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Haqiqatullah Khan Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Misc. Appln. No. 31 of 1950
Judge
Reported inAIR1951Raj69
ActsPreventive Detention Act, 1950 - Sections 3, 3(1), 7 and 12; Code of Criminal Procedure (CrPC) , 1898 - Sections 491; General Clauses Act, 1897 - Sections 6; Constitution of India - Article 22; Rajasthan Public Security Ordinance, 1949 - Sections 4
AppellantHaqiqatullah Khan
RespondentThe State
Appellant Advocate Amritraj and; Ganpatsingh, Advs.
Respondent Advocate Mansharam, Govt. Adv.
DispositionApplication dismissed
Cases ReferredBasanta Chandra v. Emperor
Excerpt:
.....his best to furnish a reply to all the activities implied to him item by..........in order to prevent him from acting in a manner prejudicial to the security of the state. the period of detention was not mentioned in this order. the period was specified by another order passed on 4-7-1950 according to which the petnr was to be detained for nine months beginning from 26-2-1950. under the first order of detention dated 10-12-1949 the govt furnished to the petnr the various grounds on which the order of detention had been made. these grounds run as follows: (i) the said shri haqiqatullah khan was an extreme communalist & his activities were calculated to promote feelings of enmity & hatred between muslims & hindus, (ii) he was in league with some anti-indian elements in pakistan & was in secret communication with them. he had been requesting them to get some people.....
Judgment:

Nawalkishore, C.J.

1. This Ct has been moved by Haqiqatullah Khan for action being taken under Section 491, Cr. P. C. on the ground that his detention in the Central Jail of Jodhpur under the orders of the Rajasthan Govt was illegal & improper.

2. A few facts may be stated to show how the question involved in this petn arises. On. 10-12-1949 an order was passed by the Govt of the United States of Rajasthan that it was satisfied that with a view to prevent the petnr from acting in a manner prejudicial to public safety, the maintenance of public order & communal harmony, it was necessary to detain him. An order was accordingly passed that he shall be arrested forthwith & detained in Jail for a period of six months from the date of his arrest. It is alleged in the petn that he was actually arrested under the Rajasthan Public Security Ordinance of 1949 on 11-12-1949. On 26-1-1950, the Constitution of India came into force & according to Article 13(1), all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they were inconsistent with the provisions of Part III became to the extent of such inconsistency, void. According to Article 22 Clause (4), Constitution of India, a person could not be detained under the Preventive Detention Act for a longer period than three months. By Clause (7), it was provided that the parliament may by law prescribe the circumstances under which a person may be detained for a period longer than three months. It became necessary, therefore, that the parliament should legislate & amend the law relating to preventive detention with the result that on 25-2-1950, the Preventive Detention Act IV (4) of 1950 was enacted & it was expressly provided in Section 12 that a person may be detained for a period longer than three months but not exceeding one year from the date of his detention. The result of this enactment was that on 26-2-1950 a fresh order of detention was drawn up & served upon the petnr. In this order, it was stated that the petnr was being detained in order to prevent him from acting in a manner prejudicial to the security of the State. The period of detention was not mentioned in this order. The period was specified by another order passed on 4-7-1950 according to which the petnr was to be detained for nine months beginning from 26-2-1950. Under the first order of detention dated 10-12-1949 the Govt furnished to the petnr the various grounds on which the order of detention had been made. These grounds run as follows: (i) The said Shri Haqiqatullah Khan was an extreme communalist & his activities were calculated to promote feelings of enmity & hatred between Muslims & Hindus, (ii) he was in league with some anti-Indian elements in Pakistan & was in secret communication with them. He had been requesting them to get some people ready who could return to Marwar & settle there with a view to assist him in his anti-Indian & anti-Hindu activities; (iii) he used to visit Barmer & the border terminus railway station on the Jodhpur State Railway, Munabao frequently on the pretext of being an importer of certain goods from Pakistan. But in fact he used to contact Muslims coming into India or going out to Pakistan & thus pass on the information to Pakistan; (iv) He had secret discussion & meetings with the Muslims of Nagpur & Roal. He exhorted the Muslims to unite & make a firm stand against the Hindus. He further asked them to keep arms & ammunition in order to meet the Hindu menace, otherwise he said the days were not far off when Muslim houses in Marwar would be looted & their women would be dishonoured. He got those present to sign the pledge. As a result of such speeches communal riots took place at Roal & Nagpur. On search by the local Police, loaded guns, ammunitions & swords & 'frasas' were discovered in the houses of some Muslims; (v) he visited Merta where he delivered similar speeches; (vi) in the opinion of the Govt his remaining at large would constitute a grave danger to the public safety, the maintenance of public order & communal harmony.

