Biren Dutta & Ors Vs. Chief
Commissioner of Tripura & ANR  INSC 163 (23 July 1964)
23/07/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 596 1964 SCR (8) 295
R 1965 SC 877 (4) D 1967 SC 483 (9) D 1969 SC
323 (9) F 1972 SC1924 (12) RF 1976 SC1207 (566) RF 1981 SC 728 (7)
Detention Order-Review-Continuation of
detention beyond six months--Order, if must be recorded in writing and communicated
to the detenu Defence of India Rules, 1962, RR.
30 (1)(b), 30A(8).
The Administrator of the Union Territory of
Tripura passed orders detaining 68 persons, including the appellants and the
petitioners, under R. 30(1)(b) of the Defence of India Rules, 1962. While
gradually releasing 45 of them he purported to detain the appellants and the
petitioners under R. 30A(8) of the said Rules. The appellants moved the
Judicial Commissioner under Art. 226 of the Constitution and their case was that
the decision to continue them in detention was not recorded in writing nor was
it communicated to them and was, therefore, invalid in law.
The Judicial Commissioner dismissed the said
The petitioners moved this Court under Art.
32 of the Constitution and their case was also the same. The first review held
on February 15, 1963, in respect of all the 68 detenus was recorded as follows,"On
review of the detention order in respect of all the detenus CC. decided to
cancel orders in respect of detenus at S. Nos. 1, 3, 4, 5, 6, 7, 8, 9, 12 and
13." It was urged on behalf of the respondent that the order by
implication continued the detention of the appellants and the petitioners and
such detention was confirmed by subsequent orders.
Held: (i) The order did not comply with the
provisions of R. 30A(8) of the Defence of India Rules and the detenus before
this Court must be set at liberty.
Decision to continue a detenu in detention
must not only be recorded in writing but such writing must clearly and
unambiguously indicate that decision.
Subsequent reviews under the Rule could not
validate the illegal continuance of the detention after the expiry of six
months from the date of the original order of detention.
Decision recorded under R. 30A(8) is in the
nature of an independent decision and further detention can be justified only
if the decision is recorded as required by it.
296 Even assuming that an order passed under
R. 30A(8) could in a proper case imply the decision to continue the detention
of some of the detenus, the present case could not be said to be one such.
(ii) Assuming, though not deciding, that a
decision recorded under R. 30A(8) of the Rules was not in law required to be
communicated to the detenue, it was just and proper that the decision should in
every case be communicated to the detenu.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 87-91 of 1964.
Appeal by special leave from the judgment and
order dated January 18, 1964, of the Judicial Commissioner's Court for Tripura
in Criminal Misc. (Habeas Corpus) Petitions Nos. 15, 20, 25, 26 and 28 of 1963,
and Habeas Corpus Petitions Nos. 24 and 27 of 1963.
AND Writ Petitions Nos. 43, 42, 40, 41, 65
and 80 of 1964.
Petition Under Art. 32 of the Constitution of
India for the enforcement of the fundamental rights.
R. K. Garg, S. C. Agarwala, D. P. Singh and
M. K. Ramamurthi, for the appellants and petitioners in all.
H. N. Sanyal, Solicitor-General, D. R. Prem
and R. H. Dhebar, for the respondents (Except Respondent No. 2 in W.P. 43 of
D. Goburdhun, for respondent No. 2 (in W.P.
43 of 1 964).
July 23, 1964, The Judgment of the Court was
delivered by GAJENDRAGADKAR C. J.-These Criminal Appeals and Writ Petitions
have been placed for hearing together in a group because they raise common
questions of law.
As is well-known, after the Chinese attacked
the northern border of India on the 8th September, 1962, the President issued a
Proclamation under Art. 352 of the Constitution on the 26th October, 1962. This
proclamation declared that a grave emergency existed which posed a threat to
the security of India. On the same day, an Ordinance was promulgated by the
President. This Ordinance was subsequently modified by Ordinance No. 6 of 1962
on the 3rd of November, 1962. The President also issued an Order tinder Art.
