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Hanuman Sahai Choudhury Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1975CriLJ973; 1974(7)WLN852
AppellantHanuman Sahai Choudhury
RespondentThe State of Rajasthan and ors.
Cases ReferredShaw v. District Magistrate.. Burdwan
Excerpt:
.....basis of fresh facts arisen after the release order.; the order passed by this court declaring the earlier detention order as illegal for want of consideration of the representation of the petitioner as expeditiously as possible as required by clause (5) of article 22 of the constitution has the effect of revoking the earlier order of detention and also it can be said that the detention of the petitioner under the earlier order came to an end and, therefore, the detention had expired section 14(2) of the act is, in these circumstances, attracted to the present case and the detention of the petitioner after his earlier order of detention was declared illegal could be ordered by the competent authority only on the basis of fresh facts. the facts which formed the basis for issuing the..........grounds' alter his earlier detention was quashed by this court.4. a reply has been filed by the state government wherein an attempt has been made to justify the detention of the petitioner and the ground taken therein is that this court while setting aside hie earlier detention order did not enter intt the merits of the grounds which (formed the basis of the earlier detention urderi and, therefore, there was no bar for the district magistrate and the government to detain the petitioner on those grounds which were the basis for his earlier detention. it was also averred tint ikhe provisions of section 14 (2) of the act could be attracted only when, an order of release was passed by the government itself which comes within the term 'revocation' but since in the present case the order of.....
Judgment:

V.P. Tyagi, J.

1. This habeas corpus petition of Hanuman Sahai raises a short question of law whether the impugned order of detention passed by the District Magistrate, Jaipur on 28th of August, 1974, on the grounds which formed the basis for an earlier detention order quashed by this Court on 17th of August, 1974, on the ground that it had become invalid because of the contravention of the mandate contained in the provisions of Article 22(5) of the Constitution is maintainable under Section 14(2) of the Maintenance, of Internal Security Act, lint. (hereinaftercalled the Act)?

2. This question arises like this: The petitioner as detained by the District Magistrate, Jaipur under Section 3 of the Act oh 29th April, 1974 end lodged11 Central Jail, Jaipur. That detention order was, challenged by the petitioner, inter alia, on the ground that the order ox de- , tention should be quashed because the Government failed to comply with, the mandate of Article 22(5) of the Constitution inasmuch as the Government did not consider the representation filed by the petitioner as expeditiously as pos-r sible. This Court, after hearing both the parties, quashed the detention order dated 27th of April, 1974 and ordered that tfce petitioner be released forthwith. It U alleged that instead of releasing the petitioner from jail he was handed over to the Chief Judicial Magistrate, Jaipur in contf* pliance with a warrant issued by him in certain criminal case filed against the petitioner under the Essential Commodities Act. There remands were granted by the learned Judicial Magistrate. Before the period of third remand expired, the District Magistrate issued the impugned order on 28th of August, 1974, which- is Annexure 'A' on the record. The grounds of detention were served on the petitioner in jail. The petitioner made a representation to the Government on 8th oi'Sept-tember, 1974, wherein the impugned order was challenged by the petitioner, inter alia, on the ground that the District Magistrate was not competent to pass an order under the Act detaining the petitioner on the same grounds on which earlier detention was ordered. In support of this objection the petitioner submitted along with his representation, a certified copy of the judgment of the Supreme Court in Pradip Kumar Dass V. State of West Bengal, Writ Petn. No. 0f.. etc., of 1973, decided on 29-4-1974 : (reported in 1974 Cri LJ 1476 : AIR 197* SC 2151). The Government rejected the petitioner's representation, The petitioner has, therefore, challenged his detention by preferring this habeas corpus petition under Article 226 of the Constitution on various grounds, but the main ground that has been pressed before us is th^l under. Section 14 (2) of the Act the petitioner could be detained only on fresh facts which must have arisen after the ;.. date of the revocation o| the expiry of the first detention order. In para. 6 of his petition, it has been mentioned by the petitioner.

that the impugned order of detention passed on the basis of the same grounds which were the basis of earlier detention order dated 27-4-1974 is in violation of Section 14 (2) of the Maintenance; of Internal Security Act, 1971. and also the law laid down bv the Supreme Court of India.'

