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Kastoor Chand Vs. Sarkar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCrl. Misc. Appln. No. 6 of 1949
Judge
Reported inAIR1950Raj40
ActsRajasthan Public Security Ordinance - Sections 3, 5 and 64; Code of Criminal Procedure (CrPC) , 1898 - Sections 491
AppellantKastoor Chand
RespondentSarkar
Appellant Advocate Ganpat Singh, Adv.
Respondent Advocate Mansha Ram, Govt. Adv.; Chand Mal, amicus curiae
DispositionApplication allowed
Cases ReferredRota Silas Gupta v. Rex
Excerpt:
- - this order was made under section 3, marwar public security act 1947 (iii [3] of 1947) and stated that whereas thegovernment of the united state of rajasthan was satisfied that there were reasonable grounds for believing that kastur chand jain had actedand was about to act in a manner prejudicial to public safety and peace, the government of united states of rajaathan was pleased to authorise the inspector of police, jodhpur to arrest the said kastur chand jain without warrant and to commit him to the custody of the central jail, jodhpur to be detained therein for a period of six months from the date of his arrest. (1) that from informations received the government of united states of rajasthan was satisfied that kasturchand jain is a well-known and active communist and as an.....order1. this application is made by kasturchand jain, resident of rajnandgaon, situate in central provinces under section 491, criminal p. c., against the order of detention to the government of united state of rajasthan. this order was made under section 3, marwar public security act 1947 (iii [3] of 1947) and stated that whereas thegovernment of the united state of rajasthan was satisfied that there were reasonable grounds for believing that kastur chand jain had actedand was about to act in a manner prejudicial to public safety and peace, the government of united states of rajaathan was pleased to authorise the inspector of police, jodhpur to arrest the said kastur chand jain without warrant and to commit him to the custody of the central jail, jodhpur to be detained therein for a.....
Judgment:
ORDER

1. This application is made by KasturChand Jain, resident of Rajnandgaon, situate in Central Provinces under Section 491, Criminal P. C., against the order of detention to the Government of United State of Rajasthan. This order was made under Section 3, Marwar Public Security Act 1947 (III [3] of 1947) and stated that whereas theGovernment of the United State of Rajasthan was satisfied that there were reasonable grounds for believing that Kastur Chand Jain had actedand was about to act in a manner prejudicial to public safety and peace, the Government of United States of Rajaathan was pleased to authorise the Inspector of Police, Jodhpur to arrest the said Kastur Chand Jain without warrant and to commit him to the custody of the Central Jail, Jodhpur to be detained therein for a period of six months from the date of his arrest. Inthe present application by Kastur Chand, it ia stated that on 17th March 1949, he was arrested at Jodhpur while on way from Phalodi to Bajnandgaon and detained for a period of six months under Section 2, Marwar Public Security Act. He completed this term of imprisonment on 16th September 1949, and was accordingly released that day but was immediately re-arrested and again detained for a further period of six months under the same Act. On 3rd November 1949, the applicant applied to District Magistrate, Jodhpur requesting him to communicate to him the grounds on which the order of detention had been made against him and such other particulars as may, in his opinion, be sufficient to enable him to make a representation against the order. On 19th of November 1949, the applicant was informed that he had been detained under the orders of the Chief Secretary but the grounds on which this order had been passed were not communicated to him. Accordingly, on 23rd of November 1949, the present application was filed in this Court. In this application, he made it clear that he had never to do anything with any bind of political activity in any part of the Union or with the activities of any political party in India as he had severed all connection with the Communist Party. The Chief Secretary had replied to the above application and supported his reply by means of an affidavit stating as follows: (1) That from informations received the Government of United States of Rajasthan was satisfied that Kasturchand Jain is a well-known and active communist and as an agitator,had been fomenting and organising industrial strikes; (2) That the Government of United States of Rajasthan was satisfied that there were reasonable grounds for believing that Kasturchand Jain would act in a manner prejudicial to public safety and peace.

