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Methal Lal Gora Vs. District Magistrate, 24- Parganas and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ295
AppellantMethal Lal Gora
RespondentDistrict Magistrate, 24- Parganas and ors.
Cases ReferredRaghubir Singh v. State of Haryana. (unreported
Excerpt:
- n. c. talukdar, j.1. this rule was issued on an application under section 491 of the criminal procedure code, assigned to this bench for hearing by the chief justice. the application is filed by the detenu, methai lai gora, praying for a writ and/or order and/or direction, in the nature of habeas corpus and is directed against the district magistrate, 24-parganas; the superintendent, dum dum central jail: the state of west bengal, through the secretary, home department, government of west bengal; and the union of india, through the secretary, ministry of home affairs. government of india. new delhi.2. the applicant before us has been detained under section 3 (1)(a)(ii) of the maintenance of internal security act, 1971 (act xxvi of 1971), by order no. 101/74 dated 6-3-1974, passed by the.....
Judgment:

N. C. Talukdar, J.

1. This Rule was issued on an application under Section 491 of the Criminal Procedure Code, assigned to this Bench for hearing by the Chief Justice. The application is filed by the detenu, Methai Lai Gora, praying for a writ and/or order and/or direction, in the nature of habeas corpus and is directed against the District Magistrate, 24-Parganas; the Superintendent, Dum Dum Central Jail: the State of West Bengal, through the Secretary, Home Department, Government of West Bengal; and the Union of India, through the Secretary, Ministry of Home Affairs. Government of India. New Delhi.

2. The applicant before us has been detained under Section 3 (1)(a)(ii) of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971), by Order No. 101/74 dated 6-3-1974, passed by the District Magistrate 24-Parganas 'with a view to preventing him from acting in 'any way prejudicial to the maintenance of public order'. He was arrested on the 15th March, 1974. when the ground of detention was served on him and he was directed to be detained in the Dum Dum Central Jail. Leaving out the prefatory and descriptive portion, the ground of detention may be set out as under:

3. 'On 27-12-1973 at about 18.35 hours you along with your associates, being armed with pipe-gun, bomb and sword, raided upon one Sri Hiranmoy Chowdhury, s/o. Jahar Chowdhury of Sadhana Road, P. S. Dum Dum in front of the main gate of Biri and Co. on Dakhin-dar Main Road as he protested against your anti-social activities. You also exploded bombs and broke some doors of shops. These violent activities of yours and your associates created a havoc there and the normal flow of life was suspended there for the time being. Thus you acted in a manner prejudicial to the maintenance of public order'. The ground of detention as well as the order of detention ere annexed to the petition being marked as Annexure 'A'.

4. On prayers made on behalf of the detenu at the time when the Rule was issued, the matter was directed to come up for hearing as an application for bail on a subsequent date upon service of the copies of the application on the respondents and it was ultimately directed on the 11th April. 1974. that the Rule will come up for hearing expeditiously. An affidavit-in-opposition affirmed on the 29th May, 1974, by Sri Bimal Ranjan Chakravarty, District Magistrate. 24-Parganas. was filed on behalf of the respondents: and a supplementary affidavit affirmed by Sri Sheo Pujan Gore on the 10th June, 1974 and another supplementary affidavit affirmed on the 6th July. 1974, were filed on behalf of the detenu-petitioner.

5. The submissions put forward by Mr. Dilip Dutta Advocate (with Messrs. Kazi Mohammad Ali and Sk. Abdul Ra-him. Advocates) on behalf of the detenu- petitioner have many facets, viz,, (a) the ground served on the detenu has xio nexus to the object of detention end is irrelevant; (b) that it is vague prejudicing the detenu from making an effective representation; (c) that it is non-existent; (d) that it does not disclose a disturbance of public order and (e) that the ground furnished by the detaining authority is also the subject-matter of a pending criminal case, resulting in parallel proceedings and denying thereby any opportunity to the detenu to make an effective representation under Article 22(5) of the Constitution of India, Mr. Promode Ranjan Roy, Junior Government Advocate (with Mr. D. K. Sengupta. Advocate) appearing on behalf of the respondents, joined issue. He contended inter alia that the ground served has nexus to the object of the detention and is not in any way irrelevant or vague. He further urged that the ground is not non-existent and brings to light a disturbance of public order. In reply to the fifth and last submission of Mr. Dutt, he submitted that there are, in fact, no parallel proceedings, affecting an effective representation on the part of the detenu under Article 22(5) of the Constitution of India inasmuch as the ground furnished by the detaining authority is the subject-matter of a criminal investigation and not a trial and that investigation also had since ended in a final report.

