Niranjan Singh Vs. State of
Madhya-Pradesh  INSC 149 (18 July 1972)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
MATHEW, KUTTYIL KURIEN
CITATION: 1972 AIR 2215 1973 SCR (1) 691 1972
SCC (2) 542
CITATOR INFO :
F 1974 SC 679 (7) RF 1976 SC1207 (560) RF 1980
SC1983 (4) RF 1981 SC 728 (5,12) R 1984 SC 444 (26) RF 1987 SC1977 (4) R 1989
SC1861 (15) R 1990 SC1597 (19)
Constitution of India 1950 Art. 22(5) State
Govt. must consider detenu's representation expeditiously-when there is
inordinate delay, which is unexplained the detention must be held to be
Res Judicata-Petition under Art. 226
rejected-Petition under Art. 32 whether barred by res judicata.
The District Magistrate of Gwalior by; his
order dated May 26, 1971 under s. 2-A of the Madhya Pradesh Public Security Act
(Amendment Act) of 1970 detained the petitioner 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 detenu. The petitioner made a
representation within the prescribed period to the State Government on June 19,
1971. it was dismissed by the Governor of Madhya Pradesh on August 17, 1971,
and the Government directed that the order of detention would remain in force
till 26th May 1972. The petitioner filed a writ petition under Art. 226 of the
Constitution challenging the detention order. The petition was rejected by the
High Court. Thereupon the petitioner filed a writ petition under Art. 32 of the
Constitution in this Court. A preliminary objection was taken 'on behalf of the
respondent that the writ petition under Art. 226 having' been dismissed, the
petition under Art. 32 was barred by res iudicata. In support of the petition
it was urged that the order c the State Government rejecting the petitioner's
representation was made after undue delay and was therefore in violation of
HELD: (i) In view of the earlier decisions of
this Court the plea of res judicata must be rejected. [693C-F] Ghulam Sarvar v.
Union of India and others  2 S.C.R.
271 and Writ Petitions Nos. 227 and 228 of
1969 decided on September 16, 1969 relied on.
(ii) The words "afford him the earliest
opportunity" in Art.
22(5) have been interpreted by the Court in
Abul Kasim's cage to imply that the State Government to whom the representation
'is made should properly consider it as expeditiously as possible. In
Jayanarayan Sukul's case also this Court held that the detenu's representation
must be considered expeditiously and before reference is made to the Advisory
Board. [694C-F] In the present case the petitioner had specifically given the
date of his representation and the date on which he said it was considered and
rejected. On the face of it there had been inordinate delay which made it
incumbent on the State to explain it and satisfy the Court that there was
justification for that delay. Since the State had not filed any
counter-affidavit explaining why the representation of the detenu had not been
expeditiously disposed of nor had it chosen to set out the various steps taken
to comply with the mandatory provisions of the Act, the detention must be held
to he illegal. [696F-G] Abdul Karim and others v. State of West Bengal, 
3 S.C.R. 479, and Jayanarayan Sukul v. State of West Bengal,  3 S.C.R.
225, relied on.
692 Arun Kumar Roy Katu v. State of West
Bengal, (Writ Petition No,, 52/1972) distinguished.
Prof. Khaidem lbocha Singh v. The State of
1972 S.C. 438 and Ranjit Singh v. State of
West Bengal (W.P. No. 14/1972 decided by Shelat and Khanna, J.J. an 24th April,
1972), referred to.
ORIGINAL JURISDICTION: Writ Petition No. 450
Petition under article 32 of the Constitution
for issue of a writ in the nature of habeas corpus.
R. K.Garg, for the petitioner.
R. P. Kapur and I. N. Shroff, for the
The Judgment of the Court was delivered by
Jaganmohan Reddy, J By this application under Art. 32 of the Constitution, the
petitioner challenges his detention under s. 2-A of the Madhya Pradesh Public
Security Act (Amendment Act) of 1970 (hereinafter called the 'Act'). The
District Magistrate of Gwalior by his order dated May 26, 1971 under the said
Act thought it necessary to detain the petitioner with a view to preventing him
from acting in any manner prejudicial to the maintenance of public order. The,
grounds on which the detention was sought to be justified were dated the same
day and appear to have been served on the detenu, though it is not apparent on
what date those grounds were served on him. As he was informed by the
Government that he has a right to make a representation within a period of 30
days, the petitioner says that he submitted his representation to the State
Government on June 19, 1971 but here again there is nothing to show from the
counter affidavit of the respondent as to when that representation was received
or on that date it was considered and rejected. The petitioner, however,
alleges that his representation was dismissed on August 17, 1971 by the
Governor of Madhya Pradesh relying on the recommendation of the Advisory Board.
