1. This is a petition Under Section 491, Criminal P. 0,, filed by Gyanendra Kumar Jain on behalf of Bhag Chand Jain who is at present in detention under the provision of Section 3, East Punjab Safety Act, 1949. Generally, the facts are not in dispute, and are as follows. Bhag chand Jain was arrested on 25th March 1949) under B. 21, Punjab Public Safety Act of 1947 at Bhiwani, A case under this section had been registered at the police station at Bhiwani on the day before the arrest, the allegations being that Bbag Ghand Jain was the organizer of Communist workers in the Textile Mills, and for the purpose of creating disorder and fomenting unwarranted strikes, Bhag Chand Jain had been disseminating objectionable literature among the mill hands on 11th March. He was produced before a Magistrate on 26th March and remanded to police custody for one week. On 2nd April a bail application was filed on his behalf but this bad not been disposed of when a further remand was obtained on 9th April. Bhag Chand Jain was taken to Hissar and another bail application was filed on his behalf in the Court of the Additional District Magistrate. With this bail application still pend. ing, on 12th April, the prosecution withdrew the case Under Section 21, Punjab Publio Safety Act of 1947, which in the meantime had been superseded by the East Punjab Public Safety Act of 1949. This Act came into force on 29th March 1949, and in it Section 24 was the equivalent of Section 21 in the previous Act. An order for the discharge of Bhag Chand Jain was accordingly passed, but on the game day he was arrested under the orders of the Superintendent of Police, Pandit Janak Eaj, Under Section 3 of the Act, The copies filed on behalf of the Crown show that the Superintendent of Police had passed an order on 11th April, i. e. the day before the order of discharge, that it was necessary that Bhag Chand Jain should be arrested and detained in order to prevent him from acting in a manner prejudicial to tbe public safety and the maintenance of the public order and therefore his arrest and production under 5. 8 (1) of the Act were ordered. There is also an order of the Superintendent of Police dated the 12th April to the effect that Bhag Oband Jain bad been arrested and that he should be committed to the custody of the S. H, 0. of the City Police Station at Bhiwani until llth May 1949. Next comes an order of the Superin. tendent of Police dated the 3 ad May transferring the detenu from the custody of the S. H. 0. Bhiwani City, to the custody of the Inapeotor General of Prisons. Finally, there is an order dated 4th May 1949, of the East Punjab Government through the Home Secretary Under Section 3, Sub-section (4) and (6) of the Aot for the detention of Bhag Chand Jain for an indefinite period, the words used being 'until further orders'. The objections taken to the detention of Bhag Chand Jain are three-fold : (1) that the order of detention was mala fide and that his detention waa only ordered because the polioe had realised that the case Under Section 21 in which he was originally arrested could not succeed against him, and there was no material for ordering his detention under the provisions Section 3 (1); (2) that of Section S (6) of the Act of 1949 have not been complied with} and (3) that the provisions of Section 3 (4) of the Act bad not been complied with and in faot the East Punjab Government had not even set up the Advisory Tribunal which under this Sub-section was required to do so.
2. As regards the question of mala fides, two affidavits of Pandit Janak Raj, Superintendent of Police, have been filed. The first of these is dated the 22nd July and is more or less in the standard form of such affidavits which are based generally on the words of the section itself, being to the effect that the Superintendent of Police having satisfied himself that it was necessary to prevent Bhag Chand Jain from acting in a manner prejudicial to the public safety and that it was necessary to order his arrest and detention he passed orders for his arrest and detention Under Section 8 (1) of the Act of 1949. The other affidavit dated the 14tb August, is a more detailed reply to the allegations contained in the petu tion. The facts alleged in the petition regarding the arrest and detention of Bhag Cband Jain were admitted, except that it was stated that his bail application which must have been his original application, had been rejected by the Resident Magistrate at Bhiwani on the 12th April, i. e. on the day on which Bhag Chand Jain was discharged by the Additional District Magistrate at Hissar, and so could not be aware what orders were being passed at Bhiwani, and para. 6 of the affidavit repeats the substance of the earlier affidavit. However, in a case where a-man is arrested and ordered to be detained Under Section 8 of the Act after having been originally arrested on a specific charge which has either collapsed or been withdrawn, as in the present case, there must always remain a strong suspicion that his detention has been ordered on the very facts which formed the basis of the specific charge against him, and which could not be substantiated in a Court of law, since after the date of his first arrest his conduct could not have furnished any fresh material against him. To this extent the bona fides of the order of detention become doubtful, but I would not go so far as to hold that in every such case the detention becomes illegal.
