(1) These are 14 petitions Under Section 491, Criminal P. C. and Article 226, Constitution of India.
(2) Petitions Nos. 100 to 107 were presented in this Court on 2-9-1953 and petitions Nos. 108 to 113 on 5-9-1953. All these petitions involve similar questions of law and fact and are therefore dealt with by one judgment. The detenus were arrested under the orders of the District Magistrate, Jaipur, dated 31-8-1953, purporting to act under Clause (a) of Sub-section (2) of Section 3, Preventive Detention Act of 1950. The orders in all the cases are similar and were as follows:
No. - Dated 31-8-1953.Whereas, I Ramniwas Hawa, District Magistrate, Jaipur, am satisfied that (name and description of detenu) is indulging in activities highly prejudicial to the maintenance of public order and tranquillity and whereas with a view to prevent him from acting in such a manner, it is considered essential to detain, him;
I, in exercise of the powers conferred on me by Clause (1) of Sub-section (2) of Section 3, Preventive Detention Act, 1950, as amended by the Preventive Detention Amendment Acts of 1951 and 1952, ordered that the said (name and description of the detenu) shall be detained in jail for a period of one month as a class I detenu.
Sd/- R. N. HAWA,
(3) learned Counsel for the petitioners challenges the validity of the order on three grounds:
1. that although detention of a person is authorised to prevent him from acting in any manner prejudicial to the maintenance of public order the addition of a second ground that it was necessary to do so to prevent him from acting in any manner prejudicial to public tranquillity was not authorised and inasmuch as an invalid reason was added to a valid reason it is impossible to determine the grounds which weighed with the Magistrate in ordering his detention and it is not possible to say that it was only on account of the valid reasons that the detention had been ordered.
2. that the order purports to say that the detention had been ordered earlier and therefore the present order only recorded that fact, and as the earlier order had not been disclosed it was impossible to say on what grounds the detention had been ordered.
3. that the District Magistrate mentioned the period of detention as one month, although he was not authorised to prescribe such period and the order was illegal from its inception.
(4) The learned Advocate General who appeared for the State explained that the past tense of the word 'order' in paragraph 2 of the detention order was a typing error and there was no order prior to that issued on 31-8-1953 by the District Magistrate for the detention of any of the detenus. It was contended that the addition of the word 'and tranquillity' after 'public order' did not make any difference as the word 'public tranquillity' is synonymous with the words 'public order' and in any case what the District Magistrate meant by using the words 'public tranquillity' did not mean anything else than 'public order.'
(5) In regard to the objection on this scope and the third objection, it was further stated that the Government had modified the order so as to read as under :
No. XY-17. Dated 31-8-1953.
Whereas I, Ramniwas Hawa, District Magistrate, Jaipur, am satisfied that (name and description of the detenu) is indulging in activities highly prejudicial to the maintenance of public order; and whereas with a view to prevent him from acting in such a manner, it is considered essential to detain him;
I, in exercise of the powers conferred on me by Clause (1) of Sub-section (2) of Section 3, Preventive Detention Act, 1950, order that the said (name and description of the detenu) shall be detained in jail as a Class I detenu.
(6) The orders of the Rajasthan Government directing the modification Under Section 13, Preventive Detention Act and which is in identical terms was also produced as below:
No. - Dated Jaipur 7-9-1953Whereas Under Section 3, Sub-section (3), Preventive Detention Act, 1950 (No. 4 of 1950), the District Magistrate, Jaipur, has reported to the Government of Rajasthan the fact of his passing an order No. -------- dated 31-8-1953, for the detention of;
And whereas the Government of Rajasthan while approving the order, consider it necessary to modify the said order so as to remove formal defects;
Now, therefore, in exercise of the power conferred by Section 13, Preventive Detention Act, 1950, the Government of Rajasthan is pleased to modify the said order of the District Magistrate so as to read as follows:
No. Dated theWhereas I, Ramniwas Hawa, District Magistrate, Jaipur, am satisfied that ------------------- is indulging in activities highly prejudicial to the maintenance of public order; and whereas with a view to prevent him from acting in such a manner, it is considered essential to detain him;
I, in exercise of the powers conferred on me by Clause (1) of Sub-section (2) of Section 3, Preventive Detention Act, 1950 order that the said Shri-------- shall be detained in Jail as a Class I detenu.