In other words, it is his contention that his representation was not considered
tiff after the Advisory Board had given its opinion to the State Government and
only then it was rejected. Whether this is so or not, we are in no position to
ascertain. It is true that the Advisory Board, as appears from the order of the
Governor, was of the opinion that there exists sufficient grounds for the
detention of the petitioner and consequently the Government acting on that
opinion confirmed the order of detention passed against the petitioner and
directed that the order of detention shall remain in force till 26th May, 1972.
The detenu filed a Writ Petition in the High Court of Madhya Pradesh under Art.
226 of the Constitution challenging the detention order on the ground that his
previous conviction in 1964 could not form the 693 basis for detention and that
the other grounds mentioned in the grounds served on him were all vague and
non-existent as on the date the detention order was passed, Jagmohan was no
more. Even the ground that in May-June, 1969, four rifles of 303 bore were
given to Sobran Singh for Rs. 4,000/was also. vague. This petition was,
however, rejected by a Division Bench of the High Court by its judgment dated September
The learned advocate on behalf of the State
of Madhya Pradesh, at the outset, raised a preliminary objection to the
maintainability of this petition because according to him the dismissal of the
petition of the detenu by the High Court under Art. 226 operates as yes
judicata. This contention is opposed to the view taken by this Court. In Ghulam
Sarvar v. Union of India and others(1) a Constitution Bench held that the order
of the High Court does not operate as res judicata. We are not here concerned
with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri,
and Shelat, JJ. and the other by Bachawat, J. for arriving at this conclusion
except to state that the majority was of the view that it does not operate as
res judicata as it is not a judgment and also because the principle is
inapplicable to a fundamentally lawless order which this Court has to decide on
merits. Bachawat, J.
while substantially agreeing with this view
thought that the order of the High Court is not a judgment and the previous
dismissal of such a petition by the High Court is only one of the matters taken
into consideration under O.35 rr. 3 and 4 of the Supreme Court Rules before
issuing a rule nisi.
The petitioner, however, would not have a
right to move this Court under Art. 32 more than once on the same facts. In
Writ Petitions Nos. 227 and 228 of 1969 decided on September 16, 1969, a
similar view as that expressed by the majority was expressed, viz., that there
is no bar of res judicata to a petition under Art. 32 in a case where earlier
the High Court had dismissed the petition under Art. 226. In view of this legal
position, we. reject the preliminary objection.
The learned advocate for the petitioner
contends inter alia that since the State has not in its counter affidavit
denied the allegation made in the petition nor has it stated when it is that
the representation of the petitioner was considered and dismissed, the
detention is illegal inasmuch as the right to make a representation as well as
to have it considered and determined is a valuable right implicit in clause (5)
of Art. 22. As the law relating to preventive detention, which has to conform
to the limits imposed in Art. 22, is a restriction on the fundamental right of
the freedom of a citizen, it has necessarily to be construed in a (1)  2.
694 manner which will not restrict that right
to any extent greater than is necessary to effectuate the object of that
provision. Clause (5) of Art. 22 prescribes that "When any person is
detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford
him the earliest opportunity of making representation against the order."
The words "afford him the earlier opportunity" in this clause have
been interpreted by this Court in Abdul Karim and others v. State of West
Bengal(1) to imply that the State Government to whom the representation is made
should properly consider it as expeditiously as possible. Nor is the
constitution of an Advisory Board under s. 8 of the Act relieves the State
Government from the legal obligation to consider the representation of the
detenu as soon as it is received by it, and take appropriate action thereon
including the revocation of the Order which it is empowered to make under s. 13
of the Act. It was further emphasised that the right under Art. 22(5) to, make
a representation has been guaranteed and is independent of the duration of the
period of detention irrespective of the existence or non-existence of the
Advisory Board. Even if a reference has to be made to the Advisory Board under
s. 9 of the Act, the appropriate Government is under a legal obligation to
consider the representation of the detenu before such a reference is made. This
matter was again considered by a Constitution Bench of this Court in
Jayanarayan Sukul v., State of West Bengal(1) which held that broadly stated,
four principles are to be followed in regard to the representation of detenu.
These have been summarised in the head note thus:-"Firstly, the
appropriate authority is bound to give an opportunity to the detenu to make a
representation and to consider the representation as early as possible.