2. On a persistent demand by the applicant for the grounds on which he had been detained in custody, the Government of the United States of Rajasthan ultimately communicated them to him and the original communication has been placed by the applicant on the record. The grounds mentioned in this communication are identical with those mentioned above.

3. It may be pointed out that prima facie the order of detention passed by the Government being in the language of Section 3, Marwar Public Security Act appears to be in order and, accordingly it has been urged by the learned Government Advocate that it is not open to this Court to go behind it and examine the circumstances in which it came to be passed. In other words, the learned Government Advocate contended in terms of Section 84, Marwar Public security Act, since repealed on 29th October 1949 and Section 64, Rajasthan Public Security Ordinance, now in force that an order made in exercise of any power conferred by or under the above Ordinance could not be called in question by any Court. He produced a number of authorities. But they do not support him to the entire extent and we will deal them in proper place. Of late, there has been a plethora of cases dealing with points arising under applications for habeas corpus and the legal position has more or less crystallised and does not admit any doubt or difficulty. Accordingly it is not quite correct to say that an order made by the detaining authority cannot be called in question by any Court on any ground whatsoever. The contention of the learned Government Advocate is correct only to this extent that the Court cannot consider the adequacy of the reasons or an information available to the Government which led to its satisfaction before the order of detention was passed. This means that sufficiency of the material on which the satisfaction is based cannot be the subjects of scrutiny by the Courts as the legislature had chosen in its wisdom, as held in Wasudeo v. Emperor,A. I. R. (36) 1949 Nag 50: (50 Cr. L. J. 165), toinvest the Government with the powers to detain persons after satisfying itself that they are either acting or likely to act in a particular manner and make the Government the sole judge of this matter. But it is equally well established that the detenu can be allowed to show that the order was not made bona fide or was made without sufficient application of the mind of the detaining authority to the facts orrequirements of the law. Ghosh C. J. in Chiranji Lal Agrawal v. Chief Secretary to the Government 1948 Jaipur Law Report 280 (237) hassummed up the position tersely and the following extracts from his judgment may be cited with advantage :

'Easily these cases fall into two classes. First there is a class of cases in which the Court has looked into the form of the order and held that the grounds therefor cannot be gone into. In this class of cases, generally speaking, there has been no plea of mala-fide, but even then it may be observed that in order to come to a decision the Courts have found it necessary to go into the merits. .......

The second group of class is furnished, generally speaking, by those in which the plea of mala fide is taken. In such cases the Court in examining the plea has looked beyond the form of order and has interfered when it found that the detention was illegal and improper.'

4. It may be further pointed out that Section 64, Rajasthan Ordinance, would protect only such orders as may have been passed inexercise of the power conferred by or under the Act. If, however, the order was not in exercise of any power conferred by or under the Act, that order is surely not protected by this section. In other words, if the order stands on the false basis or on no basis at all, it cannot be said to have been passed in exercise of the power conferred by the legislature. In the words of Waliullah J. in Gauri Nandan v. Rex, 1948 ALL. 414 : (49 Cr. L. J. 726), sufficiency or insufficiency of the materials is matter for the authority which passed the order of detention and is not a matter which can be scrutinised or inquired into by a Court of law. But the order is open to challange on ground that it was not made in conformity which the power conferred and the Court has to be satisfied itself on this question. We now propose to refer to and discuss a few more authorities where the above position has been distinctly supported, Durga Das v. Rex, A. I. R. (36) 1949 ALL. 148 (50 Cr. L.J. 314 (FB)) a Full Bench case is the leading case on this subject. On the point whether it was open to the High Court to question the satisfaction of the District Magistrate contemplated in Section 8, U. P. Maintenance of Public Order Act with respect to its being arrived at reasonably or otherwise, reliance was placed on Section 15 which runs as follows:

'No order made in exercise of any power conferred by or under this Act or any rule made there under shall be called in question in any Court.'

