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Har Tirath Singh Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported inAIR1950P& H222; 1950CriLJ1237
AppellantHar Tirath Singh
RespondentThe Crown
Cases ReferredFayyad Ali v. District Magistrate
Excerpt:
.....authorities of making orders of detention, has tried to give some kind of safe, guard to the detenus to make representations in order to prevent a gross abuse of power. i of list ii, and iii they were outside it, that would have given him a good ground for representing to the government that his detention was illegal or asking this court to interfere on the ground that the order was beyond the powers of the provincial government and even if there were more reasons than one and if any one of them was hit by the provisions of the government of india act he might successfully be able to petition for release under section 491, criminal p. the argument of the learned advocate was that if a reason is given for detention of the person which is not within the scope and ambit of the act..........argument of the learned advocate was that the proviso should not be read in such a manner as to make the provisions of sub-section (6) nugatory and for this purpose he relied upon the observations of lord herschel in the west derby union v. metropolitan lift assurance society 1897 a. c. 647 : 66 l. j. ch. 726. i am afraid i am unable to agree with this contention. if the proviso is of a kind which nullifies the effect of a section, the two have to be read and construed together. in this case there is no doubt that the proviso waters down and tries to take away a good slice out of what has been given in the subjection, but it cannot be read in a manner to say that if the sub-section requires some information to be given, no information is to be given merely because indefiniteness,.....
Judgment:
ORDER

Kapur, J.

1. This was a rule directed against an order of detention of Har Tirath Singh who had been detained under the provisions of East Punjab Public Safety Act of 1949.

2. On 8th June 1949, the petitioner Har Tirath Singh was arrested under an order dated 80th May 1949 passed by the Superintendent of Police Mr. N. B. Sahney. On 10th June 1949, the Superintendent of Polios passed an order in which he stated that the petitioner had been arrested under Sub-section (1) of Section 3 of the Act under his directions and that he had directed that Har Tirath Singh be committed to sub-jail, Hoshiarpur, until 7tb July 1949 and should be classified as 'B class' detenu and on the same day he made a report to the Government. On and July 1949, the Provincial Government made an order whereby it directed the detention of the petitioner in the custody of the Inspector General of Prisons, East Punjab till further orders. This order is signed by the Home Secretary to the East Punjab Government, Mr. M. B. Bhide. On 16th June 1949, under the provisions of Sub-section (s) of Section 3 of the Act grounds on which the order of detention had been made were served on the petitioner. They were in the following words: 'You have taken part in subversive activities and committed breachof the pewee tranquility,'

3. On 22nd August 1949, the petitioner Hat Tirath Singh made an application to the court Under Section 491, Criminal P.C., for this issue of a writ of habeas corpus, The matter was placed before me and I directed on 14th October 1949 that the betenu should be produced before me, but he could not be produced because, so I was informed, he was on hunger-strike and was unable to travel. The Superintendent of Jail Mr. Madan Mohan Mehta sent this information to this Court by means of a letter, bat I did not think that to be sufficient and I called upon him to give that information by affidavit which was done. In my order, dated 30th October 1949, I had said that the proper procedure )6 bring facts of this kind to the notice of the Court showing as to why a particular order of a Court had not been carried out has to be dose by means of an affidavit of the person who was showing cause and the affidavit, as I have said, was filed in this case.

4. On 10th November 1949, the petitioner was produced before me and I examined him, He has made a statement before me in which he has stated that he is a student of the' second year Class of the D. A. V. College, Jullunder, and that although a copy of the grounds setting forth reasons of his detention had been supplied to him, the real cause of his detention was that there was a bomb found on the railway line near Khuda on the Hullender Mukerian line which was investigated by Sub-Inspector Suoha Singh who arrested certain persona-Lai Singh and Natba Singh-and that he was called from his college for the purpose of investigation of the offence and he was asked by the Sub-InBpeo. tor to disclose as to who had placed the bomb and that if he had not do so he was threatened by the sub-Inspector that he would be arrested under the East Punjab Public Safety Act and that on the nest day, i, e , 19th May 1949 something was typed in his pressenoe and given to the Inspector C.I.D., who was a gentleman called Metha, and the same night he left the Thana and went back to Khuda and from there returned to the College on 29th May 1949. He said that he did not belong to any political party and was not a member of the communist party. His father was a weaver and he was being educated by a relation of his who was in the army and on a scholarship which he had been awarded.

5. It was submitted by the learned Advocate who appeared as amicus curia for the petitioner that the detention of the petitioner was not legal because he had not been given particulars as required under Sub-section (6) of Section 3. In order to understand the argument I shall quote the relevant sections of the Act which relate to this matter. In chap, a, there is Section 8 which gives the powers to arrest and detain suspected persons and the relevant portions are sub sSection 10 and (5) which are as follows:

(4) No person shall, unless the Provincial Government by special order otherwise directs, be detained in custody for a period reseeding one month. The Provincial Government shall as soon as may be and ordinarily not more than two months after the date he has been taken into custody refer the case of such person to an Advisory Tribunal to be constituted by it.