359(1) suspending the rights of citizens to move any court for the enforcement
of the rights conferred by Articles 21 and 22 during the pendency of the
emergency proclamation. On the 26th October, 1962, the Rules framed by the
Central Government under the Defence of India Act (hereinafter called 'the
Rules') were published. Rule 30 of the Rules as originally framed was
subsequently modified on the 6th December, 1962 and Rule 30-A was added. Later,
an Act was passed on the 12th December, 1962, and s. 48(1) of this Act provided
for the repeal of the earlier Ordinances.
Even so, s. 48(2) provided for the
continuance of the Rules framed under the Ordinances, so that the relevant
Rules framed under the Ordinances have to be taken as Rules framed under the
It appears that Mr. Mukerjee who was the
Administrator of the Union Territory of Tripura -at the relevant time,
considered the material placed before him as such Administrator and was
satisfied that a group of Communists had been agitating amongst the tribalís
residing in the area and inciting them against the Government, and he came to
the conclusion that their activities were likely to endanger the security of
the State. Acting on this view, he directed that 68 persons should be detained
under Rule 30(1)(b) and passed appropriate orders in that behalf. Later, lie
was satisfied that 45 out of these 68 persons need not be detained any longer;
and so, he ordered their release from time to time. That left 23 persons under
detention and it is with the cases of these 23 persons that we are concerned in
the present group if criminal appeals and writ petitions.
12 out of these 23 persons moved the Judicial
Commissioner of Tripura under Art. 226 of the Constitution and prayed that the
orders of detention under which they continued to be detained at the time of
their petitions were illegal and should be set aside and they should be ordered
to be released forthwith. These applications were heard 298 together by the
learned Judicial Commissioner and were ultimately dismissed. Against his
decision, Criminal Appeals Nos. 87-91 of 1964, and 106 and 107 of 1964 have
been filed by the detenues, with special leave granted to them by this Court on
petitions made by them in that behalf.
It appears that the detenues Mohan Chaudhury
and Jagabrata Sen Gupta who have joined in Cr. As. Nos. 87-91/1964, have also
preferred separate criminal appeals Nos. 106 and 107/1964 individually. That is
how this group of appeals is concerned with the cases of 12 detenues who had
moved the Judicial Commissioner under Art. 226; and their grievance is that the
view taken by the Judicial Commissioner in regard to the points of law raised
by them before him, is not correct.
The Writ Petitions deal with cases of 11
remaining detenues and they joined the detenues who have preferred appeals
before us by special leave in contending that the continuance of their
detention is invalid and that a similar plea raised by the appellants before
the Judicial Commissioner should have been upheld by him. That is how the
criminal appeals and the writ petitions between them raise common questions of
Mr. Garg who appeared for the appellants and
the petitioners, as well as the learned Solicitor-General who appeared for the
respondent, the Chief Commissioner of Tripura, agreed that it would not be
necessary to consider the facts in each individual case for the purpose of
deciding the common questions of law raised by them. It would be enough if we
refer to the facts in one case, because facts in other cases are exactly
similar and there would be no point of distinction on facts as such. We would,
therefore, refer to the facts relevant to the case of the detenu Biren Dutta.
Biren Dutta was detained on the 25th December,
1962, and an order issued in that behalf was duly served on him. On the 26th
December, 1962, he was transferred to the Hazaribagh Jail. The respondent's
case is that on the 15th February, 1963, the case of Biren Dutta was reviewed
under R. 30A(8) and it was decided to continue his detention. Subsequently, his
case was reviewed on the 3rd July, 1963, 5th September, 1963, and 11th March,
1964, and on each occasion, it was decided to continue his detention.
On the other hand, Biren Dutta's contention
before the Judicial Commissioner was that an order of review had not been
passed as required by R. 30A(8) and had not been communicated to him. It was
urged on his behalf that Rule 30A(8) requires that the decision to continue the
detention of a detenu must be reduced to writing and must be communicated to
the detenu, and the argument was that since these two conditions prescribed by
the relevant Rule had not been complied with, the continuance of the detenu's
detention was invalid in law.
