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Bhupendra De and ors. Vs. the Chief Secretary Government of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1950CriLJ169
AppellantBhupendra De and ors.
RespondentThe Chief Secretary Government of West Bengal and anr.
Cases ReferredBadal Bose v. Province of West Bengal
Excerpt:
- .....it is said that he was arrested and detained. he claims that an order for detention under the bengal criminal law amendment act, 1930, made in his case is made without any grounds whatsoever and that the provincial government could not possibly believe that this man was dangerous.7. miscellanaous case no. 108 of 1949 is a petition by one satyajit das gupta on behalf of ten persons who are detained in the dum dum central jail. of these ten persons we are infor. med that sachindca nath mukherjee has already been released; so we are not concerned with the petition so far as he ia concerned. in the petition it is said that these persons were all arrested on various dates under section 30, west bengal security act and were later ordered to be detained in the dum dum jail by orders under.....
Judgment:

Harries, C. J.

1. These are seven petitions made Under Section 491, Criminal P. 0,, in which prayers are made for the release of certain persona detained in various jails in this province on the ground that their detention is illegal.

2. Miscellaneous case No. 102 of 1949 concerned one Bhupen De who ia confined in the Darjeeling Jail. According to his petition he was arrested Under Section 30, West Bengal Security Act on nth May 1949, and an order Under Section 16 of that Act was subsequently made on 3rd Juna 1949, This order was an order for detention for a period of nine months. The petitioner claims that the Act under which he was detained is no longer in force by reasons of The fact that it was not extended in accordance with law. He therefore claims that his detention is unlawful and that he should be released,

3. Miscellaneous case No. 103 of 1949 is by a detained person Pangmali Doherty who is confined in the jail at Darjeeling. In this petition ha states that he was arrested on 21st May 1949, and by an order of 18th June 1949, he was ordered to be detained in Jail for a period of nine months. These orders were made under the West Bengal Security Act which the detained man contends ia no longer in force. He therefore audmits that his detention is unlawful and prays that he should be released.

4. Miscellaneous Case No. 105 of 1949 is a petition presented by one Lalita Ghose on behalf of a detained person Deb Kumar Bose, In the petition it is said that Deb Kumar Bose was arrested about three months ago under The West Bengal Security Act and was ordered to be detained in jail by an order made Under Section 16 of that Act. It is said in the petition that the detained person has been served with a copy of the grounds upon which the order was made; but these grounds, it ia said, are vague and uncertain and the failure to serve the detained person with proper grounds has rendered the detention either improper or unlawful. Further it is said that the West Bengal Security Act under which the order for detention was made is no longer effective and accordingly the detention is unlawful and the petitioner is entitled to be released.

5. Miscellaneous Case No. 106 of 1919 is presented by one Santilata Das on behalf of a detained person Sitanath Das, We are informed that Sitanath Das has already been released, so we need not concern ourselves further with this petition and the rule i3 discharged,

6. Miscellaneous case No. 107 of 1949 ia presented by Shubodh 0b. Baau on behalf of a detained person Sukumar Bose alias Basu. In the petition it is said that the detained pereon is a student of the Jadavpur Engineering College and that he was detained for no reason at all. It is suggested that he had interested himaelf in the South Calcutta by election and that he had been approached by supporters of the Congress candidate to work in favour of that candidate. Apparently the detained pereon supported Mr, Sarat Chandra Bose who opposed the Congress candidate, and as a result it is said that he was arrested and detained. He claims that an order for detention under the Bengal Criminal Law Amendment Act, 1930, made in his case is made without any grounds whatsoever and that the Provincial Government could not possibly believe that this man was dangerous.

7. Miscellanaous Case NO. 108 of 1949 is a petition by one Satyajit Das Gupta on behalf of ten persons who are detained in the Dum Dum Central Jail. Of these ten persons we are infor. med that Sachindca Nath Mukherjee has already been released; so we are not concerned with the petition so far as he ia concerned. In the petition it is said that these persons were all arrested on various dates Under Section 30, West Bengal Security Act and were later ordered to be detained in the Dum Dum Jail by orders Under Section 16 of the Act. They claim that the West Bengal Security Act is ro longer in force and therefore their detention has become illegal and they pray for their release,

8. Miscellaneous case No. 109 of 1949 is a petition presented by Amarendra Nath Sarkac on behalf of a detained person Kamala Kanta Sarkar, It is stated in the petition that The detained person is a stenographer to The Sales Manager of the Tata Iron and Steel Company at their Calcutta Office. It is said that the petitioner was arrested on 23rd May 1949 without any reason whatsoever and that the detention ia mala fide and wrongful.

9. The Chief Secretary to the Government of West Bengal and the Superintendents of the Jails concerned were called upon by this Court to show cause why these detained persona Should not be released and they have appeared to show cause through the Advocate-General. He baa produced in each cage an order for detention made Under Section 2, Bengal Criminal Law Amendment Act, 1930, (Bengal Act vi [6] of 1930) and he claims that all the detained persona with the exception of Sitanatb. Das and Sachindra Nath Makherjee are lawfully detained under these orders.

10. All the detained persona had been arrested and detained under the Weat Bengal Security Act, 1948, this Act was considered by this Court in the recent unreported Case o Badal Base and Ors. v. The Government of West Bengal 53 C.W.N. 728, when it was held that the Act expired on 12th March 1948 and that its existence beyond that date bad not validly been extended. The detention of these persona under that Act was therefore unlawful and consequently the orders of detention made under that Act were cancelled and fre h orders for detention in each case were made under Section 2, Bengal Criminal Law Amendment Act, 1930, and it is upon these latter orders the Provincial Government now rely to justify the detention of all the persona who have moved this Court in these applications.

11. Section 2, Bengal Criminal Law Amendment Act, 1930, is in these terms :

(1) Where, in the opinion of the Provincial Government, there are reasonable grounds for believing that any person :

(i) ia a member of an association o( which the object and methods include the confutation of any offence unloaded in Schedule 1 or the doing of any act with a view to interfere by violence or threat of violence, with The administration of justice ; or

(ii) has been or ia being instigated or controlled by a member of any such association with a view to the commission or doing of any such offence or act or

(iii) has done or is doing any act to assist the operations of any such association ;

The Provincial Government may, by order in writing, give all or any of the following directions, namely, that such person :

* * * * (f) shall be committed to custody in Jail, and may at any time add to, amend, vary or rescind any order made under this section.

12. In the present cases order under this section were made on 26th June 1949 and were served on the various detained persons on or about 2nd July 1949. The learned Advocate. General has produced the orders made in each oaae and the orders follow the terms of the section. In each order it is said that in the opinion of the Provincial Government there are reasonable grounds for believing that the person ordered to be detained is a member of an association of which the objects and methods include the commission of offences included in schedule 1 to the Act, and that in the opinion of the Provincial Government there are also reasonable grounds for believing also that he has done or ia doing an act to assist the operations of such association.

13. Further, the learned Advocate-General relies upon Section 4, Bengal Criminal Lw Amend-tnent (Supplementary) Act, 1982. This was an Act passed by the Central Government to supplement the Bengal Criminal Law Amendment Act, 1930, to which I have already made reference. Section 4 ia in these terms :

The powers conferred by Section 491, Criminal P.C. 1898, shall not be exercised in respects of any person arrested, committed to or detained in custody under the Local Act or the Local Act as supplemented by this Act.

14. The learned Advocate-General has contended that this Court has no jurisdiction whatsoever to hear these applications because tb. 8 jurisdiction of this Court has been taken away by 8, 4 of The Act of 1932.

15. It seema quite clear that if these orders were orders made under the Bengal Criminal Law Amendment Act, 1930, then we could not entertain any of these applications as our right to consider the propriety of these orders is definitely taken away by S. i of the Act of 1932. However, if we came to the conclusion that any of these orders were mala fide or made in bad faith we could I think interfere Under Section 491, Criminal P.C. It has been repeatedly held that abuse or misuse of power ia no exercise of power and if we were satisfied that any of these orders were mala fide we would be bound to hold that they were not orders made under the Bengal Criminal Law Amendment Act, 1930, at all and that being so, the jurisdiction of this Court would not be affected by a. i of the Act.of 1932 : See S. Dilbagh Singh v. Emperor A. I. R (31) 1944 Lab, 373 : 46 Cr.L.J. 203. That section only takes away our right to interfere where an order ia made under the Bengal Criminal Law Amendment Act. A mala fide order would not be made under the Act and we could interfere.

16. However, there is no real suggestion that any of these orders are mala fide. I do not think that it would be sufficient for a detained person to state merely in his petition that an order with mala fide. It would, I think, be necessary for him to set out grounds upon which it could be said that the order was mala fide. Apart from a mere statement in one case that the order ia mala fide, the bona fides of the Provincial Government are not impugned.

17. In the petitions it is contended that the continued detention of the detained persona is illegal by reason of the decision of this Court in the case of Badal Bose v. Province of West Bengal, 53 0. w. N. 728. The Provincial Government realising that such was the case, cancelled the orders for detention made under the West Bengal Security Act which were clearly invalid and made in every case a fresh order under the Bengal Criminal Law Amendment Act.

18. I do not think that it can be contended that the fresh orders under the Bengal Criminal Law Amendment Act are mala fide merely because they were made with the intention of justifying detention which had been declared by this Court to be unlawful, Order under the Bengal Criminal Law Amendment Act were undoubtedly made to nullify the effect of the decision of this Court In the ease of Badal Bose and ors, v. Province of West Bengal 53 C.W.N. 728, but even so the orders are not necessarily mala fide. In the case Badal Bose and Ors. 53 c.w.N. 728 this Court expressed no opinion on the necessity for such detention. All that the Court held was that the orders were invalid as they were made under an Act which was not in force when the orders were made. Had this Court held that the orders were improperly made even if the Act was in force different considerations would ariae and in such a case it might well have been argued that the orders under the Bengal Criminal Law Amend-meet Act were mala fide as they bad been made to prevent the release of persons who had been detained for no good reason. In Badal Bose's case 53 C.W.N. 728, however this Court expressed no opinion on the question whether there existed in fact any grounds which would justify detention under any other law.

19. Mr, Gupta who appeared on behalf of some of the detained persons contended that these orders were not, on the face of them, a good answer to the petitions. They were not, he argued, orders made under the Act at all as there was nothing to show that the association to which it was alleged the detained persons belonged was in fact such an association as was contemplated by the Act. His argument was that Section 2, Bengal Criminal Law Amendment Act 1930, required firstly that the Provincial Government should be honestly of opinion that the detained persons were members of an association, and further that such association had in fact objects and methods including the commission of offences set out in Sch. l of the Act. Mr. Gupta's argument was that before an order could be justified it was not sufficient for the Court to be satisfied that the Provincial Government honestly believed that a detained person was a member of an association such as that described in Section 2 (1)(i) of the Act. The Court would have further to be satisfied that the association of which the detained person was honestly believed to be a member, was one which was in fact such an association as is contemplated in Section 2.

20. Mr, Gupta urged that as the liberty of the subject is involved we should give as favourable a construction as possible to this section to ensure the freedom of the subject. It is true that where an Act involves the freedom of a subject the Court ia loath to give a construction taking away such freedom. However, where the words of an Act are clear then a grammatical con., struction must be given even if it involves the taking away of personal freedom or liberty.

21. In the present case it appears to me that the words of Section 2 (1) are in no way ambiguous and admit of only one meaning. Where the Provincial Government honestly believes that a person is a member of an association which the Government believes has certain objects and certain methods, then an order for detention can be made. Again, if the Provincial Government honestly thinks that a man has done or is doing any act to assist the operations of any such association an order for detention can be made. There is nothing in the wording of this coercion to suggest that a Court is entitled to go into the question whether the association is in fact such an association as is contemplated in this section. I think the words are clear and an order for detention is justified if in the opinion of the Provincial Government the person sought to be detained is a member of an association which in the honest opinion of the Government employees certain methods to obtain certain objects, The order would also be justified if in the opinion of the Provincial Government there are reasons for believing that the person sought to be detained has done an act or is likely to do an act to assist the operations of an association which the Provincial Government has reasonable grounds to believe is an association con. template by this Act. To give the Act the construction sought for by Mr. Gupta would involve reading into Sub-section (1) words which are not there. All that is necessary to my mind to justify an order Under Section 2 (1) of the Act is an honest opinion of the Provincial Government that a person is a member of an association which is believed to employ certain methods and objects or has done or ia doing an act likely to assist such association or has been or ia being instigated or controlled by a member of such association with a view to the commission or do. ing of certain oafs. No other construction of these words appears to me to be possible and, therefore, we are bound to hold, that if the Provincial Government were honestly of opinion that there were grounds under the Act for detaining these men and there is nothing to suggest to the contrary then such an order cannot be challenged. Once it is conceded that these orders are orders made under this Act, then it appears to me that it i3 not open to this Court to consider the propriety or otherwise of the orders of detention by reason of Section 4, Central Act of 1932.

22. For these reasons I can see no ground for holding that the orders of detention are illegal and that being so the petitions fail and are dismissed, The rules are discharged.

Sen, J.

23. I entirely agree that these rules should be discharged, I also wish to add that I agree with what has fallen from my Lord the Chief Justice with regard to the interpretation of S. i, Bengal Criminal Law Amendment (Supplementary) Act, 1932. It seems to me that our powers Under Section 491, Criminal P.C. would still remain if it could be shown that the acts of the Local Government complained against were dishonest or mala fide, If these acts be not honest they cannot be said to be acts under the Bengal Criminal Law Amendment Act of 1930.

Banerjee, J.

24. I agree.

Lahiri, J.

25. I agree.

J. P. Mitter, J.

26. I agree.


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