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Bal Diwakar Hans Vs. Delhi Administration and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 1 of 1967
Judge
Reported in3(1967)DLT172
ActsPreventive Detention Act, 1950 - Sections 3
AppellantBal Diwakar Hans
RespondentDelhi Administration and ors.
Advocates: R.P. Bansal and; K.L. Sharma, Advs
Cases ReferredNaresh Chandra v. State of West Bengal
Excerpt:
.....could nto be held to be in accordance with the procedure established by law within the meaning of article 21 and he was thereforee entitled to be released. if the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannto be said that it is vague. sharma, learned counsel for the state, has on the toher hand strenuously argued that the grounds to which exception has been taken on behalf of the petitioner are perfectly relevant and definite and they afford the petitioner all the particulars that are required to enable him to make an effective representation. i am satisfied that on that ground, as it stands, the detenu cannto possibly make any effective representation......article 226 of the constitution read with section 491 of the code of criminal procedure and his counsel shri r. p. bansal has raised the following contentions on his behalf : (i) that no order of detention was served upon the petitioner either citing the preamble or the conclusion of facts as required under section 3 of the preventive detention act at the time when he was arrested and that it was only after a week or so of his arrest that the petitioner came to know that his detention had been made under the preventive detention act, 1950, when a copy of the grounds of the detention was supplied to him; (ii) that the grounds of detention are vague and indefinite as such they are vocative of article 22(6) of the constitution of india; (iii) that the grounds have no connection with the.....
Judgment:

Hardy, J.

(1) The petitioner Bal Diwakar Hans was arrested on 2nd December, 1966, pursuant to an order of detention made by the District Magistrate, Delhi, on 30th November, 1966, under Section 3 (i) (a) (ii) of the Preventive Detention Act, 1950, as amended, (hereinafter to be referred to as the Act). The grounds on which the detention of the petitioner has be en ordered are that his activities were highly prejudicial to the maintenance of public order in the Union Territory of Delhi. The petitioner has filed this petition under Article 226 of the Constitution read with Section 491 of the Code of Criminal Procedure and his counsel Shri R. P. Bansal has raised the following contentions on his behalf : (i) that no order of detention was served upon the petitioner either citing the preamble or the conclusion of facts as required under Section 3 of the Preventive Detention Act at the time when he was arrested and that it was only after a week or so of his arrest that the petitioner came to know that his detention had been made under the Preventive Detention Act, 1950, when a copy of the grounds of the detention was supplied to him; (ii) that the grounds of detention are vague and indefinite as such they are vocative of Article 22(6) of the Constitution of India; (iii) that the grounds have no connection with the maintenance of public order and lastly (iv) that no report was made by the Detaining authority to the State Government as required by sub-section (3) of Section 3 of the Preventive Detention Act ; nor was the approval of the State Government obtained. He has also contended that it was the duty of the State Government to have reported the fact to the Central Government together with the grounds on which the order of detention had been made and that even this requirement of sub-section (4) of Section 3 of the Act has nto been complied with. On behalf of the State, an affidavit dated the 5th January, 1967, has been filed by Shri B. N. Tandon, District Magistrate, Delhi, who has controverter the facts and grounds on which the order of detention made by him has been challenged by the petitioner and I have also heard Shri K. L. Sharma, learned Counsel for the State at great length.

(2) It is apparent from the affidavit filed by the District Magistrate, Delhi, that there is no substance in any of the grounds urged on behalf of the petitioner by his learned counsel except the objection raised on the score of vagueness and indefiniteness of the grounds on which the order of detention has been made. The affidavit of the District Magistrate and the attested copy of the report made by him to the State Government marked as Annexure 'A' filed therewith clearly show that a copy of the order of detention made by him on 30th November, 1966, along with a copy of the ntoe received from S. P., C. I. D. (S. B) were forwarded to the Lt. Governor through his Secretary on the same day and his approval was obtained on 3rd December, 1966. The affidavit also shows that the copies of the warrant of detention and the order of detention were duly served on the petitioner immediately after his arrest and that he had affixed his signatures on the office copies of the warrant of detention and the order of detention on 2nd December, 1966, in token of his having received the same. As regards the objection that the State Government had nto reported the fact of the petitioner's detention to the Central Government as required by sub-section (4) of Section 3 of the Act, I find that no such objection has been taken in the petition at all. It is, thereforee, nto necessary to examine that contention in this case.

(3) The petitioners' s contention with regard to the vagueness of the grounds on which his detention has been ordered, however, needs serious consideration. There is no doubt that out of eight grounds, there are five atleast to which no objection could reasonably be taken by the petitioner's counsel. These grounds are neither vague nor indefinite nor can it be said that they are irrelevant to the matters which fall to be considered under sub-section (i) (a) (ii) of Section 3 of the Act. The attack was, thereforee, largely confined to grounds (i), (vii) and (viii) of the grounds of detention served on the petitioner which are reproduced below :

(I)That you are the General Secretary of the All India Arya Vir Dal and your party is working in active and close liaison with the Sarvadaliya Gau Raksha Maha Abhiyan Samiti in organising and continuing the Anti-cow slaughter agitation in Delhi. (vii) That on 9-11-1966, you took anactive part in the meeting of the Sarvadaliya Gau Raksha Maha Abhiyan Samiti, held at Jain Sathanak, Deputy Ganj, Sadar Bazar, Delhi and exhorted Shri Sushil Muni to resort to fast unto death to press the Government for a ban on cow slaughter in the country through a central legislation, (viii) That on the death of Rishi Brahamchari on 30.11.1966 you along with Shri 0m Parkash Tyagi, Prem Chand Gupta and tohers started moving about in the city inciting the religious and communal passions of the Hindus by making inflamatory statements.'

(4) The questions of vagueness of grounds vitiating the order of detention came up for consideration in one of the earliest judgments of the Supreme Court in the case of State of Bombay v Atma Ram and then again in the year 1953, in the case of Ram Krishan v. Slate of Delhi Dealing with the imperative necessity of furnishing proper grounds to the detenu, their Lordships observed in the said cases that preventive detention was a serious invasion of personal liberty and such mearure safeguards as the Constitution had provided against the improper exercise of power must be jealously watched and enforced by the Court. Their Lordships further observed that a petitioner bad the right, under Article 22(5), to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation which on being considered may give relief to him; this constitutional requirement, their Lordships held, must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of Article 22 of the Constitution and that were it had nto been done in regard to one of the grounds mentioned in the statement of grounds, the petitioner's detention could nto be held to be in accordance with the procedure established by law within the meaning of Article 21 and he was thereforee entitled to be released. This principle was reiterated in yet antoher judgment of the Supreme Court in the case of Rameshwer v. District Magistrate. In that case, Gajendragadkar, J. (as his Lordship then was) observed as under :

'THEREis also no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3 (1) (a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may introduce a serious infermity in the order of his detention. If however the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be considered under section 3 (1) (a), it would nto be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is nto reasonably based on any of the said grounds.'

While dealing with the manner in which the issue of vagueness of grounds should be decided by the Court, their Lordships observed in the case of Naresh Chandra v. State of West Bengal*.

'VAGUENESSis a relative term. Its meaning must vary with the facts and circumstances of each case. What may be said to be vague, in one case, may nto be so in antoher, and it could nto be asserted as a general rule that a ground is necessarily vague if the only answer of the detained person can be to deny it. If the statement of facts is capable of being clearly understood and is sufficiently definite to enable the detained person to make his representation, it cannto be said that it is vague.'

(5) Basing himself on the principles laid down in the above mentioned judgments of the Supreme Court, Shri R.P. Bansal, learned counsel for for the petitioner, contended that ground no. (i) is wholly irrelevant and is nto at all germane to the matters which fall to be considered under section 3 (i) (a) (ii) of the Act. He submitted that sarvadaliya Gau Raksha Maha Abhiyan Samiti is nto an unlawful association nor have any of its organisers and members been shown to have indulged in any unlawful activities or in inciting members of the public to acts of violence, which may in any manner be considered to be prejudicial to the maintenance of public order. Organising and continuance of Anti-cow slaughter agitation in Delhi is also nto an activity which by itself can be considered to be prejudicial to the maintenance of public order in Delhi so long as it remains within legal bounds.

(6) Ground no. (vii) which charges the petitioner with having taken an active part in the meeting of the working Committee of the Sarvadaliya Gau Raksha Maha Abhiyan Samiti on 9th November, 1966 held at Jain Sathanak, Deputy Gang, Sadar Bazar, Delhi, and having exhorted Shri Sushil Muni to resort to fast unto death to press the Government for a ban on cow slaughter in the country through a central legislation is also, according to the learned counsel, too remtoe and wholly irrelevant for the purpose of maintenance of public order.

