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In Re: S. Mohan Kumaramangalam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. No. 1622 of 1950
Judge
Reported inAIR1951Mad583; (1951)IMLJ174
ActsPreventive Detention Act, 1950 - Sections 3; Constitution of India - Articles 162 and 245; Transfer of Detained Persons Act, 1949 - Sections 2
AppellantIn Re: S. Mohan Kumaramangalam
Advocates:M.K. Nambiar, Adv. for ;Row and ;Reddy, Advs.;Adv. General for State Prosecutor
DispositionPetition allowed
Cases ReferredMachindar Shivji v. The King A. I. R.
Excerpt:
criminal - detention - preventive detention act, 1950 and transfer of detained persons act, 1949 - detention challenged on ground of illegality - petitioner detained in bombay and transferred to madras - detention order cancelled by bombay police on account of illegality - petitioner not released after such cancellation - madras police cannot validate earlier detention order by issuing another detention order - detention of petitioner illegal - authorities directed to release petitioner. - - on 8-7-1950, the wife of the petitioner wrote a letter to the commissioner of police, greater bombay, requesting the commissioner not to transfer the petitioner from bombay to madras, because an application for a writ of habeas corpus has already been filed in the high court of bombay against the.....order1. the petitioner herein who is & graduate of the university of cambridge and a barrister-at-law, applies to this court under the provisions of article 226 of the constitution of india for the issue of a writ of habeas corpus directing the respondents to produce him before this court :and set him at liberty forthwith.2. according to the affidavit filed in support of the application it is stated that while he was residing permanently in 'baibhuvan',sandhurst road, bombay, he was arrested on 24-6-1950 by the bombay police at kishori court, worli sea pace, bombay, where he and his wife had been invited to stay for a day. no warrant was shown to him at the time of his arrest. he was taken to the office of the commissioner of police, bombay, where a detention order of the same date was.....
Judgment:
ORDER

1. The petitioner herein who is & graduate of the University of Cambridge and a Barrister-at-law, applies to this Court under the provisions of Article 226 of the Constitution of India for the issue of a writ of habeas corpus directing the respondents to produce him before this Court :and set him at liberty forthwith.

2. According to the affidavit filed in support of the application it is stated that while he was residing permanently in 'Baibhuvan',Sandhurst Road, Bombay, he was arrested on 24-6-1950 by the Bombay Police at Kishori Court, Worli Sea Pace, Bombay, where he and his wife had been invited to stay for a day. No warrant was shown to him at the time of his arrest. He was taken to the office of the Commissioner of Police, Bombay, where a detention order of the same date was served on him. On 27-6-1950 one Mr. H. S. Bhat, an advocate of the Bombay High Court, wrote a letter to the Commissioner of Police, Greater Bombay, stating that he had been instructed by the wife of the petitioner to move the High Court of Bombay about the arrest and detention of the petitioner and for that purpose he requested the Commissioner to send him the grounds of detention immediately. It is stated that the Commissioner of Bombay did not supply the advocate with any grounds of detention. On 5-7-1950, the Government of Bombay, Home Department, Bombay Special, sent a telegram to the Government of Madras, which reads as follows :

'Secret. No. S. C. II/991-I. Shri Surendra Mohan Kamaramangalam, top ranking communist of Madras, has been arrested and detained by Bombay Police. Arrest was effected mainly because he was wanted by Madras Police for detention. There is not much specific material to form basis of grounds to sustain his detention in Bombay. Bombay Government, therefore, propose to transfer him to Madras and solicits Madras Government's consent under Section 2(1) of Transfer of Detained Persons Act, 1949. Intimation of consent and also name and place of jail in Madras to which shri Kumaramangalam should be transferredmay please be sent by wire.'