(5) As soon as may be alter a person is detained In pursuance of an order made under Sub-section (1), the, authority making the order may communicate to him, so far as such communication can be made without disclosing facts which it considers against the Public interest to disclose, the grounds on which the order has been made and snob other particulars as are in its opinion Vuffiolent 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 thee rest opportunity of doing soProvided 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 of any defect, vagueness or insufficiency of the communication made to such person under this section.

6. The object of these two Sub-sections seems to no to be twofold : (1) that the detenu should know reasons for which he has been ordered to be detained, and (a) that if he wishes to make any representation to the Provincial Government against the order of detention, he should have sufficient material before him which will enable him to make a representation to the provincial Government and he ia also to be informed of his right to be able to make such a representation. In my opinion, the information given to the petitioner in this case is not as required by the provisions of law. As I have said, the object is that he may know the reasons why he has been detained and also that he may be able to make a representation. In this particular case all that he has been told is that be took part in subversive activities and combated breach of the public tranquility. This is nothing more than a paraphrase of the phraseology used in Sub-section (1) of Section 3 which says: 'that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of Public order It is ....' To tell a man that he has taken part in subversive activities or has committed breach of the Public tranquility is not complying with the provisions of the law and amounts to evasion of the law.

7. The learned Advocate General who appeared for the Grown, on the other band, submitted that proviso to Sub-section (s) was a complete answer to this objection of the petitioner because under the proviso to that Sub-section detention was not to be considered to be illegal merely because the information given was defective, vague or insufficient. That may be so, but even this proviso does not amount to saying that he should get no information at all. In my opinion, the information given amounts to no information and therefore it is not a compliance with the letter and spirit of the law. I am quite aware of the fact that Sub-section (c) provides that so much of the facts have to be disclosed which the authority communicating does not consider in the Public interest not to disclose and which in its opinion are sufficient to enable him to make a representation to the Provincial Government against the order; but even there the authority has to be reasonable and has to give some information from which the petitioner will be able to make a proper representation in order to be able to show that the material on which his detention has been ordered is either baseless or insufficient and thus obtain his release.

8. The power which is given to the executive authorities to detain a citizen is an encroachment on the liberty of such citizen, and it is an extraordinary power given in the interest of pub-lie tranquility and maintenance of public order, and it is for this reason that the legislature in its wisdom although it has given very vast powers to the executive authorities of making orders of detention, has tried to give some kind of safe, guard to the detenus to make representations in order to prevent a gross abuse of power. It has, for instance, provided (1) that the reasons for detention must be supplied to a detenu, (2) he should be given an opportunity to make a representation against such detention in order to do which he must have some knowledge of why he has been so detained; and (3) a Tribunal has been provided which would review the case of the detenu and I presume that such a tribunal would also look at the representation which is made by the person detained. The provisions of the Act have, therefore, to be strictly complied with, and where the authority detaining has not complied with the provisions of the Act, further detention in my opinion becomes illegal or improper. The provisions of Sub-sections and (5) are valuable rights given to detenus and in cases where a person has been imprisoned or detained it is for the detaining authority to show that all the steps have been taken which are prescribed by the law and everything has been done regularly. In Dale's case (1881) 6 Q. B. D. 376 at page 461, Brett L. J, observed as follows:

It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails o follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.

I most respectfully agree with these observations and if the provisions of Sub-section (6) are not complied with, the detention in my opinion becomes illegal and improper.

9. The question to be decided then is whether the information which was given to the petitioner was a substantial compliance with the provisions of Sub-section (6), As I have said before the learned Advocate-General contended; that even though the information may not be sufficient or is defective or vague the detention does not become illegal. In reply to this argument it was submitted by Mr. Thapar that the information given should be as was the case in Ex parts Lees; R. v. Secretary of State for Home Affairs (1941) 1 K. B. 72 at pages 73 and 74 : 110 L. J. K. B. 42, in which the reasons given were fairly extensive. Perhaps in view of this proviso to Sub-section (5) of s, 9, it may not be allowasle to me to expect such complete information to be given to the detenu, although in fairness and for the proper administration of the law of detentions under emergency statutes this is what one should expect from any detaining authority empowered to detain citizen without trial.

10. His second submission was that under the Government of India Act. 1935, in the provincial list, item No. l of List II, the Provincial Government could only legislate with regard to the preventive detention for reasons connected with 'the maintenance of public order; persons subjected to such detention'. Therefore, if the reasons had been given even though they were vague or insufficient, it at least would have enabled the petitioner to see whether the reasons were such as came within item no. I of list II, and III they were outside it, that would have given him a good ground for representing to the Government that his detention was illegal or asking this Court to interfere on the ground that the order was beyond the powers of the Provincial Government and even if there were more reasons than one and if any one of them was hit by the provisions of the Government of India Act he might successfully be able to petition for release Under Section 491, Criminal P.C. and for this purpose he relied on the observations of Sir Maurice Geyer C. J., in Emperor v. Keshav Talpade 1943 6 F. C. R. 49 : A.I.R. (30) 1943 F. C. 1 : 44 C. L. J. 668, where it is said:

If a detaining authority gives lour reasons for detaining a man, without distinguishing bet won them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one of two good reasons had been before them.