In Clause (vi).of para. 12 it was further mentioned that the detention order was pawed by the District Magistrate without applying his mind 'and is mechanical reproduction of the earlier ground? of detention dated 27-4-1874.'

3. Other grounds have also been mentioned in the petition to challenge the validity of the detention order, but we meed* not reproduce them here as the petition can be disposed of on the ground that under Section 14 (2) of the Act the petitioner could have been detained only en fresh grounds' alter his earlier detention was quashed by this Court.

4. A reply has been filed by the State Government wherein an attempt has been made to justify the detention of the petitioner and the ground taken therein is that this Court while setting aside Hie earlier detention order did not enter intt the merits of the grounds which (formed the basis of the earlier detention urderi and, therefore, there was no bar for the District Magistrate and the Government to detain the petitioner on those grounds which were the basis for his earlier detention. It was also averred tint ikhe provisions of Section 14 (2) of the Act could be attracted only when, an order of release was passed by the Government itself which comes within the term 'revocation' but since in the present case the order of release was passed by the Court, that order cannot by any stretch of interpretation be taken to be a synonym with the revocation by the Government. Relying on a Federal Court decision in Basanta Chandra v. Emperor AIR 1945 FC 18 : (46 Cri LJ S59), it was further avvered that where en earlier order of Retention was defective merely on formal around there was nothing to preclude a proper order of detention being passed on 'the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Courts.

5. While dealing with the allegation that the District Magistrate has detailed the petitioner by issuing the impugned order on the grounds which are identical to the grounds mentioned in the previous detention order, it has been averred by the State Government, spe-eially while replying to the averments made by the petitioner in Clause (vi) of para. 12 that the detention order was isessed after full and due appreciation of record arid after full and proper application of mind, and it was not a mechanical repwi'uetion of the earlier grounds of detention served oh 29th of April. 1974. In the opinion of the Government, the firtunds now supplied t the petitioner contain full details and particulars. However, it has not been denied that the? grounds which have now formed the basis* for the detention of the petitioner are-substantially the same though mentioned in a different language which formed ths-basis for the issue of the earlier detqntUv order dated 27th April. 1974.

6. It is a common ground between^ the parties that after the petitioner was; detained by virtue of the order issued bw-the District Magistrate on 27th of April 1974, the petitioner in spite of the orden passed by this Court quashing the earliest detention order remained behind the bars-on one pretext or the other till the petitioner was served witk a subsequent detention order dated 28th of August, 1974. .

7. Mr. Agarwal, appearing on behalf of the petitioner, urged that th*, order passed by this Court quashing the earlier, detention order dated 27th April, 1974, whereunder the petitioner was. directed to be released forthwith shall come within the ambit of the terms 'revocation' and 'expiry as used by the legislature while enacting Sub-section (2) ot Section 14 of the Act. He further urgeafc that this sub-section is an enabling subsection which gives power to the Government to detain a person whos,e earlier detention order is either revoked or expire*' but that , can be done only in terms ot this section, that is, where fresh facts have arisen after the date of revocation or expiry on which the detaining authority may be or is satisfied that such arc. order should be made. According to Mr. Agarwal, in the present case no such, fresh facts have arisen which may gives rise to the detention of the petitioner and, therefore, the impugned order is passed by the District Magistrate in clear violation of the provisions of Section-14 (21 o the Act which also creates a bar for the-Government not to detain a person whose, detention has already been revoked or expired except on fresh facts. In support of this proposition of law, Mr. Agarwal has placed reliance on the following Supreme Court decisions:

(1) Hadi Bandhu Das v. District Magistrate, Cuttack : 1969CriLJ274 .

(2) Pradip Kumar Das v. State o West Bengal, 1974 UJ (SO 408 : (1974 Cri LJ 1476 : : 1974CriLJ1476 ).

(3) Chotka Hembram v. State of Wesfi Bengal : 1974CriLJ449 .

(4) Baidya Nath Mandal v. State of West Bengal AIR 1974 SC 1135 : (1974 Cri LJ 814). '

(5) Mrinal Roy v. State of West Bengal : 1974CriLJ1264 .

