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Tapan Kumar Ganguly Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ1521
AppellantTapan Kumar Ganguly
RespondentThe State of West Bengal and ors.
Cases ReferredRam Narayan Gupta v. D.M. Midnapore Full Bench Reference No.
Excerpt:
- .....an opportunity to the state to affirm a supplementary affidavit setting out the reasons for the time taken in reporting the fact of the order.3. pursuant to such leave a supplementary affidavit was affirmed by the detaining authority wherein he has sought to explain such delay. unfortunately, the explanation put forward is very vague and general in nature and it did not specifically deal with the facts of the case before us. it is stated in the said affidavit that as soon as the order of detention was made on the 17th may, 1973, according to 'official practice and procedure', the detaining authority sent the respective file and/or record to the 'dealing assistant concerned' for complying with the official requirements, namely, preparation of draft for the purpose of making report to.....
Judgment:

Bimal Chandra Basak, J.

1. In this application for a Writ in the nature of Habeas Corpus the detenu is challenging an order of detention passed by the District Magistrate, 24-Parganas on the 17th of May, 1973. in exercise of the powers conferred upon him by Sub-section (1) read with Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act), The said order was made with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. In view of our finding, as hereinafter stated, it is not necessary to set out the grounds of detention served on the detenu.

2. Mr. Kundu, learned Advocate appearing in support of the Rule raised various contentions before us which were not found acceptable by us. But in respect of the procedural requirements, Mr. Kundu submitted before us that the detention is illegal in as much as the fact of making of the order was not reported 'forthwith' as required by Sub-section (3) of Section 3 of the said Act. It appears that the said order of detention, though made on 17th May. 1973, was reported to the State Government under Section 3(3) of the said Act only on 22nd May, 1973, i.e., 5 days' later. Mr. Kundu in this context relied on the decision of this Court in the case of Omprakash Joshi v. State of West Bengal reported in (1973) 77 Cal WN 858 and submitted that in the absence of a proper explanation such delay is fatal. Accordingly we gave an opportunity to the State to affirm a supplementary affidavit setting out the reasons for the time taken in reporting the fact of the order.

3. Pursuant to such leave a supplementary affidavit was affirmed by the detaining authority wherein he has sought to explain such delay. Unfortunately, the explanation put forward is very vague and general in nature and it did not specifically deal with the facts of the case before us. It is stated in the said affidavit that as soon as the order of detention was made on the 17th May, 1973, according to 'official practice and procedure', the detaining authority sent the respective file and/or record to the 'dealing assistant concerned' for complying with the official requirements, namely, preparation of draft for the purpose of making report to the State Government under Section 3(3) of the said Act, docketing the same, putting in official reference numbers and dates, preparation of forwarding letter and such other official works with the direction that the same should be placed before him as early as possible for the purpose of making report to the State Government forthwith. It was further stated that at the material time a large number of detention orders were made by the said authority and the department was busy taking appropriate steps relating to the same in addition to the normal works of the department and as such 'it was not possible often to complete' preparation of draft report, docketing, giving reference nos. and dates, preparation of forwarding letter and such other works in course of a day or so. It was stated further that after the official procedures were duly complied with and the report was checked, verified and prepared in final form, the same was placed before the detaining authority 'as early as possible' for his perusal and signature according to the priority of the order passed along with the required number of copies of the other detention, grounds for detention and the history sheets with forwarding letter for the purpose of sending the said report to the State Government. as expeditiously as possible. It was further stated that in the instant case the report under Section 3(3) of the said Act along with the respective documents were placed before the detaining authority on 22nd of May, 1973 and he immediately signed the same and directed the defendant to despatch the same to the State Government as early as possible and the same was also duly sent in course of the same day.

4. As already stated, the explanation put forward is very vague and general in nature. It refers to some 'official practice and procedure'. It does not specifically state what procedure was followed in this particular case and when. It appears that certain steps involved, before this matter can be reported, are preparation of draft for the purpose of making report, docketing the same, putting in official reference, nos. and dates, preparation of forwarding letter and such other 'official works'. It has not been stated when the draft was prepared or when the same was docketed or when the official reference nos. were put in or when the forwarding letter was prepared or when other 'official works' were carried out in respect of this order. It has not been mentioned who was the dealing assistant concerned. There is no affidavit by such dealing assistant. As regards 'large number of detention orders' the same is vague and without any particulars. No particulars of any other order, which may have been passed at or about the same time has been specified. In any event, that cannot be. by itself, a sufficient explanation for the delay. Statutory requirements have to be strictly complied with, irrespective of the question of the alleged inconvenience of the office of the detaining authority. Further the alleged 'normal works' cannot hold up the expeditious steps to be taken in respect of an order of detention. It is also stated that after the official procedure were duly complied with, the orders were placed for his perusal and signature as early as possible. It has not been made clear when it was duly complied with and what stages passed before they were placed before the detaining authority. Further it has also not been made clear what is meant by 'as early as possible'. Accordingly we gave further opportunity to the State to file further supplementary affidavit, to explain clearly the reasons for delay in the present case. After some time Mr. G.N. Roy appeared before us and in his usual fairness conceded before us that he was not satisfied that any further or better explanation could be given in respect of this particular order. Accordingly, we are unable to accept the purported explanation as out forward in the said affidavit.

5. The fact of making of the order and the grounds on which the order is made along with other relevant particulars must be reported to the State Government 'forthwith' as required by Sub-section (3) of Section 3 of the said Act. In the case of Keshav Nilkant Joglekar v. Commr. of Police, Greater Bombay reported in : 1957CriLJ10 the expression 'forthwith' used in a similar context, in respect of an Act in pari materia came up for interpretation. In Joglekar's case the order of detention was passed on 13th January, 1956, but the report of the fact of making the order was not made until 21st January, 1956. After consideration of various English decisions it was held that an act which is to be done forthwith must be held to have so done, when it is done with all reasonable despatch and without avoidable delay. It was further held that the expression meant that the act should be performed with reasonable speed and expedition and that any delay in the matter should be reasonably explained. In this context it was observed as follows:

We agree that 'forthwith' in Section 3(3) cannot mean the same thing as 'as soon as may be' in Section 7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, in this that while under Section 1 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under Section 3(3) what is allowed is only the period during which he could not, without any fault of his own, send the report.

Under Section 7 the question is whether the time taken for communicating the grounds is reasonably requisite. Under Section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided.

6. In that case the explanation given by the detaining authority regarding the delay was accepted by the Supreme Court. Following the Joglekar case : 1957CriLJ10 this Court in Joshi's case (1973) 77 Gal WN 858 found that there was no material before the Court explaining the circumstances under which the report envisaged in Section 3(3) of the Act could not be sent forthwith. In Joshi's case it was held that the delay of 4 days involved was an avoidable delay and as the delay had not been explained in any satisfactory manner, there has been non-compliance of the provisions of Section 3(3) of the said Act which was mandatory and must be strictly followed. In that case the prayer for an opportunity to explain the delay was rejected as it was made at a belated stage. In the case before us the delay is of 5 days. Though no such explanation was given earlier we gave an opportunity to the State to explain such delay after the matter was heard for some time. For reasons already given, the purported explanation offered for such delay of 5 days is not acceptable by us. We are not satisfied that the report was made with all reasonable despatch or without avoidable delay. We are also not satisfied that the detaining authority could not without any fault of his own, send the report earlier. Accordingly we hold that the order was not reported 'forthwith' as required by Section 3(3) of the said Act. Accordingly, we must hold that the detention is illegal.

7. Mr. Roy, learned Advocate appearing on behalf of the State, contended before us that this application is barred by res judicata inasmuch as an earlier application made on behalf of the detenu has already been dismissed by this Court. In this connection he referred to us the case of Tarak Nath Ganguly v. State in Crl. Misc. Case No. 1226 of 1973 (Cal), which was disposed of by a Division Bench of this Court by a judgment D/-6-12-1973. In this context he relied on a decision of the Full Bench of this Court delivered on 15-1-1975 in the case of Ram Narayan Gupta v. D.M. Midnapore Full Bench Reference No. 1 of 1973 : reported in 1975 Cri LJ 1312 (Cal) (FB). Mr. Kundu strongly contested the correctness of this contention and submitted that this application is not barred by the principles of res judicata. In the said Full Bench Reference it was held that the principle laid down in the various decisions cited before the Court was as follows:

(1) When an application for a Writ in the nature of Habeas Corpus either under Article 226 of the Constitution or under Section 491 of the Code of Criminal Procedure, 1898, is filed before a Bench of a High Court and a decision is pronounced thereon, it is a decision of the High Court itself. Successive applications on the same grounds do not lie to the same High Court.

(2) If grounds available to the detenu or the petitioner, as the case may be. at the time the first application is made are not pressed in that application, they cannot be made the subject-matter of a subsequent substantive application.

(3) Successive application can however be made under two circumstances, namely, (i) when facts or materials were in existence at the time of the first application but were not available to the petitioner or the detenu and (ii) when events have arisen subsequent to the making of the first application.

(4) The above principles, however, would not prevent the High Court in the exercise of its inherent power to grant relief in appropriate cases for the ends of justice by making further orders in the same proceeding, whether on an application or otherwise.

8. We have ascertained from the records that in the earlier application this point regarding non-compliance of Section 3(3) of the said Act (1971) was neither taken nor decided. Further, whether the order was reported to the State Government 'forthwith' is a fact exclusively within the knowledge of the respondents and the detenu or the petitioner can possibly have no knowledge regarding the same. In the earlier application, we have also ascertained from the records, no affidavit was filed by the State (as has been done in the present application) and accordingly the petitioner could not have raised any such contention in the earlier application. Further, we also find from the judgment in the earlier application that this point was not dealt with therein. As a matter of fact, there is even no finding in the said judgment that the statutory requirements were complied with. Therefore, the position is that this point was not raised or dealt with in the said earlier judgment and this is not a material or fact which could be said to have been available to the detenu or the petitioner at the time of the first application. Therefore, in our view, the judgment in the Full Bench Reference on the prior application does not stand in the way of the detenu before us in the present case and we hold that this ground challenged is not barred by res judicata.

9. Before we conclude, we would like to refer to one matter which appears from the supplementary affidavit of the detaining authority. While dealing with the question regarding 'report' to the State Government, the detaining authority had stated that after the signature of the relevant record he had sent the report to the State Government along with the grounds of detention and the 'History sheets'. It may, therefore, be argued that the detaining authority had taken into consideration some material other than these specified in the grounds, without disclosing the same to the detenu. Obviously, 'History sheets' as the same signifies, contain something more than what is contained in the grounds. However, having regard to our finding as above it is not necessary for us to give our decision on this point and we leave this matter open.

10. In view of our finding as above, the detention of the detenu is illegal. Accordingly, we allow the application and make the Rule absolute. Let the detenu be released forthwith.

11. Let this order be communicated by a special messenger at the cost of the petitioner.

Sudhamay Basu, J.

12. I agree.


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