On 7-7-1950, the Chief Secretary to the Government of Madras, sent a telegram to the Government of Bombay stating that the Madras Government agreed to the transfer of Surendra Mohan Kumaramangalam, to this State and that he may be transferred to the Central Jail, Vellore, North Arcot District. Copies of the detention order and grounds therefor were also asked for. On 8-7-1950, the wife of the petitioner wrote a letter to the Commissioner of Police, Greater Bombay, requesting the Commissioner not to transfer the petitioner from Bombay to Madras, because an application for a writ of habeas corpus has already been filed in the High Court of Bombay against the arrest and detention of the petitioner and that the same was coming up for hearing on 10-7-1950. The letter also states that the request for not transferring the petitioner from Bombay to Madras was made so that the object of the petition in the Bombay High Court may not be defeated in case the petitioner succeeded in getting a writ of habeas corpus in his favour. The last para. of the letter informed the Commissioner that if in spite ofthis request, the petitioner was transferred to Madras, the matter would be brought to the notice of the High Court of Bombay when the case comes up for hearing. We are informed by the petitioner's counsel that the petitioner was removed from Bombay by train on 8-7-1950 but whether it waa before or after the receipt of the letter of the same date from the wife of the petitioner, is not clear, though a copy of the acknowledgment filed along with the copy of the letter shows that the letter was received in the office of the Commissioner of Police on 8-7-1950 itself. The petitioner was brought to Vellore on 10-7-1950 and has been confined as a detenu within the precincts of the Vellore Central Jail ever since.

3. An application under Section 491, Criminal P. C., which had been filed in the Bombay High Court on 7-7-1950 came up for hearing on 12-7-1950 before Dixit and Chainani JJ. who madethe following order :

'The learned Additional Assistant Government Pleader informs us that the order of detention is cancelled. The matter will stand over until tomorrow.'

On the same date we find a telegram from the Commissioner of Police, Bombay, to the Superintendent, Central Jail, Vellore, wherein it is stated that the detention order issued by the Commissioner of Police, Bombay, against Surendra Mohan Kumaramangalam, has been cancelled and that the Bombay High Court has given directions that he should be released at once if there is no other order or anything against him. The Commissioner of Police, Bombay, wanted to be informed as to the action taken. A copy of this telegram was also forwarded to the Deputy Inspector-General of Police, C. I. D., Madras. On 13-7-1950, when the habeas corpus application was again taken up in the Bombay High Court, the learned Judges made the following order :

'The learned Additional Assistant Government Pleader informs that an order for the appellant's release has been sent. In view of this no order is necessary on this application.'

Evidently, the order of release mentioned by the learned Judges refers to the telegram of 12th July sent by the Commissioner of Police Bombay to the Superintendent, Central Jail, Vellore. The petitioner states that he has not been released in pursuance of the telegram from the Commissioner of Police, Bombay, to the Superintendent of the Central Jail at Vellore.

4. While matters were in this state, on 12-7-1950, the petitioner was served with a detention order dated 18-4-1950 issued by the Commissioner of Police, Madras, in exercise of the powers conferred upon him by Sub-section (a) of Section 3 of the Central Act IT [4] of 1950. The affi-davit goes on to state that on 13-7-1960, the petitioner sent a letter to the Chief Secretary, Government of Madras, stating that his transfer to, and detention in, Vellore Central Jail, were illegal, and demanding his immediate release. In addition to the order of detention passed by the Commissioner of Police on 18-4-1950, we find that the Government of Madras passed another order dated 13-7-1950, wherein it is stated that in exercise of the powers conferred by Section 3 (1) (a) (ii), Preventive Detention Act of 1950, His Excellency the Governor of Madras, directs that Surendra Mohan Kumaramangalam should be detained. On 18-7-1950, a further order was passed by the Government of Madras revoking the detention order dated 18-4-1950 issued by the Commissioner of Police. The order of the State Government of Madras dated 13-7-1950 was served on the petitioner on 14-7-1950 and the order revoking that passed by the Commissioner of Police was served on him on 20-7-1950.