6. We have gone through the ground of detention. It has certainly nexus to the object of detention and is not irrelevant. The said ground again cannot be called, in any way, vague. The test for vagueness has been laid down in a series of decisions and without, multiplying the number, a reference may be made to the case of Dr. Ram Krishan Bharad-waj v. State of Delhi, reported in : 1953CriLJ1241 . The test is laid down as 'whether the ground mentioned is so vague as to render it difficult, if not impossible, for the petitioner to make an adequate representation to the appropriate authorities'. The ground of detention in this case does not disclose any such difficulty and cannot be called vague. As to non-existence, paragraphs 7 (a) and 8 of the affidavit-in-opposition affirmed by Sri Bimal Ranjan Chakravarty, District Magistrate, 24-Parganas make it clear that the ground of detention is not nonexistent as alleged or at all. The other objection that the ground in question pinpoints merely an infraction of law and order and not the disturbance of a public order, has also no force behind the same. The test as to what constitute a disturbance of public order is now well-settled. A reference in this context may be made to the observations made by Chief Justice Hidayatullah in the case of Arun Ghosh v. State of West Bengal, reported in : 1970CriLJ1136 that 'public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality... It is the degree of disturbance and its effect upon the life of the cammunity in a locality which determines whether the disturbance amounts only to a breach of law and order'. Applying the said test to the facts disclosed in the ground of detention, we have no hesitation in holding that the same does constitute a disturbance of public order within the bounds of Section 3 (1) (a) (ii) of the Maintenance of Internal Security Act, 1971. The first four dimensions of Mr. Dutt's contentions accordingly fail.

7. The fifth and last dimension of Mr. Dutt's submission relating to pending parallel proceedings and the consequent prejudice to the detenu is of some importance and has triggered off much controversy. Even after the recent decision of the Supreme Court, in the case of Biram Chand v. State of Uttar Pradesh, (by H. R. Khanna and P. K. Goswami, JJ.). reported in : 1974CriLJ817 there has been a spate of conflicting decisions by different Division Benches of this Court, some of which are in the context of applications for bail and others are in the context of final disposal, as to the interpretation of the ratio of the judgment by the Supreme Court, even giving rise to the question as to whether there should be a reference to a Full Bench under Rule I, Part II. Chapter VII of the Rules of the High Court at Calcutta, Appellate Side, It is against this backdrop that we shall proceed to consider the point which according to the Supreme Court itself is one of first impression, there being 'no direct authority of this Court on the point.

8. Bereft of all verbiage, the point for determination is that the ground furnished by the detaining authority, being also the subject-matter of a pending criminal prosecution, the detenu-petitioner has been handicapped in making an effective representation against the impugned order of detention, under Article 22(5) of the Constitution of India. The point raised was undoubtedly germane to the issues raised in several earlier cases decided by the Supreme Court but it did not in fact sprout up distinctly in this form for a determination therein. A reference in this context may be made to the following cases:

* Thakur Prasad v. State of Bihar, reported in : 1955CriLJ1408 (Jagannadha Das, J.); Sahib Singh Dugal v. Union of India, reported in : 1966CriLJ305 (P. B. Gajendragadkar, Section 4, K. N. Wanchoo, M. Hidayatullah, J. C. Shah and S. M. Sikri, JJ.): Debu Ghose v. State of West Bengal, reported in : 1972CriLJ317 , (A. N. Ray, as his Lordship then was and D. G. Palekar, JJ.); Mohd. Salim Khan v. C.C. Bose, reported in : 1972CriLJ1020 , (J. M. Shelat and H. R. Khanna, JJ.); Borjahan Gorey v. State of West Bengal, reported in : [1973]1SCR751 , (J. M. Shelat, I. D, Dua and H. R. Khanna. JJ.); Ashim Kumar Ray v. State of West Bengal, reported in : AIR1972SC2561 , (J. M. Shelat, I. D. Dua and H. R. Khanna, JJ.); Mohd. Subrati v. State of West Bengal, reported in : 1974CriLJ397 . (A. Alagiri-swami, I. D. Dua and C, A. Vaidialingam, JJ.); Ramayan Harijan v. State of West Bengal, reported in : (1988)IILLJ423SC , (J. M. Shelat, Y. V. Chandrachud and I. D. Dua, JJ.); Abdul Aziz v. District Magistrate, Burdwan reported in : [1973]2SCR646 , (J. M. Shelat, Y. V. Chandrachud and I. D. Dua, JJ.. In the aforesaid cases, the Supreme Court proceeded substantially on the footing whether the order of detention was mala fide and not, in terms, on the basis whether there has been a denial of an effective representation under Article 22(5) of the Constitution of India.

9. For a proper consideration of the point at issue, it is necessary to refer to the facts as disclosed in the petition as well as in the affidavits filed in this case. A. F. I. R. was lodged by one Hiranmoy Chow-dhury at the Dum Dum P. S. against the detenu-petitioner, amongst others, and the Dum Dum P. S. case No. 143 dated the 28th December. 1973, subsequently numbered as GR case No. 6139 of 1973, under Sections 342/307, Indian Penal Code, 25/27 Arms Act, and 6 (3) of the Indian Explosives Act, was started pursuant thereto. In paragraph 5 of the petition filed by the detenu on which the present Rule was issued there is a denial of any specific case over the same ground having been started but the same was given a go-by to in paragraphs 3, 5 and 6 of the supplementary affidavit, affirmed on his behalf on the 10th June, 1973 and filed in this Court and was reiterated in the submissions made on behalf of the detenu-petitioner by his learned Advocate. It was contended that parallel proceedings were started over the same ground in the criminal court as well as under the Maintenance pf Internal Security Act, 1971, prejudicing thereby the detenu-petitioner from making an effective representation. In the affidavit-in-opposition affirmed on behalf of the respondents by Sri Bimal Ranjan Chakravarty District Magistrate. 24-Parganas on the 29th May. 1974, and filed in this Court, it has been specifically averred in paragraphs 7 (a) and 8 that the criminal proceedings relate to the incident stated in the ground of detention. In the supplementary affidavit affirmed on behalf of the respondents, it has been stated that the criminal investigation has since ended in a Final Report and the detenu has been discharged on the 26th June. 1974

10. We shall now proceed to consider the principles laid down in the Supreme Court decision and apply the same to the facts of the present case. The ratio of the decision of the Supreme Court in Biram Chand's case : 1974CriLJ817 forms the corner-stone of the conflicting views, all of which claim, however, to be in accordance with the said decision. Both the schools of the Division Bench decisions of this Court rely on the aforesaid Supreme Court judgment but differ in its interpretation. One school held that the Supreme Court did take into consideration ground No. 8 of the grounds of detention, which relate to an investigation and not a trial, in coming to its ultimate conclusion that the detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take recourse to a ground which is the subject-matter of a criminal proceeding. It is of the view that the word 'proceeding' included a judicial proceeding and that a criminal prosecution includes both a trial and an investigation. The other school, however, held that ground No. 8 which relates to an investigation and not a trial, has not been considered in the context of the two questions framed for consideration and ,he ultimate decision thereon. It further observed that the word 'proceeding' connotes only a judicial proceeding when a charge-sheet was submitted and as such in order to constitute parallel proceedings, the other proceedings must be a trial and not an investigation.

11. The learned Advocates appearing on behalf of the respective parties in this case also differ in their interpretation of the ratio of the Supreme Court judgment. The steps of reasoning of Mr. Dilip Dutt, in this context are that the words 'this ground', as stated in the first question formulated by the Supreme Court for consideration, clearly refer to all the grounds mentioned in the third submission of Mr. Frank Anthony including ground No. 8, and not to ground No. 3 only; that in the said judgment, the word 'trial' has been used in a general sense and has often been equated for a proceeding or a case or a prosecution; that the words 'parallel proceedings' as referred to in the second question formulated by the Supreme Court, included not only a judicial proceeding but also an investigation; and that the second question formulated for consideration by the Supreme Court did cover not merely grounds Nos. 9 and 10 but also ground No. 8. The learned Junior Government Advocate, however, joined issue and contended that the words 'this ground' in the first question formulated by the Supreme Court in its judgment obviously refer to ground No. 3 only; that the said view if reinforced by the use of the word 'trial' shortly thereafter inasmuch as ground No. 3 relates to a trial; that in order to constitute 'parallel proceedings' the other proceeding must be a judicial proceeding and not another proceeding, including an investigation; that the Supreme Court referred specifically to grounds Nos. 9 and 10 only in the first paragraph of its consideration of the second question framed; that in the second paragraph of such consideration, there is a reference to ground No. 3 only which covers two cases in Bihar; and that, in any event, there cannot be any question of prejudice as apprehended on the part of the detenu inasmuch as the representation which he makes to the Advisory Board is confidential and cannot be used against him at the criminal trial.

12. For a proper consideration of the conflicting views taken, it is necessary to refer to the case of Biram Chand v. State of Uttar Pradesh, decided by H. R. Khanna and P. K. Goswami, JJ. and reported in : 1974CriLJ817 in some details and ascertain the ratio thereof. Mr. Justice Goswami. delivering the judgment of the Court, set down in the first instance, the different grounds including grounds Nos. 3, 8, 9 and 10 which were taken into consideration by the detaining authority in that case to pass the order of detention. Their Lordships next proceeded to sum up the submissions of Mr. Frank Anthony, who appeared on behalf of the detenu-petitioner, under four different heads, the third one whereof relates to parallel proceedings and is as follows: 'some grounds furnished by the detaining authority are the subject-matter of criminal cases which are still sub judice'. The Supreme Court thereafter proceeded to consider, in the first instance, the said third submission although Mr. Frank Anthony made a strong plea on the first ground relating to delay, and in that context, while referring to the submissions made by Mr. Uniyal, learned Counsel appearing for the State, it considered grounds Nos. 3. 8, 9 and 10 in details. Of these, ground No. 8 relates to an investigation while the other grounds viz., grounds Nos. 3, 9. and 10 relate to a trial. The consideration by the Supreme Court of around No. 8 is in the following terms: 'Again ground No. 8 is also the subject-matter of a criminal case with reference to the first information report of 3rd July. 1973 (Annexure 12 at page 288 of the Writ Petition. There is no controversy that the said criminal case is still pending'. After such discussion, the Supreme Court observed that 'we are informed that there is no direct authority of this Court on the point' and in that context distinguished the principles laid down by the Supreme Court in an earlier case viz., in : 1972CriLJ1020 . The Supreme Court proceeded thereafter to formulate the questions arising for consideration and observed that 'in the above premises more than one question may arise for consideration with regard to the third submission of Mr. Anthony', and, as was observed before, the said submission was based on several grounds including ground No. 8 which relates to an investigation. The last part of the judgment of the Supreme Court is material as it contains the ultimate findings. The Supreme Court formulated two questions for consideration and gave specific answers to the same. The said answers or the conclusions are the findings ultimately arrived at by the Supreme Court in Biram Chand's case.

13. The first question was formulated in the following terms:

Firstly whether the detenu can be said to be reasonably able to make an effective representation against this ground when he has been facing a trial in the criminal courts.' In the first question the Supreme Court used the words 'this ground' and 'a trial in the criminal courts'. With regard to the words 'this ground' it should not be overlooked that the first question formulated for consideration follows the earlier paragraph wherein the subject-matter for consideration was specifically stated to be the third submission of Mr. Frank Anthony. In the relevant paragraph starting with 'firstly', there is, in fact, no specific ground of detention mentioned viz., grounds Nos. 3, 8, 9 and 10. It is difficult, therefore, to hold that the words 'this ground' referred to the third ground of detention as urged by one school of conflicting views and not to the third submission of Mr. Frank Anthony which consisted of ground No. 8 also. The word 'trial' also appears to have been used in a general sense inasmuch as further down in the same paragraph, the words used are 'the criminal courts' and 'a criminal prosecution' and as such the same does not rule out an investigation. More so, in view of the ultimate findings which were arrived at in this context viz.. that 'being faced with the criminal prosecution which is pending against him all through, we are clearly of the view that the detenu has not got an appropriate and reasonable opportunity in accordance with law to make an effective representation against the impugned order of detention covered by the said proceeding.

14. The second question formulated for consideration is as follows:

Secondly, the question is whether it is open to the detaining authority to choose two parallel proceedings against the detenu as in this case.' The consideration of the second question and the answers given thereto consist of two paragraphs. The first paragraph referred specifically to 'two parallel and simultaneous proceedings' and 'to a ground which is the subject-matter of a criminal trial' and further proceeds to refer to grounds Nos. 9 and 10 of the order of detention in that case. The finding ultimately arrived at in that context is 'that fact itself introduces a serious infirmity in the order of detention for which the same must be held to be invalid'. The second paragraph of the consideration is very much relevant for ultimate conclusion and we may refer to the same in this connection. Without entering into the question whether the word 'proceeding' in the first paragraph refers only to a judicial proceeding, we find that in the second paragraph of the consideration relating to the second question the Supreme Court clearly referred to 'two cases in Bihar.' The Supreme Court observed that 'similarly, it is obvious that two of the cases are pending in the criminal courts in Bihar.' This is not the only reference but it has been repeated again and again in course of second paragraph, as follows:

the criminal cases pending against the detenu in Bihar'; 'existence of the criminal prosecution in Bihar'; 'the grounds with reference to the pending criminal prosecutions in Bihar'; 'particularly because those cases are pending trial in the criminal courts in Bihar'; and 'since the detention order is based on these grounds'. It is abundantly clear, therefore, that the Supreme Court referred to both the grounds viz., grounds Nos. 3 and 8 relating to cases in Bihar. Ground No. 3 refers to one such case and for the other case in Bihar one has to turn to ground No. 8 which relates to an investigation. It appears, therefore, that the Supreme Court has considered not only the grounds relating to a trial but also the ground relating to an investigation in holding ultimately that 'since the detention order is based on these grounds, the same must be held to be invalid.' The Supreme Court finally held that 'the third submission of the learned Counsel is therefore, accepted' and struck down the impugned order of detention.

15. On an anxious consideration of the decision in : 1974CriLJ817 (H. R. Khanna and P. K. Goswami. JJ.. we find that although the discussions made by the Supreme Court are many-splendoured. the ultimate ratio, however, may be put in a short compass. The golden thread that runs through the web of the judgment, underlying both the questions formulated .therein, is the test of prejudice, affecting an effective representation under Article 22(5) of the Constitution of India. It should not again be overlooked that the emphasis in the abovementioned decision is on the prejudice on the part of the detenu to make an effective representation, within the bounds of Article 22(5) of the Constitution of India, and not so much on his prejudice to defend himself in the criminal proceedings, which may either be at the stage of an investigation or a trial. While it is true that an investigation may result in a final report or culminate in a charge-sheet, the test of prejudice, to make an effective representation under Article 22(5) of the Constitution of India, equally holds good at the stage of an investigation as it is not possible for the detenu to foresee that the investigation would end only in a Final Report and not culminate in a trial. The detenu, in such a case, will always be on the tenterhooks, suffering from manifold apprehension including possibly even that of testimonial compulsion, lest his defence would be disclosed in making an effective representation under Article 22(5) of the Constitution of India, contravening thereby the guaranteed right conferred thereunder. A consideration of the same would lift the cloud, If any. It should not again be overlooked that the test on ultimate analysis is not so much the impact of any ultimate prejudice but even of an apprehended one. A reference in this context may be made to the case of Dr. Ram Krishan Bhardwaj v. State of Delhi, reported in : 1953CriLJ1241 , wherein Chief Justice Patanjali Sastri delivering the judgment of the Court observed at page 320 of AIR : at page 1243 of Cri LJthat 'the question however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court'. Mr. Roy contended at one stage that the representation of the detenu to the authorities being confidential and secret, there is no basis for any apprehended prejudice by its possible divulgence. It is difficult to agree with him because of the following provisions, amongst others, in Section 11 of the Maintenance of Internal Security Act, 1971, viz.. that 'after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government etc.' The learned Junior Government Advocate also made an ancillary submission viz., that the criminal investigation having since ended in a final report and the detenu having been discharged by the learned Sub-Divisional Magistrate, there will no longer be two parallel and simultaneous proceedings causing any purported prejudice and vitiating the order of detention. It is difficult, again, to agree with Mr. Roy's contention inasmuch as, firstly, the factum of existence of two parallel proceedings by itself may not be prejudicial, if such proceedings be otherwise warranted by the statutes. There is no magic or incantation attached to the words 'parallel proceedings' and we do not know whether parallels do ever meet excepting at the point of infinity. We only know that there are provisions for parallel proceedings in some statutes e.g., under the Customs Act, which provides, for the self same default, a proceeding before the Department, entailing a confiscation of the improperly imported goods and fine as well as a prosecution before the Criminal Court, entailing a penalty. The parallel proceedings, in this case, however, do not run parallel ad infinitum but meet on the same ground, which constitutes the basis of both. Such proceedings may only assume a potent repugnancy when one of these is under the Maintenance of Internal Security Act or any other form of preventive detention. Secondly, it should not also be overlooked that the question of prejudice arises only at the stage when the detenu has to make his representation and in this case, that stage is long over and a representation, in fact, has been made when both the proceedings were pending. We respectfully agree with the principles laid down by the Supreme Court in Biram Chand's case and applying the same to the facts of the present case, we ultimately hold that the detenu in this case has been prejudiced in making an effective representation under Article 22(5) of the Constitution of India because of the criminal investigation pending on the same ground and as such the impugned order of detention should be struck down. A reference in this context may also be made to the case of Sudhir Kumar v. Commr. of Police, Calcutta, reported in : 1970CriLJ843 wherein Mr. Justice Hegde delivering the judgment of the Court observed at page 815 that 'the freedom of the individual is of utmost im portance in any civilised society. It is a human right. Under our Constitution, it is a right. It can be deprived of only by due process of law,

16. The point at issue may also be approached from another stand-point, viz., the stand-point of strict construction. The principles of interpretation have enjoined that the method of construction in cases encroaching on the liberty of the subject must be a strict one. In the case of Barnad v. Gorman, reported in 1941 AC 378 Lord Wright cited with approval the well-known dictum of Pollock, C. B., at page 393 that 'in a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction.' A reference in this connection may also be made to Maxwell's 'Interpretation of Statutes' (12th Edn.) wherein it has been observed at page 251 that 'statutes which encroach on the right of the subject whether as regards the person or property are subject to a strict construction in the same way as Penal Act'. A reference was made therein to the observations of Lord Westbury, L. C, in the case of Walsh v. Secy, of State for India. (1863) 10 HLC 367 that 'it is a recognised rule that they should be interpreted, if possible, so as to respect such rights'. We may also refer in this context to the majority view contained in the judgment delivered by Mr. Justice A. K. Sarkar (as his Lordship then was) in the case of Ram Manohar Lohia v. State of Bihar, reported in : 1966CriLJ608 that

If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be So deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people. We are dealing with an order behind the face of which a court is prevented from going. ... Circumstances may make it necessary, but it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu.

We respectfully agree and hold that any interpretation in such context must be made in a manner 'so as to respect such rights' and that if there be any doubt, the same 'must be resolved in favour of the detenu.' True it is that the point involved in this case is not directly one of e construction of such statutes but it certainly relates to the interpretation of the ratio of a decision given in the context of the liberty of the subject and the guaranteed rights under the Constitution. The principles underlying the former would substantially hold good in the case of the latter.

17. One ancillary question now abides our consideration as to whether, because of the conflicting views on the ratio of the Supreme Court judgment, taken by the different Division Benches, including the present one, in the context of a final hearing as well as in the context of an application for bail, there should be a reference to a Full Bench under Rule 1, Part II, Chapter VII of the Rules of the High Court at Calcutta, Appellate Side. It is necessary to refer to the said Rule which is as follows:

Whenever one Division Bench shall differ from any other Division Bench or a Special Division Bench constituted before the 1st of April, 1953 upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench, unless the point has since been decided by a pre-Constitution decision of the Judicial Committee of the Privy Council or of the Federal Court of India or by a decision of the Supreme Court of India or of a Full Bench of this Court.

It is accordingly abundantly clear from the above that the sine qua non of such a reference under the above-mentioned Rule are that there is a difference between one Division Bench with another upon a point of law or usage having the force of law: and that the said point has not been decided by a pre-Constitution decision of the Judicial Committee of the Privy Council or of the Federal Court of India or by a decision of the Supreme Court of India or by a Full Bench of this Court. In the present case, the point at issue has been specifically decided by the decision of the Supreme Court in Biram Chand's case : 1974CriLJ817 and accordingly the same does not directly come within the ambit of the Rule. Further, the question involved is not so much one of difference or agreement with the ratio decidendi of any Division Bench judgment but one of agreement with the decision by the Supreme Court which is binding on all Courts in India under Article 141 of the Constitution of India. On ultimate consideration, therefore, we hold that such a reference is not necessary, being ruled out by the aforesaid provisions. It is for the Supreme Court to resolve any difficulty in interpretation that may arise and lift the cloud, if any, and the same cannot be achieved by a reference to a Full Bench and that also on a point of interpretation of the Supreme Court judgment and not on a point of law within the bounds of R. 1. It will not be in accordance with the procedure established by law.

18. This brings us to a consideration of Article 141 of the Constitution of India and the Doctrine of Precedents. The concept behind Article 141 is not wholly new but forms the basis of Section 212 of the Government of India Act, 1935 which makes the law declared by the Federal Court and the Privy Council binding on all Courts in British India. Article 141 of the Constitution makes the law declared by the Supreme Court binding on all Courts in India. The theory of precedents may now be considered. Even independently of Article 141, the same result would have followed from the theory of precedents, which has become a part of Indian law. As was observed by H. N. Seervai in his Constitutional Law of India. Article 141 removes even a theoretical doubt about the binding force of precedents. In India precedents are given constitutional sanction and the Supreme Court can declare a law as to the binding force of precedents, as it can declare the law on any other subject. It is pertinent in this context, to refer to Salmond on 'Jurisprudence' (12th Edn.) page 159 wherein, he observed that 'some theorists have argued that since precedent cannot logically lift itself up by its own bootstraps, the limiting rules are not strictly rules at all, but are mere statements of practice'. We may further refer in this connection to the observations made by A. W. B. Simpson in his Essays on 'The Ratio Decidendi of a case and of the Doctrine of Binding Precedent' (edited by A. G. Fuest) at Chapter VI page 148 that the problem is jurisprudential rather than legal. We agree with the said views and we hold that the decision in Biram Chand's case : 1974CriLJ817 is binding on us not (only under Article 141 of the Constitution of India but also under the Doctrine of Binding Precedent. Applying the aforesaid principles to the facts of the present case, we ultimately hold that the detenu has been prejudiced in making an effective representation under Article 22(5) of the Constitution of India, and as such the order of detention should be struck down. We would only make it clear that in coming to our ultimate decision relating to the validity of the order of detention In this case, we have abided by the decision in Biram Chand's case, without entering into any theoretical discussions as to whether the same covers all the possible points or that there is room for consideration of any further point; and we hold that any such peregrination outside the bounds of the Supreme Court decision, would not only be unwarranted and untenable, but also result, as Viscount Simonds observed, in an embarkation 'on a voyage of discovery'.

19. We must make it quite clear that in arriving at our ultimate decision we have neither agreed nor disagreed, in terms, with the conflicting catena of Division Bench decisions on the interpretation of the Ratio Decidendi in Biram Chand's case : 1974CriLJ817 . We would also like to make it clear that in arriving at such conclusions we have not entered into any dichotomy of judgments being authoritative or persuasive, based on the hierarchy of authority. But it has been our anxious consideration to abide by the decision of the Supreme Court, which, under Article 141 of the Constitution of India, is binding on us. In fairness, however, to the conflicting decisions, it may be observed that there is perhaps scope for the same. On our part, we have merely proceeded on the basis of the golden thread that, in our view, appears to underline both the questions framed by the Supreme Court and the answers ultimately given thereto viz., whether there is any prejudice on the part of the detenu to make an effective representation under Article 22(5) of the Constitution of India. It is difficult to claim infallibility and we have proceeded in accordance with our humble lights. We would only refer, in this connection, to the observations of Mr. Justice V. R. Krishna Iyer delivering the judgment of the Court in the case of Raghubir Singh v. State of Haryana. (unreported decision D/- 28-3-1974 in Criminal Appeal No. 15 of 1971, (Since reported in : 1974CriLJ1062 . bearing the name of the same parties as in the reported case in : 1974CriLJ603 that 'infallibility is the attribute of the omniscient and the Judges can only act on pragmatic sense and reasonable doubts.' It has been our earnest endeavour to do so. We may only observe that there is no chemistry of justice excepting that it is to be in accordance with law, and within such bounds, it is to give effect to the redeeming principles that illumine the distant vistas of human progress. Law on ultimate analysis is not a mere abstraction and as Mr. Justice Frankfurter put it 'it is not a mere imprisonment of the past but is unfolding of the future.' Fiat Justitia Ruat Saelum: Let Justice be done, though Heavens would fall.

20. We must also place on record our appreciation of the submissions afcly made by the learned Advocates, Mr. Dilip Dutt and Mr. Promode Ranjan Ray, who spared no pains in assisting this Court to come to its ultimate decision.

21. In the result, the Rule Nisi is made absolute; the detention of the detenu-petitioner is held to be illegal and invalid; and we direct that the detenu-petitioner be set at liberty forthwith.

A. N. Banerjee, J.

22. I agree.


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