3. The third of the points listed above on which the legality of the detention of Bhag Chand Jain was challenged was the non-compliance of the Provincial Government with the provisions of Sub-section (4) of Section 8 which reads :
No person shall, unless the Provincial Government by special order otherwise directs, be detained in custody or a period exceeding one month. The Provincial Government shall &a; soon as may be and ordinarily Dot more than two months after the date when be has been taken into custody refer the case of such person to an Adivsory Tribunal to be constituted by it,
4. Two questions arise out of this objection, firstly whether the Provincial Government has duly constituted the Advisory Tribunal mention, ed in the Sub-section and secondly, whether the case of the present detenu has been duly referred to such Tribunal. The material furnished on behalf of the Crown on these points consists of copies of two orders of the Governor of the East Punjab dated 4th March and 21st July 1949 respectively, and an affidavit of the Superintendent of Police 'A', 0. I. D,, East Punjab. By the first of the above orders what was described as an advisory committee consisting o two retired District and Sessions Judges, S. B. Sardar Eartar Singh and Dewan Siri Bam Puri, was set up to review the oases of persons detained Under Section 8, Punjab Public Safety Act of 1917. The order also contains particulars regarding the remuneration and travelling allowance of the members of the advisory committee and an announcement that the committee was working at Simla as from 23rd February 1949, It does not appear that B. 3 of the Act of 1947 made any provision for the review of cases of persons detained under the section by any form of advisory committee or tribunal, and so the Betting up of such an advisory committee by the Provincial Government to review such cases appears to have been an act of grace, performed perhaps in response to the pressure of public opinion. The second of the orders of which a copy has been filed, dated 21st July 1949, is to the effect that
the Governor of the East Punjab is pleased to appoint Shri E, A. N. Mukerji, retired District and Sessions Judge, as a member of the Advisory Tribunal to review the oases of persona detained Under Section 8, Bast Punjab-Publio Safety Aot, 1949, vice Diwan Biri Him Puri, resigned.
From this order it would appear that in the eyes of the Provincial Government the 'advisory committee' set up gratuitously to deal with cases under the Act of 1947 had automatically, and without any official order or notification in this behalf, become the Advisory Tribunal for the setting up of which express provision was made in Sub-section (4) of Section 3 in the Act of 1949, which came into force on 29th March 1949. I find it difficult to understand how a body thus gratuitously constituted to deal with cases under the old Act could in this manner automatically and without any further order or notification-become the Advisory Tribunal required by Sub-section (4) of Section 8 of the new Act, and in my opinion there is no validly constituted Advisory Tribunal under Sub-section (4).