By order of
His Highness the Rajpramukh
Deputy Secretary to Government.
(7) At the close of arguments an affidavit of the District Magistrate was also produced in which he said that he used the word 'public tranquillity' in the same sense in which he understood the word 'public order'. In support of this contention the Advocate General also produced the grounds which were supplied to the detenus Under Section 7 of the Act. These grounds are also identical in the case of all the detenus and are as follows:
Whereas by an order dated 31-8-53, I have ordered for the detention of Shri -------------son of Shri ------------- resident of ----------- District Jaipur;
Now, therefore, in pursuance of Sub-section (1) of Section 7, Preventive Detention Act, 1950, the said Shri ----------- is hereby informed that the grounds on which the detention order has been made are as follows:
1. That he has been pleading the cause of non-giving of Municipal Taxes by any means whatsoever;
2. That he has been trying to organise meetings, processions, hartal in pursuance of the same;
3. That he has been leading the processions, the members whereof have caused damage to the shops in certain Bazars in Jaipur city and other buildings, and
4. That his activities are prejudicial to the maintenance of public order, peace and tranquillity and normal life in the City of Jaipur.
The said Shri ------------is hereby further informed that he is entitled to make a representation to the Govt. against the order of his detention and that, should he so desire, he can do so through the Supdt. of Jail.
He is further informed that Under Section 10 of the said Act, he has the right of being heard in person before the Advisory Board.
Sd/- R. N. Hawa,
(8) It may be stated that at the outset that Article 21, Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Clause (1) of Article 22 provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, .of the ground for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice. Among other matters it is also provided in this Article that Clause (1) shall not apply to any person who is arrested or detained under any law providing for preventive detention.
(9) Section 3(1), Preventive Detention Act, 1950, authorises the Central Government or the State Government among other matters to make an order directing that a person be detained if it is satisfied with respect to any person that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. Under Sub-section Q) the power to detain any person in the circumstances mentioned in Sub-clause (ii) and (iii) is conferred on a District Magistrate among other officers. In the present case, the detention was ordered to prevent the detenu from acting in any manner prejudicial to the maintenance of public order and tranquillity but, as is obvious by a reference to Section 3, Preventive Detention Act, the maintenance of public tranquillity cannot furnish, any valid ground for detention.
It was argued by the learned Advocate-General that the modification made by the Government on 7-9-1953 now makes the order of detention only for the single purpose of preventing the detenu from acting in any manner prejudicial to public order, Section 13 no doubt empowers the State 1955 Cri. L. J. 13 + 1 Government to modify an order made by the District Magistrate but what has been done in this case is not the modification of the order of detention but the grounds on which the order of detention is based. Whereas the District Magistrate in this case considered it essential to detain a person to prevent him from acting in a manner prejudicial to the maintenance of 'public order and tranquillity', the Government considered that a single reason, namely, to prevent the person from acting in a manner prejudicial to the maintenance of 'public order' was sufficient. Such modification is, in our opinion, not contemplated by Section 13. We have, therefore, to take it that the District Magistrate gave two reasons for his satisfaction that the detention of each one of the detenus was necessary, one of which was not contemplated under the Act.
(10) Their Lordships of the Federal Court held in - 'Keshav Talpade v. Emperor' AIR 1943 FC 1 (A) that where
a detaining authority gives four reasons for detaining a man without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.
(11) We now proceed to examine the argument that 'maintenance of public order' and 'maintenance of public tranquillity' are synonymous.
(12) The disturbance of public order is in theory a word of wide import and all acts involving disturbance of public tranquillity are in theory disturbances of public order. The difference between them being only a difference of degree. But as held by Patanjali Shastri J. in - 'Romesh Thap-par v. The State of Madras' : 1950CriLJ1514 , the Constitution requires a line to be drawn in the field of public order or tranquillity marking off, more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of purely local significance, treating for this purpose differences in degree as if they were differences in kind.
