Godawari S. Parulekar & Ors Vs.
State of Maharashtra  INSC 17 (17 January 1966)
17/01/1966 SIKRI, S.M.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
CITATION: 1966 AIR 1404 1966 SCR (3) 314
Defence of India Rules, 1962, r.30State
Government whether can exercise authority to order detention delegated by it to
District Magistrate-Detention order passed during pendency of habeas corpus
proceedings whether vitiated by malice In law.
The appellant was detained from November 1962
onwards under various detention orders. She was released on February 4, 1964
but as won as she came out of the prison gates, she was served with a fresh
order of detention dated February 3, 1963 issued by the State Government under
r. 30 of the Defence of India Rules, 1962. She was detained with a view to
prevent her from acting in a manner prejudicial to the defence of India,the
public safety and maintenance of public order. A petition filed by the
appellant under Art.
226 of the Constitution against her detention
under the said order was dismissed by the High Court. The appellant came to
this Court by special leave.
It was contended on behalf of the appellant :
(1) The State Government having delegated its powers under r. 30 to District
Magistrate by a notification dated 9th November 1962, it was not competent to
pass an order of detention under r. 30. (2) The order of detention was bad
because two ministers cannot legally jointly pass an order of detention.
(3) The Order of detention was vitiated by
malice in law.
(4) The High Court should have insisted on an
affidavit from the Ministers. (5) There was no material to show that there was
an apprehension that maintenance of public order -would be prejudicially affected.
HELD : There was no infirmity in the order
under which the petitioner was detained.
(i) By delegating its power under r. 30 to
District Magistrates the State Government was not itself denuded of the power
to act under 30. [317 H] Huth v. Clarke, 25 Q.B.D. 391, relied on.
King Emperor v. Sibnath Banerje, 72 I.A. 241,
distinguished and explained.
(ii)There is no difficulty in two Ministers
successively being satisfied that it is necessary to detain a person for
different reasons and then their decision being carried out by one order of
detention duly authenticated. [318 D] Godavari Samrao Parulekar v. State of
Maharashtra,  6 S.C.R. 446, referred to.
(iii)The mere fact that the detention order
is passed during the pendency of habeas corpus proceedings cannot by itself
lead to the conclusion that the order is vitiated by malice in law. If the
Government considers an order of detention, which is the subject-matter of
challenge, to be invalid, there is no reason why it should not pass a Valid order
[319 B-D] 314 315 Naranjan Singh Nathawan v. State of Punjab,  S.C.R.
395, relied on.
(iv)Whether an affidavit by the Ministers
concerned was necessary or not was for the High Court to consider.
(v)The Court could not go into to the
question whether the material before the detaining authority was sufficient or
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 142149 and 225-227 of 1964.
Appeals from the judgment and orders dated
April 13,1964 of the Bombay High Court in Criminal Applications Nos. 180-182,
189, 190, 191, 193 and 194 and 195 to 197 of 1964 respectively.
R. K. Garg, for appellant (in Cr. A. No.
The appellants appeared in person.
N.S. Bindra and B. R. G. K. Achar, for the
Sikri, J. These appeals by certificate
granted by the Bombay High Court are directed against its judgment dated April
13, 1964 in applications filed by the applicants under art. 226 of the
Constitution, and s. 491 of the Criminal Procedure Code. Criminal Appeal No.
143 of 1964 has become infructuous because the appellant, S. V. Parulekar, has
Mr. R. K. Garg appears on behalf of the
appellant-,in Criminal Appeal No. 142 of 1964. It is common ground that the
points arising in all the appeals are common, and in order to appreciate the
points, it would be sufficient if the facts in Criminal Appeal No. 142 of 1964,
relevant to the arguments addressed to us, are only given. The relevant facts
given in paragraphs 2 and 3 of the affidavit filed by the Under Secretary to
the Government of Maharashtra are as follows:
"2.With reference to paragraph 1 of the
said Petition I say that the petitioner was detained under order dated the 7th
November 1962 issued by the District Magistrate, Thana, under the Preventive
Detention Act 1950. On 10th November, 1962, the Government of Maharashtra
revoked the order of detention dated the 7th November 1962 issued by the
District Magistrate, Thana, and the revocation order was served on the
petitioner on the 11th November 1962. Thereafter the petitioner was served with
another order of detention dated the 10th November 1962 issued by the
Government of Maharashtra under Rule 30 of the Defence of India Rules, 1962.
