Anil Kumar Sen, J.
1. This Rule was issued on an application under Section 491 of the Code of Criminal Procedure. On November 12, 1971 the District Magistrate of Burdwan passed an order under Section 3(1) read with Section 3 (2) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act) directing detention of the detenu Shyamal Kumar Sukla. He directed such detention, as it appears from the order, because he was satisfied that such detention was necessary 'with a view to preventing him (detenu) from acting in any manner prejudicial to maintenance of public order.' The order for detention rests on two grounds which are clearly relevant to the object of detention. This order, however, was not given effect to until April 3, 1972 on which date the detent was put to detention in execution of the aforesaid order of detention. Obviously the order of detention could not be executed at or about time it was made as the detenu was then in custody. It has not been disputed by the respondents that on September 8. 1971, i. e. long prior to the making of the order, the detenu was arrested in connection with Budbud Police Station Case No. 10 dated 21-1-1971 under Section 302/34 of the Indian Penal Code and since such arrest the detenu was continuously under lawful custody. It is also not in dispute that after an enquiry under Chapter XVIII of the Code of Criminal Procedure the learned Magistrate by an order dated November 12. 1971 committed the detenu for trial before a Sessions Court on a charge under Section 302/34 of the Indian Penal Code. This trial ended in an acquittal long thereafter on March 27. 1972 but all the time the detenu remained in jail custody until his release on acquittal. It is only after he was so released that the detenu was put to detention on April 3, 1972 in execution of the order dated November 12, 1971.
2. In this Rule Mr. Mukherjee has raised an important question of law as to whether the District Magistrate of Burdwan could have validly made an order of detention on November 12, 1971 while the detenu was still in custody in the circumstances of the present case. Mr. Mukherjee has contended that the impugned order is not based on any bona fide satisfaction as apparently the District Magistrate never took into consideration the fact that a detent who was still under indeterminate custody as an under-trial prisoner had not the liberty to act and as such there could be no necessity of detaining such a person with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. Mr. Mukherjee to support this contention has strongly relied on the two decisions of the Supreme Court in the cases of Rameswar v. The District Magistrate of Burdwan : 1964CriLJ257 and Makhan Singh v. The State of Punjab : 1964CriLJ269 .
3. Mr. Ghosh appearing for the State has contested the aforesaid point raised by Mr. Mukherjee. According to Mr. Ghosh so long as the order for preventive detention is not served on a detenu who is still in custody it is wholly immaterial as to whether the detenu is in custody or not on the date of making of the order. According to Mr. Ghosh this is the principle which has been enunciated by the Supreme Court even in the cases relied on by Mr. Mukherjee and as explained further in the cases of Godavari v. State of Maharashtra : 1964CriLJ222 and Gopiram v State of Rajasthan : 1967CriLJ279 . Mr. Ghosh has further relied on a Bench decision of this Court in the case of Kanai Paul v. The State of West Bengal : AIR1969Cal422 .
4. In our opinion, as it may not be correct to lay down as an absolute proposition of law that no order of preventive detention under Section 3 of the said Act can at all be made or served on a person who is still in custody so also it would not equally be correct to accept such a broad proposition as contended for by Mr. Ghosh viz., that an order for such detention made in respect of a person in custody would never be invalid provided it is not served on the person while he is still in custody. Neither of the two extreme propositions represents the correct legal position. It is necessary to refer to the requirement of the law. Section 3 lays down that in making an order of detention the appropriate authority must be satisfied with respect to the person to be detained that with a view to preventing him from acting in a prejudicial manner as specified therein it is necessary that he should be put to detention. In our opinion this satisfaction must be based on two considerations. The authority must first consider with respect to the detenu's conduct and antecedence that he is prone to act in a prejudicial manner. The second consideration would naturally follow the first and that would be whether such a Person, if not put to preventive detention, is likely to so act or not. Or in other words, in order to arrive at the necessary satisfaction it is necessary that the detaining authority considers the potentiality of the detenu in the matter of his acting in a prejudicial manner and secondly his capability to so act. To accept the contention of Mr. Ghosh is to hold that at the time of making of the order the second consideration as aforesaid is totally irrelevant. But we are unable to go so far. To hold so is to ignore an important part of the requirement of Section 3. In the case of : 1964CriLJ257 (Supra) the Supreme Court clearly laid down that in making an order and in arriving at the necessary satisfaction it is necessary that the authority must take into consideration as to 'whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention.' The Supreme Court in the said case approved the view of the Assam High Court in the case of Labaram Deka v. The State AIR 1951 Assam 43 : 52 Cri LJ 434 and Haridas Deka v. The State AIR 1952 Assam 175 : 1952 Cri LJ 1670, wherein it had been held by the Assam High Court that there can be no bona fide satisfaction for making an order of preventive detention. under a statute similar to the one now under consideration in respect of a person who is in custody and as such had not the liberty to act. In Rameswar's case the Supreme Court laid down 'it is obvious that before an authority can legitimately come to a conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody how can it rationally be postulated that if he is not detained he would act in a prejudicial manner.'
This principle was reaffirmed in the later decision of Makhan Singh : 1964CriLJ269 (Supra) although in both the cases the Supreme Court ultimately thought fit to strike down the detention as the order had been served on the detenu who was still in jail custody. The two other decisions of the Supreme Court relied on by Mr. Ghosh have not laid down any principle different from those above referred to. In the case of : 1964CriLJ222 (Supra) an order of detention was revoked and a fresh order was made and served on the detenu while the detenu was still in custody. Validity of such an order and its services having been questioned the Supreme Court explained the underlying principle of the cases of Rameswar Shaw and Makhan Singh and held that in the facts of that case there being no authority to detain the earlier order having been revoked to release the detenu and nearest him under the fresh order instead of serving him with the order while in jail would merely be a pointless formality. Similarly in the case of : 1967CriLJ279 (Supra) an order of detention was passed long ago and was replaced by a fresh one and the latter one was served on the detenu who in the meantime had been rearrested under a warrant issued by a magistrate. The Supreme Court held that the initial order of detention not being bad and not being challenged its supersession by another order passed on the same grounds cannot be said to be tainted by mala fides merely because when it was so made the person had been arrested under a warrant. On facts these two decisions are quite distinguishable and they do not derogate in any manner from the principle clearly laid down in Rameswar's case (Supra),
5. In our opinion. therefore, in, making an order it is necessary for the appropriate authority to consider as to whether the person sought to be detained can or is likely to act. if not so detained, in a prejudicial manner. In considering this aspect the appropriate authority is certainly required to consider whether the man has the liberty to act or if he has not the immediate liberty whether he can shortly regain the liberty to act. The fact that the person is in custody by itself is not the determinant. If the person is in custody without any authority or on an authority which has expired or is shortly to expire or if the custody itself is too precarious it would be quite bona fide for the detaining authority to think that the person would soon regain his liberty to act and as such is likely to act in a prejudicial manner. We have already pointed out that there can be no abstract proposition of law that no order of preventive detention can be passed against a person while he is in-custody. As pointed out by the Supreme Court in Rameswar's case. : 1964CriLJ257 whether an order of detention can be passed against a person who is in detention or in jail will always have to be determined in the circumstances of each case. We are of the opinion that if a man is already in custody and such custody is for indefinite period it can never be said that unless put to preventive detention such a man is likely to act in a prejudicial manner. He is incapable of so acting as he has not the liberty to act at all.
6. Now in the present case the order of detention was passed on November 12. 1971. On that date the detenu was committed to a Sessions Trial on a charge under Section 302/34 of the Indian Penal Code. He was in custody since September 8. 1971 and his custody continued pending the trial. The fate of the. trial was yet unknown. Under the Code of Criminal Procedure as it stood amended by Section 14 of the West Bengal Maintenance of Public Order Act, 1970. there was a statutory restriction on the detenu's right to get bail pending the trial. The detaining authority has not explained before us either by filing an affidavit or by disclosing any document that notwithstanding such custody the detenu was likely to get back his liberty and as such act in a prejudicial manner. There is nothing even to indicate that the detaining authority was at all conscious of this position or that he took into consideration these aspects. Therefore, on the date the order was made there was no likelihood for the person to come out of the custody and there could not have been any satisfaction that unless put to preventive detention he was likely to act in a manner Prejudicial to public order. Mr. Ghosh in his submissions to this Court had suggested that the detaining authority might have been satisfied that on materials collected by investigation the trial was bound to end in an acquittal and as such he thought fit to make the order of detention which, however, was not served until the trial ended in an acquittal. This is not the case of the detaining authority before us and we are unable to make such a presumption on the face of the order of committal made by the magistrate on that very date. This being the position, we are of the opinion, that the District Magistrate while making the order of detention totally ignored the position that the detenu was then under custody which was indefinite and his failure to take into consideration this aspect in arriving at the satisfaction vitiates the order. It does so for two reasons. First of all. the order is invalid as it is based on non-consideration of a matter necessary to be considered under the statute for arriving at the satisfaction. Secondly the order is invalid as the satisfaction is not bona fide but was made in mechanical exercise of his powers ignoring the requirement of the law.
7. For reasons aforesaid this application must succeed and we hold that the detention in the present case is not in accordance with law.
8. The Rule is accordingly made absolute.
9. We direct that the detenu be set at liberty forthwith.
10. Let this order be communicated to the Superintendent. Berhampore Jail, as prayed for.
N.C. Mukherji, J.
11. I agree.