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Kashyap Bandhu Vs. State of Jammu and Kashmir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1959CriLJ709
AppellantKashyap Bandhu
RespondentState of Jammu and Kashmir
Cases ReferredSodhi Shamsher Singh v. State of Pepsu
Excerpt:
- .....the word has to be given the same meaning and construed in the same manner as is intended by the state constitution.7. according to section 26 (2) of the constitution, the executive power of the state is ested in the sadar-i- riyasat and has to be exercised by him either directly or through officers subordinate to him in accordance with the constitution. the executive power, as laid down in ram jawaya kapur v. state of punjab (s) : [1955]2scr225 , connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. according to section 35 (1) of the constitution of jammu and kashmir, the council of ministers have to aid and advise the sadar-i-riyasat in the exercise of his functions and sub-section (2) of that section provides that all.....
Judgment:

J.N. Wazir, C.J.

1. This is an application by Shree Kasyap Bandhu under Article 32(2A) of the Constitution of India and Section 103 of the Constitution of Jammu and Kashmir for the issue of a writ in the nature of habeas corpus and for the immediate release of the petitioner, who is alleged to have been kept in illegal detention in Central Jail Srinagar.

2. Order 29-4-1958 the petitioner was arrested under an order made by the Government in exercise of the powers conferred by Section 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011. A copy of the said order was served on the petitioner at the time of his arrest, as appears from the endorsement made on the order by Mr, J. N. Hashia, Superintendent of Police.

3. The petitioner in his affidavit has alleged that at the time of his arrest no warrant, order of detention or arrest was delivered to him. He has alleged that the detention order is illegal inasmuch as it was not passed by an authorised person and his detention was not strictly in accordance with law. Lastly it has been averred in the affidavit that the detention of the petitioner was vindictive mala fide and illegal. In his affidavit the petitioner has attributed his detention to the political differences which obtained between him and the Prime Minister of the State. According to the petitioner, as alleged in the petition, he was trying to bring about good relations between Sheikh Mohd Abdulla and the Prime Minister of India and was showing to responsible persons in India that those who are at the helm of affairs in Jammu and Kashmir were in fact putting hurdles in the task of forging greater unity and emotional affinity between the people of the State and the rest of India which according to him did not meet the approval of the present Prime Minister of the State and therefore he was detained,

4. On behalf of the State the Under Secretary to Government, Home Department, has filed an affidavit and the allegations made by the petitioner have been controverted.

5. The learned Counsel for the petitioner has challenged the validity of detention of the petitioner on three grounds, namely {1) that the order of detention has been passed by the Government under Section 3 (1)(a)(i) of the Preventive Detention Act and as the word 'Government' is deleted from Section 3 (xv) of the General Clauses Act which defined 'Government' the authority competent to issue the order has ceased to exist and the order of detention was not expressed to be made by a competent authority; (2) that the order of detention was neither read over nor shown to the petitioner as required under Section 4 of the Preventive Detention Act; and (3) that the order was vindictive and therefore mala fide inasmuch as the petitioner was detained on account of his political differences with the Prime Minister of the State. We shall deal with these contentions ad seriatim.

6. The contention that the detention of the petitioner is invalid because the order of detention had to be issued by the Government under Section 3 of the Preventive Detention Act and as the word 'Government' is not defined as it was formerly defined in Section 3 (xv) of the General Clauses Act. therefore, the order passed is not by a competent authority, is without substance. The validity of this ground of attack depends on a proper understanding of the relevant provisions of the Constitution of Jammu and Kashmir. It is true that the word 'Government' was defined in Section 3 (xv) of the General Clauses Act but by Act XV Order 1957, Section 3, Clause (xv. has been deleted and there is no specific definition of 'Government' in existence. The definition of the word 'Government' has to be derived from the relevant provisions of the Constitution, and the word has to be given the same meaning and construed in the same manner as is intended by the State Constitution.

7. According to Section 26 (2) of the Constitution, the executive power of the State is ested in the Sadar-i- Riyasat and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The executive power, as laid down in Ram Jawaya Kapur v. State of Punjab (S) : [1955]2SCR225 , connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. According to Section 35 (1) of the Constitution of Jammu and Kashmir, the Council of Ministers have to aid and advise the Sadar-i-Riyasat in the exercise of his functions and Sub-section (2) of that section provides that all functions of the Sadar-i-Riyasat except those under Sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers. Under Section 35 of the Constitution, therefore, the Sadar-i-Riyasat has to act according to the advice of the Council of Ministers. In other words, the executive functions of the State have to be exercised by the Sadar-i-Riyasat on the advice of the Council of Ministers. It is the Council of Ministers who have to take decisions and tender advice to the Sadar-i- Riyasat.