Further by its order dated the 25th September 1963, the Government of
Maharashtra cancelled the said order of detention dated the 10th November 1962
and in pursuance of the said cancellation order the petitioner was released
from detention on 27th September 1963. After she actually came out of the
Yeravda Central Prison gates and was a free woman, the fresh orders of
detention and committal dated the 25th September 1963 issued by the Government
of Maharashtra were served on her and she was again detained in the Yeravda Central
Prison, Yeravda Poona. Thereafter, by its order dated the 3rd February, 1964,
the Government of Maharashtra cancelled its order of detention dated the 25th
September 1963 and the petitioner was again released on the 4th February 1964.
After she actually came out of the Arthur Road District Prison gates and was a
free woman, she was served with a fresh order of detention dated the 3rd
February 1964 issued by the Government of Maharashtra under rule 30 of the
Defence of India Rules 1962 and redetained with a view to prevent her from
acting in a manner prejudicial to the defence of India, the public safety and
maintenance of public order. The last two orders of cancellation and detention
dated the 3rd February 1964 are attached to the said petition as Annexures A
and B, respectively.
3.With reference to paragraph 2 of the said
petition I say that what is stated therein is generally correct. I further say
that the petitioner is a Communist belonging to the Ranadive Group, which
maintains that China has not committed any aggression on India and which
actively propagates that view." The High Court of Bombay held that the
detention of the appellant from May 1963 to February 1964 was illegal but the
order of detention passed on February 3, 1964 was legal, and accordingly the
appellant could not be ordered to be released. It is this order of February 3,
1964, which is now the subject matter of challenge.
Mr. Garg for the appellant raised the
following points before us:
(1)That the State Government having delegated
its powers conferred upon it under r. 30 of the Defence of India Rules, 1962,
by Notification "Home Department (Special) No. S.B. III/DOR.1 162-1, dated
the 9th November, 1962" to all District Magistrates within the limits of
their jurisdiction subject to the conditions mentioned in the Notification, the
State Government was not competent to pass an order of detention under r. 30.
(2)That the order of detention is bad because
two Ministers cannot legally jointly pass an order of detention.
(3)That the order of detention is vitiated by
malice in law.
317 (4)That on the facts of this case the
High Court should have insisted on an affidavit being filed by the Ministers.
(5)That there was no material to show that
there was any apprehension that maintenance of public order would be
Relying on King Emperor v. Sibnath Banerje(1)
Mr. Garg argues that the State Government had divested itself of its powers to
detain. The Privy Council observed at p. 265 as follows:
"It is for the same reasons that their
Lordships are unable to accept the respondents' contention, also agreed to by
the majority judges in the Federal Court, that the provision of sub-s. 5 of S.
2 of the Defence of India Act, provides the only means by which the Governor can
relieve himself of a strictly personal function. Their Lordships would also add
on this contention that sub-s. 5 of s. 2 provides a means of delegation in the
strict sense of the word, namely, a transfer of the power or duty to the
officer or authority defined in the sub-section, with a corresponding
divestiture of the Governor of any responsibility in the matter, whereas under
49, sub-s.1, of the Act of 1935 the Governor
remains responsible for the action of his subordinates taken in his name."
We are unable to agree with Mr. Garg that the Privy Council laid down that the
Governor was divested of its power of passing an order when the above
notification was issued. It seems to us that the Privy Council was thinking of
and comparing the responsibility of the Governor for the orders passed by the
delegate and by an officer acting under s.
49(1) of the Act of 1935. In the case of the
delegate the Privy Council held that the Governor was not responsible, but that
does not mean that the Governor could not have acted under r. 26 of the Defence
of India Rules made under the Defence of India Act, 1939.
In Huth v. Clarke(2) WillS,J., observed at p.
" Delegation, as the word is generally
used, does not imply a parting with powers by the person who grants the
delegation, but points rather to the conferring of an authority to do things
which otherwise that person would have to do himself." In our opinion, by
issuing the aforesaid notification the State Government has not denuded itself
of the power to act under r. 30.
