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Vijay Kumar Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1975CriLJ1528
AppellantVijay Kumar
RespondentDistrict Magistrate and ors.
Cases ReferredAbdul Jabar Butt v. The State of Jammu and Kashmir
Excerpt:
- .....observed:the period of time predicated by the phrase 'as soon as may be' begins to run from the time the detention in pursuance of the detention order begins, and to communicate the grounds 'as soon as may be' may well be said to mean to do so within a reasonable time with an understanding to do it within the shortest possible time. whenever the question of reasonableness arises in computing the period of time the court has perforce to have regard to the particular circumstances of the ease in which the question arises for decision. it may not be possible in many cases to affirmatively say or to precisely quantify the period of time by reference to hours, days or months, nevertheless, it is possible, having regard to the circumstances of the case, to say whether the thing done was or.....
Judgment:

Jaswant Singh, C.J.

1. This reference by Hqn'ble Mufti Baha-ud-Din Farooqi, J., arises in the following circumstances:

By order No. 36 of 1975 made by the District Magistrate, Jammu, on February 7, 1975, in exercise of the power conferred on him by Section 3(2) read with Section 5 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the Act') the petitioner who is a citizen of India and a permanent resident of the State was ordered to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were served on the petitioner on February 11, 1975, pursuant to the District Magistrate's order of even date. On February 25, 1975, the petitioner filed before this Court a petition under Article 32(2-A) of the Constitution of India read with Section 103 of the State Constitution being petition No. 287 of 1975, challenging his detention contending inter alia that Section 8(1) of the Act which vested a discretion in the detaining authority to communicate the grounds of detention to a detenu within five days in the ordinary course and not later than fifteen days in exceptional circumstances from the date of detention was unconstitutional being violative of Articles 21 and 22 of the Constitution of India. On the petition coming up for hearing before Mufti Baha-ud-Din Farooqi, J., the learned Counsel for the petitioner reiterated the aforesaid contention raised in the petition to the effect that Section 8(1) of the Act was hit by Articles 21 and 22 of the Constitution of India. Feeling that the point raised before him was of considerable importance and was not covered by any decision of the Supreme Court or of this Court the learned Judge ordered the papers to be placed before the Chief Justice for constituting a larger Bench for determination of the vires of Section 8(1) of the Act. This is how the petition is before us.

The case has been very ably argued by the learned Counsel for the parties.

2. Appearing on behalf of the petitioner Mr. Sharma has advanced a very Ingenious argument. He has submitted that the expression 'as soon as may be' occurring in Clause (5) of Article 22 of the Constitution of India has the same meaning as it has under Clause (1) of that Article. Elaborating his contention the learned Counsel has submitted that since a person arrested for the alleged contravention of a penal law has to be informed of the grounds of his arrest either at that very time or within a period of twenty-four hours of his arrest when he is produced before the nearest Magistrate, the communication of the grounds of detention to a detenu cannot also be delayed beyond twenty-four hours of is(sic) arrest and that Section 8 of the Act which gives a discretion to the detaining authority to communicate the grounds of detention within five days in the ordinary course and within fifteen days in the abnormal course, as already stated, is unconstitutional being repugnant to Clauses (1) and (2) of Article 32 of the Constitution. He has further contended that since the founding fathers of the Constitution provided in Clauses (1) and (2) of Article 22 that the grounds of arrest must be communicated to the person arrested for contravention of a penal law within twenty-four hours of his arrest, a different intention cannot be imputed to them in respect of an arrest made under a law relating to preventive detention. He has in support of his contention invited our attention to the following sentence occurring at, page 276 in 'the Interpretation of Statutes' by Sir Peter Benson Maxwell (English Edition):

It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act.

3. Mr. Amarchand has, on the other hand, urged that Sub-section (1) of Section 8 of the Act is perfectly valid and constitutional. He has submitted that the expression 'as soon as may be' occurring in the aforesaid provision which is merely a reproduction of Clause (5) of Article 22 of the Constitution postulates a reasonably convenient time and that the fact that it is not susceptible of the interpretation sought to be placed on it by Mr. Sharma is evident from the language of Clause (3), of Article 22 of the Constitution.

4. We have given our anxious consideration to the submissions made by the learned Counsel for the petitioner but find ourselves unable to accede to his contention. It is true that Sections 54, 61 and 167 of the Code of Criminal Procedure read with Clauses (1) and (2) of Article 22 of the Constitution require that a person arrested for being concerned in the commission of a cognizable offence or reasonably suspected of being so concerned has to be informed instantly of the grounds of his arrest or at the utmost within 24 hours thereof when he is produced before the nearest Magistrate who is required to satisfy himself that the person has been informed of the grounds of arrest but the same standard of time cannot be demanded by a person who is arrested under a law relating to preventive detention. This would be abundantly clear from the plain reading of Clause (3) of Article 22 of the Constitution which runs as follows:

(3) Nothing in Clauses (1) and (2) shall apply:

(a) to any person who for the thug being is an enemy alien, or

(b) to any person who is arrested or detained under any law providing for prevention detention.