8. Under Section 37 (1) of the Constitution there is the collective responsibility of the Council of Ministers. Section 43 of the Constitution provides that the Sadar-i-Rivasat shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business, A conjoint reading of Sections 26, 35, 43 and the Rules of Business made by the Sadar-i-Riyasat shows that all matters need not be referred to the Sadar-i-Riyasat and the decision of the Council of Ministers or any one of the Ministers in charge of the Department in accordance with the Business Rules will be the decision of the Government. That decision will be decision of the Government in the eye of law only if issued as required by Section 13 of the Business Rules. Reliance may be placed on a ruling of the Pepsu High Court, reported as Gursewak Singh Harnam Singh v. State AIR 1954 Pepsu 129 in which it has been held as under:

It is the essence of all democratic Constitutions of the kind we have in this country that even in matters which must be submitted to the Head of the State for his approval the latter is bound to follow the advice given to him by his Ministers but in a case in which the Minister was not bound even to submit the case to the Rajpramukh the orders made by him are final and must be enforced.

9. Section 45 of the State Constitution prescribes two forms of expressing an order of the Government, viz., either in the name of the Sadar-i-Riyasat or of the Government and it further provides that if an order is expressed in either of these two forms and is authenticated according to the Business Rules, the order becomes immune from attack and Its validity cannot be questioned on the ground that it is not an order made by the Government.

10. We have to see whether the impugned order satisfies these requirements. The order is expressed to be in the name of the Government. The provision relating to authentication is to be found in Section 13 of the Jammu and Kashmir Government Business Rules, according to which an order bearing the signature of the Secretary is to be deemed validly authenticated. In the present case the order of detention is issued over the signature of the Chief Secretary. The contention of the counsel for the petitioner is that the Chief Secretary is not at all mentioned in the business Rules and, therefore, the order is not validly authenticated.

11. This contention again is not sound. The Chief Secretary is as much a Secretary as any other Secretary to the Government. In fact he is the first amongst the Secretaries, The order is, therefore, duly authenticated in accordance with the provisions of Section 13.

12. It is further contended that the order of detention was neither read over nor shown to the petitioner. In the affidavit the petitioner has mentioned that the order was not 'delivered' to him. In para (2) of the affidavit filed by the respondent it is mentioned that it was not necessary to deliver a copy of the order to the petitioner and the detention order was duly read over to the petitioner by Mr. Hashia, Superintendent of Police, An objection was raised by the counsel for the petitioner that the affidavit has not been filed by Mr. Hashia who was actually deputed to execute the order of detention. The Advocate General pointed out that the petitioner mentioned in his affidavit that the detention order was not delivered to him, therefore, it was not necessary for the State to make any mention about the fact whether the detention order was shown and read over to the detenu.

13. At this stage the Advocate General requested that he may be allowed to file an affidavit by Mr. Hashia, Superintendent of Police, who had actually served the order on the petitioner. He was allowed to do so and the counsel for the petitioner was asked whether he would also like to file a counter-affidavit and if he wanted to do so, he would be allowed time; but the petitioner's counsel did not desire to file a counter- affidavit. He, however, contended that the respondent should not be allowed to file an affidavit at such a late stage.

14. In view of the fact that there was no specific averment in regard to the fact that the detention order was not shown and read over to the detenu, the respondent could not in the affidavit controvert that allegation. Mr. Hashia who had effected the arrest has filed an affidavit in which he has mentioned that while executing the order of detention, he duly read over the order to the petitioner and showed the same to him.

15. It is argued that Mr. Hashia was not a police officer and that the order of detention could be executed only by a Police Officer, as required under Section 79 of the Criminal Procedure Code.

16. The Deputy Inspector-General of Police authorised Mr. Hashia, Superintendent of Police, who is acting as Principal of the Police Training School, to execute the order. The question for consideration is whether Mr. Hashia, who is Principal of the Police Training School, is a Police Officer or not under the Police Act

17. Our attention has been drawn to the following clause in Section 4 of the Police Act:

Supprintendent of Police' shall include any Assistant Superintendent or other person appointed by general or special order of the Government to perform all or any of the duties of a Superintendent of Police under this Act in any District or part of a district and it is argued that it is necessary that the officer should be in charge of a district or a part of the-district in order that he may be styled as a Superintendent of Police and Mr. Hashia is not in charg of a district or a part of the district but is the-Principal of the Training School; therefore he is-not a Police Officer under the Police Act,

18. This contention is devoid of force. The question before us is not whether Mr, Hashia is-acting as a Superintendent of Police; but whether he is a Police Officer.

19. Section 21 of the Police Act reads asunder;

Police Officers enrolled under this Act shall, not exercise any authority except the authority provided for a Police Officer under this Act and any Act or law for the time being in force, for regulating criminal procedure.

