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Priyatosh Mazumdar on Behalf of Jogeshwar Mazumdar Detenu Vs. State of W. Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMisc. Case No. 46 of 1963
Judge
Reported inAIR1963Cal589,1963CriLJ499
ActsPreventive Detention Act, 1950 - Sections 3 and 7; ;Constitution of India - Article 22(5)
AppellantPriyatosh Mazumdar on Behalf of Jogeshwar Mazumdar Detenu
RespondentState of W. Bengal and ors.
Appellant AdvocateArun Prokash Chatterjee, Adv.
Respondent AdvocateS.N. Banerjee, D.L.R.
Cases ReferredDwarka Das Bhatia v. State of
Excerpt:
- .....satisfaction of the authority concerned is entirely different from sufficiency in relation to the detenu's right to make an effective representation. 10. the aforesaid grounds do not, in our judgment, suffer from any kind of vagueness or insufficiency of particulars. 11. of the several grounds in the category just considered particular no. 16 has been the target of attack from another point of view. that ground reads as--'on 30-1-62 the residents of villages subarnapur, ujanguria etc. of laupala submitted a joint petition against you to the cfficer-in-charge of haringhata police station for committing untold torture, goondaism, assault and others. on enquiry the charges against you having been substantiated the police officer started case no. 53 of the haringhatathana on 31-1-62.....
Judgment:

Debabrata Mookerjee, J.

1. This is a son's petition for the release of his father, a detenu against whom an order was made by the District Magistrate of Nadia on January 18, 1963 under Section 3(2) of the Preventive Detention Act.

2. The detenu was in due course informed of his right to make a representation against the order of detention; he made one and was given personal hearing before the Advisory Board. On a consideration of the materials produced the Board reported that there was sufficient cause for detention. The State Government, thereafter, confirmed the order.

3. The impugned order recited that with a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order, it was necessary to direct his detention. The detenu challenges the validity and propriety of the order and urges that most of the grounds of particulars supplied to him are wholly unrelated to the question of public order.

4. In answer to the Rule the District Magistrate who happens to be the detaining authority, has affirmed an affidavit-in-opposition stating that after having satisfied himself as to the necessity of detention, he made the order which is now under challenge. The material facts in the application upon which this Rule was issued, have beentraversed by the District Magistrate who has stated that upon being fully satisfied that the detenu had been systematically indulging in various anti-social and criminal activities the order of detention was made in order to preserve public order in the locality. There is in the affidavit-in-opposition a firm denial of mala fides as suggested in the petition filed on behalf of the detenu.

5. At the time the Rule was issued it was stated mat at least two of the grounds or particulars upon which the order was based, related to pending prosecutions, The contention was that the authority concerned could not in fairness be allowed to have recourse to the benefit of two parallel remedies -- one by way of prosecution in court and the other by means of preventive detention. At the time of the hearing of the Rule it was said on behalf of the State that charge-sheets which had been submitted against the detenu in the two cases have since been withdrawn. This position is also affirmed in the District Magistrate's affidavit-in-opposition. It seems, therefore, clear that at me moment there are no parallel proceedings one by way of prosecution in Court under the ordinary procedure and the other by way of detention under the provisions of the ACT. The prosecutions referred to are embraced in some of the grounds itemised as 3 and 20 of the grounds of detention. That being the position no serious notice need be taken of the complaint that the detenu has been exposed to double jeopardy and in that sense the order of detention is mala fide. Even assuming that there were such parallel proceedings in existence -- one in Court and the other by way of detention, we do not think, that by itself would vitiate the order which is now under challenge. The position was considered in the case of Thakur Prosad Bania v. State of Bihar, (S) : 1955CriLJ1408 where it was held that where the grounds of detention were not wholly the same as the facts in respect of which a prosecution was launched or a proceeding under Section 107 of the Criminal Procedure Code initiated, the contention that the detention being in respect of the very same matter is in the nature of interference with the course of justice and, therefore, mala fide is not sustainable. In the present case, however, there is no question of there being two parallel proceedings, strictly speaking, therefore, the contention does not fall to be seriously considered.

6. On the detent's behalf it has been streneously contended that most of the grounds are wholly unrelated to the object of detention which was to preserve public oraer in the locality. There has been an elaborate examination of the grounds before us and they have been categorised under different heads. We do not consider it necessary to examine each one of the grounds separately in the light or the criticisms made in view of the tact that the argument turns fundamentally upon the truth or lalsity of the particulars. It must be said at once that the Court has no power to examine the truth or falsity of the grounds; it has only the power to see whether the detenu has been enabled to exercise his constitutional right of making an effective representation against the order he complains at. This really resolves itself to the question of vagueness or imprecision of the grounds. Whether the grounds wers sufficient in the opinion of the detaining authority for the purpose of inducing its subjective satisfaction in making the order of detention, is a matter which is entirely outside the purview of the Court's consideration. The question of sufficiency arises only in relation to the alleged vagueness or imprecision of the grounds. We have, therefore, to confine our consideration to the latter aspect of the matter.

7. We are wholly unconvinced that the grounds orparticulars supplied to the detenu have no proximate connection with the object of detention. The instances reliedupon on behalf of the detaining authority cannot be said inany way to be unrelated to the object for which the orderof detention was made. We are not impressed with the argument that the 20 particulars which were given in supportof the order of detention in the instant case, have no real connection with the question of public order; nor are weimpressed with the argument that the provisions of the act have been used as a weapon of torture or as an engine ofoppression to coerce the detenu, This in a way raises the question of good faith. In course of argument on the detenu'sbehalf it was sought to be feebly suggested at times thatthe detaining authority had acted merely upon second handreports and had not taken care to be personally satisfiedas to the necessity of the detention. The affidavit-m-opposition affirmed by the District Magistrate clearly negativesthat contention and nothing has been said before us fromwhich we can hold that the detaining authority did not actafter having been personally satisfied or had acted in amala fide manner. Bad faith is easy to urge but very difficult to sustain. There has not been any serious attempt inthis case to establish mala fides on the part of the detaining authority.;

8. It has been argued that the particulars NOS. 6, / 13, 15, 16 and 19 did not contain sufficient details and were vague to a degree. All of them mention the dates, places and the persons concerned and state how the detenu be-haved on each case. We do not think that they suffer from any kind of imprecision or vagueness. Indeed, if the detenu ever felt that sufficient details had not been supplied with respect to them or any of them, it was quite open to mm to apply for further particulars. He had that right flowing from his constitutional right of making an effective representation against the order of detention. It does not appear that he ever made any complaint as regards the insufficiency of particulars with respect to any of these instances. It is not right to equate want of particulars or vagueness with irrelevance.

9. At one stage of the argument it was sought to be said that the grounds were vague end some of them at least were irrelevant or both vague and irrelevant. This contention can never be right. In Tarapada De v. State or West Bengal, : 1951CriLJ400 the Supreme Court pointed out that vague grounds do not stand on the same footing as irrelevant grounds. An irrelevant ground has no connection at all with the satisfaction of the authority making the order of detention. It was also emphasised that sufficiency of the grounds which gives rise to the satisfaction of the authority is not a matter for examination of the Court. We have said above, sufficiency of the grounds ton the purpose of inducing satisfaction of the authority concerned is entirely different from sufficiency in relation to the detenu's right to make an effective representation.

10. The aforesaid grounds do not, in our judgment, suffer from any kind of vagueness or insufficiency of particulars.

11. Of the several grounds in the category just considered particular No. 16 has been the target of attack from another point of view. That ground reads as--

'On 30-1-62 the residents of villages Subarnapur, Ujanguria etc. of Laupala submitted a joint petition against you to the cfficer-in-charge of Haringhata Police station for committing untold torture, goondaism, assault and others. On enquiry the charges against you having been substantiated the police officer started case No. 53 of the HaringhataThana on 31-1-62 under/Section 107 of the Criminal Procedure Code which is now pending.'

The complaint is that this is too vague since it does not contain the names of the villagers who made the complaint, nor does it indicate what the allegations against the detenu were, with the consequence that he was unable to mane an effective representation against this particular! It is to be observed that although the names of those who made the complaint or the details of their complaint do not find express mention in the particular itself, the detenu could not have any difficulty whatever in knowing the details since the complaints were the subject matter of a certain Court proceeding, the number of which was expressly stated. Apart from the general averment in the aftidavit-in-opposition that the allegations were found, on enquiry, to be true, the circumstance that these allegations formed the basis of a proceeding' in Court, would, we think, amount to giving the detenue sufficient details. The position might perhaps have been different if no reference was contained in the particular itself to the Court proceeding. We do not, therefore, think that there was any kind of vagueness in the-particular in question.

12. The instances numbering 1,2,8,9,10, 11, It, 14, 16 and 18 have been grouped together and criticized on the ground that they relate more or less to facts which constituted the subject matter of prosecutions in Court, the contention is that they could not properly have been made the basis of an order of detention, particularly in view of the fact that a number of those prosecutions terminated in orders which went in the detenu's favour and the Courts concerned made observations which went to show that the proceedings were not justified. The substance of the complaint seems to be that after an unsuccessful attempt to get the detenu punished before the Courts by the ordinary procedure, the detaining authority had recourse to the identical facts upon which those prosecutions had been based, in support of the order of detention. This criticism is not a new one. A Division Bench had occasion to consider the question in Ramanlal Rathi v. Commissioner of Police, : AIR1952Cal26 where it was held that a prior unsuccessful application of the ordinary Criminal laws of the country to a citizen does not make a subsequent application of the Preventive Detention Act to that citizen ipso facto mala fide. Incidentally, it may be said that in course of argument it was sought somewhat feebly to be argued that the circumstances which led to the detention were capable of being construed as suggestive of bad faith on the part of the detaining authority. We have said before that allegation of bad faith is quite easy to make but very difficult to substantiate. The mere circumstance that some of the particulars in this case related to facts which formed the basis of prior unsuccessful criminal proceedings will not necessarily lead to the inference that there was baa faith on the part of the detaining authority. To hold that bed faith, was established, the' Court would require very much more than what has been said or suggested on the detenu's behalf.

13. We have indicated that items 3 and 20 related to pending prosecutions. Since those prosecutions have ended by being withdrawn, the criticism is no longer available to the detenu that the detaining authority could not have recourse to two parallel remedies one by way of detention and the other by way of prosecution in Court.

14. The group of particulars numbering 4, 5, 8, 9 and 11 have been criticised as containing facts which are wholly unrelated to the object of detention which in this case was preservation of public order. The argument hasbeen that there can be no proximate connection between the facts contained in those particulars with the object of the order. It has been stated on the detenu's behalf that they relate to certain civil disputes which are at the moment the subject matter of a Civil Rule under Article 226 of the Constitution pending before this Court. There can be no question that the exercise of rights over property can sometimes constitute a threat to peace. It may be that the detenu has his claims to property which are under examination of the Court in the Civil Rule, but we cannot possibly ignore the statement that the exercise of Ms right induced or was likely to induce public disorder in the locality. That was a circumstance which would certainly justity treatment of those facts as valid grounds or instances in support of an order of detention. When exercise of civil right involves use of force or threat of force having a tendency to jeopardise public order, there can be no objection to the exercise of such right being considered relevant to an order of detention for preservation of public order.

15. Particular No. 7 which relates to taking away fly force of the crops grown on a particular plot of land was said to be another irrelevant ground. The dispute, it was said, was between the owner and the bargadar and if me detenu had such a dispute it was only liable to be taken before the appropriate authority for settlement, but it could not possibly be made a particular in support of an order of detention. This objection is more or less along the same line as the other objections considered above. We do not think that the facts stated in this particular can be called irrelevant to the object of detention in the circumstances of the case; nor are we persuaded that instance No. 10 which had reference to a certain tank said to have been sold since,, can be said to be unrelated to the object of detention aS we have indicated above, where exercise of civil right involves a threat to public order, the act of exercising such right may well be a relevant consideration in a case like the present, where the object of detention was to prevent public disorder.

16. Assuming for a moment that one or two grounds-were not as precise as one would wish, even then the order cannot be pronounced bad. As was observed by the Supreme Court in Dwarka Das Bhatia v. State of jammu and Kashmir, : 1957CriLJ316 , while the Court should not uphold an order of detention in spite OT invalidity of some of the reasons or grounds, it is its duty to be satisfied as to whether the allegedly vague or irrelevant ground is such as, if excluded, might reasonably have affected the subjective satisfaction of the authority concerned. If some ground or reason appears to the Court to be of comparatively unessential nature, the order of detention cannot be held bad, merely because there are one or two such particulars amongst a number of others upon which an order of detention has been made.

17. We are satisfied that the detenu was not prevented from exercising his constitutional right to make a representation by reason of any kind of vagueness or imprecision in the particulars supplied; nor are we satisfied that the particulars were unrelated to the object of detention.

18. The Rule must, therefore, be discharged.

D.N. Das Gupta, J.

19. I agree.


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