5. The affidavit of Bakhahi Badri Nath, the Superintendent of Police 'A' 0,1. D. is to the effect that the case of Bhag Chand Jain was referred on 22nd August 1949 to the Advisory Tribunal which was constituted by the orders of the Governor of the East Punjab dated 4th March and 2lst July 1949. I find it difficult to understand why this particular officer has been chosen to furnish the affidavit on this point, since Sub-section (4) itself requires that the Provincial Government shall as soon as may be and ordinarily not more than two months after the date on which the detenu has been taken into custody refer his case to the Advisory Tribunal. Gene-rally when any action of the Provincial Government is in question the Secretary to the Government in the Department concerned is the officer through whom any order is conveyed or any information supplied, and one would have expected that the affidavit on the point raised in the present petition would have been that of the Home Secretary. Be that as it may, the affidavit itself shows that the case of Bhag Chand Jain was only referred to the Advisory Tribunal on 22nd August whereas he was arrested and ordered to be detained on lath April. The reference of his case was thus only made four months and ten days after he was taken into oustody. The provisions of Sub-section (4) regarding the reference of eases of detenus to the Tribunal are mandatory and although the word ' ordinarily' leaves a loophole in the case of delay in. such a reference, the word must be taken in this context to mean in the absence of special reasons or not making a reference within two months. No particulars of any such reasons are given in the affidavit, and they may therefore be assumed to be-non-existent. In fact, it would appear that the case of Bhag Chand Jain was only rafered to the Advisory Tribunal when the present petition, which was admitted for hearing as long ago as 5th July 1919, was about to beooma ripe for hearing. In the circumstances, it would appear that the detention of Bhag Chand Jain is illegal on the double ground that no Advisory Tribunal as contemplated in Sub-section U) has been properly constituted, and that hia case was not referred to the Tribunal which does exist within two months of his arreat and detection without the existence of any special reasons for not referring it within the specified period.
6. The other ground on which it was contended that the petitioner's detention was illegal was the non-compliance with the provisions of Sub-section (5). This Sub-section reads as follows :
As soon as may be after a person is detained in pursuance of an order made under Sub-section (1) the authority making the order may communicate to him, so fat S3 snob, communication can be made without disclosing facts which it considers against the public interest to disclose, the grounds on which the order baa 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 inform him of his right to make such representation and afford him the earliest opportunity of doing so ;Provided that neither the said order nor the detention of the said person thereunder shall be deemed to be invalid or unlawful or improper on the ground ol any defect, vagueness or insufficiency of the communication made to such person under this section.
In Para. 8 of his affidavit Pandit Janak Raj, the Superintendent of Police who ordered the arrest and detention of Bhag Chand Jain, has admitted that the grounds of arrest as required by Section 3 (5), East Punjab Public Safety Aofc, 1949, were not communicated to the detenu through an honest mistake. In the following paragraph, however, he went on to contend that notwithstanding the absence of formal communication of grounds of arrest the detenu had been fully informed about the allegations against him for which he was arrested and detained, and the fact that ho had knowledge of the allegations against him was fully borne out by para. 6 of his bail application Sated 9th April 1949 which was to the following section:
That the applicant has never made any speech or spread rumour which could likely cause fear and alarm to the public nor did he do anything to defame the ''Government or any public servant. That the applicant sever took any part in any activity prejudicial to the public safety or maintenance of public order.
From this part of the affidavit, it is quite clear that in fact no such communication was made to the detenu as was required by Sub-section (5), nor was he informed of his right to make a representation to the Provincial Government or afford the earliest opportunity of doing so. The contention of the Superintendent of Police that notwithstanding the fact that these provisions had not been complied with the detenu was fully aware of the reasons for his arrest and detention is hardly worthy of serious consideration. The ground on which this contention is based consists merely of a reproduction of a paragraph from the detenu's own bail application. This application was, however, filed by him when he was under arrest on a charge Under Section 21 of the Act of 1947 which is the same as Section 24 of the 1949, and a perusal of this section will show that in the portion of his bail application which: is relied on Bhag Chand Jain, who at that time was not under arrest and detention Under Section 3, merely denied that be had committed any of the acts which constitute an offence under the section in question. It is obvious that legally his position changed completely when, on 12th April, he was discharged in the case Under Section21 or Section 24 and was re-arrested under B. 3 (1). It must accordingly be held that none of the provisions of Sub-section (5) of Section 3 have been complied with. As regards the effect of this non-compliance Mr. Sethi for the petitioner relied on a number of cases of which the most important is the decision of a Full Bench reported as Durga Das v. Rex A. I. R. (36) 1919 ALL. 118 : 1918 A. L. J. 491. It appears that the provisions of Section 3 (5), East Punjab- Act of 1919 are similar to, but not identical with, Section 5, U. P. Maintenance of Public Order (Teporary) Act of 1917. Section 5 of the U. P. Act reads :
As soon as may be after an order in respaot of any person is made under cl (a) of Sub-section (1) of Section 3, the officer or authority making the order shall communicate to that person affected thereby the grounds on which the order against him has been made and suoli other particulars as may in the opinion of such officer or authority, be suSioient to enable him to make a representation against the order and such porson may at any time thereafter make representation in writing to suola ofEoer or authority against the order. It shall be the duty of such officer or authority to inform such person of his right of making such representation and to afford him the earliest practicable opportunity to doing so. II the Government is satisfied on considering the representation made, that it is no longer necessary to maintnin tho order, the order made Under Section 3 shall be cancelled.