8. In support of this contention that the order passed by this Court quashing the earlier detection order under which the petitioner was formally released also falls within the purview of the term 'expiry' reliance has been placed by him on a Supreme Court case in Shi-bapada Mukherjee v. State ot West Bengal. : 1972CriLJ845 .

9. Learned Additional Government Advocate, appearing on behalf of the State, on the other hand, contended that the order can be said to be revoked under Section 14 (2) of the Act only when the Government that passed the order had set aside the detention order and released the petitioner. If the order of release has been passed by the .Court, then, in the scheme of the Act, such an order cannot have the'effect of revoking the earlier order of detention. Similarly, it was argued by Mr. Shishodia that the expiry of the detention order can be claimed only 'when 'under the scheme of the Act the Order has expired by virtue of efflux of time. According to him, if the Court declared the earlier order illegal on account of the violation of certain provisions oE the Constitution, then in that event it is difficult for the petitioner to urge that the earlier order had expired because of the declaration by the Court that the order was invalid or illegal.

10. In Ujjal Mondal v. State of West Bengal : 1972CriLJ916 . the order of detention was challenged by the detenu before the Supreme Court on the ground that his detention was not confirmed by the appropriate Government under Section. 12 (1) of the West Bengal (Prevention of Violent Activities) Act, 1970 (which contained a similar provision as is incorporated in the Act) on the.ground that the confirmation was made after the expiry of three months from the date of detention and, therefore, the detention beyond that period was without the authority of law and was illegal. While quashing the order of detention, the Supreme Court took in-,to consideration the provisions of Article 22(4) of the Constitution that specify the jnaximum limit of initial detention as three months. It is provided in the Constitution that detention for a longer period than three months can only be made n the basis of the report of the Board, Uierefore, if the Government wanted to detain a person for more than three months, then it was incumbent on the Government to have referred the matter to the Board and it was only when the Board had made its report justifying further detention of the detenu that the appropriate Government could fix the period of detention under Sub-section (1) of Section 12 of that.Act.

11. While considering this objection of the detenu, four authorities were oited before the Supreme Court, namely, Aswini Kumar Banerjee v. The State.- (1971) 75 Cal WN 866 : (1972 Cri UT 1505), Kaur Singh v. The State AIR Pepsu 134 : 1952 Cri LJ 1452, Sangappa Mallappa v. State of Mysore AIR 1959 Mys 7 : (1959 Cri LJ 63) an4 Bhupati Goswami v. C. R, Krishnamurthi. AIR 1969 Assam 14 : (1969 Cri LJ 291); The Supreme Court also considered its.: owner decision in Deb Sadhen Roy v. State of West Bengal, W. P. No. 218 of 1971. decided on 7-12-1971 : 1973CriLJ446 wherein a view was-taken by the Court that the order of de-? tention must be confirmed within three months of the date of detention as the detention beyond that period would become illegal. It was on that basis that the impugned order in that case was declared illegal as the confirmation order could not be passed by the appropriate-Government within a period of three months.

12. It Is true that in this authority the learned Judges did not anywhere hold that the effect of the declaration o* the impugned order as being illegal wilj' be the revocation of the order of detention, but in a later case in : 1974CriLJ1476 , this question was directly agitated; whether the declaration of the order of detention as illegal by any competent Court would bring that order within the purview of the term 'revocation' as use by the legislature while enacting subsection (2) of Section H' of the Act. The learned Judges in para. 19 of the judgment considered the scope of these two terms 'revocation' and 'expiry' as used; in Sub-section (2) of Section 14 of the Act and expressed as to what meaning could-be given to these two terms. Chief Justice Roy observed as follows;

The word 'revocation' means and nulling, rescinding, withdrawing. In the-facts and circumstances of the case orders of release cancelling orders of detention,.' amount to revocation of orders of detenr tion. The word 'expire' means to come to an end or to put an end to, or to terminate or to become' void, or to become-extinct. The orders of release show that the Government accepted the position that the previous orders terminated and came to an end and the petitioners were in released.