The Judicial Commissioner has negative the
contentions thus raised by the detenu. He has found that the decision to
continue the detenu's detention reached by the respondent under R. 30A(8) had
in fact been reduced to writing, and in support of this contention, he has
referred to the fact that the original file containing a record of the decision
had been produced on behalf of the respondent before the Judicial Commissioner,
but since the respondent's learned Advocate was apparently not prepared to
allow the lawyer of the detenu inspection of the said record, the court did not
consider the evidence supplied by it. The argument urged by the detenu that the
said record may have been subsequently manufactured was rejected by the
Judicial Commissioner. The Judicial Commissioner also considered the fact that
the affidavit made on behalf of the respondent showed that when the cases of
the detenues were considered by him from time to time, he actually ordered the
release of some of them.
This fact, according to the Judicial
Commissioner, showed that the respondent had applied his mind to the cases of
all the detenues and since he released some of them, it followed that in regard
to the rest he was satisfied that their detention should be continued. The
Judicial Commissioner was apparently inclined to take the view that the
relevant Rule did not seem clearly to require that the decision reached by the
appropriate authority under R. 30A(8) should be reduced to writing, but he
thought it unnecessary to make a definite finding 300 on this issue, because he
was satisfied that in the case of Biren Dutta, the decision in question had
been reduced to writing. The argument that R. 30A(8) requires that the said
decision should be communicated to the detenu was rejected by the learned Judicial
Commissioner. It is on these findings that he rejected the petition filed by
Biren Dutta and 11 other detenues and held that the continuance of their
detention was justified in law.
When these matters were argued before this
Court on the 6th May, 1964, an interim order was passed directing that the
Chief Secretary to the Tripura Administration should forthwith transmit to this
Court the original files in respect of the detenues concerned and that the
Minister, or the Secretary or the Administrator who reviewed the cases of the
detenues and had arrived at a decision that their detention should be
continued, should file an affidavit in this Court on or before the 8th June,
1964, and that the affidavit should state all material facts and should indicate
whether the decision arrived at was duly communicated to the detenues or not.
Accordingly, the original files have been produced before us and additional
affidavits have been filed. The learned Solicitor-General fairly conceded that
he would allow Mr. Garg for the appellants an opportunity to inspect the files
inasmuch as he was not going to raise any question of privilege in respect of
theme. It is in the light of the minutes made on these files that the principal
points raised before us now fall to be considered.
Mr. Garg contends that the scheme of the
Rules clearly shows that the original order of detention passed under R.
30(1)(b), as well as the decision to continue
the detention of the detenues reached by the appropriate authority under R.
30A(8) must be recorded in writing and must comply with the provisions of Art.
166 of the Constitution. He also urges that R. 30A(8) further requires that the
relevant decision reached by the appropriate authority must be communicated to
the detenu. In support of his argument that the relevant decision under R
30A(8) must comply with Art.
166 and must be communicated to the detenu,
Mr. Garg has relied on the ,decision of this Court in Dattatreya Moreshwar
Pangarkar 301 v. The State of Bombay(1), and Bachhittar Singh v. State of
Punjab(1). He has also invited our attention to the observations made by
Raghubar Dayal J. in S. Partap v. State of Punjab(1).
The learned Solicitor-General has conceded
that the order directing the detention of a citizen under R. 30(1) (b), as well
as the order incorporating the decision to continue the detention under R.
30A(8) must be in writing. He, however, challenges the correctness of Mr.
Garg's contention that these orders must comply with Art. 166, and he disputes
his case that the decision reached under R. 30A (8) must be communicated to the
detenu. In support of his case he has referred us to the decision of this Court
in Mohammad Afzal Khan v. State of Jammu and Kashmir(4), as well as the
decision of the Bombay High Court in Pralhad Krishna Kurne v. The State of
Bombay(1) and that of the Allahabad High Court in Nandan Singh Bhist v. State
We do not think it necessary to consider the
question as to whether the orders passed under R. 30(1) (b) and the record of
the decision reached under R.30A(8) should comply with Art. 166 of the
Constitution or not. It also appears to us to be unnecessary to decide in the
present group of cases whether the decision recorded under R. 30A(8) should be
communicated to the detenu. We are satisfied that the decision to continue the
detention of the detenues which, it is urged on behalf of the respondent, was
reached by him under R. 30A(8), has not been recorded in writing as required by
the said Rule; and there is no other evidence on record to show that such a
decision had then been reached and reduced to writing. It will be recalled that
in the present proceedings, it is common ground between the parties that there
has to be an order in writing indicating the decision of the appropriate authority
reached by him after reviewing the case of the detenu that the continuance of
his detention should be ordered. Rule 30A(8) provides that every detention
order made by an (1)  S.C.R. 612,(2)  SUPP. 3 S.C.R. 713 (3) A.I.R.