It was held by the Full Bench consisting of Malik C. J. and Eaghubar Dayal and Wanchoo JJ., that the provisions of this section were mandatory and that non compliance with them rendered the detention of the detenu illegal. It is, however, contended by Mr. Salooja on behalf of the Crown that the provisions of 8. 3 (5), East Punjab Act, 1949, differ materially and are not nearly so strict. In the first place, instead of the- word 'shall' in the first sentence the word 'may' is used, and in the second place what is to be communicated to that arrested person is not so comprehensive in Section 8 (6) and there is also the proviso, which does not exist at all in Section 5, of the U. P. Act. Since, however, it is admitted in the present case that no communication has been made to the detenu since his arrest and detention Under Section 8 (1) and no information has been given to him of his right to make a representation to the Provincial Govern. ment, neither the question of what exactly was to be communicated to him nor the limitations imposed by the proviso arise, and the question before me becomes the simple one whether the communication of any grounds and particulars to an arrested person, and informing him of his right to make a representation, and allowing him the earliest opportunity to do so are mandatory provisions, or whether it is entirely discretionary with the arresting authority to take any action Under Section 3 (e) at all or not. It seems to me that unless the provisions of Section 8 (5) are mandatory, they are meaningless and cease to afford any protection whatever to an arrested person, since if it is left entirely to the discretion of the arresting authority whether ho should carry out the provisions of this Sub-section, the officer concerned may only decide to do so in one out of a hundred cases, or one out of a thousand cases, or never, and it would hardly have been worth while incorporating Sub-section (5) in the Act at all if it had been intended that it was to be used in this manner.
7. On the question of how the word 'may' is to be interpreted in this Sub-section, Mr. Sethi has relied on the section of Mr. Maxwell's book on the Interpretation of Statutes contained in page3 216 to 281 of the Ninth Edition. This section is headed 'May' : 'Must', and para. 1 reads :
Statutes which authorise persons to do acts for the benefit of others, or, as it is sometime said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in term simply enabling and not mandatory In enacting that 'may,' or 'shall, if they think fit' or, 'shall have power', or that 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided a3 to have become an axiom that in such cases such expressions may have - to say the least - a compulsory force, and 30 would seem to be modified by judicial exposition. On the other band, in some cases, the authorised person is Invested with a discretion, and then those expressions seem divested of first compulsory force, and probably that is the prima facie meaning.
A number of cases are then discussed in which the phrases mentioned above have been held to have compulsory and not merely discretionary force. The whole question is summed up in the following passages :
Following the decision of the House of Lords in Julius v. Lard Bishop of Oxford (1880) 5 A. 0. 214 : 49 L. J Q. B. 577, it is said that from the nature of the English language the word 'may' can never mean 'mast', that it ia only potential, and when it is employed there is another question to be decided, viz., whether there Is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary. Bat when the power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative.
