Naranjan Sigh Nathawan Vs. The State of
Punjab [1952] INSC 4 (25 January 1952)
SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA
CITATION: 1952 AIR 106 1952 SCR 395
CITATOR INFO :
R 1966 SC1404 (8) D 1967 SC1797 (4) E 1969 SC
43 (9,10) R 1971 SC2197 (7) R 1974 SC 510 (3) R 1990 SC1480 (99)
ACT:
Preventive Detention--Order of detention
challenged as illegal-Fresh order superseding previous order--Validity--Question
of bad faith--Habeas corpus proceeding--Legality of detention must be
determined as at date of return.
HEADNOTE:
In the absence of bad faith the detaining
authority can supersede an earlier order of detention which has been challenged
as defective on merely formal grounds and make a fresh order wherever possible
which is free from defects and duly complies with the requirements of the law
in that behalf. The question of bad faith, if raised, must be decided with
reference to the circumstances of each case.
In habeas corpus proceedings the Court is to
have regard to the legality or otherwise of the detention at the time of the
return and not with reference to the date of the institution of the
proceedings.
396 Basanta Chandra Ghose v. King Emperor ([1945]
F.C.R. 81) followed. Naranjan Singh v. The State of Punjab unreported)
explained. Makhan Singh Tarsikka v. The State of Punjab ([1952] S.C.R. 368)
referred to.
CRIMINAL JURISDICTION: Petitions (Nos. 513,
566, 568, 570, 591,595, 596, 601, 616, 617, 623, 625, 631 and 632 of 1951)
under article 32 of the Constitution for writs in the nature of habeas corpus.
The facts are stated in the judgment.
Raghbir Singh (amicus curiae) for the
petitioners in Petitions Nos. 513, 566, 568, 570. 595, 596, 609, 616, 617,
623,625 and 631.
A.S.R. Chari (amicus curiae) for the
petitioner in Petition No. 591.
Shiv Charan Singh (amicus curiae) for the
petitioner in Petition No. 632.
S. M Sikri, Advocate-General of the Punjab
(Jindra Lal, with him) for the State of the Punjab.
1952. January 25. The Judgment of the Court
was delivered by PATANJALI SASTRI C.J.--This is a petition under article 32 of
the Constitution submitted through the Superintendent, Central Jail, Ambala,
for the issue of a writ of habeas corpus for the release of the petitioner from
custody.
On 5th July, 1950, the petitioner was
arrested and detained under an order of the District Magistrate of Amritsar in
exercise of the powers conferred on him under section 3 of the Preventive
Detention Act, 1950, and the grounds of his detention were served on him as
required by section 7 of the Act on 10th July, 1950. The Act having been
amended by the Preventive Detention (Amendment) Act, 1951, with effect from
22nd February, 1951, a fresh order No. 7853ADSB, dated 17th May, 1951, was
issued in the following terms :"Whereas the Governor of Punjab is
satisfied with respect to the person known as Naranjan Singh Nathawan, s/o
Lehna Singh of village Chak Sikandar, 397 P.S. Ramdas, Amritsar District, that
with a view to preventing him from acting in a manner prejudicial to the
security of the State, it is necessary to make the following order:
Now, therefore. in exercise of the powers
conferred by sub-section (1) of section 3 and section 4 of the Preventive
Detention Act, 1950, as amended by the Preventive Detention (Amendment) Act,
1951, the Governor of Punjab hereby directs that the said Naranjan Singh
Nathawan be committed to the custody of the Inspector-General of Prisons,
Punjab, and detained in any jail of the State till 31st March, 1952, subject to
such conditions as to maintenance, discipline and punishment for breaches of
discipline as have been specified by general order or as contained in the
Punjab Detenu Rules, 1950." This order was served on the petitioner on
23rd May, 1951, but no grounds in support of this order were served on him.