3. This was done practically on the same day on which the order of detention was passed. The second order of detention was passed on 26-2-1950, but for reasons which have not been explained, the grounds of detention were not communicated to the petnr till 21-3-1950. The petnr complained in this Ct by means of an affidavit dated 8-7-1950 that the grounds of his detention were read over to him on 21-3-1950 by the Supdt, Jail & after he had made an endorsement 'received one copy', the Supdt had refused to supply the copy to him. Thereupon, the Supdt, Central Jail, was called to explain by means of an affidavit how the matter stood. The affidavit furnished by him is on the record & it is clear from a perusal of it that although a copy could not be given to him according to the rules of the Jail, he was allowed to see the grounds on many occasions & had made use of the memorandum containing the grounds of his detention frequently before drafting the representation to the Govt. The affidavit further points out that copy of the grounds of his detention was never asked for either by the petnr or by his counsel & that copies of the detention orders dated 11-12-1949 & 26-2-1950 were supplied to the latter on 6-6-1950 on a demand by him. It appears from the record that the petnr had already retained a counsel who drafted his representation to the Govt on 3-5-1950. Another representation was drafted by the petnr himself & is a very lengthy document covering nearly 3 1/4 foolscap pages & deals with all the grounds one after another in detail. It is not necessary to set out over again the grounds which had been read out to the petnr on 21-3-1950 as they are identical with those given above. By means of a letter dated 7-6-1950, the petnr was informed that his representation had been rejected by the Govt. On 12-6-1950, the petnr filed the present petn under Section 491 Cr. P. C., in this Ct & the following grounds have been specifically raised by him: (1) That since in the detention order dated 26-2-1950 the period of detention was not disclosed, the detention after the expiry of six months was illegal & improper. (2) That the grounds of detention were read over to the petnr on 21-3-1950 but in spite of a demand, a copy of the ground was not supplied to him. The petnr could hardly recollect the charges against him & the result was that he was deprived of the right of making any representation refuting the charge. The Govt by not supplying a copy of the grounds did not comply with a mandatory provision of the law &, therefore, the detention of the petnr was illegal. (3) That the petnr was in custody since 10-12-1949 & under Section 12, Preventive Detention Act of 1950, it was incumbent upon the Govt to review the detention order but that since this had not been done, further detention of the petnr was illegal. (4) That the grounds of his detention were vague, indefinite, incomplete & false.

4. This petn was supported by an affidavit. The reply of the Govt was: (1) That the detention of the petnr is not illegal merely because the period of detention is not mentioned in the order. The period of detention was specified in a subsequent order. (2) That the grounds of detention were communicated to the petnr & it is clear from the representation made by him that he had them all before him when he drew it up. Therefore, it was untrue that the petnr had been deprived of the opportunity to make a representation refuting the charges against him. (3) That the Govt were considering the question of the review of the order of detention & the time for it had not yet passed as the order could be reviewed before 26-8-1950. Section 12, Preventive Detention Act 1950 could not apply to his earlier detention under the Rajasthan Public Security Ordinance 1949.

5. A reply was not furnished to the allegation that the grounds of his detention were vague, indefinite, incomplete & false.