Coming to the second point, namely, whether
the two ministers can jointly pass an order of detention, it is necessary to
give a (1) 72 I.A. 241. (2) 25 Q.E.D.
318 few relevant facts. In Godavari Shamrao
Parulekar v. State of Maharashtra(1) this Court observed:
"The order, therefore, in the present
case could only be made by a Minister who was incharge both of subjects
allotted to the General Administration Department and subjects allotted to the
Home Department (Special)." Basing on this passage, Mr. Garg contends that
it is only if a Minister is in charge of both the subjects that an order of
detention can be passed. He further elaborates his point by saying that once
one Minister is satisfied that it is necessary to detain a person under one
head, say for the maintenance of public order' there is no question of another
satisfaction by another Minister that it is necessary to detain that very
person, say for the reason of preventing him from acting in a manner
prejudicial to the defence of India. He says that as soon as the first Minister
is satisfied that it is necessary to detain a person for reasons of maintenance
of public order, no power remains to consider other reasons. We are unable to
accept the above line of reasoning. We do not see any difficulty in two
Ministers successively being satisfied that it is necessary to detain a person
for different reasons, and then their decision being carried out by one order
of detention duly authenticated. We agree with the High Court that this Court
did not mean to lay down an absolute proposition of law that unless all the
relevant subjects in respect of which the orders of detention are passed are
concentrated in the hands of one Minister, valid orders of detention cannot be
Regarding the next point, namely, whether the
order of detention is vitiated by malice in law, Mr. Garg urges that no order
of detention can be passed to defeat habeas corpus proceeding. We are unable to
agree with the proposition submitted by the learned counsel. The Court observed
in Naranjan Singh Nathawan v. The State of Punjab(2) as follows:
"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." This Court observed further at p. 400, as follows:
"If at any time before the court directs
the release of the detenu, a valid order directing his detention is pro(1)
 6 S.C.R. 446, at p. 458.
(2)  S.C.R. 395.
319 duced, 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 order the court can
direct the release of the petitioner." The mere fact that the detention
order is passed during the pendency of habeas corpus proceedings cannot by
itself lead to the conclusion that the order is vitiated by malice in law. It
depends on the circumstances of the case. The detenu would have to prove not
only that the detention order has been passed during the pendency of habeas
corpus proceedings but also that there are other facts showing malice. Mr. Garg
has not been able to point out any other facts in this case. If the Government
considers an order of detention, which is the subject matter of challenge, to
be invalid, there is no reason why it should not pass a valid order. Mr. Garg
says that there was no fresh consideration of the facts and the Ministers acted
on pre-conceived notions and passed the new order dated February 3, 1964,
without any fresh consideration. We are unable to accept this argument because
it is quite clear from the affidavit filed by the Under Secretary to the
Government of Maharashtra,, Home Department and General Administration
Department, that before the order was passed the Minister of Home and the Chief
Minister were satisfied in accordance with the rules of business made under
art. 166 of the Constitution.
We may at this stage deal with the question
whether the High Court should have insisted on the Ministers filing the
affidavit. It is for the High Court to consider in each case whether it is satisfied
with the affidavit filed in the case. In this case it does not appear from the
judgment of the High Court that this point was raised before the High Court.
The only point that remains is whether there
was any material for detaining the appellant for the maintenance of public
order. It has been consistently held by this Court that it is for the detaining
authority to be satisfied whether on the material before it, it is necessary to
detain a person under r. 30, and that this question is not justiciable. There
is no force in this point.
Accordingly we hold that there is no
infirmity in the order of detention dated February 3, 1964.
In Criminal Appeal No. 144 of 1964, the
appellant P.P. Sanzgiri, adopted the arguments of Mr. Garg and further urged that
he had been validly detained by order of the District Magistrate dated November
11, 1962, and there had been no proper cancellation of this order. But he says
that this order was bad because there was no confirmation of it.
As pointed out above, we are not concerned
with the previous orders of detention because the appellant is detain320 led
now under the order dated February 3, 1964, and we need not go into the point.
We may mention that in three appeals,
Criminal Appeal No. 225/64, Criminal Appeal No. 226/64 and Criminal Appeal No. 227/64,
the orders of detention are dated February 14, 1964, but nothing turns on this
difference in the dates of detention.
In the result the appeals fail and are
dismissed. Appeals dismissed.