5. Malik C. J. who wrote the judgment held that this section would protect only such orders as may have been passed in exercise of the power conferred by or under the Act or any rule made thereunder. When in an answer to a writ of habeas corpus, the detaining authority produces the order of detention,the Court would presume in favour of its validity provided the authority passing the order had a jurisdiction to do so under statute or under any properly delegated power. It would, however, be open to the detenu to prove that he was not the person for the detention of whom the order had been made or that the order was mala fide or a fraud on the Act. It was contended by the learned Advocate-General, that it was not open to the Court to go into the question of satisfaction of the detaining authority by (?) Malik C. J. held that if the detenu could prove that the detaining authority was, in fact, not satisfied, the order of detention would be illegal. In other words, the power to issue a valid order depended upon the fulfilment of a condition and Courts had a right to see that the condition was fulfilled, that is, whether the detaining authority was in fact satisfied. In In re Moinuddin Abdullamia, A. I. R. (36) 1949 Bom. 86; (50 Cr. L. J. 202) Sen J. held that it was well established that the Court could not consider the adequacy of the reasons or of the information available to the detening authority but it is open to the detenu to show that the order was not made bona fide but for ulterior purposes or that it was made without sufficient application of the mind of the detaining authority to the facts or requirments of law or that it was passed on a ground outside the scope of the Act or that it was passed at least partially on a proposition of fact which is shown to be false. The Court would, to start with, assume that the authority had made every reasonable endeavour consistently with its responsibilities to ascertain the facts correctly. Where, however, a fact relied on is found to be false and the said authority by applying its mind to the materials before it could have found out the falsity of the said fact such falsity would vitiate the order as showing an insufficient application of mind on its part to the facts before it. Where, however, the falsity was such as could not ordinarily be found in the process of applying its mind to the facts, the question would indeed be some what more difficult. It is, therefore, legitimate for detenu to rely on the statement of grounds and particulars furnished to him in order to show that a fact alleged therein is false. In In re Moinuddin Abdullamia, A.I.R. (36) 1949 Bom. 86 : (60 Cr. L. J. 202) : there is a reference to Greene's case, 1942 A. C. 284 : (1941-8 ALL E. R. 388) and Liversidge's case, 1942 A. 0. 206 : (1941-8 ALL E. R. 338) where also it was held that it was open to the detenu to prove facts which might successfully controvert the order of detention, although it might be ex facie a good and validorder. In the Bombay case, good faith of the detaining authority was challenged and it was held that in suitable cases, the Court would be competent to go behind the order and enquire into the truth of the information, on which the detaining authority had acted. This, it may be noted, is different from sufficiency of the material on which the information is based. The Court, as stated above, is not concerned with sufficiency but is entitled to investigate into its truth. If the fact relied on is found to be false, and the detaining authority could by applying its mind find out the falsity, such falsity would vitiate the order as showing an insufficient application of the mind on its part to the facts before it. To repeat, therefore, normally the order of detention passed by the detaining authority will be accepted as correct and it is only in exceptional cases where it is successfully shown to be mala fide or withoutbasis that the Court may interfere and release the detenu. In Narayanswami v. Inspector of Police, A.I.R. (36) 1949 Mad. 307 : (60 Cr. L. J. 405 (SB)), Rajamannar C. J., held that once a duly authenticated order of detention is produced, it must be taken it prima facie to have been properly made and that the requisite as to the belief of the Government or the detaining authority was complied with. The burden to prove will lie on the challenger and, of course, the burden is likely to be heavy, An order of detention could be challengedwhere there is a mistake of an identity or when there is a lack of bona fides. If these grounds do not exist, the High Court cannot investigate the sufficiency of the materials for the reasonableness of the ground upon which the Government had been satisfied. In the matter of N. R. Sreenivasan, A. I. R. (36) 1919 Mad. 761: (51 Cr. L. J. 183) is also to the same effect and it was held by Rajagopalan J. that in considering the question whether the apparent satisfaction recorded by the District Magistrate was in good faith in exercise of statutory powers conferred upon him, it was certainly permissible to view the order of detention in relation to the apparent and avowed object with which the order of detention was passed i.e., not to prevent a breach of the peace. In this case it had been passed not to prevent a breach of the peace or a danger to public safety but to prevent the petitioner from coming out of a jail, if he could not find the sureties he was required to do by the Sessions Judge. Such an exercise of power, it was held was mala fide and where a detention was traceable only to such an exercise of power, detention must be held to be illegal. All these authorities refer to and are based upon Emperor v. Shib Nath, (A. I. R. (32)1915 P. C. 166 : (I. L. R. (1945) Kar. P. C. 871), where it was contended on behalf of the Crown that orders of detention were on their face regular and in conformity with the language to the rule and, therefore, it was not open to the High Court to investigate their validity any further. Their Lordships said that this contention of the Crown went too far and approved of the following statement by the learned Chief Justice of the Federal Court:

'It is quite a different thing to question the accuracy of the recital contained in a duly authenticated order, particularly where the recital purports to state as a fast the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case, the existence of such a recital in a duly authenticated order will in the absence of any evidence as to its, inaccuracy be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.'

6. As pointed by Sen J. the expressions 'any evidence as to its inaccuracy' and 'will place a difficult burden on the detenu to product admissible evidence' show that consideration by the Court of evidence in such a case was not ruled out. Gauri Nandan v. Emperor, A. I. R. (35) 1948 ALL. 414: (49 Cr. L. J. 726) was cited by the learned Government Advocate in support to the proposition that an order of determination (detention ?) made under the ordinance could not be called in question in any Court but it has already been referred to above and it is not necessary to repeat our observations. It would be sufficient to state that this authority does not go all the way as contended by the learned Government Advocate. Baseswar Dayal v. Emperor, A. I. R. (33) 1946 Lab. 36 : (47 Cr. L. J. 212) is another authority relied upon by the learned Government Advocate but this also does not support him. In this case, two persons, namely, Baij Nath and Khushia Singh were taken in custody by the Police under the orders of Inspector, C. I. D. under Section 129, Defence of India Rules, because they were 'hampering the efficient prosecution of war' by seriously damaging war supplies. On a question being raised, Teja Singh J. who wrote the judgment held that in spite of Section 16, Defence of India Act, that no order made in exercise of any power conferred by or under this Act, shall be called in question in any Court, the High Court was competent to determine whether the arrest had really been made under Rule 129 or it had bees made in bad faith for a collateral purpose and hence was an abuse of power and fraud upon the statute. This view found support in Lahore Electric Supply Co. v. The Province of Punjab, A. I. R. (30) 1948 Lah. 41 : (I. L.R. (1943) Lab.617 F. B.); Dilbagh Singh v. Emperor, A. I. R. (31) 1914 Lab. 373 ; (46 Cr. L. J. 303); Teja Singh v. Emperor, A. I. R. (32) 1946 Lah. 293 : (222 I.C. 234); Vimlabai Deshpande v. Emperor, A. I. R. (32) 1945 Nag. 8 : (I. L. R. (1945) Nag. 6) to which the reference was made in the judgment. In Wasudeo v. Emperor, A. I. R. (36) 1949 Nag. 50 : (50 Cr. L. J. 165), another authority relied upon by the learned Government Advocate and already referred to above, it was held that the petitioner must satisfy the Court that there had been, in fact, a misuse of powers. Fraud had to be pleaded and proved, and it was open to the detenu to show on the record that there was, in fact, no satisfaction. He could also allege facts tending to show that there had been a mistake in identity or fraud on the statute or other misuse of the powers. The position then in a nut shell is to repeat, that where the basis of the orders is, as a matter of fact, found to be erroneous, in the words of