6. In this Ct, it was argued by the learned counsel appearing on behalf of the petnr, to begin with, that the grounds of detention were communicated 23 days after the order of detention had been passed. According to Section 7, Preventive Detention Act, 1950, it is imperative that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate these grounds to him. The phrase is 'as soon as may be'. Under Section 5, Rajasthan Public Security Ordinance, grounds were to be furnished within a week after the order of detention had been passed. This has been made more elastic by substituting the words, 'as soon as may be', & accordingly, where a contention is based on the question of delay, it is for the Govt to explain why the grounds were not furnished sooner than they were. Thus, this is a question of fact on which light can be thrown by the Govt alone. It is therefore necessary that the allegation must find a place in the petn. The petn, however, is silent &, accordingly, it is difficult to say one way or the other why the Govt could not furnish the grounds although they were identical with the grounds which had been furnished under the previous order of detention, earlier than 21-3-1950. When this aspect of the case was presented to the learned counsel for the petnr, he seems to have realized his own mistake &, therefore, did not press the point. The next contention of the learned counsel was that it was imperative under the law that the Govt should have furnished the petnr with a copy of the grounds on which the order of detention had been made. Section 7, Preventive Detention Act, 1950 which is the only provision on the point, does not support the learned counsel. All that it provides is that the grounds shall be communicated to the person detained. The words are, 'communicate to him the grounds on which the order has been made' & not ('deliver or furnish a copy of the grounds on which the order has been made.' It is not open to this Ct to import into the statute what is not there &, accordingly, if a copy was not furnished, that by itself would not make the detention of the petnr illegal as contended by the learned counsel on his behalf. 'Ghulam, Hussain v. Rex', AIR (36) 1949 Oudh 20: (50 Cr.L J 260), cited by the learned counsel does not support him. The detenu in this case was illiterate & although a copy in English or Urdu was not furnished to him, it was delivered to a friend of his about fourteen days after his arrest. His counsel asked for an interview with him but since a restriction was imposed that the interview should take place in the presence of the Police Officer & a Jail Officer, the interview was abandoned. The observations made in this case, accordingly, must be read in the light of these facts. Gulam Hassan C. J. & Misra J., who disposed of this case, observed that Section 5, U. P. Maintenance of Public Order Act IV (4) of 1947 did not in so many words require that a copy of the grounds should be furnished to the detenu. All that it required was that the grounds & particulars should be communicated to him. Since the object of Section 5 was to enable the detenu to make a representation, they thought it would be desirable in public interest that a copy should be furnished. It would be stretching the language of the statute to hold that the furnishing of a copy was imperative. It may indeed be desirable as it would greatly facilitate the making of a representation. This however, would not be necessary in a case like the present where every possible facility was afforded to the petnr. He had, according to the affidavit of the Supdt, Central Jail, Jodhpur, frequent access to the memorandum containing the grounds of his detention. The idea behind the provision, as observed by the learned Judges in the above case, is that the detenu should be able to make an effective representation to the Govt. If he is handicapped in that matter by the fact that he has no ready access to the grounds whenever required by him or the counsel retained by him for the purpose of making the representation, there may be some force in the contention. Each case would depend on its own facts. In the present case, it is wholly incorrect to say that as the copy of the grounds was not supplied to the petnr, he could not recollect the charges against him & was, therefore, deprived of the right of making a representation. He made two representations as stated above; one on 3-5-1950 & the other on 12-5-1950 & on both these occasions there is a reference to the grounds item by item. The second representation, in fact, is very much detailed & contains a reply to all the points raised in the grounds. Therefore, we are definitely of the view that in the first instance it was not at all imperative to furnish a copy of the grounds & secondly, the petnr was not handicapped by a copy not having been given to him inasmuch as he had the grounds in front of him while making the representation.

7. The next contention raised by the learned counsel was that the grounds were vague & indefinite inasmuch as the dates of the activities imputed to the petnr at various places were not mentioned. It was contended that it was not enough to say that the petnr had visited Barmer & the border terminus railway station Munabao frequently or that he had had secret discussions & meetings with the Muslims of Nagpur & Roal or that he had visited Merta where he delivered similar speeches. It should have also been mentioned what were the dates on which these visits took place or secret discussions & meetings had been held. Three authorities of the Allahabad H. C. have been cited by the learned counsel on this point, viz., 'Durga Das v. Rex', AIR (36) 1949 All 148: (50 Cr. L J 214 FB); 'Mohamed Hasankhan v. Rex', AIR (36) 1949 All 406: (50 Cr L J 660); & 'S. S. Yusuf v. Rex', AIR (37) 1950 All 69 at p. 75: (51 Cr L J 337). In 'Durga Das v. Rex', AIR (36) 1949 All 148: (50 Cr L J 214 FB), a F. B. of the Ct held that the question had to be decided upon the basis of particulars supplied in each case & it laid down that the grounds & particulars supplied must convey sufficient information to the detenu to enable him to make a representation that the detaining authority was wrong in its belief that his detention was necessary in the interest of public safety. After the above decision, this matter came up for consideration again in 'Mohamed Hassan Khan v. Rex', (AIR (36) 1949 All 406: (50 Cr L J 660), & following the F. B. authority, it was held that the particulars in the grounds communicated under Section 5, U. P. Maintenance of Public Order Act IV (4) of 1947 need not contain the particulars required in a charge framed under the provisions of the Cr. P.C. in a criminal trial. The only authority which appears to strike a discordant note is 'Inder Prakash v. Emperor', AIR (36) 1949 All 37: (50 Cr L J 34), where Raghubar Dayal J. was of the view that as far as practicable, the grounds & particulars furnished should not give facts less precise or less ingredients than a charge-sheet gives. He was a party to the F. B. judgment & in that case although no date, time or place of the alleged recovery of unlicenced firearms from the custody of the detenu was given in the notice under Section 5, the order of detention was held valid because an affidavit filed at the hearing showed that the detenu was aware of the incident to which the reference was made. This matter came up for a consideration again in S. S. Yusuf v. Rex' AIR (37) 1950 All 69 at p. 75: (51 Cr L J 337), where it was held that the fact that the date, time & place of all the particulars are not given would not make the order defective provided that sufficient particulars were given in order to enable the petnr to make an adequate representation against his detention. In this judgment it was mentioned that some of the ground were definitely stated & that, even if one or two grounds were vague, that would not affect the validity of the order if some of the grounds were clear, definite & precise. It was held that there was nothing in law which compelled the Govt to give all the materials available if the grounds were such as to enable the detenu to make the representation. Even a charge-sheet in a criminal case does not narrate all the materials on the record of the Ct. It was accordingly held that the notice under Section 5 was not defective for vagueness or indefiniteness.