The argument of the learned advocate was that if a reason is given for detention of the person which is not within the scope and ambit of the Act conferring the power upon the detaining authority then the whole order is vitiated notwithstanding the fact that other reasons given are good, because one can never say what it was that operated upon the mind of such authority, whether it was something which was within the power of that authority or something which is foreign and extraneous for the purposes of the Act. This argument is not without fore and I agree with it.

11. The third argument of the learned Advocate was that the proviso should not be read in such a manner as to make the provisions of Sub-section (6) nugatory and for this purpose he relied upon the observations of Lord Herschel in the West Derby Union v. Metropolitan Lift Assurance Society 1897 A. C. 647 : 66 L. J. Ch. 726. I am afraid I am unable to agree with this contention. If the proviso is of a kind which nullifies the effect of a section, the two have to be read and construed together. In this case there is no doubt that the proviso waters down and tries to take away a good slice out of what has been given in the subjection, but it cannot be read in a manner to say that if the sub-section requires some information to be given, no information is to be given merely because indefiniteness, vagueness and insufficiency are envisaged by the statute. The learned Counsel also draw my attention to Dormer v. Newcastle UponTyne Corporation (1942) 2 K. B. 304 : 109 L. J. K. B. 708, but I am unable to find any very great assistance from that judgment.

12. The learned advocate also drew my attention to three cases. The first is Degrades V. Rex A.I.R. (36) 1949 ALL. 148 : 1948 A. L. J. 491 F. B. where a similar question was raised with regard to the sufficiency of information supplied to a detenu. But it must be noted that in that Allahabad case the proviso such as the one that exists in the Punjab Act did not exist. There it was held that the information which should be conveyed to the detenu should be sufficient to enable him to make a proper re. presentation and this would depend upon the circumstances of each case and upon grounds that had satisfied the detaining authority of the necessity for such detention and no hard and fast rule could be laid down about it. Bat, ordinarily, non-compliance with the provisions of sub.s. (6) of that Act would make further detention of the detenu illegal from the date of such non-compliance. This case does not help the petitioner very much excepting to this extent that (a) subs. (6) has to be complied with, grounds and particulars have to be supplied to the detenu within a reasonable time, (b) the grounds and particulars supplied under Sub-section (6) should show that the detention is within the scope and ambit of the Act. and if it is not so, the detention must be held to be illegal and (o) if in the opinion of the Court such grounds and particulars have been supplied which enable the detenu to make an effective representation so that the provisions of the section have been substantially complied, the detention would not be deemed to be illegal or improper.

13. The next case referred to is Murat Patva v. Province of Bihar A. I. R. (35) 1948 Pat. 135 : 49 Cr. L. J. 132 F. B. That case also does not go beyond the Allahabad case, nor indeed does the next case cited, In re Bajdhar Ralu A.I.R. (36) 1918 Bom. 834 : 19 Cr.L.J. 465 F.B. In all these three cases, the real point discussed was the preciseness and clarity of information given, and that becomes important because in the Patna, Allahabad and Bombay cases the proviso such as the one that exists in the Punjab Act is not there. In a later Allahabad ruling, Fayyad Ali v. District Magistrate, Kanpur A.I.R. (36) 1919 ALL. 158 : 60 Cr.L.J. 551, it was held by Bind Basni Prasad J.:

It Is true that discretion has been given to such authority to supply such particulars as in his opinion, may be sufficient to make an effective representation, bat where the grounds supplied Under Section 5, contained no particulars at all, the provisions of that section cannot be said to have been complied with.

It was further held by the learned Judge that it is necessary in appropriate cases to give the time and places when and where the detenu is alleged to have indulged in objectionable activities to enable the detenu to satisfy the detaining authority that on the particular date or at the particular time he was at another place. Absence of such particulars makes the detention illegal. With this view of the law, I am in agreement subjeot of course to what I have said already. The object of Sub-section (5) of Section 3, as I have said before, is to provide to the detenu a means of making a proper representation to the Provincial Government, as also to make a proper application to this Court, and the matter falls within Section 491, Criminal P.C. In the case now before me no particulars had been sup. plied and the information given is not merely vague, insufficient or indefinite but amounts to no information at all, and in my judgment the detaining authorities have not complied with all the provisions of the law as contained in Section 3 of the Act.

14. I am, therefore, of the opinion that the continued detention of the petitioner is illegal and improper, and I would therefore allow the petition and order that he be released forthwith, I make the rule absolute.


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