In re Moinudin Abdulmia, A.I.R. (36) 1949 Bom. 86 (92): (50 Cr.L.J. 202) 'at least in some essential particulars, it is not possible to hold that the deprivation of the subject's liberty is justified.' In Mahmud Hasan Khan v. Rex, A. I. R. (86) 1949 ALL. 406 : (50 Cr. L. J. 660). Bind Basni Prasad J. held that the High Court was not concerned with the correctness of the allegations contained in the order of detention, as it was not sitting as a Court of appeal against the order passed by the detaining authority. In spite of this view, the learned Judge considered all the same whether the order of detention was mala fide. It follows from a discussion of the above position that if an order of detention is established not to have been made in conformity with the power conferred this Court will have power under Section 491, Criminal P. C. to direct the release of a person detained by reason of such an order. A question was raised by the learned Government Advocate that under Section 34, Marwar Public Security Act, it was not open to a Court of law to invoke a provision of Section 491, Criminal P. C. But while this Act has been repealed according to Section 62, the provisions of Rajasthan Public Security Ordinance are in addition to and not in derogation of any other law for the time being in force in the whole or in part of Rajasthan. A similar question arose in Mahomed v. The Crown, A. I. R. (37) 1960 Pesh. 1: (61 Cr. L. J. 268), it was held, although on slightly different grounds, that the Public Safety Act could not be held to operate in derogation of the provisions of other laws, for instance, Section 491, Criminal P. C., and to be enforced in addition to them. In Narayanaswami Naidu v. Inspector of Police, A. I. R (36) 1949 Mad. 307 at p. 324: (60 Cr. L. J. 406 S. B.) it was held that in spite of the provisions of Section 16, MadrasMaintenance of Public Order Act or any other provisions, the power and jurisdiction of the High Court to pass an order under Section 491, Criminal P. C., remained the same and subject to the same conditions, qualifications and limitations. The residuum of power and jurisdiction of the High Court was the power to interfere and set at liberty a person who was being detained by an order, which though purporting to be made under Special Act, was in fact, not such an order. The contention of the learned Government Advocate that the words in the Section 62 'any other Law' should mean law relating to detentions only is without force as he promptly conceded that there was no support for this view. According to Ghosh C. J. in Chiranjilal v. Chief Secretary to the Government, 1948 Jaipur Law Reports 280, the true rule is to be found in Section 491, Criminal P. C., which governs the law in this country and according to it a High Court, whenever it thinks fit, may direct that a person illegally or improperly detained, (sic) but while doing so will go into the merits for determining, not whether the material before the Government was sufficient but whether the order was bona fide and was made after sufficient application of the mind of the detaining authority to the facts before it.