5. The petitioner contends that the order of the Government of Madras detaining him at the Vellore Jail is illegal, improper and ultra vires and since he has been transferred to a Jail in this state unjustly and illegally in order to circumvent the assurance given to the High Court of Bombay the whole proceedings are illegal and he should be released forthwith. It is further alleged that he had been residing in Bombay since May 1943 and particularly since February 1950 and, therefore, the Madras Government has no jurisdiction to detain him and the only authority that could have made an order of such a nature was either the Commissioner of Police, Bombay, or the Union Government, or the Government of Bombay, and since the Commissioner of Police, Bombay, has cancelled his previous order, the petitioner's continued incarceration is totally illegal and, therefore, he is entitled to be released forthwith.

6. Before we concern ourselves with the various questions of law raised before us by the learned counsel for the petitioner, it is necessary to consider the legal position regarding the nature of the petitioner's detention in the Vellore Central Jail. As is clear from the telegram of the Bombay Government despatched to the Madras Government on 5-7-1950, the petitioner was transferred to Madras in accordance with the provisions of Section 2 (1), Transfer of Detained Persons Act, 1949. The object of the Act is to provide for the removal from one unit to another unit, all persons subjected to preventive detention for reasons connected with the maintenance of public order. It lays down that where any person is subject to preventive detention for reasons connected with the main-tenance of public order in any province, the Government of that province may, with the consent of the Government of any other province and with the approval of the Central Government, provide, by order, for the removal of any such person to any place of detention in the second province, and the person so removed shall be detained in the other or the second province in accordance with the provisions of that order. Sub-section (2) says that notwithstanding the removal of any person from one province to another, the provisions of law under which his preventive detention was ordered and regulated in the first province shall, so far as applicable, and subject to necessary modifications, continue to apply to him as if he had not been removed from that province. Since this Act was passed prior to 26-1-1950, the word 'province' which had been used in this section has now to be altered as 'state'. It is abundantly clear that when the petitioner was transferred from the State of Bombay and confined within the precincts of the Vellore Central Jail, his detention should be deemed to be according to the provisions of law under which preventive detention is regulated in the State of Bombay, i. e., the law contemplates that even though physically the petitioner happens to be in the territory of the State of Madras, fictionally and nominally it should be deemed as if he had not been removed to the State of Madras but remains in the State of Bombay. If that is the proper view of the legal position, then, if at the time the Commissioner of Police, Bombay, cancelled his order of detention, the petitioner had been confined in a Jail in Bombay, he would forthwith have been released. In our opinion the, petitioner is entitled to the same rights and; privileges as would have been available to him if he were in Bombay, in view of Section 2 (2) of Act XLVIII [48] of 1949 and would be entitled to be released from custody. But the situation is complicated by the circumstance that an order of detention issued by the Commissioner of Police was served on him while his liberty had still been curtailed and this order had been superseded by an order of detention passed by the Government of Madras.

7. On behalf of the petitioner various legal questions have been raised. We shall deal with them separately. It is urged that on the admission of the Bombay Government contained in the telegram dated 5-7-1950 that the arrest was effected mainly because he was wanted by the Madras Police for detention and that there was not much material to form the basis of grounds to sustain the detention of the petitioner in Bombay the action of the Bombay Government should be deemed to be illegal; because on atrue and correct interpretation of Section 3 (1), Preventive Detention Act of 1950, the State of Bombay has no territorial jurisdiction to detain a person on account of bis activities which are prejudicial to the security or the maintenanceof public order in the State of Madras. What is contended is that the Bombay Government cannot arrest a person for his alleged activities outside the State of Bombay, because there is no provision analogous to Section 82, Criminal P. C., in the Preventive Detention Act of 1950. Alternatively, it is urged that the Madras Government also has no jurisdiction to serve an orderof detention on the petitioner since it should be deemed that though he is physically within the confines of the State of Madras, legally he should be deemed to be in Bombay because of Section 2 (3) of Act XLVIII [48] of 1949. Viewed that way, according to the arguments of the learned counsel, the petitioner's arrest and the serving of the order of detention cannot be justified, because each of the States can act only within its own territorial jurisdiction and not outside it.