13. The Supreme Court while dealing with the contention whether the-order passed by the Court declaring the detention ofder as illegal for the non-compliance of the mandatory provisions of the Article 22(4) of the Constitution would have the effect of 'revoking' the detention order, made it clear in Pradip-Kumar Das's case : 1974CriLJ1476 that the order of detention which was not confirmed in Ujjal Mondal's case : 1972CriLJ916 before the expiry of three months, would amount to- revocation of the eartier order. Mr.Shishodia urged that the observations of the Supreme Court in Pradip KumarDas's case should be treated as obiter as it was nowhere expressly held by the Court in Ujjal Mondai's case that the non-confirmation of the detention by the appropriate Government within a period of three months would amount to revocation. We cannot accept this argument of v Mr.. Shishodia as we find that the Supreme Court referred with approval the ' 'following observations from the Pepsu case while deciding Ujjal Mondal's case:

'The argument that the law does not enjoin that there must.be an order of conflimation and that the mere fact that it continues to detain the person means that the Government had decided to confirm the Initial detention orders ignores a very Important and the most effective part of 'Section 11. What Section 11 provides is that the Government 'may confirm' and continue detention' have their own significance and they obviously mean that if the Government decided to continue the i ^detention it must confirm the order of detention, and that the non-confirmation of the order would result in the revocation and termination of the detention.

14. It is true that this question, was not directly in issue in Ujjal Hondal's -case : 1972CriLJ916 whether the declaration of detention toy the Court as illegal for the non-con-. :firmation of the same within the specified period of three months would have the flect of revoking the impugned' order,, but the aforesaid observations of the 3Peps?u High Court reproduced in the judgment delivered in Ujjal Mondal's case , .show the approval of the Supreme Court Tegarding the proposition of law enunciated therein which positively indicate that the effect of the declaration of detention order as illegal would amount to revocation. In this view of the matter, we cannot accept the contention of Mr. Shishodia that the observations of the Court that the non-confirmation would amount to revocation of the earlier order were obiter.

15. While deciding the case of Pradip Kumar Das v. State of West Bengal, : 1974CriLJ1476 . the learned Judges also took into consideration its own judgment in Masood Alam v. Union of India, : 1973CriLJ627 . tn that case, Masod Alam was detained on June 15, 1972, in pursuance to an order of detention passed by the District Magistrate on June 14, 1972, under Section 3 (1) (a) (i) and (ii) of the Act. Somehow the order could not get approval of the State Government till 25th of June, 1972 and, therefore, the Superintendent. District Jail, Aligarh informed the detenu that he was released under the detention order passed by the District Magistrate, but since he was arrested under the provisions of other Acts also, he was informed that he was detained in Jail as under-trial under Section 107/11, Cri. Pro, Code and if he so desired he could arrange for his bail, The Government issued a, fre&h; order of detention which , was dated 25th of June, 197? and th;at order, was based on the same grounds on which the order of the District Magistrate detaining the detenu Masood Alam was issued. The subsequent order passed; by the Government was challenged' on the ground that once the detenu was released, the fresh order for detention could not be passed unless fresh facts were made the basis for the subsequent order. The learned Judges relying on various authorities cited before them, observed as follows: .

In our opinion, this submission does possess merit and deserves to be accepted. Section 14 speaks of revocation or expiry of a detention order. The principle underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our Constitution. The Act fixes the maximum period of detention to be 12 months from the date of the detention with the proviso that the appropriate Government can revoke or modify the detention order at any earlier time: Section 13. It is to effectuate this restriction on the maximum period and to ensure that it is not rendered nugatory, or ineffective by resorting to the camouflage of making a fresh order operative soon after the expiry of the period of detention as also to minimise resort to detention orders that Section 14 restricts the detention of a per* son on given set of facts to the original order and does not permit a fresh order to be made on the same grounds which were in existence when the original1 order was made......... The submission on behalf of the State that the petitioner's activities are go highly communal and prone to encourage violent communal activities that it was considered absolutely necessary to detain him in the interest of security of the State and maintenance of public order cannot prevail in. face: of the statutory restrictions and the guaranteed constitutional right wjhicn is available to all persons. The rule of law reigns supreme in this Republic and no person on the soil of free India can Jje deprived of his personal liberty without the authority of law.