In the Penal Code there are various offences ranging from unlawful assemblies and riots, to insurrections, rebellions and waging of war which run into each other and all have in common one feature, namely, the disturbance of normal tranquillity, but all these offences have been differently graded for awarding different punishments. The limits of permissible legislation are given in the seventh schedule of the Constitution at item No. 9 in list I and item No. 3 in list III and it is obvious that the personal liberty of the individual was only meant to be curtailed for grave reasons and any and every disturbance of public tranquillity would not come within the ambit of the disturbance of public order. Any other interpretation would set at naught the personal liberty of the individual guaranteed to a citizen of India under the Constitution.
This leads us to an examination of the grounds which persuaded the District Magistrate to be satisfied that the person was indulging in acti- vities highly prejudicial to the maintenance of puoxic order and it was necessary to prevent him from so acting. We have to see if those grounds involve an apprehension that the person sought to be detained had been acting prejudicially to the maintenance of public tranquillity of the nature included in what is meant by a public order. These grounds have been mentioned above and in our opinion the first three grounds do not at all involve any allegation that the person sought to be detained acted in any manner to disturb any sort of public tranauillity. The first ground is that he has been pleading the cause of non-giving of Municipal taxes by any means whatsoever. The pleading of any cause which an individual may think it beneficial is permitted by the grant of the fundamental right to freedom of speech and expression mentioned under Article 19 of the Constitution.
It is not stated that the person transgressed any of the restrictions that may have been placed on that right under Clause (2) of Article 19 of the Constitution. It may be, that such person may not have the same views as the views of the District Magistrate on the question of the expediency or the necessity of the imposition of Municipal Taxes. If some person pleads his cause by lawful means. It cannot be said that he was acting in any I manner prejudicial to public tranquillity. It was faintly suggested that the words 'pleading the 'cause by any means whatsoever' may include unlawful means or means involving violence; but this contention has no force since using of such means are not specifically mentioned and there can be no presumption that unlawful means or means involving violence were being resorted to when pleading only means pursuasion by argument.
(13) The second ground is also covered by els. (b), (c) and (d) of Sub-section (1) of Article 19 of the Constitution and so long as there is no allegation of violence the disturbance of public order or tranquillity does not come in. In the third ground there is no allegation of any unlawful act by the person but it is said that some members of the procession led by the person sought to be detained caused damage to some shops and buildings. It is not alleged that this act was due to any instigation or due to anything done or said by the detenu. The fourth clause gives away the entire argument of the learned Advocate-General as it says that the activities of the person sought to be detained were prejudicial to the maintenance of public order, peace and tranquillity and normal life in the city of Jaipur. It is od-vious that the breach of the peace and public tranquillity cannot here be construed as synonvm-ous with the maintenance of public order referred to in the Preventive Detention Act.
(14) The learned Advocate-General stated that the activities referred to in the fourth clause may be the first three activities or some more but if there were certain other activities besides the first three grounds, some mention would have been made. Be that as it may, the grounds mentioned by the District Magistrate and on which obviously he based his satisfaction did not involve any breach of the peace or public tranquillity in any sense and therefore the argument that the Dis- trict Magistrate used the words 'public tranquillity' synonymous with 'public order' is of no avail.
(15) The modification made by the Government does not improve matters as although the Government would be authorised to make a modification in the order of detention it could not modify the grounds on which the District Magistrate based his satisfaction. In other words the Government could not substitute its own satisfaction for the satisfaction of the District Magistrate. The Government itself is authorised under the law to order detention if it is satisfied that the activities of any person are within the ambit of Section 3, Preventive Detention Act and while the Government can itself make an order of detention it cannot substitute its own satisfaction and impose that satisfaction upon the District Magistrate. The order of detention of the 14 detenus mentioned above is therefore illegal on this ground alone.
(16) We accept the statement of the learned Advocate-General and of the District Magistrate that the word 'ordered' was wrongly typed in place of the word 'order' and that there was no order of detention of any of the detenus prior to that of 31-8-1953.
(17) On the third ground also the order of detention is illegal and our reasons for coming to that conclusion are as follows;
(18) The Preventive Detention Act has undergone several amendments and as the law stands finally amended the scheme of the Act is that an order of detention when passed by a District Magistrate is reported to the State Government to which he is subordinate along with a transmission of the grounds and particulars bearing on the-matter. This order of detention can remain in force for only 12 days unless in the meanwhile it is approved by the Government. If the State-Government approves of the order, the State Government has to report the fact to the Central Government and send the grounds and certain other particulars which have a bearing on the necessity of the order. The detenu is to be supplied with the grounds on which the order is made, as soon as may be, but not later than five days from the date of detention.