8. The second argument relates to the question as to whether it is open to the MadrasGovernment to serve an order of detention on a person who is deemed to be in the Bombay State and who has not been released in pursuance to the order issued by the Police Commissioner of the Bombay Government. We are asked to decide as to what legal effect should be given to the proceedings of the Bombay High Court. In view of the order passed by the learned Judges of the Bombay High Court, it is contended that the order of the Madras Government is mala fide and ultra vires.

9. The validity of the petitioner's detention in pursuance to the order of the Commissioner of Police, Bombay, has to be considered in viewof the admission contained in the telegram of the Bombay Government dated 5-7-1950, that the petitioner was arrested mainly because he was wanted by the Madras Police for detention,as well as the circumstance that there is not much specific material to form the basis of grounds to sustain his detention in Bombay, This raises the question regarding the right of the Bombay Police to arrest a man who was found within the limits of the territorial jurisdiction of the Commissioner of Bombay for his alleged activities outside the Bombay State. If the Bombay police have no power to detain a person for activities outside the State of Bombay, then the arrest itself, with a view to detaining him, should be deemed to be illegal. The provisions of the Criminal Procedure Code are not applicable to the proceedings relating to arrest and detention under the Preventive DetentionAct, 1960 (Act IV [4] of 1950). It is only Section 87, 88 and 89, Criminal P. C., that are made applicable in respect of a person against whom an order of detention has been made and who is absconding or is concealing himself. The learned counsel for the petitioner urges that Section 3(i)(a)(ii) which contemplates the maintenance of public order can be availed of when a State Government issues an order of detention only where such State Government is satisfied that the person should be prevented from acting in a manner prejudicial to the maintenance of public order within the limits of that State. In other words, the Bombay Government cannot arrest and detain a person for his activities outside the Bombay State even though he is found resident within the State of Bombay. For this argument it is necessary to find out whether, under the Indian Constitution, any of the constituent States have extra territorial jurisdiction or not.

10. Prior to the enactment of the Government of India Act, 1919, India was governed as a unitary State by the authority of the British Parliament through the Secretary of State for India. The entire executive power was vested in the Governor-General in Council and the provinces did not have any independent existence as such. This position is clear if we follow the various Charters, Acts and Regulations beginning with the Regulating Act of 1872 and culminating in the Government of India Act of 1915. It was only by the Government of India Act of 1919 that there came into existence a classification of central and provincial subjects with some kind of autonomy granted to the provinces. The preamble to the Government of India Act of 1919 stated that concurrently with the gradual development of self-governing institutions in the Provinces in India, it was expedient to give to those Provinces in provincial matters the largest measure of independence of the Government of India, which is compatible with the due discharge by the latter of its own responsibilities. Some kind of development was envisaged and brought into existence by the provisions of the Government of India Act of 1919. The position, therefore, at the time it was contemplated to enact the Government of India Act, 1935, was that the dominion and authority of the British Crown extended to the whole of British India and it was intended by repealing the Government of India Act of 1919, to take over by the Crown the entire rights and authorities over the whole of the Indian sub-continent and vest some of them in the Provinces and some in the centre, thereby constituting a union o the Provinces with a Federation. That therewas such a resumption and redistribution is clear from the report of the Joint Parliamentary Committee contained in paras. 151, 152 and 153. These paragraphs were based upon the White Paper issued by the British Government wherein it is stated as follows :

'On the repeal of the present Government of India Act all powers appertaining and incidental to theGovernment of British India will vest in the Crown; and the transition from the existing constitutional position, will be effected by making them exeroisable on behalf of the Crown by the Governor-General, theGovernors and other appropriate authorities establishedby or under the Constitution Act. The powers vested in. the Crown in relation to the States and now exer-cisable through the Governor-General of India in Council, except in so far as they are requisite to the appropriate Federal authority for those purposes, willbe exercised by the Crown's representative in his capacity of Viceroy and these powers will be outsidethe scope of the Federal Constitution.' (White Paper Proposals, Introduction, Section 9).

