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In Re: P. Venkatachala thevar Vs. in Re: M.V. Sivasanakara thevar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in1949CriLJ89
AppellantIn Re: P. Venkatachala thevar
RespondentIn Re: M.V. Sivasanakara thevar
Cases ReferredIn Kamla Kant Azad v. Emperor
Excerpt:
.....as the case may be, that detention was necessary; so that if the district magistrate has given reasonable grounds for the detention, the court cannot question them, unless there is material before the court to show that the district magistrate could not have been satisfied. in delivering the judgment of the court said the original order was made on 23rd may 1944; and it purports to order the detent ion of the applicant because the government of bombay was satisfied that it was necessary to do ad with a view to preventing the applicant from acting in a manner prejudicial to the public safety and the maintenance of public order and the order of 6th november 1944 directs that the original order should continue in force .it is, therefore, for the applicant to satisfy us that it was not..........as the case may be, that detention was necessary; so that if the district magistrate has given reasonable grounds for the detention, the court cannot question them, unless there is material before the court to show that the district magistrate could not have been satisfied. in bajirao yaman-oppa v. emperor a. i. r 1946 bom. 82 : 47 bom. & b 675, chagla j. in delivering the judgment of the court saidthe original order was made on 23rd may 1944; and it purports to order the detent ion of the applicant because the government of bombay was satisfied that it was necessary to do ad with a view to preventing the applicant from acting in a manner prejudicial to the public safety and the maintenance of public order and the order of 6th november 1944 directs that the original order should.....
Judgment:

Horwill, J.

1. On 22-2.1948, the District Magistrate of Tanjore passed a detention order, purporting to be under Section 2 (l) (a), Madras Maintenance of Public Order Act, 1947, stating that he was satisfied that the detenu was acting in a manner prejudicial to the maintenance of: public order and that with a view to preventing him from so doing, it was necessary to pass am order for his detention. He therefore directed that the detenu be arrested by the police and detained in the Central Jail at Trichinopoly. As required under Section 2 (2) of the Act, he informed the Provincial Government at once of what he had done and the grounds for his action. On 8th March, the petitioner filed his application under Section 491, Criminal P. C., praying that the High Court might issue directions in the nature-of habeas corpus, as the detenu had been wrongfully detained without any reasons for his-detention being given, because of some misunderstanding that had arisen between him and the local police officials.

2. Under Section 3 (1) of the Act, the Provincial Government were be und to inform the detenn of the grounds for his detention; but unlike the report under Section 2 (2), the grounds had not to be given 'forthwith,' In the absence of any mention of a period within which the grounds Should be given, it must be understood that they should be furnished within a reasonable time. When the petition was filed, no information had been given to him; and it was only after notice had gone to the Public Prosecutor and ha had requested further time for instructions which he had hot received upto the date to which it; was adjourned that this Court was informed that the Government had furnished the information required under Section 8 (1) on the 17th March which presumably reached the detenu the following day. It 13 reasonable to conclude that if the petitioner had not filed this petition, the detenu would not have been furnished with the grounds for his arrest and detention as early as he was. From the point of view of one deprived of his liberty, 22 days seems a very long time for the furnishing of reasons for his detention; but it is, argued by the learned Public Prosecutor that it has to be borne in mind that about 600 persons were arrested on or about the same day as the-detenu and that it necessarily took an appreciable time for the Government to consider the grounds furnished by District Magistrates foe the arrest of the various persons incarcerated. It is not the duty of this Court to sit in judgment over the executive in this matter, nor indeed have we the material to enable us to do so. It is sufficient to point out that the very magnitude of the powers given to the Government under this Act adds to their responsibility to see that no man is incarcerated a day longer than is necessary without giving good reasons for it, However, even if in the absence of am order furnishing reasons under Section 8 (l) within a reasonable time, we might have held that the detenu had been unlawfully detained, we would mot order his release after reasons had been furnished and the detention became lawful.

3. In considering the powers of a Court in an application of this kind and the duties of the executive to place material before the Court, Mr. Bhashyam for the petitioner relies on certain expressions of opinion of Sir John Beaumont in a judgment of their Lordships of the Privy Council in King-Emperor v. Vimlabai Deshpande , which would seem at first sight to go somewhat further than the other cases relied on. That was a case in which a police officer made an arrest under Sub-r. (1) of B. 129, Defence of India Rules, under which a police officer could arrest without a warrant any person whom he reasonably suspected of having acted in a manner prejudicial to the public safety or to the efficient prosecution of the war. Their Lordships held that the Court had to be satisfied, not merely that the police officer thought that he entertained reasonable suspicions ; but that, in fact, in the opinion of the Court, his suspicions were reasonable. The Court there held that it was clear from the evidence that his suspicions were not reasonable.

