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Dulal Chandra Ghosh Ltd. Vs. District Magistrate Birbhum and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ24
AppellantDulal Chandra Ghosh Ltd.
RespondentDistrict Magistrate Birbhum and ors.
Cases ReferredSee Kamala Prasad Khetan v. Union of India
Excerpt:
- .....mentioned in sub-section (2) thereof, as in the present case, the same has to be reported to the state government and no such order shall remain in force for more than 12 days unless in the meantime it has been approved by the state government. the approval it seems, has to be of the order in its entirety including the grounds thereof inasmuch as section 3, sub-section (3) makes it incumbent that together with the grounds all other particulars having a bearing on the matter had to be placed before the state government to enable it to accord its approval to the order. similarly, other statutory requirements of sections 8. 10 and 12 of the act in respect of communication to the detenu reference to the advisory board and its confirmation have also to be met. compliance with all such.....
Judgment:

Sudhamay Basu, J.

1. This Rule was obtained on an application under Section 491 of the Code of Criminal Procedure, for a Writ in the nature of Habeas Corpus. It relates to an order of detention dated the 20th of October, 1971 passed by the District Magistrate, Birbhum in exercise of the powers vested in him under Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. The detenu was taken into custody on and from the 29th of August, 1972 by virtue of the said order on the ground that he had been acting 'in a manner prejudicial to the security of the State the maintenance of public order. The particulars given to the detenu as evidence thereof were as follows:

1. On 28-5-1971 between 20.30 hrs. and 20.45 hrs. the detenu along with others being armed with revolver, daggers, bombs and other lethal weapons raided the house of gun licensee Sk. Abdul Motleb. S/o. late Md. Unnas of Haripur. P. S. Sam and forcibly took away his S. B. B. L. gun No. 42117. This created serious panic and terror in the locality.

2. On 28-5-1971 around 21-30 hrs. the detenu along with others being armed with deadly weapons broke open the doors of the house of gun licensee Sk. Esfan Ali S/o. Hazi Sk. Rahim of Haripur. P. S. Suri and took away forcibly his D. B. B. L. Gun No. 58 by putting him in fear of instant death.

This created serious panic and terror in the locality.

2. It further appears that on the said 29th of August. 1972 a corrigendum to the detention order was issued by the District Magistrate concerned which reads as follows:

Government of West Bengal Office of the D. M. Birbhum. No. 4201 C Dated 29-8-1972.

For the words the security of the State or the maintenance of public order appearing on my above order please read the maintenance of public order

given under my hand and seal of office.

Sd. District Magistrate

Birbhum. 29-8-1972.

3. Mr. Narayan Mukherjee, the learned Advocate appearing on behalf of the State placed before the Court the relevant details from which it would appear that with reference to the said order dated the 20th October, 1971 the statutory requirements under the Maintenance of Internal Security Act, were duly complied with. Nobody appeared on behalf of the detenu who filed this petition from the jail. When the Court pointed out to the learned Advocate appearing for the State that the order of the District Magistrate showed that his satisfaction was on the alternative grounds which meant that he was not certain whether he had reached his subjective satisfaction on the ground of danger to public order or danger to security of the State, the learned Advocate stated that the corrigendum later on issued by the District Magistrate cured the irregularity, if any. of the original order. Mr. Manoj Kumar Mukherjee appeared as amicus curiae and was of considerable assistance to the Court.

4. So far as satisfaction of the detaining authority on the alternative grounds under the Maintenance of internal Security Act is concerned, the question has been finally settled by the Supreme Court, in the case of Kishori Mohan Bera v. State of West Bengal reported in : AIR1972SC1749 , Shelat. J.. referring to the oases of Dr. Lohia v. State of Bihar : 1966CriLJ608 and Pushkar Mukherjee v. State of West Bengal : 1970CriLJ852 noted the differences between the concepts of law and order, public order and the security of the State and analysed the basis of the alternative satisfaction. He pointed out the three fictional concentric circles, the largest representing the law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the Public order. Likewise, an act may affect public order, but not necessarily the security of the State. An act. affecting public order may have such an impact that it would affect both public order and the security of the State, In such a case the power can be exercised on both the grounds, namely disturbance of public order and danger to the security of the State. If the District Magistrate felt the necessity to detain the petitioner for the activities described by him in the grounds that these activities affected or were likely to affect both public order and security of the State he would have used the conjunctive 'end' and not the disjunctive 'or' in his order. The use of the disjunctive showed that tie was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically the language of Section 3(1)(a)(ii) of the Act. In the recent case of Akshoy Konai v. The State of West Bengal reported in : 1974CriLJ405 , the Supreme Court followed the case of Kishori Mohan Bera and held that the use of the disjunctive 'or' in the order indicated that the District Magistrate was not sure in his mind about the precise ground of detaining the petitioner and mechanically reproduced the language used in Section 3 (1) (ii) of the Act. The aforesaid decisions which apply to the facts of this case are binding on us and we also respectfully agree with the reasoning thereon.

5. To avoid a possible confusion it will be worthwhile to remember that satisfaction, seemingly arrived at on alternative grounds under the Prevention of Violent Activities Act, 1970. is not identical with satisfaction passed on alternative grounds under the Maintenance of Internal Security Act, 1971. A similar order under the West Bengal Prevention of Violent Activities Act, 1970 was indeed upheld by the Supreme Court by a majority (Shelat. J., differing) in the ease of Anantamukhi v. The State of West Bengal : 1972CriLJ885 . Similar decisions in the. cases of Keshab Roy v. The State of West Bengal reported in : 1972CriLJ630 . Satya Sundar Sen v. The State of West Bengal reported in : AIR1972SC2141 which followed the decision in Anantamukhi's case may also be noted in this connection. In all these cases the orders were sustained by the majority (consisting of Khanna and Mathew. JJ.) because the West Bengal Prevention of Violent Activities Act. 1970 contained a special definition of the expression 'acting in any manner prejudicial to the security of the State or the Maintenance of public order' with reference to certain activities enumerated in Sub-clauses (a) to (e) of Sub-section (2) of Section 3 of that Act. The said definition included the two phrases in the alternative clubbed together and there was no separate definition either...in respect of 'acting in any manner prejudicial to the security of the State' or in respect of 'acting in any manner prejudicial to the maintenance of public order'. In the circumstances the Supreme Court made a distinction between the two acts and distinguished the case of Anantamukhi which was followed in the three other aforesaid cases. It. therefore emerges that an order of detention passed on the disjunctive and not on conjunctive grounds under the Maintenance of Interal Security Act. 1971 must be held to be bad.

6. The next question that invites a decision in this case is whether the corrigendum used by the District Magistrate cures the defect. In this respect, even assuming that the District Magistrate has the requisite power to amend or modify his order by issuing a corrigendum, various provisions of the Maintenance of Internal Security Act would seem to militate against its use except in minor details and within a circumscribed period. Under Section 3, Sub-section (9) of the Act for example, when an order of detention is made by an officer mentioned in Sub-section (2) thereof, as in the present case, the same has to be reported to the State Government and no such order shall remain in force for more than 12 days unless in the meantime it has been approved by the State Government. The approval it seems, has to be of the order in its entirety including the grounds thereof inasmuch as Section 3, Sub-section (3) makes it incumbent that together with the grounds all other particulars having a bearing on the matter had to be placed before the State Government to enable it to accord its approval to the order. Similarly, other statutory requirements of Sections 8. 10 and 12 of the Act in respect of communication to the detenu reference to the Advisory Board and its confirmation have also to be met. Compliance with all such statutory requirements on the basis of the original, un-corrected order would be of no avail, if, after the use of the corrigendum, the order is vitally changed so as to become a fresh one for all practical purposes. In that event the original satisfaction would be replaced by a new satisfaction, based on different and, therefore. fresh grounds, and would, hence require fresh approval and fresh compliance with all other statutory requirements. In the Instant case the corrigendum having been used before the detenu was taken into custody there is compliance with Sections 8, 10 and 12 of the Act in respect of the corrected order but approved in terms of Section 3 (3) which was accorded on the basis of the original satisfaction is wanting.

7. Again, the use of a corrigendum to modify or amend an earlier order seems to be inherently limited in character and does not include a power to extinguish the original order. As was construed by Lord Justice Limdly in the case of N. I. G. Trust Company v. International Company of Mexico (1891) 7 Tax LR 616 (CA) the power to modify the rights of the debenture holders against the company does not conclude a power to extinguish all the rights. Modification or amendment by way of corrigendum would, therefore, seem to include variation without putting an end to the original order. In the present case what is done is that, instead of the basis of the satisfaction being put on two separate and disjunctive grounds, one is taken away by using the corrigendum and the other is retained without the disjunctive form. The result of using such a corrigendum is entirely to change the basis of the original satisfaction and replace it by a new one.

8. Our attention has been drawn to the case of Gautam Goswami v. District Magistrate, Birbhum reported in 77 Cal WN 102 : 1973 Cri LJ 1010. The facts in the said case were different and much of the discussions therein were confined to the peculiar facts of that case. As to the extent of validity of the corrigendum the learned Judges of the Bench relied on a decision in Praihted Keshab Atre v. Commr. of Police. Bombay reported in ILR (1956) Bom 715. In the latter case Chagla, C. J. while delivering the judgment held on the facts of that case.

In our opinion in this particular case the corrigendum is not an alteration or amendments of substance and the position remains the same so far as the mental state of detaining authority is concerned both before and after the corrigendum.

The test of permissiveness of a corrigendum laid down therein seems to be that it should not involve alteration or amendment of substance and the position of the mental state of the detaining authority. Even if the aforesaid test is applied to the facts of this case it cannot be said that the corrigendum has involved no alteration or amendment of substance or in the mental state of the detaining authority before and after the corrigendum. Use of the corrigendum has basically changed the nature of the satisfaction in this case- In the Bombay case the corrigendum was concerned with certain corrections in the date of the ground and it was held that the alteration of the date was not of substance.

9. Another aspect from which the matter may be looked at is from the point of view of the right of representation. If the corrigendum makes a material alteration on the basis of the satisfaction it certainly affects the right of the detenu to make effective representation which is a constitutional safeguard. But on the particular facts of this case that consideration is not germane as the detenu was served with the order after the corrigendum was added to it in this case. We, therefore, refrain from considering the question which does not strictly arise out of the facts of the instant case.

10. Our discussion so long has proceeded on the assumption that the District Magistrate has the necessary power to use a corrigendum. What is really the nature of this power Neither the Calcutta nor the Bombay case noted above concerned itself with this question. Consideration of this aspect of the matter will be easier if the source which empowers the issue of corrigendum is ascertained. The provision in the Maintenance of Internal Security Act. 1971 which is relevant for the purpose is the one relating to revocation and modification of detention orders under Section 14. It reads as follows:

14. 'Revocation of detention orders-(1) without prejudice to the provisions of Section 21 of the General Clauses Act. 1897 (10 of 1897). a detention order may at any time be revoked or modified-

(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (2) of Section 3, by the State Government to which that officer is subordinate or by the Central Government;

(b) Notwithstanding that the order has been made by a State Government, by the Central Government.

2. The revocation or expiry of a detention order shall not bar the making of fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be. is satisfied that such an order should be made.

Under the aforesaid section a detention order may be revoked or modified by the State Government or the Central Government when the same has been passed by an officer Government may revoke or modify an order passed by the State Government. There is nothing in Section 14 enabling a District Magistrate or any other officer mentioned in Sub-section (2) of Section 3 of the Act to modify or revoke any previous order made by them. Whatever power the officers have in this respect is derived by virtue of Section 21 of the General Clauses Act. 1897 provisions of which have not specifically been affected by Section 14 of the Act. Section 21 of the General Clauses Act, runs as follows:

21. Power to issue, to include power to add, to amend, vary or rescind, notifications, orders, rules or bye-law : Where, by any Central Act or Regulation a power to issue notification, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add, to amend, vary or rescind, any notification, orders, rules or bye-laws so issued.

The said section in substance, invests a power to issue notifications, orders, rules etc. with additional power to add, to amend, vary or rescind the same. Seemingly this power would be wide enough to cover a case of rescission not to speak of merely adding to or amending any order. That would be, on the face of it, even a wider power than conferred on the State Government or the Central Government to revoke or modify as it would not bar a fresh detention even on same facts. But Section 21 contemplates a rule of construction which must have reference to the context and subiect-matter of the particular statute to which it is being applied. See Kamala Prasad Khetan v. Union of India AIR 1957 SC 876. The Internal Security Act enjoins an officer mentioned in Sub-section (2) to report the feet, when an order is made to the State Government together with the grounds and other particulars and such order is to remain in force ordinarily for not more than 12 days unless approved by the State Government in the meantime. Therefore, the power of the District Magistrate of Hrbhum(sic) in this case under Section 21 of the General Clauses Act subsists only subject to conditions and approval immposed by the revisions of the Hairrtenance of Internal Security Act, Although the General Clauses Act confers on him seemingly large powers it also puts him under certain limits imposed by the Maintenance of Internal Security Act. His powers to rescind, therefore, can only take effect at best for a maximum period of 12 days or until the State Government accords its approval. That being the position, it emerges that the District Magistrate had no power to issue a corrigendum as in the present case, after his order has been approved by the State Government. The use of the corrigendum, therefore, is wrong inasmuch as the power to rescind, add to, amend or vary given to the District Magistrate by Section 21 of the General Clauses Act exhausts itself after approval is accorded to an order of detention by the Government. After that there is nothing to empower a District Magistrate to make a change in this original detention order. Thereafter, modification or revocation if any, has to be done by the State Government or the Central Government in terms of Section 14 of the Maintenance of Internal Security Act.

11. The corrigendum is vulnerable on yet another ground. When the original satisfaction of the detaining authority is found to be bad there is really no foundation for the order and as such there being nothing in inception no question of correction arises.

12. For the reasons aforesaid, the petition succeeds and is allowed. We direct that the petitioner be released from his detention forthwith.

S.K. Bhattacharyya, J.

13. I agree.


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