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Muthuramalinga thevar Vs. the State of Madras Represented by the Chief Secy. to Govt. of Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported inAIR1958Mad425; 1958CriLJ1047; (1958)IIMLJ169
AppellantMuthuramalinga thevar
RespondentThe State of Madras Represented by the Chief Secy. to Govt. of Madras and anr.
Cases ReferredSee Thakur Prasad Bania v. State of Bihar
Excerpt:
.....the counter affidavit of the chief secretary to the government that there was no report from the advisory board apart from its opinion, and that the failure to submit a, report independent of the opinion constituted a contravention of the statutory requirements of section 10, which vitiated the subsequent confirmation ordered by the government under section 11(1) of the act. 5. we are clearly of opinion that it is not open to the petitioner to challenge in these proceedings before us the factual correctness of ground no. who was actuated by bad faith, the affidavit filed in support of the petition made no real attempt to specify. on the question of mala fides it is not a relevant consideration whether the activities of the appellant (detenu) were liked or disliked by the authorities..........to be heard in person, and the advisory board heard him on 16-11-1957. on 20-11-1957, the advisory board reported its opinion to the government which ran:the advisory board is unanimously of the opinion that there is sufficient cause for the detention of sri u. muthuramalinga thevar, m. p.the order of detention was confirmed by the government on 22-11-1957 in exercise of the powers conferred on it by section 11(1) of the act. on 21-1-1958 the petitioner presented an application to this court for the issue of a writ of habeas corpus, wherein he challenged the validity of his detention ordered under the provisions of the act. the petition was supported by an affidavit sworn to by c. danaraj. a rule nisi was ordered to issue on 24-1-1958. the advocate general appeared on behalf of the.....
Judgment:

P. Rajagopalan, Offg. C.J.

1. On 28-9-1957 the petitioner was taken into custody for preventive detention and he was served with an order passed by the Collector of Ramanathapuram District who was the Additional District Magistrate ex-officio, under Section 3(2) of the Preventive Detention Act. 4 of 1950 (hereinafter referred to as the Act).

That order of detention was approved of by the Government of Madras on 5-10-1957 under Section 3(3) of the Act. Meanwhile in compliance with the requirements of Section 7(1) of the Act, the grounds on which the order of detention was passed were set out in the memorandum dated 28-9-1957, and this was served on the petitioner on 30-9-1957. On 17-10-1957 the petitioner's case was referred to the Advisory Board under 8. 9 of the Act, and when the petitioner submitted his written representations on 24-10-1957 those papers also were forwarded to the Advisory Board.

The petitioner exercised his right to be heard in person, and the Advisory Board heard him on 16-11-1957. On 20-11-1957, the Advisory Board reported its opinion to the Government which ran:

The Advisory Board is unanimously of the opinion that there is sufficient cause for the detention of Sri U. Muthuramalinga Thevar, M. P.

The order of detention was confirmed by the Government on 22-11-1957 in exercise of the powers conferred on it by Section 11(1) of the Act. On 21-1-1958 the petitioner presented an application to this Court for the issue of a writ of Habeas Corpus, wherein he challenged the validity of his detention ordered under the provisions of the Act. The petition was supported by an affidavit sworn to by C. Danaraj. A rule nisi was ordered to issue on 24-1-1958. The Advocate General appeared on behalf of the State, the first respondent, and showed cause against the confirmation of the rule nisi.

2. The validity of the detention was challenged by Mr. Mohan Kumaramangalam, learned Counsel for the petitioner on two grounds (1) the exercise of the statutory powers vested in the Government was mala fide, and (2) the facts set out in the ground numbered paragraph l(iii) in the grounds of detention were factually incorrect and false.

3. Paragraph l(iii) of the Grounds of Detention was:

It is a fact and it has also been Sri The-var's claim that the Maravars of Mudukulathur taluk and adjoining areas are devoted to him and completely amenable to his directions. It is particularly significant, therefore, that Sri Thevar has made no appeal to his followers to desist from violent acts but has actually been instigating these attacks against Harijans while remaining in the background....

The specific averment in paragraph 9 of the affidavit filed in support of the petition was:

It was further stated quite falsely that it was significant that the petitioner has made no appeal to his followers to desist from violent acts.

Earlier in paragraph 7 there was a reference to the part played by the petitioner in joining an appeal for peace at the Conference of the Congress Reform Committee held at Madurai on 28-9-1957.

4. After the case had been heard in part a supplemental affidavit was filed on 10-2-1958 which set out another ground of attack on the validity of the order of detention. The plea was, that it was apparent from the counter affidavit of the Chief Secretary to the Government that there was no report from the Advisory Board apart from its opinion, and that the failure to submit a, report independent of the opinion constituted a contravention of the statutory requirements of Section 10, which vitiated the subsequent confirmation ordered by the Government under Section 11(1) of the Act.

5. We are clearly of opinion that it is not open to the petitioner to challenge in these proceedings before us the factual correctness of ground No. l(iii) as set out in the grounds of detention, that 'the petitioner made no appeal to his followers to desist from violent acts but has actually been instigating these attacks against the Harijans while remaining in the background.' The detaining authority had to verify whether that allegation was true before it reached its subjective satisfaction on the need to order the detention. The petitioner had an opportunity to challenge the correctness of that allegation in the proceedings before the Advisory Board in which he fully participated. It is not open to the court at this stage to embark on an investigation of facts to verify if the allegation was factually true or not.

6. Mr. Kumaramangalam urged that he could in any event ask for such an investigation at least to establish that the Government acted mala fide in confirming the order of detention, when they knew that one of the grounds (ground No. 1 (iii) ) was false to their knowledge. That it was false was the plea of the petitioner, and the truth of that plea was never admitted by the Government. If the court has no jurisdiction to investigate the factual position by taking evidence at this stage, the purpose to be served by such an investigation would appear to be immaterial. Such an investigation, its our opinion, is barred even for the purpose to which the learned Counsel-wanted-to limit it.

7. We shall consider next whether it was a case of mala fide exercise of a statutory power as alleged by the petitioner.

8. Paragraph 11 of the affidavit filed in support of the petition ran:

The petitioner submits that the order of detention is illegal, unjust and has been mala fide with a view to stifle political opposition in the Mudukulathur Constituency and In particular to destroy away the undoubted political influence and prestige which the petitioner enjoys in that locality and area.

In paragraphs 2 and 3 of the affidavit were set out details of the electoral successes of the petitioner and his nominee in this part. In reply to the averments in paragraph 11 of the affidavit, the Chief Secretary stated in paragraph 4 of the counter affidavit:'

The allegations in the affidavit attributing to the said order of detention political animosity, extraneous motives and mala fides are misconceived and false and I hereby deny all such allegations.

The statutory authority that ordered the detention was the Collector, who was the Additional District Magistrate ex-officio. The Government approved of that detention. After obtaining the opinion of the Advisory Board the Government eventually confirmed that order of detention under Section 11(1) of the Act. Who was actuated by bad faith, the affidavit filed in support of the petition made no real attempt to specify. In the recent unreported decision of the Supreme Court in Puranlal Lakhanpal v. Union of India Crl. Ap. No. 96 of 1957 : : 1958CriLJ283 S. K. Das J. laid down the principle in these words:

On the question of mala fides it is not a relevant consideration whether the activities of the appellant (detenu) were liked or disliked by the authorities concerned. The only relevant consideration is if the order of detention was made for ulterior purposes or purposes other 'than those mentioned in the detention order.

None of the grounds specified by the detaining authority was irrelevant in relation to the purpose specified in that order of detention dated 28-9-1957 to prevent the petitioner from acting in any manner prejudicial to the security of the State and the maintenance of public order.

There is really nothing before us to substantiate the contention, that apart from those relevant factors and independent of the purpose specified in the order of detention, there was any ulterior or extraneous purpose to be served, which the statutory authorities, the Collector and the Government, had in view. When the grounds justified the detention of the petitioner, it cannot be said that it was a case of satisfaction on the part of the detaining authority, 'patently simulated' see Ashutosh Lahiri v. State of Delhi : AIR1953SC451 .

9. The learned Advocate General drew our attention to the instructive passages in the judgments of Lord Reid and Lord Radcliffe in Smith 'V. East Elloe Rural District Council 1956 A.C. 736 (C). At page 762 of the report Lord Reid. pointed out two classes of misuse of statutory power, misuse of power in bona fide and misuse of power in mala fide. After quoting with approval a passage from the judgment of Lord Greene M, R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 (D) to explain what would constitute misuse of power in bona fide, Lord Reid said at page 763.

A local authority may have had regard to quite irrelevant considerations or may have acted quite unreasonably but yet be entirely innocent of dishonesty or malice.

No question of basing the detention on any irrelevant consideration arises for consideration in this case. As said, every one of the grounds set out in the memorandum was relevant to the specified purpose of the detention. It was] not therefore a case of misuse of statutory power in bona fide.

This was how Lord Radcliffe put it at page 767:

Of course, it is well known that courts of law have always exercised a certain authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from; and if the authority that confers them prescribes, explicitly or by implication, certain conditions as to their exercise those conditions ought to be adhered to. It is, or may be an abuse of power not to observe the conditions. It is certainly an abuse of power to seek to exercise it when the statute relied upon does not truly confer it, and the invalidity of the act does not depend in any way upon the question whether the person concerned knows or does not know that he is acting ultra vires.

That again would be a case of what Lord Reid called a misuse of power in bona fide. Lord Radcliffe proceeded to state.

It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose.

That would be a case of misuse of statutory power in mala fide.

10. What we have before us, the detention of the petitioner, was not a case of misuse of statutory power either in bona fide or in mala fide.

11. The plea in paragraph 12 (d) of the affidavit filed in support of the petition was:

One of the instances mentioned above, namely, in paragraph 2(i) is today the subject matter of the proceedings before the Judicial Sub-Magistrate, paranmkudi. The petitioner along with eleven others has been charge-sheeted in the case Under Sections 120-B, 302 and 109 IPC the Preliminary charge-sheet was laid on '3-11-1957. The continued detention of the petitioner at least after the said date is mala fide and illegal.

Paragraph 1 (ii) (i) of the grounds of detention to which reference was made in paragraph 12 (d) of the affidavit, set out:

On 10-9-1957, at the Peace Conference convened by the Collector of Ramanathapuram, at Mudukulathur, which was also attended by Sri Thevar, he questioned the leadership of one Sri Emmanuel, who spoke on behalf of the Harijans and felt insulted that a harijan should come forward and speak on equal terms with him at the Conference. After Sri Thevar came out of the Conference, he asked his followers how they bad allowed Sri Emmanuel to become so important & what were they going to do about this affront to him. The very next day Sri Emmanuel was way-laid by a group of Sri Thevar's followers and murdered. One of the murderers, while cutting down the victim, asked him how he dared challenge Sri Thevar.

A copy of the charge-sheet referred to in para-raph 12(d) of the affidavit was made available to us by the learned Counsel for the petitioner. The relevant portion of that charge-sheet dated 2-11-1957 ran:

On 10-9-1957 at Mudukulathu A. 1 to A. 12 (the petitioner figured as accused 1) along with others known and unknown, agreed and conspired to do or cause to be done an illegal act, to wit, to murder Emmanuel, an offence punishable under Section 302 IPC and in pursuance of the said agreement and conspiracy, A. 2 to A. 12 committed the murder of Immanuel at Paramakudi on 11-9-1957 at about 9-30 p. m. and therefore A. 1 to A. 12 are liable for offence under Section 120(B) IPC

12. It should be obvious that the allegations in paragraph 1 (II) (i) of the grounds of detention, the truth of which had been established to the satisfaction of the detaining authority and apparently to that of the Advisory Board also, were different from those set out in the charge-sheet. Since that identity of allegations is not established, the further question does not arise for consideration whether detaining the petitioner and simultaneously subjecting him to trial in the criminal courts on the same set of charges would make the continuance of the detention after 3-11-1957 mala fide on the part of the detaining authorities : See Thakur Prasad Bania v. State of Bihar : 1955CriLJ1408 .

13. The averments in sub-paragraphs (c) and (e) of paragraph 12 of the affidavit were not relied upon by the learned Counsel for the petitioner during the arguments before us in support of the plea, that the exercise of the statutory power of detention was male fide. There is no substance either in the contentions set out in sub-paragraphs (c) and (e) of paragraph 12.

14. The charge levelled by the petitioner, that the detaining authorities acted mala fide, fails.

14-A) The only other question that remains to be considered is whether there was a non-compliance with the requirements of Section 10 and if there was, whether that vitiated the exercise of the statutory power under Section 11(1) of the Act.

15. The relevant statutory provision in Section 10 ran:

10 (1) The Advisory Board shall...submit its report to the appropriate Government within ten weeks from the date of detention.

10(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.

10(3)...the proceedings of the Advisory Board and its report except that part of the report in which the opinion of the Advisory Board is specified shall be confidential.

Section 11 ran:

11(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.

11(2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

Article 22(4) of the Constitution requires:

No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board... has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.

16. As the learned Advocate General pointed out, it should be clear that Section 11(1) of the Act carries out the mandate to the legislature given by Article 22 (4) of the Constitution. What Section 11(1) of the Act postulates is what Article 22(4) requires, a report of the Advisory Board that there is in its opinion sufficient cause for detention. This was not controverted by Mr. Kumaramangalam.

17. The endeavour of Mr. Kumaramangalam was to equate the report referred to in sub-sees. (1), (2) and (3) of Section 10 and Section 11 (1) of the Act to a judgment of a judicial or quasi-judicial tribunal where the reasons on which the opinion of the Advisory Board was based were set out. We are unable to accept the contention of Mr. Kumaramangalam, that the language of Section 10 of the Act warrants the imposition of such a statutory obligation on the Advisory Board, that its opinion should be backed by or be based on a report containing the reasons for its opinion.

All that Section 10(1) requires is that the Advisory Board should submit its report within the time specified. What that report should contain, Section 10(1) itself does not prescribe. No doubt Section 10(2) draws an apparent distinction between the report and the opinion of the Advisory Board, which is also reported to the Government. While the opinion has to specify whether or not there is sufficient cause for the detention of the person concerned, even Section 10(2) does not prescribe what else the report should contain. Nor does Section 10(3) which guarantees the secrecy of the report, but provides for the publication of the opinion of the Advisory Board even if that opinion forms an integral part of the report.

18. Mr. Kumaramangalam was right when' he pointed out that while Section 11(2) of the Act left no discretion to the Government when the Advisory Board reported that in its opinion there was no sufficient cause for the detention, where the Advisory Board reported that in its opinion there was sufficient cause for that detention, Section 11(1) vested a discretion in the Government either to confirm the order at detention or to revoke it.

But we are not able to accept the further contention of Mr. Kumaramangalam, that before exercising the statutory power under Section 11(1) of the Act at its discretion, the Government was bound to take into account both the report and the opinion of the Advisory Board. What both sub-sees. (1) and (2) of Section 11 require of the Government is that it should consider the opinion of the Advisory Board reported to it by that Board. It certainly could not be urged that where factually there was no report apart from the opinion reported to the Government but the Advisory Board reported that in its opinion there was no sufficient cause for the detention, the Government could ignore the opinion and treat it as non est in law.

It is the opinion of the Advisory Board that is relevant both under sub-sees. (1) and (.2) of Section 11, the opinion of the Advisory Board reported by that board to the Government. If the report, independent of the opinion is not what the Government is bound by law to consider either under Section 11(1) or under Section 11(2) of the Act, the further question of what the report should contain to satisfy the statutory requirements cannot arise for consideration. The language of Section 11(1), in our opinion, gives no indication of what the 'report' referred to in Sections 10(2) and 10(3) of the Act should contain.

19. Besides, how is the court to deal with a plea, that the contents of the report did not conform to the statutory requirements, assuming for a moment that Mr. Kumaramangalam was right in equating a report to a judgment or a speaking order of a tribunal? Section 10(3) of the Act guarantees its secrecy. The report is confidential even from the court.

The court is not entitled to examine the report even to verify whether it satisfies what Section 10 requires. That, in our opinion, is more consistent with the view, that the legislature did not intend to specify what the report should contain. All that the legislature provided for was that there should be no ambiguity about the opinion of the Advisory Board reported to the Government.

As we understand Section 11, even the factual existence of a report apart from the opinion of the Advisory Board reported to the Government, is not a condition precedent to the exercise of the statutory power vested in the Government by Section 11(1). There is certainly nothing in Section 10 or in Section 11 of the Act that required the Advisory Board to submit to the Government the reasons for the opinion, which Section 10(2) requires the Board to report to the Government.

20. In the present case what was marked as Ex, IV and annexed to the counter affidavit of the Chief Secretary that was filed on behalf of the first respondent, the Government, was a copy of the opinion of the Advisory Board that was reported to the Government. That was headed 'Report of the Advisory Board under Section 11 of the Preventive Detention Act IV of 1950'. What was marked Ex. V was another annexure to jthe counter affidavit. That letter was a report to the Government of the proceedings of the Advisory Board which ended with the sentence 'The report of the Board duly signed by all the members is sent separately'.

The Advisory Board was apparently of the view that the opinion it reported to the Government was its 'report'. The learned Advocate General was, in our opinion, well founded in his contention, that factually that letter itself (Ex, V) was a. report within the meaning of Sections 10(2) and 10(3), whatever might have been the view taken by the Advisory Board itself. He was equally well founded in his further submission, that the guarantee of secrecy-secured by Section 10(3) of the Act applied to that letter also, and that the Government would have acted with statutory propriety had they withheld from the court a copy of that letter Ex. V.

The learned Advocate General represented that, while the Government was ready to furnish the court any information that the court desired or called for, both the court and the Government were bound to secure the secrecy guaranteed by Section 10(3) of the Act. Whether or not the Court can ascertain whether .there was factually a report apart from the opinion of the Advisory Board, the court is not, in our opinion, entitled to examine the contents of the report for any purpose.

21. We shall assume that apart from Exs. IV and V which were annexed to the counter affidavit of the Chief Secretary, there was no further communication at that stage from the Advisory Board to the Government. Still, factually it would not be correct to claim that apart from the opinion reported to the Government under Ex. IV, there was no 'report' to the Government. We have already pointed out that the real statutory obligation laid on the Advisory Board is to report its opinion to the Government. There is no further statutory obligation to report to the Government the reasons for that opinion.

The Advisory Board is not bound by law to discuss in any report the merits of the case referred to it, for example, the evidence for and against each of the grounds for the detention as specified by the detaining authority, before the Advisory Board reports its opinion to the Government. In the case before -us, there was nothing to show that the Advisory Board acted in contravention of the require- ments of Section 10 of the Act, The Government acted on the opinion of the Advisory Board reported to it. That satisfied the requirements of Section 11(1) of the Act. There was not even any procedural error in the exercise of the statutory power by the Government under Section 11(1) of the Act.

22. On none of the grounds urged by the learned Counsel for the petitioner is the order of detention, confirmed by the Government by its order dated 22-11-1957, liable to be set aside. We have only to add that the learned Counsel for the petitioner did not press the objections set out in paragraph 12 (a) of the affidavit filed in support of the petition. We have already pointed out that the learned Counsel did not rely either on paragraphs 12(c) and 12 (e) of that affidavit.

23. The rule nisi is discharged and the petition is dismissed.


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