The petitioner thereupon presented this
petition for his release contending that the aforesaid order was illegal
inasmuch as (1) the grounds of detention communicated to him on 10th July,
1950, were "quite vague, false and imaginary" and (2) he was not
furnished with the grounds on which the order dated 17th May, 1951, was based.
The petition was heard ex-parte on 12th November, 1951, when this Court issued
a rule nisi calling upon the respondent to show cause why the petitioner should
not be released, and it was posted for final hearing on 23rd November, 1951.
Meanwhile, the State Government issued an order on 18th November, 1951.
revoking the order of detention dated 17th
May, 1951, and on the same date the District Magistrate, Amritsar, issued yet
another order for the detention of the petitioner under sections a and 4 of the
amended Act; this last order along with the grounds on which it was based was
served on the petitioner on 19th November, 1951.
Thereupon the petitioner submitted a
supplemental petition to this Court on 28th November, 1951, challenging the
validity of the last order on the ground 398 that "it was only a device to
defeat the habeas corpus petition of the petitioner in which a rule had already
been issued , and he put forward an additional ground of attack on the legality
of the earlier order dated 17th may, 1951, namely, that it fixed the term of
detention till 31st March, 1952, before obtaining the opinion of the Advisory
Board as required by section 11 of the amended Act. This ground was evidently
based on the view expressed by this Court that the specification of the period
of detention in the initial order of detention under section 3 of the amended
Act before obtaining the opinion of the Advisory Board rendered the order
illegal.
In the return to the rule showing cause filed
on behalf of the respondent, the Under Secretary (Home) to the Government
explained the circumstances which led to the issue of the fresh order of
detention dated 18th November, 1951.
After stating that the petitioner's case was
referred to and considered by the Advisory Board constituted under section 8 of
the amended Act and that the Board reported on 30th May, 1951, that there was
sufficient cause for the detention of the petitioner, the affidavit proceeded
as follows:
"That the Government was advised that
the orders made under section 11 of the Preventive Detention Act', 1950, as
amended by the Preventive Detention (Amendment) Act, 1951, but carried out in
the form of orders under section 3 of the said Act, should be followed by
grounds of detention and, as this had not been done in most cases, the
detentions were likely to be called in question. The Government was further
advised there were other technical defects which might render the detention of
various detenus untenable. In view of this, the Government decided that the
cases of all detenus should be reviewed by the District Magistrates concerned.
Accordingly, the Punjab Government instructed the District Magistrates to
review the cases and apply their minds afresh and emphasised that there must
exist rational grounds with the detaining authority to justify the detention of
a person and they were asked to report clearly in each case if the District 399
Magistrate concerned wanted the detenus to be detained. The Punjab Government
also reviewed some cases. Accordingly all cases including the case of the
petitioner were reviewed and in this case the District Magistrate was again
satisfied that it was necessary that the detenu be detained with a view to
prevent him from acting in a manner prejudicial to the security of the State
and the maintenance of public order." And it concluded by stating
"that the petitioner is detained now under the orders of the District
Magistrate, Amritsar." The original and supplementary petitions came on in
due course for hearing before Fazl Ali and Vivian Bose JJ.
on 17th December, 1951, when reliance was
placed on behalf of t he petitioner on certain observations in an unreported
decision of this Court in Petition No. 334 of 1951 (Naranjan Singh v. The State
of Punjab) and it was claimed that in view of those observations and of the
provisions of Part III of the Constitution, the decision in Basant Chandra
Ghose v. King Emperor(1), on which the respondent relied. was no longer good law.
The learned Judges thought that the matter should be considered by a
Constitution bench and the case was accordingly placed before us.
It will be seen from the affidavit filed on
behalf of the respondent that the case of the petitioner, along with his representation
against the detention order of 17th May, 1951, was placed before the Advisory
Board for its consideration, and the Board reported on 30th May, 1951, that in
its opinion there was sufficient cause for the detention of the petitioner. It
is said that, on the basis of that report, the Government decided that the
petitioner should be detained till 31st March, 1952, but while a properly
framed order under section 11 should "confirm" the detention order
and "continue" the detention for a specified period, the order of
17th May, 1951, was issued under a misapprehension in the form of an initial
order under section 3 of the amended Act. on the same grounds as before without
any fresh communication thereof to the petitioner. To (1) [1945] F.C.R. 31.
