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Vir Singh S/O Buta Singh Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana
Decided On
Judge
Reported inAIR1950P& H271; 1950CriLJ1335
AppellantVir Singh S/O Buta Singh
RespondentThe Crown
Cases ReferredIn S. G. Sardesai v. The Provincial Govt. A.I.R.
Excerpt:
.....that does not come clearly within the meaning of the language used. for the emirate reason that that power is power and therefore able to take care of itself, as well as tending by its nature to increase, while the citizen may need protection. 6. sub-section (5) of section 3 referred to above imposes a statutory obligation on the authority ordering the detention of a person to communicate to him the grounds on which the order ia made, to inform him of his right to make representation to the provincial government and to afford him the earliest opportunity of doing so, it may be that the executive orders which were in force on the date on which the order of detention was passed did not require the district magistrate to communicate this information to the detenu, but it was clearly his..........3 of the said act.3. these sub-sections are in the following terms:(4) no person shall, unless the provincial government by special order otherwise directs, be detained in custody for a period exceeding one month. the provincial government shall as soon as may be and ordinarily not more than two months after the date when be has been taken into custody refer the case of such person to as advisory tribunal to be constituted by it,(5) as soon as may be, after a person is detained in imposes of an 'order made under sub-3. (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 such other particulars as are in its.....
Judgment:
ORDER

Bhandari, J.

1. This is an application Under Section 491 Criminal P.C., for the release from custody of one Gajjan Singh, a resident of the Perozepore district.

2. Gajjan Singh was arrested under the provisions of Section 3, Punjab Public Safety Act. 1947 on 5th April 1949, and on 23rd July his brother Vir Singh put in the present application under Section 491, Criminal P.C. The principal ground which has been taken in support of the application is that although several months have elapsed since the Punjab Public Safety Act. 1949 was enacted, the District Magistrate has not cared to comply with the provisions of Sub-sections (4) and (fi) of Section 3 of the said Act.

3. These Sub-sections are in the following terms:

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

(5) As soon as may be, after a person is detained in imposes of an 'order made under sub-3. (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 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 not 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.

4. In the affidavit furnished by him, the District Magistrate admits that the detenu was not given any information regarding the grounds Of detention and was not told that he bad a right 10 make any representation before any tribunal, but he explains this omission by stating that the orders of Government which were in force at the time of the arrest of the detenu did not impose any obligation on the District Magistrate to do so.

5. The East Punjab Public Safety Act, 1949 which came into force on lat April 1949 has been designed to provide for the East Punjab Public Safety Act, 1919 which came into force on 1st April 1949 has been designed to provide for the arrest and detention of certain persons without the intervention of the Courts of law. this measure restrains the liberty of the subject and it is of utmost importance, therefore, that the provisions of the enactment should be striotly construed. The rule of strict construction requires that the language shall be so construed that nothing shall be included within its slope that does not come clearly within the meaning of the language used. The language must be given its exact and technical meaning as distinct from a forced, strained or unnatural meaning. As Lisber says in his Political Hermeneutics, chap. 6 Section 10:

Let everything that is in favour of power be loosely construed; everything in favour of the security of the citizen and the protection of the individual be liberally and comprehensively interpreted; for the emirate reason that that power is power and therefore able to take care of Itself, as well as tending by its nature to increase, while the citizen may need protection.

6. Sub-section (5) of Section 3 referred to above imposes a statutory obligation on the authority ordering the detention of a person to communicate to him the grounds on which the order ia made, to inform him of his right to make representation to the Provincial Government and to afford him the earliest opportunity of doing so, It may be that the executive orders which were in force on the date on which the order of detention was passed did not require the District Magistrate to communicate this information to the detenu, but it was clearly his duty to comply with the statutory formalities as soon as the Act of 1949 was published in the Government Gazette of the East Punjab. The language of Sub-section (5) of Section 8 is be clear- and unambiguous that it was not necessary for the Provincial Government to issue any special or general instructions to District Magistrates or other executive authorities. this Sub-section requires that the reasons of the arrest of a detenu should be communicated to him 'as soon as may be' after he is detained, that is as soon as is reasonably practicable having regard to all the circumstances of the case. Sub-section (4) requires that any representation which a detenu wishes to make should ordinarily be referred to an Advisory Tribunal within a period of two months after the date of the arrest.

7. Mr. Mehra invites my attention to the proviso to Sub-section (5) and contends that as an order of detention cannot be deemed to be invalid, unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to the person who has been detained, the validity of the present order cannot be challenged on the ground only that the communication required by Sub-section (5) was not made to him. This contention appears to me to be wholly devoid of force. The proviso declares that the validity, legality, or impropriety of an order of detention cannot be called into question on the ground that the communication was defective, vague or insufficient. It implies that some communication, however defective, vague oc insufficient it may have been was made to the person concerned. It does not contemplate that the order will not be invalid even if no communication whatsoever is made to him or that it is open to the Provincial Government to comply or not to comply with the directions given by the Legislature.

8. In S. G. Sardesai v. The Provincial Govt. A.I.R. (86) 1949 ALL 395 : 50 Cr.L.J. 637, a learned Judge of the Allahabad High Court was called upon to construe the provisions of the U. P. Maintenance of Public Order (Temporary) Act (iv) [4] of 3947). He expressed the view that the provisions of Section 5 are mandatory, and non-compliance with the said provisions makes the further detention illegal or improper. He was of the opinion that grounds and particulars required to be supplied to the detenu should be supplied 'as soon as may be' that is within a reasonable time. Additional grounds supplied to the detenu two months and five days after his arrest and after the detenu had made an application Under Section491, Criminal P.C. should be ignored in considering the legality of the detention, when the delay is not supported by a valid excuse.

9. In the present case the detenu was arrested on 5th April 1919, and although five months have already elapsed the grounds of his detention have not been communicated to him.

10. For these reasons, I am clearly of the opinion that although the order in question was valid at its inception, the Grown has not com-plied with the statutory formalities, and the detention of Gajjan Singh has become wholly void and inoperative in the eye of law. The petition must be allowed and the detenu released from custody without further delay.


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