wife of the detenu Sri Sanyasi Dora alias Tukuna Dora seeks the quashing of the detention of her husband by order, dated 19. 11. 83, passed by the District Magistrate, Cuttack, opposite party No. 2, in exercise of powers conferred on him under Section 3(2) of the National Security Act, 1980, by notification of the Home Department dated 31. 10. 83.

In paras 2, 3, 4 and 5 the facts of the case hare been stated by the Court. After stating the facts, Their Lordships observed :

6. The detenu made a representation on 30. 11. 83. The same was disposed of by the Government on 15. 1. 84, i. e., on the 46th day. The span is long enough. Unless explained, the delayed disposal would by itself render the continued detention illegal.

7. In the course of argument it has been submitted by MT. Patra, the learned Additional Government Advocate on behalf of the opposite parties, that this ground has been for the first time taken in the rejoinder and in course of argument. There is no pleading in the original writ petition in support of it. So we should not entertain any submission on the ground of delay in the disposal of the representation.

8. In our opinion, it is now too late in the day to repel the attack on the ground of absence of pleadings. We draw attention to the case of Smt. Icchu Devi Choraria v. Union of India and Ors. 1980 (4) S. C. C 531. Bhagwati, J., observed :

'It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a. petition, merely ort the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has, on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention; vide Niranjan Singh v. State of Madhya Pradesh; Shaikh Hanif, Udma Majhi @ Kamal Saha v. State of West Bengal and Dalai Ray v. District Magistrate, Burdwan. It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the Court which would show that the detention is in accordance with the provision of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition; vide Nizamudin v. State of West Bengal, Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safe-guards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law : vide Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal.'

His Lordship has drawn attention to the departure as regards practice that this country has made from that prevailing in England, where observance of the strict rules of pleadings is insisted upon even in an application for writ of habeas corpus. Reference was made to Khudiram's case (1975) 2 SCC 81 where the Supreme Court observed :

'The constitutional imperatives enacted in this Article [Article 22(5)] are two fold : (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) and detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drawn his right: of personal liberty in the name of public good and social security,'

Article 21 of the Constitution is the touch-stone. Whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law. As has been said in Icchu Devi's case :

' This constitutional right of life and personal liberty, is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law. This is an area where the Court has been must strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the lightest measure, the Court has not hesitated to strike down the order of detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.'

9. The petitioner took the plea in the rejoinder though not in the writ petition. By the time of argument the opposite parties were not unaware of it. Nevertheless we afforded the opp. parties an opportunity to explain. Two affidavits were filed one by the Deputy Secretary to Government of Orissa in the Home Department tracing the course of the representation till its final journey and the other by the District Magistrate for the period from 30. 11. 83 till 19. 12. 83 when the representation was forwarded by him to the State Government. We would deal with the affidavits and the documents filed by way of explaining the delay a little later.

10. Coming to the legal position ; it is well settled that no rigid or inflexible period of time within which the representation of the detenu shall be considered and disposed of, can be fixed. The question is not to be considered with reference to any set formula or by a mere arithmetical counting of dates. Each case would depend upon its own facts and circumstances. The principle underlying, however, is that it shall be shown to the satisfaction of the Court that the representation has been considered with reasonable dispatch and diligence. If on examination the Court finds that there has been uncondonable remissness or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the continued detention of the detenu would be rendered illegal. If the delay has been due to unavoidable circumstances and for reasons entirely beyond the control of the authorities, such delay would not be a ground for nullifying the detention. As was observed by Bhagawati, J., in Manilal's case : AIR 1976 SC 456 :

' The Court would have to consider judicially in each case on the available material whether the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal. We must examine the facts of the present case in the light of this principle for the purpose of determining whether there was any undue delay in consideration of the representation of the 1st respondent by the State Government.'

