Keshav Nilkanth Joglekar Vs. The
Commissioner of Police, Greater Bombay  INSC 45 (17 September 1956)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
(CJ) SINHA, BHUVNESHWAR P.
MENON, P. GOVINDA
CITATION: 1957 AIR 28 1956 SCR 653
Preventive detention-Detention order by the
Commissioner-of Police-Duty to report forthwith to the State Government "Forthwith",
Meaning of-Time taken for sending report Validity of detention-Preventive
Detention Act, 1950 (IV of 1950), ss. 3(3), 7.
Section 3(3) of the Preventive Detention Act,
1950, provides that when an order of detention is made by an officer mentioned
in s. 3(2) he shall forthwith report the fact to the State Government together
with the grounds on which the order has been made..... And no such order......
shall remain in force for more than twelve days after the making thereof unless
in the meantime it has been approved by the State Government.
On 13th January 1956 the Commissioner of
Police, Bombay, passed orders under s. 3(2) of the Preventive Detention Act, 1950
directing the detention of the petitioners and in pursuance thereof' they were
arrested on 16th January 1956 The grounds on which the orders were made were
furnished to the--petitioners on 20th January 1956 and the next day the
Commissioner reported the fact of the order and the grounds there for to the
State Government which approved of the same on 23rd January 1956. The
petitioners contested the validity of the detention on the ground that when the
Commissioner passed the orders for detention on 13th January 1956 it was his
duty under s. 3(3) to report that fact forthwith to the State Government, and
as he did not do so until 21st January'1956 he had acted in contravention of
the statute and that the detention was therefore illegal. It was found that the
delay in sending the report could not have been avoided by the Commissioner and
that it was due to causes to which the petitioners had very largely contributed.
Held, that the word "forthwith" in
s. 3(3) of the Preventive Detention Act, 1950, has not a fixed and an absolute
meaning and it must be construed with reference to the object of the section
and the circumstances of the case. It cannot mean the same thing as "as
soon as may be" in s. 7 of the Act and the former is more peremptory than
the latter. The difference between the two . expressions lies in this that
while under a. 7 the time that is allowed to the authority to send the
communication to the detenu is what is reasonably convenient, under s. 3(3)
what is allowed is only the 654 period during which he could not, without any
fault of his own, send the report.
An act which is to be done forthwith must be
held to have been so done when it is done with all reasonable despatch and
without avoidable delay.
The Queen v. The Justices of Berkshire
([1878-79] 4 Q.B.D. 469), Hudson and others v. Hill and others ( 43 L. J.
C.P. 273), and Beg. v. Price, (8 Moore P.C. 203), relied on.
ORIGINAL JURISDICTION: Petitions Nos. 102,105
to 110 of 1956.
Petitions under Article 32 of the
Constitution for writs in the nature of Habeas Corpus.
N. C. Chatterjee, Sadhan Chandra Gupta and
janardhan Sharma; for petitioners in Petitions Nos. 102, 105 to 108 of 1956.
Sadhan Chandra Gupta and Janardhan Sharma,
for petitioners in Petitions Nos. 109 and 110 of 1956.
C.K.Daphtary, SoliCitor-General for India,
Porus A. Mehta and R. H Dhebar, for respondents in Petitions Nos. 102 and 105
Porus A. Mehta and R. H. Dhebar, for
respondents in Petitions Nos. 106 to 110 of 1956.
1956. September 17. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-These are petitions filed under article
32 of the Constitution for the issue of writs in the nature of habeas corpus.
They arise on the same facts and raise the same questions.
On 13-1-1956 the Commissioner of Police,
Bombay, passed orders under section 3(2) of the Preventive Detention Act IV of
1950 (hereinafter referred to as the Act), directing the detention of the
present petitioners, and pursuant thereto, they were actually arrested on
16-1-1956. The grounds on which the orders were made were formulated on
19-1-1956, and communicated to the petitioners the next day. On 21-1-1956 the
Commissioner reported the fact of the order and the grounds there for to the
State Government, which approved of the same on 231-1956.
The contention of the petitioners before us
is that when the Commissioner passed the orders for detention on 13-1-1956, it
was his duty under section 3(3) to report that fact forthwith to the State
Government -and as be did not do so until 21-1-1956, he had acted in
contravention of the statute, and that the detention was therefore illegal.
That raises the question as to what "forthwith" in section 3 (3) of
the Act signifies, and whether on the facts the report was made
"forthwith", within the meaning of that word in that sub-section.
