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Pabitra Kumar Mitra Vs. Secretary, Home Department and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ1177
AppellantPabitra Kumar Mitra
RespondentSecretary, Home Department and ors.
Cases ReferredRameswar Shaw v. Dist. Magistrate
Excerpt:
- .....sanyal. mr. guptoo challenged the validity of the order as there is discrepancy in the english and bengali versions of the grounds served, for mala fides, for lack of proximity of the arrest with the detention order and the incident involved and lastly because the ground contained only one incident which according to him could not furnish a valid foundation for detention.4. mr. guptoo s first objection as noted above, relates to discrepancy between the english and the bengali version of the grounds. the grounds in english are dated the 26th of september, 1972 but the bengali version bears no date. it is not stated when the bengali version was served upon the detenu. shri shib shankar mitra who affirmed the supplementary affidavit obtained it on the 11th of july, 1973 from his son the.....
Judgment:

Sudhamay Basu, J.

1. This Rule obtained by the petitioner under Section 491 of the Code of Criminal Procedure relates to an order of the District Magistrate, Howrah dated the 26th of September, 1972 passed in exercise of powers conferred on him under Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act). The petitioner was taken into custody on and from the 10th of April, 1973 pursuant to the said order and was served with the grounds of detention with a view to prevent him from acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below:

That on 27-7-1972 at about 18-00 hrs. the detenu along with his associates being armed with revolver, pipe gun, knives and bombs attacked Shri Dulal Manjhi son of Banamali Manjhi of 1/4, Gadadhar Mistri Lane, P.S. Shibpur (Howrah) and three others on New Road (near Stadium), Tanti-para, P.S. Shibpur while they were passing long that road caused bleeding injuries on the person of Dulal Manjhi by hurling bombs. This incident created a panic in the locality and disturbed public order.

2. The petitioner by a supplementary affidavit affirmed on the 16th of July, 1973 by one Shib Shankar Mitra also stated that the petitioner was served with the grounds in Bengali, a copy whereof was annexed to the said supplementary affidavit. No affidavit-in-opposition has been affirmed on behalf of the State.

3. Mr. Naranarayan Guptoo with Mr. C. Choudhury appeared in support of the petition which was opposed on behalf of the State by Shri Priti Burman appearing with Mrs. Uma Sanyal. Mr. Guptoo challenged the validity of the order as there is discrepancy in the English and Bengali versions of the grounds served, for mala fides, for lack of proximity of the arrest with the detention order and the incident involved and lastly because the ground contained only one incident which according to him could not furnish a valid foundation for detention.

4. Mr. Guptoo s first objection as noted above, relates to discrepancy between the English and the Bengali version of the grounds. The grounds in English are dated the 26th of September, 1972 but the Bengali version bears no date. It is not stated when the Bengali version was served upon the detenu. Shri Shib Shankar Mitra who affirmed the supplementary affidavit obtained it on the 11th of July, 1973 from his son the detenu 'long after the service of the memorandum of grounds in English version.' Mr. Guptoo pointed out that in the Bengali version it was stated that the acts of the detenu were considered 'collectively and separately', whereas the same did not appear in the English version. Moreover, while in the English version it was specifically stated that the injuries were caused by hurling of bombs the same was not mentioned in the Bengali version. Mr. Guptoo's contentions were twofold. According to him the major discrepancy as to whether the grounds were considered 'collectively or separately' affected the very basis of satisfaction of the detaining authority and clearly indicated non-application of the mind. The other contention was that the two versions in English and Bengali being different the detenu was prevented from making an effective representation. In this connection the learned Counsel relied on an unreported judgment of this Court in Misc. Case No. 999 of 1971 disposed of on 6-1-72 (Cal). In that case the court accepted the contention on behalf of the petitioner that along with vagueness in the grounds of detention material discrepancy between the English and Bengali grounds of detention on very vital points created a state of uncertainty in the mind of the detenu in the matter of making an adequate representation against the order of detention as he could not understand which version of the incident was correct. Following the case of Atmaram Shridhar Baidya, reported in AIR 1961 SC 157 : (1951) 52 Cri LJ 373 and the case of Kamakshya Mukherjee v. State of West Bengal reported in : AIR1968Cal596 it was noted that for determining vagueness each case must ultimately depend on its own facts and subject to that, the appropriate yard stick to find out vagueness is whether the grounds as served on the detenu enable him to make effective representation to the authority concerned. In that case the first ground was also held to be not relevant to the maintenance of public order.

5. On behalf of the State Mr. Barman contended that the discrepancy as to the consideration of the acts 'separately and collectively' were confined only to the preliminaries. They did not extend to any material part of the grounds. What the Act contemplated was communication of the grounds on which the order of detention was made (vide Section 8). The preambles in the grounds were not an essential part of the same and if there was any discrepancy between the English and the Bengali version the same was inconsequential. The learned Advocate referred in this connection to the cases of Abdul Ghani v. State of Jammu and Kashmir, reported in : [1971]3SCR275 and Netaipada Saha v. State of West Bengal, reported in : 1972CriLJ1000 . In the former case a contention was made on behalf of the petitioner that whereas Section 3 of the Act required that the Magistrate was to be satisfied. ... with a view to preventing him from acting in 'any manner prejudicial to the security of the State' the use of the word 'a' before the word 'manner' instead of the word 'any' used in the statute was outside the scope of the statute. The argument was held to be misconceived. The expression 'acting in any manner' used in the Act was held 'to cover a case of' acting in a manner 'prejudicial to the security of the State.' Another objection taken in that case was to the phrase 'has been detained' indicating that when the order of detention was made the petitioner was already under detention. It was held that the language used was incorrect, but the same was held to have been used by mistake. The use of the incorrect expression did not imply that the detention was illegal.

The case of Netaipada Saha involved a single ground which consisted of committing theft from wagons, throwing of bombs at R.P.F. Party and thereby creating panic and disturbance of public order. It was held that the ground was to be read as a whole. It was not justifiable to dissect it into three parts and calling the first part of it as an irrelevant ground. Mr. Barman contended that the ground in the present case also being one there could be no confusion even if it was stated in the Bengali version that the same was considered collectively and separately.

6. Looking into the matter carefully it would appear that the satisfaction of the detaining authority was based on the English grounds, the Bengali version being signed and served by the same detaining authority at a much later date. The Court is not apprised as to when exactly the Bengali version of the grounds was served upon the detenu. From the circumstances of the case, therefore, it seems that the Bengali version of the grounds could not be the subject of communication within Section 8 of the Act. It cannot, therefore, be inferred that there was a non-application of the mind on the part of the detaining authority at the time of forming his satisfaction,

7. In respect of right of representation Mr. Barman contended that from the home file it would appear that the detenu made two representations on 7-5-73 and 14-5-73. It was, therefore, no longer open to the petitioner to make a grievance. Mr. Barman referred to the cases of Bidyadev Barman v. District Magistrate, Tripura reported in : 1969CriLJ525 and Didar Singh v. D. M. Amritsar : 1973CriLJ985 . In the former case which related to Preventive Detention Act, 1950 the order of detention and grounds of detention were supplied to the detenu in English though he knew only Bengali and Tripuri. No request was made by the detenu at any earlier stage for a Tripuri version. The original petition also did not contain any objection. It was raised for the first time in the rejoinder. The petitioner filed the petition in English. It was held that the petitioner did not seem to suffer at all. In the case of Didar Singh the petitioner was served with the grounds in English and in Punjabi, neither of which language the petitioner alleged he knew. His mother tongue was Urdu. The petitioner, however, sent a very lengthy representation covering several typed pages in English and signed in Punjabi. In the present case even assuming: that the petitioner made two representations between the 7th of May and 14th of May, 1973 as stated by Mr. Barman on the basis of Home File, the same would not, in our view, necessarily negative the contention made on behalf of the petitioner. The Constitutional obligation to offer adequate opportunity for an effective representation is not necessarily discharged by the fact that some representation has been made by the person detained. Representation of any sort cannot be held to be an effective representation. Therefore, merely because a person has made a representation he does not forfeit the right to point out that the grounds are such that no effective representation is possible. The right to make an effective representation emanates from Article 22(5) of the Constitution itself. It is a Constitutional safeguard and once a breach is complained of, a duty is cast on the Court to see that the safeguard is complied with irrespective of whether the point is taken specifically at the earliest opportunity by the petitioner or whether he made an earlier representation of some sort. The importance attached to the right of representation by the highest Tribunal of our land would be clear from the words of Hidayatullah, C. J., in Bidyadev's case : 1969CriLJ525 itself. 'If there had been the slightest feeling that he (detenu) was handicapped we would have seriously considered the matter....

8. But while upholding the right of the petitioner to canvass the point we are constrained to hold against Mr. Guptoo on merit. Two things have been alleged as. causing confusion. (1) The alleged consideration of the particulars furnished in the grounds 'separately and collectively' in the Bengali version, (2) Absence of the name of the associates and three victims in the grounds. As to the phrase 'separately and' collectively' being in the Bengali grounds we have already noted that it was the English version which formed the basis of satisfaction of the detaining authority. The Bengali version was communicated at a much later date. It is obviously not one as contemplated under Section 8 of the Maintenance of Internal Security Act. Even under Article 22(5) the authority making the order is enjoined to communicate the grounds on which the order has been made 'as soon as may be'. The grounds in English satisfy the said requirement. As the Bengali version was served 'long after the service of the grounds in English version' the same does not fulfil the condition mentioned in Article 22(5). It is not clear what purpose the Bengali version was intended to serve specially when the petitioner knows English and, earlier, an English version of the grounds was made available to him. Omission of the phrase 'separately and collectively'' in the Bengali version, in these circumstances, does not, therefore seem to be of much significance. Again, the phrase 'separately and collectively' in reality seems to be less sensible than it purports to be. This phrase which has come to be of frequent use recently has not been construed, as far as we are aware, in any of the decisions of the Supreme Court. If consideration is based on separate incidents or grounds and satisfaction is based on the same, the word 'collective' would be redundant. Satisfaction arrived at from separate consideration would render satisfaction derived from collective consideration superfluous. Again, if there are more than one ground or incident, as soon as a detaining authority considers one of them it may either satisfy him or it may not. If he is satisfied then nothing further remains. In other words, satisfaction would exhaust itself as sopn as he considers one incident or ground to be sufficient. Consideration of rest of the grounds or incidents would then be extraneous, unnecessary and redundant. Recently in the case of Babul Mitra v. State of West Bengal reported in : 1974CriLJ395 , the Supreme Court however, has held that it would be legitimate to assess the effect and impact of the second ground in the background of the first. Tn the light of that decision it must be held that even if the grounds are considered separately each of them can be considered in the background of others in detention orders where the phrase 'separately and collectively' occurs. In any event, there being only one ground involved in the present case the same cannot have caused confusion to the petitioner at least in the matter of making a representation.

9. As to the other part of the objection there is undoubtedly some vagueness in the ground. The names of the associates of the detenu and three victims are not given. But on a careful consideration it is difficult to hold that the said vagueness could have prevented the petitioner from making an effective representation. The date and hour of the incident, the place and other details are there. The name of the victim who sustained bleeding injuries is also there. In view of the same it cannot be held that there was difficulty in the understanding of the petitioner which could render any effective representation impossible. The bleeding injuries being caused by hurling bombs is clearly staled in English ground. As we have already held that the Bengali version is not of much consequence, lack of clarity in this regard in the latter would not also be of much significance.

10. The next objection of Mr. Gup-too was that the detention was mala fide. He referred to paragraphs 2, 8 and 10 of his petition. According to him, the petitioner although arrested in connection with Shib-pur P.S. Case No. 44 (4) of 1971 was acquitted therefrom. It was a sessions trial. He was thereafter arrested in another case being Shibpur P.S. Case No. 33 (7) of 1972. In that case too he was released on bail on the 3rd of April, 1973. But a few days thereafter he was taken into custody under the MISA although the order had been made as early as on 26th of September, 1972. These facts, according to the learned Counsel, showed that the Government was determined to keep him confined by any means fair and foul. In this respect the learned Counsel referred to the case of Ben.oy Kumar v. State of West Bengal, reported in : AIR1966Cal509 . In that case although there were specific allegations of mala fides the same was not controverted or denied in the affidavit on behalf of the State. On the facts of that case the court drew an inference that in the absence of denial the allegations of mala fides were true. In the present case also the State has not chosen to use any affidavit. In our view this question has to be viewed from the facts and circumstances of each case. A bare allegation of mala fide, even if not rebutted, will not necessarily in a/1 circumstances, establish itself, in cases of detentions based on subjective satisfaction. Allegation of mala fides against the State is a, serious one. The onus is on the petitioner to establish it. In this case it is not stated that the petitioner was initially implicated in the Sessions case falsely. It is true that the petitioner was acquitted but acquittal by itself does not necessarily imply that the person was implicated falsely or without due care. Arrests in connection with two criminal cases and some delay in serving the order of detention--by themselves are not unequivocally referable to mala fides on the part of the authority. The recent decisions of the Supreme Court viz. Borjahan v. State of West Bengal, reported in : [1973]1SCR751 and Sasthi Chandra Roy v. State of West Bengal, reported in : 1972CriLJ1277 have clearly stated that the circumstances for detention without trial are quite different from trials or preventive proceedings under the Code of Criminal Procedure. The fact that a prosecution under the Code is available is not a valid ground for saying that it precludes the authority from acting under the Preventive Detention Act. We are unable to hold, therefore, on the facts and circumstances of this case that the allegations of mala fide against the State in this case have been substantially established.

11. The next point urged by Mr. Guptoo was that the order of detention was not proximate in point of time. It may be noted that the order was passed on 26th of September, 1972 and the petitioner was taken into custody on the 10th of April, 1973. The relevant incident took place on the 27th of July, 1972. It is certainly necessary that the past conduct of the person should be proximate in point of time and should have a nexus with the conclusion that the detention is necessary. As was pointed out in the case of Rameswar Shaw v. Dist. Magistrate, Burdwan reported in : 1964CriLJ257 it is both 'inexpedient and undesirable to lay down any inflexible test.' The validity of the satisfaction of the detaining authority is required to be considered on the facts of each case. In Rameswar Shaw's case it was stated that it would be irrational to take a person into custody for an incident which tock place 10 years before. In the present instance the order of detention was made about two months after the relevant incident. But he was arrested about 71/2 months later. It is on record that he was being proceeded with in other criminal cases. The detenu was released on bail on 3rd of April, 1972. He was arrested as noted earlier, on the 10th of April, 1972. From the facts noted above we are unable to uphold the contention of Mr. Guptoo in this respect.

12. It was lastly contended that there was only one incident on the basis of which the detaining authority based his satisfaction and passed the order of detention. Only one incident or ground, it was contended, was not enough to show proneness on the part of a person to indulge in prejudicial activities and in that respect the order made should be set aside. This contention also cannot succeed. Subjective satisfaction is not justiciable as such. Acceptance of the contention of the learned Counsel will amount to going into the question of adequacy of the materials on which is based the satisfaction of the detaining authority. That is clearly impermissible. It is quite another matter, of course, to contend that the expression in the preamble of the ground, namely, 'you have been acting' is not warranted by one incident. From one incident it may be incorrect to draw a conclusion that a person 'has been acting' in a prejudicial manner. But an inept expression in the preamble will not necessarily vitiate the subjective satisfaction of the detaining authority who might think on the basis of the said incident that interception of the person concerned was necessary for the maintenance of public order. As has already been noted earlier, in the case of : [1971]3SCR275 it was held that an incorrect expression or language used wilt not necessarily vitiate an order.

13. In view of what is held before the petition fails. The Rule, therefore, is-discharged.

S.K. Bhattacharyya, J.

14. I agree.


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