11. The opposite parties have sought to explain the delay thus : After receiving the representation, the District Magistrate called for comments from the Superintendent of Police and after receiving the comments, the representation was forwarded to the State Government on December 19, 1983. In the affidavit filed by the District Magistrate details are lacking as to why the representation remained pending at the level of the Superintendent of Police and the District Magistrate for 19 days. In the affidavit of the Deputy Secretary it has been stated that the representation was received by the Home Department on December 20, 1983 and submitted to the Additional Secretary on December 21, 1983. On December 24, 1983, the Additional Secretary submitted his note to the Secretary and the Secretary endorsed the file to the Chief Minister on December 26, 1983. The Chief Minister was away at Calcutta from December 26, 1983 to December 30, 1983 and was on tour for 10 days thereafter. The tour programme of the Chief Minister has been filed. It has further been stated that the Chief Minister was engaged in attending various meetings including cabinet meetings on January 2, 4, 7 and 15, 1984. On the last date the representation was disposed of.

12. It is necessary at this stage to refer to a few decisions on the point.

In Rajkishore Prashad v. State of Bihar and Ors., (1982) 3 SCC 10 the respresentation was made on October 19, 1981 and it was rejected on November 16, 1981. By way of explanation it was stated that the representation was received by the State Government on October 29, 1981 and comments of the District Magistrate was called for. The District Magistrate submitted his comments on November 4, 1981. The Deputy Secretary examined the representation on November 5, 1981. The Special Secretary received the representation on November 6, 1981 and endorsed the same to the Chief Minister on November 10, 1981. It was observed by the Supreme Court :

' The District Magistrate took more than nine days in examining the representation and in forwarding his comments and for this there is no explanation. But for the provision contained in Section 8, which requires the representation to be made to the appropriate Government, the District Magistrate as a detaining authority would have been under an obligation to examine the representation. Even though he received it on October 22, 1981, he forwarded his comments on October 31, 1981. In this connection there is an affidavit of one Rajendra Prasad Singh, Deputy Collector of Gopalganj He is not the detaining authority. As stated in his affidavit even though the District Magistrate was asked to send his comments by special messenger latest by October 27, 1981, the District Magistrate sent his comments on October 31, 1981, presumably by post which was received by State Government on November 4, 1981. Barring giving out the dates there is not the slightest explanation for the delay for the District Magistrate as also the State Government. Even the rotating of the files from the Deputy Secretary to the Special Secretary and then the Chief Minister has taken unusually long time. On the whole we consider in the circumstances of this case delay of 28 days in disposing of the representation as inordinate delay which would vitiate the order'

In Afasari Begum's case (1981) 2 SCC 480, the grounds of detention was served on the detenu on November 12, 1980. It was stated that after the representation was received, the same was forwarded to the District Magistrate for his comments. The District Magistrate had to gather informations from many sources. His comments were submitted to the Home Secretary on November 25, 1980. Thereafter the Law Department was consulted and the file reached the Home Minister on December 5, 1980. The representation was rejected on December 8, 1980. It was observed that 'administrative red tape was the only explanation offered'. The order was set aside on the ground of unreasonable delay in the consideration of the representation.

In Harish Pahwa v. State of U. P. and Ors., (1981) 2 SCC 710, the representation was made on June 3, 1980. The State Government received the representation on June 4, 1980. For 2 days no action was taken. On June 6, 1980 comments were called for from the Custom Authority with regard to the allegations made. The comments were received on June 13, 1980 and on June 17, 1980 the representation was referred to the Law Department. Opinion was received on June 19, 1980 and the representation was rejected on June 24, 1980. The Supreme Court observed .'

'...There is no explanation at all as to why no action was taken in reference to the representation on June 4, 5 and 25, 1980. It is also not clear what consideration was given by the Government to the representation from June 13, 1980 to June 16, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it Is the duty of the State Government to proceed to determine representation of the character above mentioned, with utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu...'