8. After hearing the learned counsel, we are inclined to hold that a similar view should prevail in this case. The grounds furnished to the petnr are, in our opinion, not at all vague or indefinite. They contain fairly detailed references to his activities & looking at the two representations made by him, it is clear that he had absolutely no doubt or misgiving in his mind regarding them. The representation made by him is a very long document & so far as the petnr is concerned, he has done his best to furnish a reply to all the activities implied to him item by item. In the first representation made by him through his counsel on 3rd of May, there was no mention of the fact that he was handicapped &, therefore, unable to make an adequate representation against his detention because the grounds were vague or indefinite. This fact appears for the first time in the petn filed in this Ct & the allegation in this connection has been couched in a language which completely ignores the previous history of the case. It is stated that because a copy of the grounds of detention was not supplied to the petnr, he was deprived of the right of making a representation. We have already dealt with this matter elsewhere & we may state further that the petn does not mention that he was also deprived of the right because the grounds were vague & indefinite. As observed already, the grounds were sufficiently detailed & clear & do not suffer from vagueness or indefiniteness.

9. The next point argued by the learned counsel was that since the order dated 28-2-1950 did not mention the period of detention, the detention of the petnr after the expiry of six months was illegal & improper. After hearing the learned counsel, we are of the view that there is absolutely no force in this contention. Section 3 of the Act only provides for an order directing that such a person be detained while Section 12 provides for the duration of detention. It is nowhere provided that the period of detention must be specified in the order of detention itself. As has been stated elsewhere, an order to this effect specifying the period was subsequently passed & duly communicated to the petnr.

10. The learned counsel next contended that according to the order of detention dated 26-2-1950, the petnr had been detained in order to prevent him from acting in a manner prejudicial to the security of the State. Whereas in Clause 6 of the grounds of detention, in addition of the security of the State maintenance of communal harmony was also mentioned. It was urged that since under Section 3 of the Act, a person could not be detained for being a danger to the maintenance of communal harmony, his detention was illegal & improper. It may be pointed out that the petnr was detained as his remaining at large constituted a great danger to the security of the State. The further fact that he was also a danger to the maintenance of communal harmony is only descriptive & serves to show how he was a danger to the security of the State. He will indeed endanger the security of the State if he succeeds in disturbing the peace & quiet between the two communities.