7. The next question argued and calling for consideration is with reference to Sections 3 (1) (b) and 6, Rajasthan Public Security Ordinance. According to Section 3 (1) (b) the Government, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order or communal harmony or the relations with the Government of India or of any Indian Province or of any Indian State, it is necessary so to do, may make an order directing that he be detained. According to Section 6, within a week after an order in respect of any person is made under Section 3 (1) (b), the officer or authority making an order shall communicate to the person affected thereby the ground on which the order against him has been made and such other particulars as may in the opinion of such officers or authority be sufficient to enable him to make a representation against the order and such person may thereafter make a representation in writing to such officer or authority against the order.

8. A two-fold contention has been put forward on behalf of the applicant and it is as follows: (1) that the grounds were not furnished within one week of the order of detention: (2) That the grounds when furnished were vague an indefinite.

9. It is accordingly argued that on account of a non-compliance with a mandatory provisionof the law and the further fact that the grounds when disclosed were vague and indefinite, it must be held that the order of detention was improper. Now according to the provisions of Section 5 which are indeed mandatory, the detenu has two valuable rights: firstly, to know within one week of his detention why he has been detained and secondly, to make a representation questioning the validity of the detention. The learned Government Advocate conceded that the Rajasthan Ordinance had come into force on 9th September 1949 when it was promulgated by His Highness the Rajpramukh and therefore, it was imperative on the part of the Government to furnish the grounds as required by Section 5. It may be pointed out that, although in the Marwar Public Security Act there was no provision for furnishing grounds of detention to the detenu as affirmed by the Chief Secretary in his affidavit, owing to the Rajasthan Ordinance having come into force, it became imperative foe him to do so. The learned Government Advocate was heard to argue at one time that non-compliance with the above provision was due to a bona fide mistake on the part of the Government and should be held to be of no consequence. This contention is however, against the current of the entire law on the point according to which it is now well established that non-compliance with the provisions of Section 5 makes further detention illegal or improper. After holding thia in Durga Dass v. Emperor, A. I. R. (36) 1949 ALL. 148: (50 Cr. L. J. 214 F B.) Malik C. J. proceeded to consider further whether the aforesaid non-compliance only made further detention illegal or also made the order of detention void ab initio and came to the conclusion that mere non-compliance with a subsequent require, ment of the statute did not necessarily lead to the conclusion that the previous order of detention must have been made without any justification and was not a bona fide act. In Murat Patwa v. Province of Bihar, A. I. R. (36) 1948 Pat. 135: (49 Cr. L. J. 182 F. B.) also it was held that further detention became illegal if grounds far detention were not communicated to the detenu. This rulingwas followed in Hariharanand v. Supdt. Central Jail, Banaras, A. I. R. (35) 1948 ALL. 435 : (49 Cr. L. J. 740). In Jamil Ahmad v. Emperor, A. I. R. (35) 1948 ALL. 225: (49 Cr. L. J. 257) it was argued on behalf of the Crown that omission to inform the detenu of the grounds of his detention was merely a slip and the applicant had not been prejudiced thereby. Sankar Saran J. held that the enactment was a serious encroachment upon the liberty of the subject and it was the business of the High Court to see that the terms of the statute were strictly construed and so far as may bein favour of the subject. Where, however, there had been a violation of the mandatory provision of the law, any further detention of the applicant was improper. We respectfully agree that non-compliance with the provisions of Section 5 only makes further detention improper and does not make the initial order of detention void ab initio, It may be further pointed out in this connection that the grounds communicated to the detenu must not be vague, indefinite or incomplete, as held in Bam Bilas Gupta v. Hex, A. I. R. (36) 1949 ALL 748 1 (1949 A. L. J. 246) and must convey sufficient information to him to enable him to make a representation that the detaining authority was wrong in its belief that his detention was necessary in the interests of public safety. If in opinion of the Court the grounds supplied are vague, indefinite and insufficient, this Court must hold that the further detention was illegal or improper. Venkata Raman v. Commr. of Police, Madras, A. I. R. (36) 1949 Mad, 605 : (50 Cr. L J. 881) cited by the learned Government Advocate is clearly distinguishable as it only holds that that non-compliance with the provision of Section 5 cannot have the effects of invalidating an order validly passed. This is correct so far as it goes but the further point whether further detention of the detenu became improper was not discussed.

10. After enunciating the law as above, we will now proceed to determine ; (1) Whether there is anything in the circumstances of this case to show that the order of detention was not bona fide or was made without sufficient application of the mind of the detaining authority to facts. (2) Whether grounds of the detention were communicated to the applicant within one week of the order of detention and were they definite and sufficient.