In H.G. Ravindra and Anr. v. State of Karnataka and Anr., 1984 Cr. L. J. 45, the order of detention was invalidated on the ground that there was no explanation for the period from 24.1.83 to 28.1.83 and again from 28.1.83 to 3.2.83. The explanation that the Law Department was looking into the file and the file was being processed during the period was held to be unsatisfactory.

In Prasanta Kumar Pasayat v. state of Orissa and Anr., 1975 Cr. L. J. 1188, the representation was received on August 19, 1974 and was disposed of on September 20, 1974, i. e., a period of 31 days was taken to dispose of the representation. On behalf of the State an explanation was offered that the representation was received by the detaining authority on August 19, 1974. As several questions of fact had been raised, investigation was necessary and so, the Superintendent of Police was requested to submit his comments. Comments were received on September 15, 1974. Without awaiting however for the comments the representation was sent to the Government on September 3, 1974. After the report was received, the same was sent to the Government on September 16, 1974. The time taken for submission of the comments by the Superintendent of Police was sought to be explained by stating that the Superintendent of Police was busy during the period. The State Government disposed of the representation within 4 days from the date of receipt of the comments. This Court observed :

'The explanation for the delay in making the enquiry also does not seem to be appropriate enough so as to satisfy judicial conscience in the matter. The enquiring authority has not given any affidavit to-explain the position. It is no where the case that the Superintendent of Police made a personal investigation into the allegations in the datenu's representation. Even if the Superintendent of Police was busy as stated in the affidavit of the detaining authority the enquiry could have been entrusted to some other person. We are not at all satisfied that the delay of 25 days at the level of the detaining, authority has been explained so as- to condone the same.'

13. No explanation has been given for the period from November 30, 1983 till December 19, 1933. The file at our request was produced by the Additional Government Advocate. It appears therefrom that the District Magistrate called for comments on December 2, 1983 and the comments were sent on December 9, 1983 and were received in the office of the District Magistrate on December 10, 1983. No explanation has been given as to why it took 7 days to make the comments on the representation. The comments were received in the office of the District Magistrate on December 10, 1983. He forwarded the representation along with the comments on December 19, 1983. There is no explanation whatsoever for the period from December 10, 1983 to December 19, 1983. Though an opportunity was afforded and the District Magistrate filed an affidavit, he failed to discharge the' obligation, So, the delay of 9 days at the level of the detaining authority has not been explained at all. We even treat the period taken by the police as uncalled for the unjustified. If the representation has to be disposed of with utmost dispatch, the sense of urgency should be evident from the course of the representation. The representation was received by the Government on December 20, 1983 and was endorsed to the Chief Minister on December 26, 1983 and in the meanwhile it was travelling from one table to another. The disposal, at the Secretariate level is, therefore, not in consonance with the observation of the Supreme Court repeatedly made. The Supreme Court has gone to the extent of saying that each day's delay has to be explained. No explanation has been offered for December 22 and 23, 1983. There was also delay after the representation was endorsed to the Chief Minister. The representation should have been placed before the Chief Minister on the date he was available at headquarters.- Disposal of representation is no less an urgent matter than 'different meetings'. There is also no explanation as to why the representation was not placed before the Chief Minister on January 3 and 13, 1981. It has not been said that the Chief Minister was out of headquarters on the 3rd and the 13th.

14 The conclusion, therefore, is that though there is satisfactory explanation for a part of the period, in regard to the rest either there is no explanation for a portion thereof or the explanation is not satisfactory. We are, therefore, clearly of the opinion that there was unreasonable and undue delay in the disposal of the detenu's representation and that the utmost dispatch which is required to be shown was lacking. The processing and movement of the representation lacked that sense of urgency which was essential in such matter.

15. In view of the aforesaid, it is unnecessary to examine the other contentions raised by the learned counsel for the petitioner.

16. We, therefore, hold the continued detention invalid, allow the writ application and quash the order of detention (Annexure-1). The detenu Sri Sanyasi Dora alias Tukuna Dora be set at liberty forthwith. There would be no order as to costs.

D.P. Mohapatra, J.

17. I agree.


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