(7) The last ground viz. ground no. (viii) which states that on death of Rishi Brahamchari on 30th November, 1966, the petitioner along with Shri 0m Parkash Tyagi, Prem Chand Gupta and tohers, started moving about in the city inciting the religious and communal passions of the Hindus by making inflamatory statements, is according to the learned counsel, as vague as it could be. The city of Delhi comprises a large area with a Hindu population of over 20 lakhs. The ground gives no particulars as to in which particular part of this vast city, at what time and to whom and in what language the petitioner made the so-called inflamatory statements in an attempt to incite the religious and communal passions of the Hindus. It is urged by the learned counsel that on these allegations, it is wholly impossible for the petitioner to make an effective representation against the order of detention passed by the detaining authority.

(8) Shri K. L. Sharma, learned counsel for the State, has on the toher hand strenuously argued that the grounds to which exception has been taken on behalf of the petitioner are perfectly relevant and definite and they afford the petitioner all the particulars that are required to enable him to make an effective representation. He concedes that Grounds (i) and (viii) may nto have been as happily worded as one should have wished them to be. But according to him, all the eight grounds have to be read as a whole and that it is nto open to the detenu to pick up one or two particular grounds for the purpose of assailing the validity of the detention order. He submits that grounds (ii) to (vii) set out in detail the various agitational activities of the Sarvadaliya Gau Raksha Maha Abhiyan Samiti in pursuit of its policy and programme of securing a ban on cow slaughter and inasmuch as the petitioner is the General Secretary of the All India Arya Vir Dal, which is working in active and close liaison with the afore mentioned Samiti in organising and continuing the Anti cow slaughter agitation In Delhi, it cannto reasonably be contended that his activities are nto prejudicial to the maintenance of public order in the Union Territory of Delhi. The relevancy of ground no. (i) has thereforee to be read in the context of ground nos. (ii) to (vii). As regards Ground no. (vii), the submission made by the learned counsel for the State is that Shri Sushil Muni's action in resorting to fast unto death is bound to result in acts of violence in the country and as much the action of the petitioner in exhorting Shri Sushil Muni to have recourse to such fast is certainly a matter which is germane and relevant to the question of maintenance of public order. With regard to Ground no. (viii), the learned counsel for the State submitted that the state of Delhi does comprise a large area; but there is ntohing vague and indefinite in saying that the petitioner along with his two named companions and tohers started moving about on 30th November, 1966, inciting the religious and communal passions of the Hindus by making inflamatory statements. According to the learned counsel, it was nto at all necessary to specify in the grounds, the particular area of the City and the time of the day on which such statements were made by the petitioner and his companions. It was also nto necessary, according to the learned counsel, that particulars of the inflamatory statements and the persons to whom such statements were made by the petitioner and his companions, should be mentioned in the grounds of detention.

(9) I do nto agree with the learned counsel for the State that all the grounds mentioned in the order of detention should be read as a whole. The law requires that each one of the grounds on which the satisfaction of the detaining authority was based should be particularised and if any one of the grounds, standing by itself, is either nto relevant and garmane to the matters which fall to be' considered under section 3 (i) (a) (ii) of the Act or suffers from vagueness, the order of detention is illegal and the detenu is entitled to be released.

(10) I am nto unmindful of the fact that the activities of some of the reformist organisations, especially the agitational approach adopted by the organisations and individuals clamouring for a ttoal ban on cow claushger through central legislation, have posed a serious law and order problem in the country and the administrative machinery is being subjected to severe strain. It is, however, in times of such stress and strain that the Courts of Law have to be more vigilant in order to maintain a proper balance between individual liberty and exigencies of administration. The advent of Sadhus, Saints and Munis into the arena of politics with their technique of fasts and self-immolation is full of ominous ptoentialities for disturbing public order. I am, thereforee, nto at all inclined to agree with the learned counsel for the petitioner that grounds (i) and (vii) are nto relevant to the matters that fall for consideration under section 3 (i) (a) (ii) of the Act, I have, however, no doubt that ground No. (viii) is utterly vague and indefinite and the mere fact that the detaining authority has mentioned the date on which the death of Rishi Bramachari occurred, the toher particulars mentioned therein are hardly sufficient to escape the charge of vagueness being brought against the said ground. I am satisfied that on that ground, as it stands, the detenu cannto possibly make any effective representation.

(11) I, thereforee, quash the order of petitioner's detention and direct that he be released at once. In view of the fact that the petitioner is present in Court, he is being realised forthwith.


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