16. In this Case .the subseauent order of detention passed by the State Government was declared illegal by the Supreme Court oft the ground that the earlier order passed by the District Magistrate had actually expired after a period of 12 days in the absence of its approval by the appropriate Government and, therefore, if the detenu was to be detained then it could be done only on the. basis of fresh facts that would arke for sustaining the fresh order of detention.

17. In view qf the observations of the Supreme Court in the above referred cases, we can conveniently say that the order passed by this Court declaring the earlier detention order as illegal for want of consideration of the representation of the petitioner as expeditiously as possible as required by Clause (5) of Article 22 of the Constitution has the effect of revoking the earlier order of detention and also it can be said that the detention of the petitioner under the earlier order came to an end and, therefore, the detention had expired. Section 14 (21 of the Act is, in these circumstances, attracted to the present case and the detention of the petitioner after his earlier order of detention was declared illegal could be ordered by the competent authority only on the basis of fresh facts. The facts which formed the basis for issuing the earlier order could not be made the basis for issuing the subsequent order.

18. Learned Additional Government Advocate tried to urge that the facts which have been made the basis for issuing the impugned order are not exactly the same but he could not say that the facts on which reliance has been placed by the District Magistrate had arisen after the order of release was passed by this Court, We regret, we cannot accept this contention of the learned Additional Government Advocate at this stage, especial-iy when no controversy has been raised by the State Government while filing its reply. However, we would like to refer to certain observations of the Supreme Court in this behalf in Har Jas Dev Singh v. State of Punjab : 1973CriLJ1602 , where the learned Judges have clearly stated that a fresh order of detention can only be made if fresh grounds come into existence after the expiry or revocation of the earlier order of his detention. No such fresh order could be made on the grounds which existed prior to the revocation or expiry of the earlier order of detention. These observations of the Supreme Court make it very clear that a subsequent order of detention can be passed only on the basis of such fresh facts which have arisen after the first detention comes to an end. If any facts, which were then in existence, were not taken note of by the detaining authority when the earlier de-r tention order was passed, then those facts cannot be made the basis for issuing fresh 1975 Cri. L, J./62 VI order of detention after the .first detention was declared illegal.

19. In view of the decisions of the Supreme Court referred to above, we do not find any substance in the submission, of the learned Additional Government Advocate appearing on behalf of the State that the order shall be taken to be revoked only when the order is passed by the competent authority under Section 14 or Section 14 of the Act. In the cases referred to above when the order was declared illegal for the non-compliance of certain provisions of the Constitution, for example, for not confirming the order within a period of three months as prescribed by Clause (4) of Article 22 of the Constitution, that order, according to the Supreme Court, has the effect of revoking the order of detention and, therefore, it is not necessary that in order to come within the purview of the term 'revocation' the order of release must be passed by the authority mentioned in Section 13 or Section 14 of the Act. If the Court declared a particular order of detention as illegal for want of compliance with the requirements of the constitutional provisions, then in that event that order would squarely fall within the ambit of the term 'revocation' and thereafter if fresh order of detention is considered necessary by the appropriate Government or the District Magistrate, then such an order can be passed only on the grounds which have arisen after the detenu was released under the orders of the Court. In our opinion, the Supreme Court has given aa enlarged meaning to the terms 'revocation' and 'expiry' used in Section 14 (2) of the Act. Since the Act authorises the preventive detention of the citizens without trial, the Supreme Court finds it necessary that the material provisions of the Act must be strictly construed and the safeguards which the Act has deliberately provided for the protection of citizen must be liberally interpreted. (See Ra--meshwar Shaw v. District Magistrate.. Burdwan : 1964CriLJ257 . It is on the basis of this rule of interpretation that the Supreme Court has given a wider connotation to the terms 'expiry' and 'revocation'.

20. In view of this discussion, we feel that the impugned order of detention passed by the District Magistrate, Jaipur on 28th of August, 1974, cannot be sustained. It is, therefore, quashed and we order that the petitioner Hanuman -SahwL Choudhary be released forthwith. The habeas corpus petition is accordingly allowed, t

21. Learned Counsel for the petitioner submits that the certified copy of the release order is not acceptabla to the jail authorities and, therefore, the release order may be sent immediately to the jail authorities by the registrar. The Registrar will see that the release order is despatched without any delay.


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