Accordingly, when a statute enacts that a candidate at an election 'may' be present at the polling place, On that a clergyman accused of an eoclesiastloal offense 'may' attend the proceedings of the commission appointed to enquire into the accusation, or that a company 'may' construct a railway, or that a plaintiff 'may' sue in one action for injury done to his wife of well aa himself, cases in which the donee cf the power has only his own interests or convenience to consult, the word 'may' in plainly permissive only, and a mere privilege or license is conferred which he may exercise or not at pleasure. But an enactment that ohuioh wardens 'may' make a rate for the reimbursement of constables, or the Chancellor 'may' issue a commission in a case of bakruptcy, or one conferring power on the Courts to direct that a parson entitled to costs should recover them, is no mere permission to do such acts, with a corresponding liberty to abatain from doing them. A duty is at the same time cost upon the persons empowered. For these are cases where a power ia deposited with public officers, to be used for the benefit of the persons having rights in the matter. So, whenever a statute confers an authority to do a judicial act in a certain case, it ia imperative on those so authorised to exercise the authority when the case arises and its exercise is duly applied for by a party Interested and having a right to make the application and the exercise depends, not on the discretion of the Courts or Judges, but upon proof of the particular case out of which the power arises. If a statute empowered justices to adjudicate In certain case;, that is, to Impose a certain penalty on pera 3 whom they should find guilty of a certain offence, it ia Incontestable that they would have no option to decline jurisdiction beoansa the statute used only the word 'may' instead ot 'shall1. There would be hero such a right in the public aa to make it the duty of the justices to exercise the power, Whether the language wan facultative only or mandatory it would be obligatory on them to hear and determine the complaint, to decide, one way or the other, whether the accused was guilty, and to impose the penalty if he was. The Supreme Court of the United States similarly laid it down that that which public officers are empowered to do for a third person the law requires shall be done whenever the public interest Or individual rights call for the exercise of the power, since the latter is given, not for their benefit but for his, and is placed with the depository to meet the demands of right and to prevent the failure of justice. In all such cases, the Court observed, the intent of the Legislature, which is the test, is, not to grant a mere discretion, but to impose a positive and absolute duty,
8. On behalf of the Crown, it was contender that the drafters of the East Punjab Act and the Legislature were presumably aware of the similar provisions in other Provincial Acts, and the word 'may' was deliberately used in Sub-section (5) in order to make it discretionary for the arresting authority to carry out the provisions of this Sub-section or not, and it was also contended that the powers discussed by Maxwell above mostly related to powers given to Courts to adjudicate on points raised before them, but it is clear that the principle which emerges from the discussion is that the test is whether any duty is imposed on the donee of the power or whether he has only his own interests or convenience to consult. I cannot believe that it was the intention of the Legislature in the present case that is nothing but the interest and convenience of the arresting authority were to be consulted, and the rights of the subject and the safeguards afforded to anyone arrested Under Section 3 (1) were to be ignored and taken away in a matter affecting his liberty, and I am, therefore, of the opinion that the provisions of Section 3 (5) are mandatory and must be complied with and that non-compliance with them renders the detention of the detenu illegal.
9. Another point was raised on behalf of the Crown by. Mr. Salooja, namely, that 8.43 (1) of the Act ousted the jurisdiction of the High Court. The subsection reads :
Except as provided in this Act no proceeding or order taken or made under this Act shall be called in question by any Court, and no suit, prosecution or other legal proceedings shall lie against the Provincial Government or any officer thereof for anything done or intended to be done under or in pursuance of this Act.
The point was also raised before the Pull Bench in the Allahabad case to which I have already referred. Section 15 of the U. P. Aot contains a similar provision that no order made in exercise of any power conferred by or under this Act or any rule made thereunder shall be called in question in any Court. A similar provision in Section 16 (1), Defence of India Act had, however, been considered by their Lordships of the Privy Council in Emperor v. Sibnath Bamrjee A.I.R. (82) 1945 P.C. 156 : I. ti, B. (1945) Kar. P.C. 371 and Lord Thankerton observed that the Sub-section assumed that the order was made in exercise of the power which clearly left it open to challenge on the ground that it was not made in conformity with the power conferred, and it was held by the Full Bench that if the order was not in conformity with the power conferred upon the detaining authority, the order was not protected by the section from being called into question in any Court.
10. For these reasons, I accordingly hold that the detention of Bhag Chand Jain is illegal and accept the petition and order his immediate release.