1964 S.C. 72(4) A.I.R. 1957 S.C. 173 (5) I.L.R. 1952 Bom. 134(6) A.I.R. 1964
All. 327 302 officer empowered by the Administrator and confirmed by him under
clause (b) of the sub-rule (6) and every detention order made by the
Administrator himself shall be reviewed at intervals of not more than six
months by the Administrator who shall decide upon such review whether the order
should be continued or cancelled. The question which we have to decide is
whether it is shown by the minutes made on the file produced before us by the
respondent that he did decide that it was necessary to continue the detention
of the detenues before us. The minutes made on the file are no doubt a written
record of his decision, and so, the requirement that whatever is decided under
R. 30A(8) should be reduced to writing is satisfied; but the question is do
these minutes show that the cases of the detenues before us were considered and
a decision to continue their detention was reached by the respondent on the
relevant occasion, and that presents a very narrow problem for our decision in
relation to the construction of the said minutes.
The first occasion on which the respondent
claims to have reviewed the cases of the detenues before us was on the 15th
February, 1963. On that date, he made the following order:"On review of
the detention order in respect of all detenus CC decided to cancel detention
orders in respect of detenues at S. No. 1, 3, 4, 5, 6, 7, 8, 9, 12 and
13." It is urged by the learned Solicitor-General that this order shows
that the appropriate authority considered the cases of all the detenues and
decided to cancel the detention of some of them, and that, he suggests, should
be construed to mean that he decided to continue the detention of detenues
other than those whose release he ordered. There is no doubt that this order
makes a reference to the review of all detenues and, prima facie, it would be
open to the Solicitor General to contend that this part of the order shows that
the cases of all the 68 detenues must have been considered by the appropriate
authority. In this connection. we would like to emphasise the fact that in
exercising its power under 303 R. 30A(8), the appropriate' authority should
record its decision clearly and unambiguously. After all, the liberty -of the
citizen is in question and if the detention of the detenue is intended to be
continued as a result of the decision reached by the appropriate authority, it
should say so in clear and unambiguous terms. But assuming that an ,order
passed by the appropriate authority under R. 30A(8) can in a proper case be
construed to mean his implied decision to continue the detention of some
detenues, while releasing some others, we find it difficult to hold that such
an implied decision can be inferred from the present order. It is relevant to
remember that this order was passed on the 15th February, 1963, and the six
months' period within which review had to be made under R. 30A(8) would have
expired on the 25th June, 1963. It is quite likely that even before the six
months period expired, the authority considered the matter and came to the
conclusion that any further detention of the detenues specified in the order
was not justified, and so, even before the, six months' period expired, he
directed that they should be released. That undoubtedly shows that the
authority was considering the question very carefully and as soon as he felt
satisfied that further detention of the said detenues would be unnecessary, he
ordered their release forthwith;
but this very consideration suggests that he
may have considered the cases of only such detenues as should be released
forthwith. Besides, there is nothing to show that after the 15th February,
1963, and before the 25th June, 1963, he considered the matter in respect of
the detenues before us and held that the continuance of their detention was
justified after the expiration of six months. It is necessary to emphasise that
the decision recorded under R.