11. It is useful to quote at length paras. 152 and 153 of the Joint Parliamentary Eeport, vol. I :

'The dominion and authority of the Crown extends over the whole of British India and is exercised subject to the conditions prescribed by the existing Government of India Act. It is derived from many sources, in part statutory and in part prerogative, the former having their origin in Acts of Parliament, and the latter in rights based upon conquest, cession or usage, some of which have been directly acquired, while others ate enjoyed by the Crown as successor to the Tights of the East India Company. The Secretary of State is the Crown's responsible agent for the exercise of all authority vested in the Crown iu relation to the affairs of India and for the exercise also of certain authority which he derives from powers formerly vested in the Court of Directors and the Court of proprietors of the East India Company, whether with or without the sanction of the body once known as the Board of Control. The superintendence, direction and control of the civil and military Government of India is declared by the Government of India Act to be vested in the Governor-General in Council, and the Government or administration of the Governors' and Chief Commissioners' Provinces respectively in the local Governments; but powers of superintendence, direction and controls over 'all acts, operations and concerns which relate to the Government or revenues of India' are, subject to substantial relaxation in the transferred provincial field, expressly reserved to the Secretary of State; and whether the Governor-General in Council exercises (though no doubt under the general control of the Secretary of State) original powers of his own, or is only the agent and mouth-piece of the Secretary of State, remains perhaps an open question. It is one which has been the subject of dispute in the past between Secretaries of State and the Governor General; but the spheres of their respective jurisdictions are now well recognised, and the Secretary of State, though maintaining his powers of control, does not in practice exercise any powers of direct administration, a result to which the increasing authority of the Indian Legislature has no doubt materially contributed.

It is clear that in any new Constitution iu which autonomous Provinces are to be federally united under the Crown, not only can the Provinces no longer derive their powers and authority from devolution bythe Central Government, but the Central Government cannot continue to be an agent of the Secretary of State. Both must derive their powers and authority from a direct grant by the Crown. We apprehend, therefore, that the legal basis of a reconstituted Government of India must be, first, the resumption into the hands of the Crown of all rights, authority and jurisdiction in and over the territories of British India, whether they are at present vested in the Secretary of State, the Governor-General in Council, or in the Provincial Governments and Administrations; and second, their redistributions in such manner as the Act may prescribe between the Central Government on the one hand and the Provinces on the other. A federation of which the British Indian Provinces are the constituent units will thereby be brought into existence.'

12. It is, therefore, clear that when the Government of India Act, 1935, was passed, the constituent provinces became autonomous States in whom were vested various legislative and executive powers as defined in and formulated in the sections of the Act. Though federation actually with the Indian States did not come into existence, the system of Government after parts of the Government of India Act, 1935, came into existence, was federal. Schedule 9 in that Act was inserted as a result of Section 317 of the Act which was to the effect that pending the establishment of the Federation, the provisions of the Government of India Act, 1919, would continue to be in force in the centre. Section 318 stated that notwithstanding that the Federation has not yet been established, the Federal Court and the Federal Public Service Commission and the Federal Railway Authority shall come into existence and be known by those names, and shall perform in relation to British India the like functions as they are by, or under this Act, to perform in relation to the Federation when established. It is well known that Part II of the Act of 1935 relating to the Federation in the centre was not brought into force even though Part III which dealt with Governors' Provinces was in force. The position, in our opinion, was that the polity and structure of the Government were Federal in nature and constitution but that in actual practice Federation with the Indian States had not become an established fact. Though governed by the provisions of the Government of India Act of 1919, as set out in Schedule 9 of the Act of 1935, in so far as the Provinces are concerned, they were considered as constituent units with autonomous powers and to a certain extent there was the Federation of these constituent units for the performance of the powers vested in the Central Government as well. If that is true and correct position of the provinces at the time the Indian Independence Act of 1947 was enacted, it is clear that the legislative and executive powers of the States werestrictly confined within their territorial jurisdiction.