11. Lastly, it was urged that the petnr was originally ordered to be detained in Jail on 10-12-1949 for his activities prior to that date for a period of six months but that only a period of 21/2 months had expired when on 26-2-1950 a fresh order of detention was passed. This order was illegal inasmuch as in the first instance even if the Act of 1949 was repealed, by the subsequent Act, the order passed under it continued to be into force & secondly, since his activity preceded 10-12-1949 & he had already suffered detention for 21/2 months, he could not be detained in Jail over again by making his period of detention to commence from 26-2-1950 without taking into account the 21/2 months he had already passed in Jail & when he had obviously done nothing to endanger the security of the State immediately before the passing of the order. We have carefully considered this contention & after hearing the learned counsel for the parties at length, have come to the conclusion, that there is no force in it. That Section 4, Rajasthan Public Security Ordinance 1949 became void on 26-1-1950 when the Constitution of India came into operation does not admit of any doubt or difficulty. The reason is that its provisions are inconsistent with or repugnant to the provisions of Article 22(4) of the Constitution. Section 4, Rajasthan Public Security Ordinance provides for the detention of a person for a period not exceeding six months from the date on which the order is made whereas according to Article 22(4), no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless 'inter alia' such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) & (b) of Clause (7) of this Article. Under Clause 7 (b), the Parliament may prescribe by law the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. In order that he may be detained for a period longer than three months, it became necessary for the Parliament to enact a law & it is in these circumstances that the Preventive Detention Act IV (4) of 1950 came into existence on 26-2-1950. Again adverting to the Ordinance which existed prior to this date, it appears that Articles 13(1) & 254 hit Section 4 of the Ordinance which is inconsistent with them. According to Article 13(1), all laws in force in the territory, of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of Part III shall to the extent of such inconsistency be void. In the same manner, according to Article 254 if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall to the extent of the repugnancy be void. We need not refer to the provisions of Cl. (2) of this Article as it has no bearing on the case. According to the above, the conclusion is obvious that Section 4 became void on 26-1-1950. It follows that detention of a person for a period longer than three months after the Constitution of India came into operation also became illegal. In 'Prahlad Jena v. State', AIR (37) 1950 Orissa 157: (51 Cr L J 1189 FB), after exhaustive discussion of the entire subject, the Hon'ble Judges came to the conclusion that there was no valid law under which the detention of the appcts could be justified & they were accordingly set at liberty forthwith. It may be pointed out that in that case, the appcts had not been detained under the Preventive Detention Act of 1950 & the only question was whether their detention under the Orissa Maintenance of Public Order Act of 1948 was justified in view of the apparent inconsistency between Sections 2, 3, & 4 of that Act & Articles 13 & 22, Constitution of India. The same view prevailed in 'Brahmeshwar Prasad v. State of Bihar', AIR (37) 1950 Pat 265: (51 Cr LJ 1081), & it was held that the detention provisions in the Bihar Act of 1950 were inconsistent with the fundamental rights prescribed in Article 22, Constitution of India & consequently, directly the Constitution came into force on the mid-night of 25-1-1950, these provisions became void under Article 13 of the Constitution. In this case also, action had not been taken under the Preventive Detention Act of 1950 &, both these cases are distinguishable inasmuch as in the case before us, a fresh order of detention has been passed after the enactment of the Prventive Detention Act of 1950. It was urged that even if the law directing detention for more than three months became void, an order passed under it on a date when the law was valid cannot be held to be illegal. This would probably be the case owing to the operation of Section 6, General Clauses Act but, in our opinion, this Act has no applicability. Our reasons are two fold: firstly, as held in 'Bansgopal v. Emperor', AIR (20) 1933 All 669: (34 Cr LJ 1030 FB); & 'Karim Shah v. Mt. Linat Bibi', AIR (28) 1941 Lah 175: (ILR (1941) Lah 773), Section 6 would necessarily apply to a case where a temporary ordinance, as indeed the Rajasthan Public Security Ordinance of 1949 is, automatically expires after the period during which it is in operation is over. Hence, although Section 30 makes the Act applicable to Ordinances, Section 6 has no application to temporary ordinances. Secondly, Section 6 will not apply if a different intention appears from the provisions of the repealing Act. That the parliament did not intend that a person should be detained for more than three months is clear from the language of Article 22(4) of the Constitution. Hence, it could not be in contemplation that an order directing detention for more than three months should remain in force. Now then, if the detention of the petnr for six months became illegal on 26-1-1950, was it open to the Govt to pass a fresh order of detention on 26-2-1950 when the Preventive Detention Act came into force. As stated above, the previous detention became illegal on account of the operation of a certain provision of the Constitution. In 'Basanta Chandra v. Emperor', AIR (32) 1945 PC 18: (46 Cr LJ 559) it was held that where the earlier order of detention is held defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the preexisting grounds themselves. An order of detention can therefore be passed against a person who is already under detention. In these circumstances, in our opinion, the Govt was competent to pass a fresh order of detention even if the acts were committed previous to the first order of detention. The result is that this appln fails & is hereby dismissed.

Bapna, J.

12. I agree.


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