30A(8) is in the nature of an independent
decision which authorises the further detention of the detenu for a period of
six months. In other words, the initial order of detention is valid for six
months and the detention of the detenu thereafter can be justified only if a
decision is recorded under R. 30A(8). That being the nature of the decision
which is required to be recorded under R. 30A(8), we are unable to hold that
the memorandum in question can be reasonably said to include a decision that
the continuance of the detention of the 304 detenues before us was thought to
be necessary by the appropriate authority after the expiry of the period of six
It is true that in the additional affidavit
filed by the respondent it has been stated as a submission by him that as a
result of the said review (15/2/63) the detention of Biren Dutta as well as
others whose detention orders were not cancelled, continued." This
undoubtedly is a matter of argument; it being the respondent's contention that
since the order detaining some detenues was cancelled, logically it follows
that the detention of the others was ordered to continue. But even assuming
that the respondent had stated in his additional affidavit clearly and
unambiguously that he had decided on the 15th February, 1963, that the
detention of the detenues before us should be continued, we would not have
attached much significance to such a statement, because what we have to
consider is the order passed on the 15th February, 1963, and not what the
authority making the order thought it meant or intended it to mean;
and so, it comes back to the question of the
construction of the order itself. We have carefully considered the arguments
urged before us by the Solicitor-General, but we are unable to hold that this
order can be said to satisfy the requirements of R. 30A(8) at all. We are satisfied
that this order cannot be construed to contain a written record of the decision
of the respondent that the detention of the detenues before us should be
continued after the expiry of six months from the date of the original order of
Then as to the next order passed on the 3rd
July, 1963, the position is still worse. It appears that on the 15th May, 1963,
the Superintendent of Police, Tripura recommended that some of the detenues
should be released, because he thought there was no longer any justification
for their continued detention. This matter was discussed between the
Superintendent of Police and the Chief Secretary on the 6th June, 1963, and
eventually as a result of the conference held between the Chief Minister and
the Chief Commissioner an order was passed on the 3rd July, 1963. This order
shows that the cases of the persons whose release had been recommended by the
Superintendent of Police were considered.
These detenues were 25 in 305 number. During
the course of the discussion between the Chief Minister and the Chief
Commissioner, the Chief Minister appears to have suggested that instead of
releasing all the aforesaid 25 detenues together it would be better if they
were released in batches, but ultimately, the order passed by the Chief
Minister which was assented to by the Chief Commissioner was that all of them
may be released at the same time on the 6th July, 1963. In other words, reading
the letter written by the Superintendent of Police to the Chief Commissioner on
the 15th May, 1963, and the record of the discussion that took place between
the Chief Secretary, the Chief Minister and the Chief Commissioner on the 3rd
July, 1963, it is clear that the only cases which the authorities considered
were the cases of 25 detenues whose release had been recommended by the
Superintendent of Police. It is common ground that the detenues before us were
not included in the said list of 25 detenues, and so, there is no scope for
suggesting that at this time the cases of the detenues other than those who
were released were concerned. That being so, we must hold that like the earlier
order passed on the 15th February, 1963, the order passed on the 3rd July,
1963, is also of no assistance to the respondent, because neither order can be
reasonably construed as containing a decision of the appropriate authority
reached under R. 30A(8) to continue the detention of the detenues before us.
This conclusion necessarily means that the requirement of R. 30A(8) has not
been complied with and that inevitably makes the continuance of the detention
of the detenues before invalid in law. The fact that those cases were reviewed
subsequently on the 25th September, 1963 and 11th March. 1964, and the decision
of the authority was in fact communicated to them would not validate the
illegal continuance of the detention of the detenues after six months had
expired from the date of their original detention.
We have already indicated that we do not
propose to consider in these proceedings the two other points of law urged by
Mr. Garg but before we part with these matters, we would like to emphasise that
even assuming that the decision recorded by the appropriate authority under 51
306 R. 30A(8) is not, as a matter of law,
required to be communicated to the detenu, it is desirable and it would be fair
and just that such a decision should in every case be communicated to the
detenu. If the appropriate authority considers the question about the
continuance of the detention of a particular detenu and decides that such
continuance is justified, we see no justification for failing to communicate
the said decision to the detenu concerned. If the requirement as to such
communication were held to be necessary as a matter of law, non-communication
would render the continuance of the detention invalid; but that is a matter
which we are not deciding in these cases. We are only emphasising the fact that
it would be fair that such a decision should be communicated to the detenu.
In the result, the appeals and writ petitions
are allowed and the detenues concerned ordered to be set at liberty at once.
Appeals and Writ Petitions allowed.