The word "forthwith", it has been
observed, is of elastic import. In its literal sense, it might be construed as
meaning that the act to be performed forthwith in relation to another should
follow it automatically without any interval of time, or, -as held in some of
the American authorities, should be performed at one and the same time as the
other. But even in America, the preponderance of judicial opinion does not
favour this construction. In Corpus Juris, Volume 26, page 998 the position is
"Although the term has received a strict
construction, ordinarily it is not to be strictly construed, but should receive
a liberal or reasonable construction-. Some regard must be had to the nature of
the act or thing to be performed and the circumstances of the case".
In England, there is a long catena of
decisions interpreting the word "forthwith" occurring in statutes,
rules and contracts, and their trend has been to construe it liberally. As
early as 1767, discussing the meaning of the word 'immediately'--and the word
"forthwith" his been held to have the same significance-Lord
Hardwicke observed in Rex v. Francis "But then the word immediately, is
strongly insisted on, as, a word which excludes all mesne acts and time; and
therefore,-that this taking away the money must necessarily be 'in the presence
of Cox. (1) Cun. 165; 94 E.R. 1129, 1183.
656 But all the nine Judges held this word
immediately, to be of so loose a signification, and not to imply necessarily,
that the money was taken away in Cox's presence. For this word does neither in
its use and application, nor in its grammatical construction, exclude all mesne
acts or time But it is more necessary and proper in this case, to consider the
signification of this word in the legal, way. And it is plain, that in this
acceptation, it is not understood to exclude mesne acts or time And on the
Statute Hue and Cry, 27 Eliz. c. 13, s. 11, where' the words with as much
convenient speed as may be, are made use of, all the precedents have expressed
these words, by the word immediate, as may be seen in the books. The last case
which I shall mention on this point, is that of the writs-of habeas corpus,
issuing out of this Court, which are most frequently made returnable immediately;
and in this case the word is never understood either to exclude mesne acts or
time, but only means, with convenient speed In Beg. v. The Justices of
Worcester(1), where the question was as to the meaning of the word
"forthwith" in section 50 of 6 Will. IV, Coleridge, J. observed:
"I agree that this word 'forthwith' is
not to receive a strict construction like the word 'immediately',, so that
whatever follows, must be done immediately after that which has been done
before. By referring to section 50, it seems that whatever is to be done under
it, ought to be done without any unreasonable delay. I think that the word
'forthwith' there used, must be considered as having that meaning' The meaning
of the word "immediately" came up for consideration in Thompson v.
Gibson(2). Holding that it was not to be construed literally, Lord Abinger C.
"If they" (acts of Parliament)
"could be construed literally, consistently with common sense and justice,
undoubtedly they ought; and if I could see, (1)  7 Dowl. Pr. Cas.
789-791: 54 R.R. 902 (903).
(2) (1841] 8 M. & NV. 282 151 E.R.
657 upon this act of, Parliament, that it was
the intention of the legislature that not a single moment's interval should
take place before the granting of the certificate, I should think myself bound
to defer to that declared intention. But it is admitted that this cannot be its
interpretation; we are therefore to see how, consistently with common sense and
the principles of justice, the words 'immediately afterwards' are to be
construed. If they do not mean that it is to be done the very instant
afterwards do they mean within ten minutes, or a quarter of an hour,
afterwards? I think we should interpret them to mean, within such reasonable
time as will exclude the danger of intervening facts operating upon the mind of
the Judge, so as to disturb the impression made upon it by the evidence in the
In agreeing with this opinion, Alderson, B.
expressly approved of the decision of Lord Hardwicke in Rex v. Francis(1). This
construction of the word 'immediately' was adopted in Page v. Pearce(), Lord
Abinger C. B. observing:
"It has already been decided, and
necessarily so, that the words 'immediately afterwards' in the statute, cannot
be construed literally; and if you abandon the literal construction of the
words, what can you substitute but 'within a reasonable time?'...." In The
Queen v. The Justice-3 of Berkshire(3), where the point was as to the meaning
of "forthwith" in section 52 of 35 & 36 Vict., Chapter 94,
Cockburn C. J. observed:
"The question is substantially one of
fact. It is impossible to lay down any bard and fast rule as to what is the
meaning of the word 'immediately', in all cases. The words 'forthwith' and
'immediately' have the same meaning.
They are stronger than the expression within
a reasonable time', and imply prompt, vigorous action, without any delay, and
whether there has been such action is a question of fact, having regard to the
circumstances of the particular case".
(1) dun. 165: 94 E.R. 1129, 1188.
(2)  8 M. & W. 677 (678): 161 E.R.
(3) [1878-79] 4 Q.B.D. 469 (471).
658 The same construction. has been put on
the word "forthwith " occurring in contracts. In Hudson and others v.
Hill and others(1) which was a case of charterparty, it was observed at page
" Forthwith' means without unreasonable
delay. The difference between undertaking to do something 'forthwith' and
kithin a specified time is familiar to everyone conversant with law. To do a
thing 'forthwith' is to do it as soon as is reasonably convenient".
In Reg. v. Price(2), it was held by the Privy
Council that the word "forthwith" in a bail bond meant within a
reasonable time from the service of notice. On these authorities, it may be
taken, an act which is to be done forthwith must be held to have been so done,
when it is done with all reasonable despatch and without avoidable delay.
But it is argued by Mr. N. C. Chatterjee that
the view taken in the above decisions as to the meaning of the word
"forthwith" has been abandoned in the later decisions, and that under
the law as it stands, when an act has to be performed forthwith in relation to
another, what has to be decided is not whether it was done within a reasonable
time, but whether it was done so closely upon the other as to form together one
continuous act. He relied in support of this opinion on the decision in Be
Muscovitch(3), affirming that in Re Muscovitch(1). That was a decision on rule
132 of the Bankruptcy Rules which provided that "Upon entering an appeal,
a copy of the notice of appeal shall forthwith be sent by the appellant to the
registrar of the court appealed from". The facts were that the appeal was
lodged in time on 25-10-1938 but the notice was served on 28-10-1938, and it
was found that there was "no satisfactory reason or no reason at all, why
there was any delay in the matter" (Re Muscovitch (4)). On that, it was
held that the requisition that "the notice shall forthwith be sent"
was not satisfied.
This is authority only for the position that
when an Act is done after an interval of time and there is no explanation
forthcoming for (1)  43 L.J. C.P. 273 (280).
(2) 8 Moore P.C. 208: 14 E.R. 78.
(3)  1 A.E.R. 135.
(4)  4 A.E.R. 570, 659 the delay, it
cannot be held to have been done "forthwith".
That is made clear by Sir Wilfrid Greene M.
R. in the following passage in Re Muscovitch(1) at page 139:
"Having regard to the construction which
was put upon the word 'forthwith' which is peremptory, and. admits of no
interval of time between the entry of the appeal and the sending of the notice
save such as may be imposed by circumstances, which cannot be avoided, I find
it impossible in the present case to say that the notice was sent forthwith
within the meaning of the rule".
Reliance is also placed for the petitioners
on the decision in Ex parte Lamb: In re Southam(2), which was followed in Re
Muscovitch(1). There, construing the word "forthwith" in rule 144 of
the Bankruptcy Rules, 1870, which corresponds to rule 132, which was the
subject of interpretation in Re Muscovitch(1), Jessel M. R. observed at page
"Ithink that the word 'forthwith' must
be construed according to the circumstances in which it is used Where, as in
Hyde v. Watt8(3), there isa covenant to insure a man's life, there must of
necessity be some delay, for the act could not be done in a moment. But where
an act which is required to be done 'forthwith' can be done without delay, it
ought to be so done".
In that case also, the learned Judges found
that the delay was not explained. And the observation of Lush L. J. in the same
case was that "the word 'forthwith' has not -a fixed and an absolute
meaning; it must be construed with reference to the objects of the rule and the
circumstances of the case". There is nothing in the decisions in Re
Muscovitch(1) and Ex parte Lamb: In re Southam(2) which can be considered as
marking a departure from the construction put on the word "forthwith"
in the earlier authorities that it meant only that the act should be performed
with reasonable speed and expedition, and that any delay in the matter should
be satisfactorily explained.
(1)  1 A.E.R. 185 (2) [1881-82] 19 Ch.
(3) 12 M & W. 254.
660 It is argued for the petitioners that
even if the con.
struction put on the word
"forthwith" in the above decisions is accepted as correct, it must,
in any event, yield to any contrary intention expressed in the statute, and
that the provisions of the Act afforded clear indication of such an intention.
It is co intended that the legislature while providing in section 7 that the
grounds should be communicated to the detenu "as soon as may be" has
enacted that the report under section 3(3) should be sent "forthwith",
that the use of two different expressions in the two sections is a clear
indication that they do not mean the same thing, that as the words "as
soon as may be" import that the act might be performed in a reasonable
time, the word "forthwith" which is more peremptory must be construed
as excluding it. The decisions in Emperor v. Phuchai(1) and in K. U. Kulkarni
v. Ganpat Teli(2) were quoted in support of the position that when two
different expressions are used in different parts of the same clause or
section, they should be construed as used in different senses.
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 7 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 inter-val 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.
(1) I.L.R. 50 All. 909: A.I.R. 1929 All. 38.
(2) I.L.R.  Bom. 287: A.I.R. 1942 Bom.
661 It was contended that as section 7
required that the communication should be made not later than 5 days from the
date of the order, and as section 3(3) was more peremptory than section 7 in
that it required that the report should be made forthwith, the period allowable
under section 3(3) could not exceed 5 days, and that as in these cases the
reports were sent 8 days later, they could not be held to have been sent
forthwith. This argument mixes up two different matters contained in section 7.
The period of 5 days provided therein-is an absolute one and is independent of
the period which is permissible under the expression "as soon as may
be", which must, by its very nature, be indefinite depending on the facts
and circumstances of the case. It will be as erroneous to read 5 days into the
period allowable under the expression "as soon as may be" as to read
the 12 days within which the State has to approve the order under section 3(3)
into the period which is allowable under the expression "forthwith".
The result then is that the report sent by the Commissioner to the State on
21-1-1956 could be held to have been sent "forthwith" as required by
section 3(3), only if the authority could satisfy us that, in spite of all
diligence, it was not in a position to send the report during the period from
13th to 21st January 1956.
We must now examine the facts from the above
The Commissioner of Police has filed an
affidavit explaining why the reports were not sent till 21,st January 1956,
though the orders themselves had been made as early as 13th January 1956. Ever
since the publication of the proposal to form a State of Maharashtra without
the city of Bombay, there ,had been considerable agitation for the
establishment of a Samyuktha Maharashtra with the city of Bombay included in
it. An action committee had been set up on 15-11-1955 for the purpose, and
there had been hartal and morchas resulting in outbursts of lawlessness and
violence and in the burning of a police chowki. The final decision on the
question was expected to be taken and announced in the middle of January 1956,
and the atmosphere was highly surcharged. It was in this situation that the
Commissioner decided to take action under section 3(2) of the Act against the
leading spirits of -the movement, and passed the present orders for detention
against the petitioners on 13-1-1956. In his affidavit the Commissioner states
that he decided first "to locate the persons against whom orders of
detention were made by me on the 13th January 1956 and after having done so, to
arrest all of them simultaneously so that none of them may go underground or
abscond or evade execution of the detention orders". Then the affidavit
goes on to state:
"It was not possible for me to send the
report earlier as the situation in the City of Greater Bombay was tense,
pregnant with danger on the 13th January 1956, and continued to be so till 16th
January 1956, and actual rioting occurred during that night and those riots
continued till 22nd January 1956. I and my staff were kept extremely busy all
throughout in maintaining law and order and simultaneously taking steps to
round up miscreants. In this unusual and tense situation, it was not possible
to make a report earlier than the day on which it was made". We see no
reason for not accepting these statements. What happened on the 16th and the
following days are now matters of history. The great city of Bombay was
convulsed in disorders, which are among the worst that this country has
witnessed. The Bombay police had a most difficult task to perform in securing
life and property, and the authorities must have been working at high pressure
in maintaining law and order. It is obvious that the Commissioner was not
sleeping over the orders which he had passed or lounging supinely over them.
The delay such as it is due, to causes not of his making, but to causes to
which the activities of the petitioners very largely contributed. We have no
hesitation in accepting the affidavit, and we bold that the delay in sending the
report could not have been avoided by the Commissioner and that when they were
sent by him, they were sent "forthwith" within the meaning of section
3(3) of the Act. 663 Mr. S. C. Gupta put forward some special contentions on
behalf of the petitioners in C.M.Ps. Nos. 109 and 110 of 1956. He contended
that as the order originally made against the petitioner in C.M.P. No. 109 of
1956 was that he should be detained in Arthur Road Prison, Bombay the
subsequent order of the Commissioner by which he was detained in Nasik Prison
was without jurisdiction. It is clear from the affidavit of the Commissioner
that the petitioner was not ordered to be detained in Arthur Road Prison but in
Nasik Road Central Prison, and that he was kept temporarily in Arthur Road Prison,
pending arrangements to transport him to Nasik. It was next contended that the
materials on which the orders of detention were made and set out in the
communications addressed to the petitioners all related to their past
activities, and that they could not constitute grounds for detention in future.
This contention is clearly unsound. What a person is likely to do in future can
only be a matter of inference from various circumstances, and his past record
will be valuable, and often the only, record on which it could be made. It was
finally contended that what was alleged against the petitioners was only that
they advocated hartal, and that was not a ground for making an order of
detention. But the charge in these cases was that the petitioners instigated
hartal bringing about a complete stoppage of work, business and transport with
a view to promote lawlessness and disorder, and that is a ground on which an
order could be made under section 3(2).
All the contentions urged by the petitioners
therefore fail, and these petitions must be dismissed.