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In Re: Narahari Balaji Parkhi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1948)2MLJ594
AppellantIn Re: Narahari Balaji Parkhi
Excerpt:
.....and whether it has acted within the limitations imposed by the act and conformably to the procedure prescribed thereunder. 5. for these reasons i am of opinion that the essential requirement of section 3(1) of the act has not been satisfied in this..........magistrate intimated to the government the fact of the issue of the order of detention. the provincial government communicated to the detenu the following grounds of detention on the 7th april, 1948:he is a member of the r.s.s.s. an organisation which has been banned by this government under the criminal law amendment act, 1908, and he was holding the important post of provincial organiser in the andhra branch of this organisation.then followed the statement that his being at large was considered prejudicial to the public safety and the maintenance of public order. this communication was received by the detenu in the jail on the 7th april, 1948.2. it is argued by mr. sanjiva kamath that there was failure on the part of both the district magistrate and the government in the matter.....
Judgment:
ORDER

Yahya Ali, J.

1. This is an application under Section 491, Criminal Procedure Code. The petitioner, Narahari Balaji Parkhi, belongs to the Central Provinces. He used to have some business connections with the firm at Vijayawada. He was arrested at 5-30 p.m. on 4th February, 1948, at Vijayawada railway station when he was leaving for Nagpur. An order of detention was actually passed against him on 5th February, 1948, by the District Magistrate of Kistna purporting to be under Section 15 of Act I of 1947. On the 6th February, 1948, the District Magistrate intimated to the Government the fact of the issue of the order of detention. The Provincial Government communicated to the detenu the following grounds of detention on the 7th April, 1948:

He is a member of the R.S.S.S. an organisation which has been banned by this Government under the Criminal Law Amendment Act, 1908, and he was holding the important post of Provincial Organiser in the Andhra Branch of this organisation.

Then followed the statement that his being at large was considered prejudicial to the public safety and the maintenance of public order. This communication was received by the detenu in the jail on the 7th April, 1948.

2. It is argued by Mr. Sanjiva Kamath that there was failure on the part of both the District Magistrate and the Government in the matter of complying with the mandatory requirements of the Act. Under Section 2(1)(a), the Provincial Government, if satisfied with respect to any particular person that he is acting or about to. act in any manner prejudicial to the public safety, or the maintenance of public order and with a view to preventing him, it is necessary so to do, may make an order that he be detained. This power was delegated under Section 15 of the Act by the Provincial Government to District Magistrates and the Commissioner of Police in their respective jurisdictions (vide G.O. Ms. No. 907 Public (General E) dated 21st March 1947). Under Sub-section (2) of Section 2, when any order is made by the District Magistrate or the Commissioner of Police under Section 15,

that officer should forthwith report the fact to the Provincial Government together with the grounds on which the order has been made and such other particulars as, in the opinion of such officer or authority, have a bearing on the necessity for or expediency of the order.

Under Section 3(1) the Provincial Government, on receipt of any such communication from the detaining authority,

shall communicate to the person affected by the order, so far as such communication can be made without disclosing the facts which they consider it would be against the public interest to disclose, the grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make, if he wishes, a representation against the order.

3. From the scheme of the various provisions cited above, it is clear that the Legislature has provided certain necessary safeguards to be observed in the exercise of the extensive powers conferred thereunder upon the Executive. Under modern conditions the existence of forces of internal disruption may be as great, or even a greater menace to a country than the presence of an external enemy on its frontiers. It is for that reason obviously that the Legislature has seen fit to delegate to the Executive the power to detain persons without trial and to debar the Judiciary from examining into the reasons for their detention and pronouncing on their propriety. This power, as will appear, has been enacted in Section 16(1), which says,

No order made in exercise of any power conferred by or under this Act or deemed to have' been made under this Act by virtue of Section 19 shall be called in question in any Court.

Thus, if the jurisdiction of the Court is to be excluded, it would be necessary for the Court to examine whether, in making an order of detention calculated to deprive the subject of his liberty, the Executive has acted under the enactment with perfect bona fides and whether it has acted within the limitations imposed by the Act and conformably to the procedure prescribed thereunder. As it has been laid down in various cases, the action should not be in the nature of a fraud on the Act, or a misuse of the powers conferred by the Act, or should not be' a colourable exercise of those powers. It should not serve any ulterior purpose which is alien to the scope and ambit of the enactment. If the action of the authority concerned is free from these infirmities, then it is clear on the authorities that the Court, in view of the bar imposed by the Act, cannot examine whether there was sufficient material to order the detention of the subject and whether the satisfaction contemplated in Section 2 or Section 15, as the case may be, was based on proper and sufficient reasons. These, in my opinion, being the correct principles applicable to proceedings or orders of detention passed by the respective authorities under Act I of 1947, it remains to be seen whether so far as the facts of the present case are concerned, the order of detention is open to any objection.

4. The only ground, if it can be called a ground, that is given in the communication of the Provincial Government is that the detenu is a member of the R.S.S.S., which has been banned and that he was holding the important post of the Provincial organiser in the Andhra branch. Under Sub-section (1) of Section 3, the Provincial Government should communicate to the person concerned not only the grounds on which the order has been made against him, but also such other particulars as are, in their opinion, sufficient to enable him to make, if he wishes, a representation against the order. It is therefore essential, in my view, that the communication of the Government to the detenu should contain the grounds of the order as also particulars of such a nature as would serve the prescribed purpose of enabling the detenu to make a representation as to why he should not be kept under detention. The present communication does not appear to me to satisfy that requirement in any manner whatsoever. It does not state whether he continues to be a member of the organisation even after it was banned on the 4th February 1948, and whether he holds the post of Provincial Organiser after that crucial date. It does not, therefore, appear from the communication that there were any acts committed or about to be committed by the detenu after the organisation was declared to be unlawful from which the Provincial Government was entitled to make the deduction that his being at large would be prejudicial to the public safety and the maintenance of public order. In the affidavit filed in support of the petition by a friend of the petitioner it is stated that the petitioner had severed his connection with the organisation in February, 1947, and had settled down at Nagpur confining his sole attention to his business, viz., the promotion of the business of the Andhra Engineering Co., at Nagpur.

5. For these reasons I am of opinion that the essential requirement of Section 3(1) of the Act has not been satisfied in this case. I therefore direct that the detenu, Narahari Balaji Parkhi, be released forthwith.


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