Secondly, the consideration of the
representation of the detenu by the appropriate authority is entirely
independent of any action by the Advisory Board including the consideration of
the representation of the detenu by the Advisory Board.
Thirdly, there should not be any delay in the
matter of consideration. Though no hard and fast rule can be laid down as to
(1)  3 S.C.R. 479.
(2)  3 S.C.R. 225.
695 the measure of time taken by the
appropriate authority for consideration, it has to be remembered that the
Government has to be vigilant in the governance of the citizens. The
fundamental right of the detenu to have his representation considered by the
appropriate Government would be rendered meaningless if the Government does not
deal with the matter expeditiously but at its own sweet will and convenience.
Fourthly, the appropriate Government is to
exercise its opinion and judgment on, the representation before sending the
case along with the detenu's representation to the Advisory Board. If the
appropriate Government will release the detenu the Government will not send the
matter to the Advisory Board. If however the Government will not release the
detenu the Government will send the case along with the detenu's representation
to the Advisory Board. If thereafter the Advisory Board will express an opinion
in favour of release of the detenu the Government will release the detenu. If
the Advisory Board, will express any opinion against the release of the detenu
the Government may still exercise the power to release the detenu. These
principles are now well established in their application to the detention of a
citizen under any law_made by a State legislature or by the Central Parliament.
The next question is, whether it is incumbent
upon the State in a habeas corpus petition where a rule nisi has been issued to
satisfy the Court that the detention of the petitioner was legal and in
conformity not only with the mandatory provisions of the Act, butis also in
accord with the requirements implicit in cl. (5) of Art. 22 of the
Constitution. It is contended by the learned advocate for the petitioner that
in a habeas corpus petition under Art.
32 when a return is made by the State, it
should set out the facts relied upon as constituting valid and sufficient
grounds of detention of persons alleged to be legally detained. The return must
set forth clearly and with sufficient particularity, the facts upon which the
State relies. He further contends that the consequence of an insufficiency of
return would entitle this Court to declare the detention as illegal. In view of
this implication, a duty is imposed upon the State to justify the detention
where it is challenged before a court empowered to determine the legality or
otherwise of that detention. The learned advocate on behalf of the State,
however, by a reference to a decision of this Court in Arun Kumar Roy Katu v.
State of West Bengal (Writ Petition No. 52/1972 to which both of us were
parties) contends that Mitter, J. speaking for the Court had observed that
where a detenu has not alleged that the representation has not been considered
or has been considered but not expeditiously dealt with, it is not incumbent
upon the Government to explain the reasons 696 for any delay or for not disposing
it of at the earliest possible time. True it is that in that case certain
observations have been made to the effect that before, requiring the State to
explain any delay the detenu must allege that his representation was not
expeditiously considered and disposed of. In that case, the representation of
the detenu was received on a day before the 30 days from the date of detention
of the petitioner was due to expire and as such the State had no option but to
refer the case to the Advisory Board forthwith and subsequently consider that
representation. In view of the delay in making the representation, the
Government could not be blamed in not considering it expeditiously and once the
matter was before the Board, it had no papers with it to consider that
representation and arrive at a decision thereon. It was only subsequently that
they were in a position to consider. It is in this context that the
observations must be understood. In several cases, the delay has been
explained-see Prof. Khaidem Ibocha Singh v.The State of Manipur(1) and Ranjit
Dam v. State of West Bengal (W.P. No. 14/1972 decided by Shelat and Khanna, JJ.
on 24th April, 1972). It is contended that as
the State Government does not communicate to the detenu its decision on his
representation, he cannot be expected to raise any question of delay by the
State Government to consider his representation, nor is there anything to show
on the face of an order so made, the reason or the basis on which that
representation was rejected. Merely to say that it is rejected does not
indicate what is it that weighed with the State Government and what materials
were taken into consideration in arriving at that conclusion. This objection
suggests that the order rejecting the representation should be a speaking
In our view it is not necessary in this case
to refer to or deal with any of these aspects because the petitioner has
specifically given the date of his representation and the date on which he said
it was considered and rejected, which on the face of it shows that there has
been an inordinate delay which makes it incumbent on the State to explain it
and satisfy the Court that there was justification for that delay. Since the
State has not filed any, counter affidavit explaining why the representation of
the detenu has not been expeditiously disposed of nor has it chosen to set out
the various steps taken to comply with the mandatory provisions of the Act, the
detention must be held to be illegal. We had after the hearing itself, directed
the detenu to be set free. We accordingly allow the petition.
G.C. Petition allowed.
(1) A.I.R. 1972 S.C. 438.