13. Section 49(2), Government of India Act, 1935, lays down that subject to the provisions of the Act, the executive authority of each province extends to the matters with respect to which the Legislature of the Province has power to make laws; and if we look at Sections 99 and 100 we find that in the distribution of legislative powers between the Provinces and the Federal Centre, it is enacted that the Federal Legislature may make laws for the whole or any part of British India or for any Federated States, and a Provincial Legislature may make laws for the Province or for any part thereof. Section 100 provides for the subject-matter for the Federal and Provincial Laws, viz., the three lists enumerated in Schedule 7, as the Federal Legislative List, the Concurrent Legislative List and the Provincial Legislative List. On reading Sections 99 and 100 the conclusion that one can come to is that a Provincial Legislature cannot make any laws outside the province at all, and, therefore, its executive authority is also co-extensive only with its legislative power. Similar provisions are contained in Article 245 of the Constitution of India wherein it is enacted that the Legislature of a State may make laws in the whole or any part of the State. Analogous to Section 49, Government of India Act, 1935, is Article 162 of the Constitution of India, which speaks of the executive power of the State extending to matters with respect to which the Legislature of the State has power to make laws. There is a proviso which holds that in any matter with respect to which the Legislature of the State and Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. On this aspect of the case, our attention was invited to some authorities but it is unnecessary to discuss them in any detail. Whatever might have been the structure of the Government of India and the Provinces prior to the coming into existence of the Independent Republic of India, after 26-1-1960, there is no doubt whatever that the territory of India consists of a Union of autonomous constituent States. Regarding the absence of extra territorial jurisdiction of similar States in Canada and Australia, our attention was invited to Royal Bank of Canada v. Rex, 1913 A. C. 283 : 82 L. J. P. C. 33 and Merchant Service Guild of Australasia v. Commonwealth Steamship Owners Association, 16 C.L.R. 664 . That the conditions in the UnitedStates of America are also similar can be seen from p. 156, Willoughby's Constitution of the United States of America. The observations of Lord Watson at pp. 441 and 442 in the Maritime Bank of Canada v. Receiver General of New Brunswick, 1892 A. C. 437 : 61 L. J. P. C. 75 are relied upon by the learned counsel for the petitioner but we do not think that it is of any great relevancy to refer to those observations in detail. To our minds the position is clear that the State of Bombay cannot, for the purpose of the Preventive Detention Act, 1950, pass orders for detaining a person found within its territory for his activities outside that State or direct that such a person be interned outside the Bombay State. The well known case of Sex v. Secretary of State for Home Affairs; Ex parte O'Brien, (1923) 2 K. B. 361 ; 92 L. J. K. B. 797 affords useful guidance for the consideration of topics like this. In that case the Court of Appeal held that after the passing of the Irish Free State Constitution Act on 5-12-1922 by which Irish Free State was given a distinct and independent executive, the Secretary of State for Home Affairs in England cannot, under Regn. 14-B of the Regulations made in August 1920, under the Eestoration of Order in Ireland Act 1920, order the internment in the Irish Free State of a person who, at the date of passing the order, was residing in England. At pp. 375 and 376 are found the discussion on the subject by Bankes L. J. Similar expressions of opinion by Scrutton L. J. are seen in the report at pp. 386 and 387. Though alike in certain respects, the observations of Lord Atkin in Eshugbayi Eleko v. Officer Administering, Government of Nigeria, 1981 A. c. 662 : A.I.R. 1931 p. q. 248 may be called in aid in support of the contention that the Bombay Government cannot arrest a person and confine him in their State and transfer him to a place outside the State for his alleged activities outside such State.

14. In In re Ghate, : AIR1951Bom161 , a Bench of the Bombay High Court held that it was not open to the Commissioner of Police, Greater Bombay, to pass an order under Section 3 (2), Preventive Detention Act, 1950, with regard to a person who is residing outside Greater Bombay, because the Commissioner of Police cannot exercise the powers conferred upon him beyond his own jurisdiction. In that case, at the time the Commissioner of Police passed the order, the person against whom it was directed had already been detained in the Yeravada, Prison, Poona, outside the jurisdiction of the Commissioner of Police. At p. 713 of the report the learned Chief Justice observes that thejurisdiction under the Preventive Detention Act of the Central Government and the StateGovernments is not, and cannot be, co-extensive and he expressed his opinion that a State Government could not make an order with regard to a person residing outside the territories of the State Government. It seems to us, therefore, that when the Commissioner of Police, Bombay, arrested the petitioner as he waa wanted by the Madras Police for detention, the arrest was illegal, and the petitioner's detentionwas also illegal. As already mentioned under Section 2 (2) of Central Act XLVIII [48] of 1949, when the petitioner was transferred to Vellore, the provisions of the Bombay Act can alone apply to him as if he had not been removed from that State.

15. The learned Advocate-General who appears for the Government of Madras contends that since the power of detention implies a power to arrest, in whatever way the petitioner came to be within the State of Madras, when once the order of detention was served on him, he must be deemed to have been validly detained in pursuance to tbe order passed by the Government of Madras. By way of analogy, he cites instances where persons are arrested under Section 151, Criminal P. C., and while such persona are in custody, in pursuance of such arrest, orders of detention are served on them and this Court has held that such detentions can be justi-fied. The question is whether a valid order ofdetention has been served or not and not as to whether the earlier arrest was legal or illegal.Our attention was invited to Dasappa v. District Magistrate, South Kanara : (1949)1MLJ583 and M. R. S. Mani v. District Magistrate, Mathurai, : AIR1950Mad162 . A Full Bench decision of the Bombay High Court in In re Jayantilal A.I.R. 36 1949 Eom 319 :51 Cr. L. J. 184 was also relied upon. The Full Bench held that if at the time when a person is undergoing an imprisonment as a result of an illegal arrest and imprisonment an order of detention under the Bombay Public Safety Measures Act was served on him, it cannot be said that the subsequent detention is illegal. In the view of the learned Judges, the detention about which complaint was made was the detention in jail on the date when the application was made and it is immaterial for the determination of this question as to whether the arrest and prior detention were legal or not. The learned Judges further went on to hold that what the Court has to consider was whether on the date when the application for a writ of habeas corpus was made the nature of the detention was legal or not. The circum-stances under which the petitioner before ua has been continued to be detained are different from those obtaining in the Bombay Full Bench case. If the arrest of the petitioner under the authority of the Commissioner of Police, Bombay, was because he was wanted by the Madras Police for detention, as is found from the telegram, then the Bombay Police or the Bombay Government could have had no reason to believe that the petitioner's being at large in the Bombay State was prejudicial to the maintenance of public order in the Bombay State. Even though the petitioner has been removed to the Madras State from the Bombay State according to the provisions of Act XLVIII [48] of 1949, still the reason underlying the arrest and detention was the fact that the petitioner was required by the Madras Police for being detained. For such a purpose, in our opinion, the Bombay Police or the Bombay Government cannot arrest the petitioner, because according to us, since there is no provision analogous to Section 82, Criminal P. C., in the Preventive Detention Act, 1950, the Bombay Police cannot arrest him for being detained in the Madras State. It was on that basis that after the petitioner was transferred to the Madras State, the order of detention passed by the Commissioner of Police, Bombay, was cancelled and, therefore, when once his order of detention has been nullified by the cancellation of the same, it cannot be validated by the Madras Government by serving a fresh order of detention. Since the Bombay Government had cancelled the order of detention passed on the petitioner, the proper procedure to be followed should have been for the Madras Government to have released him, and if they considered that be should be detained in the State of Madras, a fresh order of detention should have been served on him.

16. The learned Advocate-General brought to our notice various other decisions, viz., Empress v. Maganlal, 6 Bom. 622, Rudolf Stallmann. In re, 39 Cal. 164 : 12 I. C. 273 : 14 Cr. L. J. 375 and Jamna v. Emperor, A.i.r. 1926 sind 126: 27 Cr. L. J. 37. We do not think that the circumstanees in those cases can be said to be similar to the present case. In the present case, the petitioner was arrested by the orders of the Commissioner of Police, Bombay, and he was transferred to Madras by the application of the provisions of Act XLVIII [48] of 1949. Until he is actually released from custody he must be deemed to have been governed by the provisions of the law as if be had not been removed from the State of Bombay and when the Bombay Government ordered his release he was entitled to be released.

17. Had it been a case -where as a result of the order of release issued by the Government of Bombay, the petitioner had been released and re-arrested in pursuance to an order of detention passed by the Government, we would not have held that such an order of detention is illegal, because on the materials placed before us it seems to us that the grounds of detention afford sufficient justification for the action of the Government of Madras. In this connection we need only refer to the observations of the Federal Court in Machindar Shivji v. The King A. I. R. 1950 F. C. 129 : 51 Cr. L. J. 1525. It is useful to quote the observations in that judgment :

'The grounds communicated to the appellant stated, inter alia, that he was working for the communist party of India 'which is spreading its doctrine of violence in different parts of the country, fomenting industrial strikes, causing agrarian unrest, rendering life and property insecure, and trying to seize power by violence' and that he was assisting and associating with a named prominent member of the party who had 'gone underground'. It was further stated that, 'from the secret information available to them, the Provincial Government are satisfied that you are likely to go underground and from there guide the various subversive activities of the communist party and thus act in a manner prejudicial to the public safety, order and tranquillity.

It was said that, the communist party not having been banned in the Province, the appellant's alleged membership of that party, even if true, could not, in the absence of any allegation of acts or conduct on his party suggesting that he was acting or was likely 'to act in a manner prejudicial to public safety, be regarded as a ground for satisfaction under Section 2 (1) (a). We cannot accede to this contention. While mere belief in or acceptance of any political ideology may not be a ground for detention under the Act, affiliation to a party which is alleged to be spreading its 'doctrine of violence rendering life and property insecure and trying to seize power by violence' may, in certain circumstances, lead to an inference that the person concerned is likely to act in a manner prejudicial to the public safety, order or tranquillity. The fact that the party had not been outlawed is immaterial, that being a matter of expedience. The allegations regard-ing the subversive activities of the party made in the grounds communicated to the appellant, and later repeated in the affidavit of the Chief Secretary filed on behalf of the Provincial Government remain uncontradicted, the appellant having only stated that he was not a member 'of that party and did not work for it and that he had always been a constitutional trade unionist', It must therefore be taken, for the purposes of this case, that the said allegations are well founded. If BO, membership of that party cannot be ruled out of consideration as material on which no satisfaction could rationally be grounded. There are also allegations already referred to about the appellant assisting and associating with a prominent member of the partly who has 'gone underground' and about the likelihood of the appellant himself going underground and from there guiding the alleged subversive activities of the party. On these materials, which are relevant to the purpose of the Act, the Provincial Government say they are satisfied that the appellant is likely to act in a manner prejudicial to the public safety, and it is not ior the Court, with its sctrictly limited powers of interference under Section 4 of the Act, to say that they should! not be satisfied on such materials.'

18. The grounds of detention served on the petitioner are similar to the grounds dealt with in the case before the Federal Court and we respectfully follow the observations of the Federal Court.

19. As we have held that the petitioner was not released from the Central Jail, Vellore, as a result of the order cancelling his detention by the Commissioner of Police, Bombay, he is entitled to be released forthwith.


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