The opening words of Clause (3) of Article 22 as reproduced above namely 'Nothing in Clauses (1) and (2)' are very significant. They completely exclude the applicability of Clauses (1) and (2) of the Article to any person arrested or detained under any law provided for preventive detention and leave no room for doubt that the expression 'as soon as may be' occurring in Clause (5) of Article 22 of the Constitution has not to be understood in the same sense as in Clauses (1) and (2) of that Article.

5. The aforesaid rule of construction to which our attention has been invited by Mr. Sharma is of no avail to the petitioner as a contrary intent is clearly discernible from the aforesaid words of Clause (3) of Article 22. They make it crystal clear that it is not at all obligatory for the detaining authority to communicate the grounds of detention to the detenu within twenty-four hours of his detention.

6. The expression 'as soon as may be' has been interpreted as meaning 'reasonably convenient' in a catena of decision of their Lordships of the Supreme Court and various High Courts.

The phrase 'as soon as may be' seems to have come up for consideration before a Full Bench of the Bombay High Court in Re Pandurang Kashinath More AIR 1951 Bom 30 : 52 Cri LJ 366 (FB), where the learned Chief Justice observed at page 31 (of AIR) : (at p. 366 of Cri LJ) as under:

But the time taken for the furnishing of the grounds must be a reasonable time, reasonable in the circumstances of each case and therefore when the court has to consider on any particular application as to whether the time taken by the authority in furnishing the grounds was reasonable or not, the court must look to the particular circumstances of the case before it. It is impossible to lay down a definite and unchangeable yardstick by which the court must judge as to whether the time taken in a particular case was reasonable or not.

The aforesaid phrase again came up for interpretation before a Full Bench of Hyderabad High Court in B Santhamma v. State of Hyderabad AIR 1951 Hyd 128 : 52 Cri LJ 1402 (FB), where it was held:

The phrase 'as soon as may be' in Article 22(5) does not exclude reasonable time for formulating the grounds on the material in the possession of the authority. The time must necessarily vary with the activities of the person and the other circumstances of the case. It is therefore a question of fact in each case whether there has been a delay.

The expression 'as soon as may be' again came up for consideration before the Supreme Court in Ujagar Singh v. The State of Punjab : [1952]1SCR756 where the Court observed that the expression meant with a 'reasonable despatch' and then proceeded to say that what was reasonable must depend on the facts of each case and no arbitrary time-limit could be set down.

In Keshav Nilkanth Joglekar v. The Commissioner of Police : 1957CriLJ10 where the word 'forthwith' occurring in Section 3(3) of the Indian Preventive Detention Act (IV of 1950) came up for consideration, the Supreme Court after observing that the word 'forthwith' occurring in Section 3(3) of that Act did not mean the same thing as 'as soon as may be' used in Section 7 of the same Act, proceeded to observe that the former was more peremptory than the latter, and that the time that was allowed to the authority to communicate the grounds to the detenu was predicated by the expression 'as soon as may be' which meant 'what was reasonably convenient' or 'reasonably requisite'.'

Relying on their aforesaid earlier decisions their Lordships of the Supreme Court in Abdul Jabar Butt v. The State of Jammu and Kashmir : 1957CriLJ404 observed:

The period of time predicated by the phrase 'as soon as may be' begins to run from the time the detention in pursuance of the detention order begins, And to communicate the grounds 'as soon as may be' may well be said to mean to do so within a reasonable time with an understanding to do it within the shortest possible time. Whenever the question of reasonableness arises in computing the period of time the Court has perforce to have regard to the particular circumstances of the ease in which the question arises for decision. It may not be possible In many cases to affirmatively say or to precisely quantify the period of time by reference to hours, days or months, nevertheless, it is possible, having regard to the circumstances of the case, to say whether the thing done was or was not done 'as soon as may be' within the time which was reasonably convenient or requisite.

7. It will also be seen that although Clause (5) of Article 22 of the Constitution uses the expression 'as soon as may be' which means that the grounds of detention can be communicated within a reasonably convenient time depending on the facts and circumstances of each case, the width of the discretion allowed by the clause has been considerably curtailed by virtue of Section 8(1) of the Act. The maximum time-limit within which the grounds of detention have under this provision to be communicated to the detenu has been set down as five days in the ordinary circumstances and 15 days in exceptional circumstances.

For the foregoing reasons we do not find that the impugned provision of the Act is in any manner inconsistent with Articles 21 and 22 of the Constitution and hold the same to be perfectly valid and constitutional.

The case shall now go back to the learned Single Judge for disposal on merits.

Mian Jalal-Ud-Din, J.

8. I agree.


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