20. Section 23 reads as under;

Every Police Officer shall, for all purposes in this Act contained, be considered to be always on duty, and may at any time be employed as a police officer in any part of the general police district.

21. It is not denied that Mr. Hashia has been appointed as Police Officer or is enrolled as Police-officer under the Act and there is nothing to show that he has been removed from Police service and given some other assignment by the Government. As a Police officer under the Police Act he has been assigned some special job of a Principal of the Training School. It is an internal arrangement made by the Police Department to appoint Mr. Hashia as the Principal of the Training School. All the same he remains a Police Officer under the Act and under Section 79, Criminal P. C., a warrant directed to any Police Officer may also be executed by any other Police Officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

22. The order was forwarded to the Deputy Inspector-General' of Police Kashmir Province for execution as provided by Section 4 of the Jammu and Kashmir Preventive Detention Act. Section 4 of the Preventive Detention Act provides that a detention order may be executed at any place in the State in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure. Under Section 79, Criminal P. C., a Police Officer is competent to execute the warrant. Mr. Hashia may not be acting as a Superintendent of Police of a district or a part of the district but he is a Police Officer under the Act and, therefore, was fully competent to execute the order of detention. He has made an endorsement that he read over the order of detention to Shree Kashyap Bandhu and the detenue was handed over to the Superintendent of Central Jail, Srinagar. In his affidavit Mr. Hashia has stated that he read over the order of detention to the petitioner and showed the same to him, In these circumstances there is no force in the above contention of the counsel for the petitioner,

23. Lastly it is argued that the order was mala fide and deserved to be vacated. It is admitted by the counsel that the grounds on which the order of detention was made is a matter of subjective satisfaction of the Government; but his contention is that the order being based on political differences is vindictive and, therefore, illegal.

24. In this case, after the Government was satisfied that there were grounds on the basis of which Shree Kashyap Bundhu should be detained, the order of detention was made. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law as far the order of detention is concerned, Shree Kashyap Bandu has been detained with a view to prevent him from acting in any manner prejudicial to the security of the State, and therefore, he has not been supplied with the grounds of detention.

25. In para 17 of his affidavit the petitioner stated that due to the differences between him and the Prime Minister he was arrested in 1953 when he was holding the Post of Director General of Rural Departments and that the petitioner was kept in detention for more than 2 1/2 years. He did not challenge his previous detention on the grounds of political differences which according to him existed before 1953. The petitioner was released after 2 1/2 years detention and was again arrested in April 1958. It is now that the petitioner makes a grievance of the fact that due to political differences he has been arrested.

26. If the motive of arrest was political differences the petitioner would have certainly alleged the same when he was arrested for the first time but no such grievance was ever made during his previous detention. Even if we assume that he had some political differences with the Prime Minister some time in the past that would not make his detention mala fide unless the petitioner shows that there are patent facts on which the detention is based and which have absolutely no connection with the object which the legislature has in view., namely the prevention of acts prejudicial to the security of the State. In this view we are fortified by a ruling of the Supreme Court reported as Sodhi Shamsher Singh v. State of Pepsu : AIR1954SC276 , in which it has been held as under:

It has been held by this Court, on more occasions than one, that the propriety or reasonableness of the satisfaction of the Central or the State Government upon which an order for detention under Section 3, Preventive Detention Act, is based, cannot be raised in this Court and we cannot be invited to undertake an investigation into sufficiency of the matters upon which such satisfaction purports to be grounded. We can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of objects prejudicial to the defence of India or to the security of State and maintenance of law and order therein.

27. In this case the petitioner has_ not made out any facts which would show that his detention is mala 6de. On the other hand the Advocate-General has submitted that on the basis of Police reports the decision for detaining the petitioner was taken by the Government with a view to preventing him from acting in a manner prejudicial to the security of the State.

28. It is contended that averments made in the affidavit ought to have been specifically denied by the person, i. e., the Prime Minister of the State against whom allegations were made in the affidavit. In our opinion it was not necessary for the Prime Minister personally to deny the allegations made by the petitioner in his affidavit. The Under Secretary to Government, Home Department, has specifically mentioned that the petitioner has been detained not for any ulterior purposes but purely in the public interest as the Government were satisfied that the activities of the petitioned were calculated to undermine the security of the State. The insinuations made in para 16 by the petitioner that his detention was actuated by reasons of personal animosity towards him on the part of any member of the Jammu and Kashmir Government have been completely denied and the information which the deponent has derived is based upon official record and other official sources. The fact that official sources are mentioned by the deponent from which he has received information shows that he has consulted the concerned persons against whom allegations are made by the petitioner. Wo, therefore, do not see any force in this contention as well.

29. In the result we are not prepared to interfere with the detention order against the petitioner and reject this petition.

K.V. Gopalakrishnan Nair, J.

30. I agree.


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