The State Government thereafter has to place the grounds on which the order has been made and the representation made by the detenu, if any, before an Advisory Board within thirty days of the date of detention together with the report of the District Magistrate sent by him to the Government. The Advisory Board after acting in the manner provided in Section 10 (as amended) submits its report to the State Government within-ten weeks from the date of detention. In case, the Advisory Board reports that there is sufficient cause for the detention, the State Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(19) The fixation of the period of detention thus comes in after the matter has been scrutinised by the Advisory Board. The fixation ofi the period of detention by the District Magistrate is therefore not permitted by any of the provi sions of the Act and as held by their Lordships of the Supreme Court in - 'Makhan Singh Tarsikka v. The State of Punjab' : 1952CriLJ321 such a direction would tend to prejudice a fair consideration of the detenu's case when it is placed before an Advisory Board. As observed by their Lordships, it cannot be too often emphasied that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. It was argued by the learned Advocate-General that there was something in Clause (2) of Section 11A, Preventive Detention Act, which may permit the fixation of the period of detention in the order of detention itself. That section is as follows:
11A (1) The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed Under Section 11 shall be twelve months from the date of detention.
(2) Notwithstanding anything contained in Sub-section (1), every detention order which has been confirmed Under Section 11 before the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall unless a shorter period is specified in the order, continue to remain in force until the 1st day of April 1952 or until the expiration of twelve months from the date of detention, whichever period of detention expires later.
(3) The provisions of Sub-section (2) shall have effect notwithstanding anything to the contrary contained in Section 3, Preventive Detention (Amendment) Act, 1952 (34 of 1952), but nothing contained in the section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.
(20) Reliance was placed on the words 'unless a shorter period is specified in the order' of Sub-section (2) of Section 11A for the contention that a period may be specified in the order. The contention has no force as 'the order' referred to in this clause is the order to be passed by the Government Under Section 11 after the receipt of the report of the Advisory Board. It does not refer to an order passed by a subordinate authority Under Section 3 of the Act.
(21) The modification made by the Government by deleting 'for a period of one month' from the order is no doubt a modification of the order, but this is not a modification which is contemplated Under Section 13, Preventive Detention Act. Modification means maintenance of the order with slight change. This would not include an attempt at validation of the order which was illegal at ts inception. If the order is otherwise valid ;n itself then it may be modified in other particulars. The orders of detention passed by the District Magistrate on the aforesaid detenus are therefore illegal.
(21a) As a result we allow each one of the 14 petitions and direct that the detenus Messrs. Amarnarain, Gaffar All, Bhanwarlal, Harikishan Vyas, Surajmal, Kailash Chand Bakliwal, Sheikh Mohammad Islam, Kamla Prasad, Umraochand Jain Azad, Govardhan Dass Bomb, Ramsharan, Chandra Shekhar, Khushalsingh and Bhagchand Chhajed shall be released forthwith.
(22) It may be pointed out that the learned Advocate-General also produced certain additional grounds of detention supplied by the District Magistrate to the detenus on 5-9-1953. It may only be stated that they did not amount to amplification of the grounds supplied on 1-9-1953 but are in the nature of new grounds. They purport to say that each of the detenus had coerced and intimidated the shop-keepers to close their shops and threatened them with consequences of being looted in case they did not close their shops, that each one of the detenus instigated a mob into using violence on one Jialal and against the police and into causing damage to the glass panes of two cinema houses. The grounds supplied to the detenus on 1-9-1953 have already been given above in which no allegation of any coercion, intimidation or instigation to use violence had been made
As held by their Lordships of the Supreme Court in - 'the State of Bombay v. Atmaram' : 1951CriLJ373 , if the later communication contains facts leading to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are new grounds. These grounds at best include action? prejudicial to the maintenance of public tranquillity and possibly prejudicial to the maintenance of public order but if both grounds were in the mind of the District Magistrate the order would still be illegal as it cannot be said which of the grounds operated on the mind of the District Magistrate to pass the order which he did.