4. Although in other cases cited by the learned advocate for the petitioner the release of the persona detained was eventually ordered, yet with the exception of the decision in Dilbagh Singh v. Emperor A.I.R. 1944 Lab. 373 : (1944) Cri. L. J. 203, where persons were arrested for cheating the Government which cheating was clearly not prejudicial to the public safety or to the efficient prosecution of the war, these decisions indicate that it is not open to the Court to go behind the reasons given by the executive, The Defence of India Act, like the present Act, contains a clause to the effect that no order made in the exercise of any power conferred by or under the Act shall be called in question in any Court. So all that it is necessary for the Government to prove is that the order was one made in the exercise of the powers conferred under the Act, i. e., that the police officer had acted with reasonable cause for suspicion or that the Government had been satisfied, as the case may be, that detention was necessary; so that if the District Magistrate has given reasonable grounds for the detention, the Court cannot question them, unless there is material before the Court to show that the District Magistrate could not have been satisfied. In Bajirao Yaman-Oppa v. Emperor A. I. R 1946 Bom. 82 : 47 Bom. & B 675, Chagla J. in delivering the judgment of the Court said

The original order was made on 23rd May 1944; and it purports to order the detent ion of the applicant because the Government of Bombay was satisfied that it was necessary to do ad with a view to preventing the applicant from acting in a manner prejudicial to the public safety and the maintenance of public order and the order of 6th November 1944 directs that the original order should continue in force . . . . It is, therefore, for the applicant to satisfy us that it was not validly made on any of the grounds which I have indicated above,

and again.

It is not competent to the Court to inquire into the sufficiency of the materials and the reasonableness of the grounds on which the detaining authority was satisfied that it was necessary to make the order. But if any reasons which influenced the detaining authority in making the order appear on the record, then the Court can scrutinise them in order to see what was the condition of the mind of the detaining authority when it made the order.

The learned Judge?, after examining the grounds given, found that they formed a wholly inadequate basis for the order passed. In Kamla Kant Azad v. Emperor : AIR1944Pat354 persons were detained for months without any order justifying their detention, and then an order was issued authorising their detention for a further period. The learned Judges came to the conclusion that far from the Governor's being satisfied that detention was necessary, he had clearly not given his mind to the matter at all.

5. Of the cases cited in reply, it wag argued in Ex parte Budd, 1942 l ALL. E. R. 373 : 1942 3 K, B. 14 on behalf of the petitioner for a writ of habeas corpus that since the British Union of which he had been a member had been suppressed, there could be no longer any danger of the Union being utilised for any prejudicial purpose. It was however held that the question whether there was any reason for the detention of the appellant after the suppression of the British Union was really one whether the Secretary of State had acted in good faith ; and since there, was no evidence that the Secretary o State had not acted in good faith, no enquiry into the facts by the Court was permissible. In re Krishnaji Gopal Brahme, (1918) 50 Bom. L R 175 : A.I.R. 1918 Bom. 360: (1918) CrI. L. J. 624 has been cited by the learned Public Prosecutor, because it is a decision under a Bombay Act which is identical, or almost 90, with the Madras Act 1 of 1947. It lays down the principle that where the authority making an order under; Section 2, Bombay Public Security Measures Act, 1947, asserts the existence of a state of mind and belief which satisfies the requirements of the section, the Court cannot go beyond it and consider the adequacy or otherwise of the reasons which go to establish the fate of mind.

6. The gravamen of the charge against the detenu is that because of his prominent position in the village as a Mirasidar, he was bullying, and intimidating people in the neighbourhood indulging in smuggling, and ruthlessly doing away with anybody who dared to oppose him. He was able to suppress evidence and even went so far as to kidnap potential witnesses. There can be no doubt that if these allegations were true-and we have no reason to believe that the District Magistrate did not think so-then it is impossible for us to say that the District Magistrate could not have been satisfied that the petitioner. was acting in a manner prejudicial to the maintenance of public order, or, in view of the circumstances then existing, that he could not have thought it necessary to detain the detenue.

7. The affidavits furnished by the petitioner do however give cause for suspicion that the primary purpose of the order was to circumvent the orders issued by the High Court, the Sessions Judge, and other authorities releasing the petitioner on bail in connexion with the various cases pending against him on charges similar to those set out in the grounds for detention. He was arrested on 6th August 1947 for? robbery. Four days later, he was released on bail by the Sessions Judge subject to certain restrictions. These were automatically removed on 25th August 1947. The charge sheet was filed several months later. An application for cancellation of the order releasing the petitioner on bail was made on 28th November 1947. The order passed by the Sessions Judge of East Tanjore on 22nd January 1948 on this application was that he should report daily at 11 a. m. to the police until C. C. no. 348 of 1947 had been disposed of. On that very day, he was arrested by the police at 3 p. m. An application for bail was then made to the Additional First Class Magistrate, who supplemented the original order that he should report to the police at 11 a. m. every day by directing him to report to the police at Negapatam every day at 6 p. m. also. On his application, he was permitted to visit his own village on 22nd and 23rd February, and on the 23rd, while there, he was arrested under the Act. We have, however, no reason to think that the order of arrest under the Act was passed for any petty reasons or out of spite, merely because the petitioner had succeeded in retaining his liberty and avoiding his remand to jail pending the trial of the cases against him.

8. Mr. Bhashyam represents that since the detenu is detained at Triehinopoly, with very restricted rights of interview and correspondence, it is unlikely that the detenu will be able to defend himself properly at Negapatam. We are, however, reluctant to believe that the authorities not afford the detenu every opportunity of raising funds and instructing his counsel. The petition is dismissed.


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