11. In our opinion, on both these grounds this application must succeed. On 16th March 1949, the applicant was detained in custody, for six months and this period expired on 16th September 1949. On 15th September 1949, an order was signed by the Chief Secretary that Kasturchand Jain, the applicant, may be arrested and detained in jail for six months as he acted and was about to act in a manner prejudicial to public safety and peace. This order was served on him on 16th September 1949 as soon as be came out of the jail. It is urged that if the applicant had indulged in any activity prejudicial to public safety previous to 16th March 1949, he bad suffered for it as he had been detained for six months already. If the Government had carefully considered the above facts, it certainly could not possibly come to the conclusion that he had again acted in the manner mentioned above as he was in the jail. This is conceded bythe learned Government Advocate but it is urged that he was detained in the custody second time as he was about to act in a prejudicial manner. In the reply to the petition which has been filed on behalf of the Government, these words are not used and instead it is stated that there were reasonable grounds for believing that he 'would act' in a manner prejudicial to public safety and peace. The reply on behalf of the Government is supported by an affidavit of the Chief Secretary. In the order for detention dated 15th March 1919, however, it is stated that he bad acted and was about to act in this manner. It is plain that there is a great difference between 'would act' and 'about to act' and that the Government had simply repeated the language of Section 3 of the Act without carefully considering the applicability to the facts before it. The use of the word acting 'in Contra-distinction to' about to act which should apply to acts in future could only be interpreted to mean to relate to something in the recent past if not in the immediate present. As held in In the matter N. R. Sreenivasan, A. I. R. (33) 1949 Mad. 761 : (51 Cr. L. J. 183) since the applicant was in the judicial custody for a period of six month before his second arrest the recent past was absent and could not have been considered while ordering the detention. As stated already, we are not concerned with whether there was sufficient reason for the Government to be satisfied and the soul question is whether the exercise of power by the Government was in good faith or bad faith. In the circumstances of this case, it must be held that the order of detention dated 15th September 1949 was not passed in the exercise of good faith. For ought we know, the detention in jail may have had salutary effect upon the applicant and he may have abstained from activity in which he was possibly indulging previously. How did the Government assumed that he 'was about to act' 'would act' in the same manner again? The Government should have given him a chance and allowed some time to elapse before passing the second order of detention. Truely speaking, this amounts to an extension of the previous order of detention and is not legally permissible. Zamir Qasim v. Emperor, A. I. R. (35) 1948 ALL. 285 : (49 Cr. L. J. 358) is practically on all fours with this case except that while in this case the order of fresh detention was served on the applicant as soon as he was released from jail, in this authority, the fresh order was communicated as the period of detention was expiring. Wanchoo J. while holding that this was not permissible in law observed as follows :

'By ordering a further detention of a person by a fresh order without releasing him and giving him achance to act normally and thus proving that the period for which the appropriate authority considered he should be detained in the first instance had the right effect on him, the authority concerned is merely looking to the atmosphere prevailing in the district or the province without giving due weight to the likely action of the person detained. It seeing to me, therefore, that it could not be the intention of the Act that the authority concerned should act in this manner rather unjustly towards a detenu and that is why no provision was made for extension of the period of detention.'

12. On the other question also that the grounds were not communicated to the detenu within one week and were vague and indefinite, this application must succeed. The only ground mentioned as that he was an active communist and as an agitator had been fomenting and organising industrial strikes. This ground is indeed very vague and indefinite. Neither the place or places where the detenu had fomented and organised industrial strikes nor the names of industries he wanted to be hit by his agitation nor yet the dates on which this had been done were indicated in the grounds supplied to him. These observations have been made only to show that the grounds furnished were vague and indefinite otherwise we have already held that if all this had been done previous to his first detention, it could not be made use of over again detaining him a second time. Another point argued in terms of Rota Silas Gupta v. Rex, A. I. R. (36) 1949 ALL. 748 : (1949 A. L. J. 246) is that a person cannot be detained aimply for organising a strike. A strike may be legal or may be illegal. In the words of Bind Basni Prasad J. :

'He could be detained also for the instigation of a legal strike if in the opinion of the detaining authority it was likely to disturbance of peace. In other words, it would not be legal to detain a person simply on the ground that he was instigating a strike, in accordance with the law. But it is not wrong in law to detain a person if he had indulged in the instigation of a strike, which, though legal is in the opinion of the detaining authority likely to lead to disturbance of peace.'

As in that case, in the present case also there is nothing to show that the strikes which the applicant was fomenting and organising previous to his first detention were illegal. In any case this would not be a sufficient ground for his detention in jail second time, as he could not have organised these strikes while ha was in custody.

13. In view of the foregoing discussion, further detention of the applicant is illegal. We, therefore, allow this application and direct that he be released from custody and set at liberty forthwith unless required by law for any other purpose.

14. Before parting with the case, we would like to place on record our appreciation of theability with which Mr. Chand Mal, amicuscuria, addressed arguments in this case.


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