52 400 avoid arguments based on possible
defects of a technical and formal character, the said order was revoked under
section 13, and on a review of the case by the District Magistrate, a fresh
order of detention was issued under section 3 on 18th November, 1951, and this
was followed by a formal communication of the same grounds as before as there
could be no fresh grounds, the petitioner having throughout been under
detention.
It is contended by the Advocate-General of
the Punjab that the decision reported in [1945] F.C.R. 81 is clear authority in
support of the validity of the aforesaid order.
On essentially similar facts the court laid
down two propositions both of which have application here. (1) Where an earlier
order of detention is defective merely on formal grounds, there is nothing to
preclude a proper order of detention being based on the pre-existing grounds
themselves, especially in cases in which the sufficiency of the grounds is not
examinable by the courts, and (2) if at any time before the court directs the
release of the detenu, a valid order directing his detention is produced, the
court cannot direct his release merely on the ground that at some prior stage
there was no valid cause for detention. The question is not whether the later
order validates the earlier detention but whether in the face of the later
valid order the court can direct the release of the petitioner.
The learned Judges point out that the analogy
of civil proceedings in which the rights of parties have ordinarily to be
ascertained as on the date of the institution of the proceedings has no
application to proceedings in the nature of habeas corpus where the court is
concerned solely with the question whether the applicant is being lawfully detained
or not.
The petitioner's learned counsel conceded
that he could not challenge the correctness of the second proposition, but took
exception to the first as being no longer tenable after the Indian Constitution
came into force. It was urged that article 22 lays down the procedure to be
followed in cases of preventive detention and the said procedure must be
strictly observed 401 as the only prospect of release by a court must be on the
basis of technical or formal defects, a long line of decisions having held that
the scope of judicial review in matters of preventive detention is practically
limited to an enquiry as to whether there has been strict compliance with the
requirements of the law. This is undoubtedly true and this Court had occasion
in the recent case of Makhan Singh Tarsikka v. The State of Punjab (Petition
No. 308 of 1951)(1) to observe "it cannot too often be emphasised that
before a person is deprived of his personal liberty the procedure established
by law must be strictly followed and must not be departed from to the
disadvantage of the person affected". This proposition, however, applied
with equal force to cases of preventive detention before the commencement of
the Constitution, and it is difficult to see what difference the Constitution
makes in regard to the position.
Indeed, the position is now made more clear
by the express provisions of section 13 of the Act which provides that a
detention order may at any time be revoked or modified and that such revocation
shall not bar the making of a fresh detention order under section 3 against the
same person.
Once it is conceded that in habeas corpus
proceedings the court is to have regard to the legality or otherwise of the
detention at the time of the return and not with reference to the date of the
institution of the proceeding, it is difficult to hold, in the absence of proof
of bad faith, that the detaining authority cannot supersede an earlier order of
detention challenged as illegal and make a fresh order wherever possible which
is free from defects and duly complies with the requirements of the law in that
behalf.
As regards the observations in Naranjan
Singh's case, we do not understand them as laying down any general proposition
to the effect that no fresh order of detention could be made when once a
petition challenging the validity of an earlier order has been filed in court.
The learned Judges appear to have inferred from the facts of that case that the
later order was (1) Since reported as [1952] S.C.R. 368.
402 not made bona fide on being satisfied
that the petitioner's detention was still necessary but it was "obviously
to defeat the present petition". The question of bad faith, if raised
would certainly have to be decided with reference to the circumstances of each
case, but the observations in one case cannot be regarded as a precedent in
dealing with other cases.
We accordingly remit the case for further
hearing. This order will govern the other petitions where the same question was
raised.
Petitions remitted.
Agent for the respondent: P.A. Mehta.
Back
