No. 3912 C. Dated, Patna, the 9thAugust 1965
Whereas I., J.
N. Sahu, District Magistrate,Patna, am satisfied with respect to the person known as Dr. Ram, Manohar Lohia,Circuit Houses, Patna, that with a view to preventing him from acting in anymanner prejudicial to the public safety and the maintenance of law and order,it is necessary to make an order that he be detained.
Now, therefore, in exercise ofthe powers conferred by clause [b] of sub clause [i] of rule 30 of the Defenceof India Rules, 1962, read with Notification No. 180/CW, dated the 20th March1964, of the Government of Bihar, Political [Special] Department, I herebydirect that the said Dr. Ram Manohar Lohia be arrested by the police whereverfound and detained in the Central Jail, Hazaribagh, until further orders.
Sd/- J. N. Sahu,
District Magistrate, Patna
Sd/- Ram ManoharLohia,
10th August - 1.40.'
21. Dr. Lohia was lodged in the Hazaribagh Central Jail at 3.30 p.m. onAugust 10, 1965. He sent a letter in Hindi together with an affidavit sworn inthe jail to the Chief Justice, which was received on August 13, 1965, in theRegistry of this Court. Although the petition was somewhat irregular, thisCourt issued a rule and as no objection has been taken on the ground of form wesay nothing more about it.
22. In his affidavit Dr. Lohia stated that he was arrested at midnight onAugust 9, 1965 and was told that it was on charges of arson but later wasserved with the order of detention and that in this way his arrest for asubstantive offence was turned into preventive detention. He further statedthat the order of detention .bowed that he was to be detained in Bankipur Jailbut the name of the Jail was scored out and 'Central Jail,Hazaribagh' was substituted which led him to conclude that typed orders ofdetention were kept ready and that the District Magistrate did not exercise hismind in each individual case. He contended that his detention under Rule 30(1)(b) was illegal because, according to him, that rule dealt with prejudicialactivities in relation to the defence of India and civil defence and not withmaintenance of law and order of a purely local character. He alleged that thearrest was mala fide and malicious; that it was made to prevent him fromparticipating in the House of the People which was to go into Session fromAugust 16 and particularly to keep him away from the debate on the Kutch issue.He further alleged that he had only addressed a very large gathering in Patnaand had disclosed certain things about the Bihar Government which incensed thatGovernment and caused them to retaliate in this manner and that detention wasmade to prevent further disclosures by him.
23. In answer to Dr. Lohia's affidavit two affidavits were filed on behalfof the respondents. One affidavit, filed by the District Magistrate, Patna,denied that there was any malice or mala fides in the arrest of Dr. Lohia. TheDistrict Magistrate stated that he had received a report from the SeniorSuperintendent of Police, Patna, in regard to the conduct and activities of Dr.Lohia and after considering the report he had ordered Dr. Lohia's detention toprevent him from acting in any manner prejudicial to the public safety andmaintenance of public order. He stated further that he was fully satisfied thatthe forces of disorder 'which were sought to be let loose if not properlycontrolled would envelop the whole of the State of Bihar and possibly mightspread in other parts of the country which would necessarily affect the problemof external defence as well in more ways than one'. He said that thereport of the Senior Superintendent of Police, Patna, contained facts which heconsidered sufficient for taking the said action but he could not disclose thecontents of that report in the public interest. He sought to correct, what hecalled, a slip in the order passed by him, by stating that notification No.11155C, dated 11th August 1964, was meant instead of the notification mentionedthere. He stated further that as the disturbance was on a very large scale itwas thought expedient to keep ready typed copies of detention orders and tomake necessary alterations in them to suit individual cases, at the time of theactual issuance of the orders, and that it was because of this that the words'Central Jail Hazaribagh' were substituted for 'BankipurJail'. He denied that he had not considered the necessity of detention ineach individual case. He repudiated the charge that the arrest was made at theinstance of Government and affirmed that the action was taken on his ownresponsibility and in the discharge of his duty as District Magistrate and notin consultation with the Central or the State Government!. He denied that thearrest and detention were the result of anger on the part of any or a desire toprevent Dr. Lohia from circulating any damaging information about Government.The District Magistrate produced an order which, he said, was recorded beforethe order of detention. As we shall refer to that order later it is reproducedhere :
Perused the report of the SeniorS. P. Patna, for detention of Dr. Ram Manohar Lohia, M. P. under rule 30 [b] of the Defence of India Rules, on the Ground that his being at large isprejudicial to the public safety and maintenance of public order. From thereport of the Sr. S. P. Patna, I am satisfied that Dr. Ram Manohar Lohia, M. P.aforesaid be detained under rule 30  [b] of the Defence of India Rules.Accordingly, I order that Dr. Ram Manohar Lohia be detained under rule 30 [b] of the Defence of India Rules read with Notification No. 180/CW dated20-3-1964 in the Hazaribagh Central Jail until further orders.
Send four copies of the warrantof arrest of they Sr. S. P. Patna for immediate compliance. He should returntwo copies of it after service on the detenu.
Sd/- J. N. Sahu.District Magistrate, Patna.
24. The second affidavit was sworn by Rajpati Singh, Police Inspectorattached to the Kotwali Police Station, Patna. He stated in his affidavit thatthe order was served on Dr. Lohia at 1-40 A. M. on August 10, 1965 and not atmidnight, He denied that DR. Lohia was arrested earlier or that at the time ofhis arrest, he was informed that the arrest was for an offence or offence ofarson. He admitted, however, that he had told him that cases of arson and loothad taken place. He affirmed that there was no charge of arson against Dr.Lohia.
25. Dr. Lohia filed a rejoinder affidavit and in that affidavit he statedthat the internal evidence furnished by the order taken with the counteraffidavits disclosed that his arrest and detention were patently illegal. Hepointed out that while Rule 30  [b] provided that detention could be madefor the maintenance of public order, the order stated that Dr. Lohia wasarrested for maintenance of law and order. He characterised the counteraffidavits as full of lies and narrated other facts intending to show thatthere was a conspiracy to seal his mouth so that disclosure against the BiharGovernment might not be made. This represents the material on which the presentpetition is based or opposed.
26. The petition was argued by Dr. Lohia in person though he was receivingassistance in constructing his arguments. His contentions are that he is notbeing detained under the Defence of India Rules but arbitrarily; that even ifhe is being detained under the said Rules the law has been flagrantly violated;that the order passed against him is mala fide; and that the DistrictMagistrate did not exercise the delegated power but went outside it in variousways rendering detention illegal.
27. On behalf of the State a preliminary objection is raised that theapplication itself is incompetent and that by the operation of Art. 359 readwith the President's Order issued under that Article on November 3, 1962, Dr.Lohia's right to move the Supreme Court under Art. 32 of the Constitution istaken away during the period of emergency proclaimed under Art. 352 as long asthe President's Order continues. On merits it is contended on behalf of theState of Bihar that the petition, if not barred, does not make out a caseagainst the legality of the detention; that this Court cannot consider thequestion of good faith and that the only enquiry open to this Court is whetherthere is or is not an order under Rule 30(l)(b) of the Defence of India Rules1962. If this Court finds that there is such an order the enquiry is closedbecause the petition must then be considered as incompetent. The StateGovernment admits that the words of Rule 30(1 )(b) and s. 3 of the Defence ofIndia Act were not used in the order of detention but contends that maintenanceof public order and maintenance of law and order do not indicate different.things and that the area covered by maintenance of law and order is the sameif not smaller than the area covered by the expression maintenance of publicorder. We shall go into the last contention more elaborately after dealing withthe preliminary objection.
28. Questions about the right of persons detained under the Defence of IndiaRules to move the Court have come up frequently before this Court and many ofthe arguments which are raised here have already been considered in a series ofcases. For example, it has been ruled in Mohan Choudhury v. Chief Commissioner, Tripura : 1964CriLJ132 that the right of any person detained under theDefence of India Rules to move any court for the enforcement of his rightsconferred by Arts. 21 and 22 of the Constitution remains suspended in view ofthe President's Order of November 3, 1962. It has also been ruled that such aperson cannot raise the question that the Defence of India Act or the Rules arenot valid because, if allowed to do so, that would mean that the petitioner'sright to move the court is intact. Other questions arising from detentionsunder the Defence of India Rules were further considered in Makhan Singh v. TheState of Punjab : 1964CriLJ217 . It is there pointed out that, althoughthe right of the detenu to move the Court is taken away that can only be incases in which the proper detaining authority passes a valid order of detentionand the order is made bona fide for the purpose which it professes. It would,therefore, appear from the latter case that there is an area of enquiry openbefore a court will declare that the detenu has lost his right to move thecourt. That area at least embraces an enquiry into whether there is action by acompetent authority and in accordance with Defence of India Act and the Rulesthereunder. Such an enquiry may not entitle the court to go into the merits ofthe case once it is established that proper action has been taken, for thesatisfaction is subjective, but till that appears the court is bound to enquireinto the legality of the detention. It was contended that Makhan Singh's : 1964CriLJ217 case arose under Art. 226 and that what is stated there appliesonly to petitions under that article. This is a misapprehension. The rulingmade no difference between the Art. 32 and Art. 226 in the matter of the barcreated by Art. 359 and the President's Order. What is stated there applies topetitions for the enforcement of Fundamental Rights whether by way of Art. 32or Art. 226.
29. Mr. Verma appearing for the State of Bihar, however, contends that thearea of the enquiry cannot embrace anything more than finding out whether thereis an order of detention or not and the moment such an order, good on its face,is produced all enquiry into good faith, sufficiency of the reasons or thelegality or illegality of the action comes to an end, for to go into suchmatters is tantamount to allowing the petitioner to move the court which thePresident's Order does not permit. He contends that the courts power to issue awrit of habeas corpus in such cases is then away as completely as if Clause  ofArt. 32 made no mention of the writ of habeas corpus. According to him, anorder under rule 30  [b] proper on its face, must put an end to enquiry ofany kind. In view of this objection it is necessary to state the exact resultof the President's Order for this has not been laid down in any earlierdecision of this Court.
30. The President declared a state of grave emergency by issuing aProclamation under Art. 352. on October 26, 1962. This Proclamation ofEmergency gave rise to certain extraordinary powers which are to be found inPart XVIII of the Constitution, entitled Emergency Provisions. Article 358suspended the provisions of Art. 19 during the Emergency and Art. 359 permittedthe suspension of the enforcement of the rights conferred by Part III. Thatarticles reads:
'359. Suspension of theenforcement of the rights conferred by Part III during emergencies:
 Where a proclamation ofEmergency is in operation, the president may by order declare that the right tomove any court for the enforcement of such of the rights conferred by Part IIIas may be mentioned in the order and all proceedings pending in any court forthe enforcement of the rights so mentioned shall remain suspended for theperiod during which the proclamation is in force or for such shorter period asmay be specified in the order.
 An order made as aforesaidmay extend to the whole or any part of the territory of India.
 Every order made underclause  shall, as soon as may be after it is made, be laid before each Houseof Parliament.
31. The President issued an order on November 3, 1962. The Order reads: