Skip to content


S. Kesar Singh Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1963CriLJ765
AppellantS. Kesar Singh
RespondentState of Jammu and Kashmir and anr.
Cases ReferredAchhar Singh v. State of Punjab Petn. No.
Excerpt:
- .....the other ground of attack urged on be-half of the petitioner is that a declaration made by the state government under the proviso to section 8(i) of the prevention detention act was made in english and was not therefore intelligible to the detenu although the declaration was served on the detenu by the superintendent of the jail. the respondents have produced in court the declaration, a copy of which was served on the detenu. this declaration bears an endorsement dated 11-4-62 of the detenu himself stating that he received a copy of it. it is not the case of the petitioner that a declaration under the proviso to section 8(1) was not made 'as soon as may be.' in fact the declaration is dated 6-4-62, that is to say it was made on the third day of the date of detention. nor can it be.....
Judgment:

K.V. Gopalakrishnan Nair, J.

1. This petition asks for a writ of Habeas Corpus to secure the release of S. Sant Singh who has been detained under the State Preventive Detention Act. The petitioner is the brother of the detenu. The order of detention dated 3rd April 1962 was made under Section 3(1)(a)(i) of the Jamrnu and Kashmir Preventive Detention Act with a view to preventing the detenu from acting in any manner prejudicial to the security of the State. The order was forwarded to Shri A.K. Mengi, Dy. Superintendent of Police C.I.D. for execution and S. Sant Singh was arrested on 4-4-62 and detained in the Katnua sub-jail, the Superintendent of which is the second respondent in this writ petition.

2. The first respondent is the State. The petition as well as the affidavit dated 29-5-62 in support thereof has set out five grounds of attack against the detention. On 4th July 1962 the detenu himself filed an affidavit. At the hearing of the petition, the petitioner's learned Counsel relied almost entirely on the affidavit of the detenu and based his arguments on the statements made in that affidavit. Four out of the five grounds set up in the petition to challenge the detention were abandoned, and only ground No. 2 which related to the mala fides of the order of detention was sought to be urged. At the same time certain additional grounds which were not mentioned in the petition were rigorously put forward in support of the petition. These new grounds were built upon the statements made in the affidavit of the detenu. Although it was expressly stated in the petition as a ground of attack that S. Sant Singh was arrested without any warrant whatsoever, it was not pressed at the hearing of the petition. Instead, it was urged that S. Sant Singh was not shown the warrant by the arresting officer and that the substance of the warrant of arrest was not notified to him. This contention finds some factual support in the averments made in the affidavit filed by S. Sant Singh, detenu, on 4-7-62. The entire contention is based upon Section 80 of the Criminal P.C. 1989.

3. Before dealing with the facts, I think it is proper to deal with the legal aspect of the matter for if the contention is devoid of legal foundation, it may not have to be pursued further. Section 4 of the J. and K. Preventive Detention Act reads:

A detention order may be executed at any place in the State in the manner provided lor the execution of warrants of arrest under the Code of Criminal Procedure, 1989.

The argument on behalf of the petitioner is that this provision in the detention order attracts the operation of Section 80 of the Criminal P.C. 1989, which runs:

The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.

It is contended that as neither the substance of the warrant was notified to the detenu nor was the warrant shown to him, there was a contravention of Section 80 of the Criminal P.C. which necessarily led to a contravention of Section 4 of the Preventive Detention Act, thereby rendering the detention itself illegal.

The learned Advocate General appearing for the respondents has countered this line of argument by pointing out that Section 4 of the Preventive Detention Act speaks only of the manner of execution of a detention order and does not render the detention order a warant of arrest under the Criminal P.C' so as to require compliance with Section 80 of that Code. According to him the manner of execution of a warrant of arrest is provided for in Section 46 of the Code and not in Section 80. Section 4 of the Preventive Detention Act therefore attracts the application of only Section 46 of the Code and not of Section 80. In support of his argument he has relied on the Division Bench ruling of the Allahabad High Court in S.N. Tangiri v. State of U.P. : AIR1961All542 . This decision has interpreted Section 3-A of the Indian Preventive Detention Act (4 of 1950). FOR the purpose of the present discussion, Sections 3-A of the Indian Act and 4 of the State Act are identical. Tandon J. speaking for the Division Bench said:

A warrant of arrest, in the matter of its execution, is governed by Section 46 of the Code which provides that in making an arrest the police officer or other person effecting the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. If the person to be arrested submits to the custody of the police officer or other person making the arrest, by word or action, his arrest is complete.

X X X X

The manner of execution ends with the effecting of the arrest and whatever has to be done in pursuance of Section 80 of the Code is some further duty which the law has imposed on the officer effecting the arrest to do in favour of the person arrested.

X X X X

A detention order is not an arrest warrant as defined in the Code and Section 3-A of the Preventive Detention Act has not laid down that a detention order shall be treated at par with an arrest warrant except in the matter of executing it. The obligation laid under Section 80 of the Code of Criminal Procedure on the person arresting cannot under the circumstances be extended to the case of a detention order which is entirely different from a warrant of arrest.

I respectfully agree with this view of the Division Bench of the Allahabad High Court. it follows that it does not avail to complain that the substance of the detention order was not notified to the detenu or that the detention order itself was not shown to him by the arresting officer. In other words, the validity of the detention cannot successfully be challenged on a ground based on Section 80 of the Criminal P.C.

4. Coming to the factual aspect of the matter, I am by no means satisfied that the detention order was not shown to the detenu or that the contents of it wore not communicated to him by the police officer who made the arrest. The affidavit of Shri Mengi who made the arrest expressly states that the order was handed over to the detenu and that in the course of conversation between him and the detenu in Punjabi the substance of the order was also explained to him. The affidavit of the detenu would show that he was anxious to know the contents of the detention order and he asked to be told about it. If this were so, I am unablu to find any good reason as to why the police officer or even the Superintendent of Jail to wham the police officer took the detenu should have declined to tell him the substance of the order of detention.

The affidavit of the detenue also states that some time after his detention he wrote to the Home Secretary asking for the grounds of detention so as to enable him to file his objections against his detention before the 'Detention Board,' It is not explained as to how the detenu 1 knew that he was detained under the Preventive Detention Act, The other averment in the affidavit that he wanted to prefer his objections against his detention before the 'Detention Board' unmistakably points to his awareness that he was detained under the Preventive Detention Act. If the detenu did not sea the order of detention and none told him about it, it is difficult to understand how he could have written to the Home Secretary about the grounds of detention.

The affidavit of the detenu also shows that there was some conversation between him and the Dy. Superintendent of Police who arrested him, It is only probable that the detenu would have asked the police officer as to why he was arrested and the police officer would have told him about the order of detention passed against him. The endorsement of the Home Secretary to the Dy. Superintendent of Police on the order of detention itself directed the Dy. S.P. to read over the order of detention to the detenu. There appears no reason why the Dy. S.P. should deliberately have refrained from doing so. And if the detenu did not properly understand the English language in which the detention order was couched one would reasonably expect the detenu to have asked the Dy. S.P. to explain to him the substance of the order. The endorsement of the Dy. S.P. on the back of the detention order which was forwarded to him clearly states that the detention order was read over to the detenu. There is also the further circumstance that in the affidavit and the petition filed by the brother of the detenu there is no mention at all that the Dy. S.P. or the Superintendent of Jail did not tell the detenu about the contents of the detention order even though ho wanted to be told about it. On the other hand, as I already stated, the petition and the petitioner's affidavit have adopted the somewhat sweeping stand that the arrest was made without any warrant whatsoever. It is unlikely that the brother of the detenu filed the present petition and swore to an affidavit in support of it without fully ascertaining all the relevant and necessary facts.

Considering all the circumstances and the probabilities of the case I have come to the conclusion that the contents of the detention order were known to the detenu before he was actually detained in Kathua Jail. Therefore as a matter of law as well, as on facts I am not satisfied that the contention based on Section 4 of the Preventive Detention Act is entitled to succeed. As I already stated, the allegation that there was no order of detention at all in existence when the arrest was made was not pressed at the hearing. Even if it were pressed, it could not have succeeded in view of the affidavits of the Home Secretary and the Dy. S.P. and also the production of the detention order in original which was endorsed to the Dy. S.P. who effected 'the arrest. This document also contains the signature of the officer in charge of the Kathua Jail who took over the detenu from the police officer.

5. The other ground of attack urged on be-half of the petitioner is that a declaration made by the State Government under the proviso to Section 8(I) of the Prevention Detention Act was made in English and was not therefore intelligible to the detenu although the declaration was served on the detenu by the Superintendent of the Jail. The respondents have produced in Court the declaration, a copy of which was served on the detenu. This declaration bears an endorsement dated 11-4-62 of the detenu himself stating that he received a copy of it. It is not the case of the petitioner that a declaration under the proviso to Section 8(1) was not made 'as soon as may be.' In fact the declaration is dated 6-4-62, that is to say it was made on the third day of the date of detention. Nor can it be urged in support of the petition that the grounds of detention were not served on the detenu because it cannot be controverted that a declaration under the proviso to Section 8(1) would wholly obviate the need for the grounds of detention to 'be communicated to the detenu. The attack on the side of the petitioner was therefore confined to the contention that the declaration was drawn up in the English language which the detenu did not know. On this premise it is further urged that the effect of serving a declaration in a language which the detenu did not understand was as if there was no declaration at all. If this be conceded it was pointed out that the absence of serving the grounds of detention cannot be excused and the failure on the part of the Government to communicate the grounds of detention to the detenu has rendered the detention illegal. Reliance is made in this connection on Article 22(5) of the Constitution and the decision of the Supreme Court in Harikisan v. State of Maharashtra : AIR1962SC911 .

The Advocate General for the respondents has met this argument by referring to Article 35(c) of the Constitution as applied to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order made by the President in exercise of the powers under Article 370(1)(d) of the Constitution. Article 35(c) in effect says that the Jammu and Kashmir Preventive Detention Act shall not be void on the ground that it is inconsistent with any of the provisions contained in Part III of the Constitution.

It is not disputed that the Jammu and Kashmir Prevenrive Detention Act is a valid piece of legislation even though it may violate the provisions of Article 22 of the Constitution. Therefore, it is hardly any use in the present case relying upon Article 22(5) of the Constitution. In fact the proviso to Section 8(1) of the State Detention Act runs counter to Article 23(5) and is yet valid in view of the saving contained in Art, 35(c) of the Constitution. Therefore if a declaration under the proviso to Section 8(1) of the State P.D.A. has been validly made by the Government, the question of communicating the grounds of detention to the detenue cannot possibly arise, and consequently the question of contravention of Article 22(5) will have no relevance. But all this does not answer the main limb of the contention of the petitioner's counsel that a declaration made in a language unintelligible to the detenu is not valid. This contention is built upon the ruling of the Supreme Court in : AIR1962SC911 (supra).

The learned Advocate General has vigorously urged that this ruling has no application to the present case. That ruling is relevant only to a case where the grounds of detention are communicated or have to be communicated to a detenu. Communication of the grounds of detention is plainly intended to enable the detenu to make his representations against the order of detention. Therefore the grounds which constitute what may be called the charges which the Government has levelled against the detenu have to be made fully known to him so as to enable him to make proper answer. A detenu can understand the grounds only if they are written in a language which is intelligible to him. Furnishing the grounds in a language unknown to the detenu will amount to not furnishing the grounds at all. That would violate Article 22(5). This is the reason why the Supreme Court held that furnishing of grounds of detention in a language which the detenu does not understand will violate his fundamental right.

6. But the position in the present case is very different. Here, there is no question of communicating the grounds of detention to the detenu because the Government have invoked the proviso to Section 8(1) of the State P.D. Act. If a declarartion is made under this proviso, the Government's duty under Section 8(1) to communicate the grounds of detention to the detenu will not arise. Once a declaration is made the detenue has no right to receive the grounds of detention and consequently no right to make any representation contemplated by Section 8(1) can arise. Communicating the declaration made by the Government under the proviso to Section 8(1) will therefore in no way help or further the interests of the detenu. He may have a right to complain that the grounds of detention have not been given to him to enable him to make his representation, if a declaration under the proviso to Section 8(1) is not made by the Government 'as soon as may be. But if the declaration is made 'as soon as may be' there does not appear to be any right in the detenu to insist that that declaration ought to have been communicated to- him in a language known to him. The reason is that no interest of the detenu is served or furthered by the communication of the declaration in a language understood by him. Furthermore, the provisions of the proviso do not require any communication of the declaration to the detenue. The language of the proviso sharply contrasts with the words of Section 8(I) itself. Whereas Section 8(1) enjoins upon the detaining authority to communicate to the detenue the grounds on which the order has been made, no such obligation is cast upon the Government under the proviso to that section. Merely because the proviso requires the Government by order to declare that it would be against the public interest to communicate to the detenue the grounds on which the detention order has been made the Govt, cannot be asked as a matter of law to communicate the declaration to the detenu, much less in a language which the detenu knows. The Supreme Court has held that omission to convey the order made under S. II of the Indian Preventive Detention Act does not make the detention illegal or result in an infringement of the petitioner's fundamental right. In Mohd. Afzal Khan v. State of Jammu and Kashmir : 1957CriLJ320 their Lordships of the Supreme Court pointed out:

Indeed in the case Achhar Singh v. State of Punjab Petn. No. 359 of 1951 (SC) this Court has expressed the opinion that the omission to convey the order made under S. II of the Indian Preventive Detention Act does not make the detention illegal or result in infringement of the petitioner's fundamental right.

It appears that the same principle will apply to the communication of the declaration made under the proviso to Section 8(1) of the State Preventive Detention Act. I am therefore satisfied as a matter of law that non-communication of the declaration made by the Government under the proviso to Section 8(I) in a language known to the detenu does not in any manner violate the fundamental right of the detenu or render his detention illegal.

7. In point of fact also I am not satisfied that it can reasonably be held that the detenu did not know the contents of the declaration, a copy of which was admittedly served on him in Kathua Jail. I say this because the detenu did not make any attempt to ask anybody to tell him as to what the paper which was handed over to him contained or what it was about. He could have asked the Superintendent of the Jail or he could have written to the Home Secretary. But he did not make any attempt in the direction of getting the contents of the paper served on him explained or translated to him. One would reasonably have expected the detenu to have taken some concrete steps to enable him to understand what the paper embodying the declaration contained.

A few days after the declaration was served on him, the detenu admittedly wrote to the Homo secretary asking for the grounds of detention, but it is not understandable why he did not write to him either for a translation or a clarification of what the document of declaration contained. It s rather significant that the detenu in his affidavit does not say that he is totally ignorant of English. In paragraph (I) of his affidavit he says that his knowledge of English is 'very little.' In the next sentence he says that he cannot fully understand anything written in English. Then he adds that his knowledge of English is almost nil. All these statements stop short of saying that he is wholly ignorant of English and then in paragraph (3) he states that while he was in the Kathua sub-jail, a paper typed in English was handed over to him but was not explained to him by anybody. This statement also seems to stop short of saying that he was totally unable to make out what that) paper contained. Nor does it say that he asked anybody to explain it to him and it was not done. From the statements in the affidavit of the detenu taken along with his conduct, I am not satisfied that he did not sufficiently understand the purport of the declaration in English which was served on him in the Kathua Jail. But even if it be assumed that he was totally ignorant of English, I do not think that it affects the position in the instant case, because the law does not require the Government to communicate to him the order passed by them under the proiso to Section 8(1) or to serve a copy of the order on him in a language perfectly understood by him.

8. Only one ground of challenge remains. It is that the order of detention is mala fide. This part of the case was not very seriously urged before me, although it was not given up. The reason urged at the bar for attributing mala fides is that the detention was brought about by S. Harbans Singh Azad, Speaker of the State Legislative Assembly. The affidavit of the Home Secretary clearly shows that S. Harbans Singh had nothing whatsoever to do with the detention of Sant Singh, It is said that the detenue was a rival candidate who opposed S. Harbans Singh Azad in the last election to an Assembly seat from a constituency in Baramulla in the Kashmir valley. It also appears that S. Harbans Singh Azad polled 17021 votes whereas the detenu obtained only 2223 votes. The Home Secretary in his affidavit dated 15-10-62 has stated so. But the petitioner would have it that the detenu was making some effort to file an election petition to challenge the election of S. Harbans Singh and that S. Harbans Singh influenced the Government to detain him. This allegation as I already indicated is categorically denied by the Home Secretary in the affidavits he has filed.

The petitioner has also stated that the detenu was trying to organize all the political parties of the State against the high-handedness of the Government and that this resulted in his detention order. This allegation also is repudiated by the Government as is seen from the affidavits of the Home Secretary. I do not think it. is safe to declare a detention order to be mala fide on the mere strength of allegations such as these. It is significant that no such allegation imputing mala fides in passing the detention order is found in the affidavit of the detenu himself. If the detenue really believed that the order of detention was passed against him mala fide or that S. Harbans Singh Azad, his rival candidate at the last general elections, improperly brought about his detention, one would expect it to be stated in the forefront of his affidavit. The total absence in the affidavit of the detenu of any imputation of mala fides against the Government in passing the detention order can only indicate that the attack of mala fides made by the petitioner who is the brother of the detenu is not - to say the least - well-founded. It is also not easy to under-Utand how the detention of S. Sant Singh would prevent every body else in the constituency from challenging the election of Harbans Singh Azad. Any voter is entitled to challenge the election, and there were more than 19,000 voters in the constituency from which S. Harbans Singh Azad was returned. It also appears from the affidavit of the petitioner that the detenu was the President of the Shrimoni Akali Dal of the State. It is therefore not reasonable to believe that by merely detaining him, the other members of the Akali Dal could not have pursued the object of the detenu, namely, filing an election petition to challenge the election of Harbans Singh Azad. Considering every aspect of the matter I am inclined to accept the affidavits of the Home Secretary that the passing of the detention order was in no manner influenced by S. Harbans Singh Azad.

9. As for the alleged attempt of the detenu to organize all the political parties of the State against the Government's high-handedness, there is nothing but the bare allegation of the petitioner to support it. I am not satisfied that I should accept the affidavit of the petitioner which is obviously interested and partisan. Furthermore, the allegation in the affidavit is considerbly vague. It lacks the details and the particularity which one would ordinarily associate with an affidavit seeking to marshal facts to point to a factual conclusion. The affidavit does not at all disclose what was the actual nature and scope of the attempts alleged to have been made by the detenu to fight the so called high-handedness of the Government. Nor does it disclose that these activities were confined within the permissible limits of, law and legitimate political right. The Home Secretary has solemnly affirmed in his affidavit that the order of detention was made against the detenu because the Government was satisfied that it was necessary to detain S. Sant Singh with a view to preventing him from acting in a manner prejudicial to the security of the State. The propriety or the reasonableness of the satisfaction of the Government upon which the order of detention is based cannot be raised and this Court cannot be invited to undertake an investigation into the sufficiency of the matters upon which such satisfaction is grounded. I am not satisfied that there is any good reason for not accepting the statements in the affidavits of the Home Secretary that the detention order was made bona fide in the interest of the security of the State. I am unable to accept the imputation made by the petitioner that the detention order is vitiated by mala fides. I, therefore, have no hesitation in rejecting this part of the petitioner's case also.

10. In view of the foregoing the petition fails and is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //