Borjahan Gorey Vs. The State of West
Bengal [1972] INSC 160 (1 August 1972)
DUA, I.D.
DUA, I.D.
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1972 AIR 2256 1973 SCR (1) 751 1972
SCC (2) 550
CITATOR INFO :
F 1973 SC 207 (5) F 1973 SC 897 (4) R 1973
SC1062 (5) R 1974 SC2154 (34) D 1986 SC2177 (36)
ACT:
Maintenance of Internal Security Act 26 of
1971, s. 3Detention under--Grounds supplied containing facts on which
preventive proceedings under ss. 109 & 110 of the Code of Criminal
Procedure could lie--Detention on such facts under Act whether
barred--Corrections of facts whether can be gone into by this Court--Plea of
mala fides whether established.
HEADNOTE:
The petitioner was detained by an order of
the District Magistrate, Howrah and under the provisions of the Maintenance of
Internal Security Act (26 of 1971). He was supplied the grounds of detention.
He made a representation which was considered by the authorities under the Act
and rejected. A petition under article 32 of the Constitution was then filed
and the petitioner urged : (i) that the 'facts mentioned in the grounds of
detention came within the purview of sections 109 and 110 of the Code of
Criminal Procedure and therefore his detention on those facts under s. 3 of the
Act was unjustified; (ii) that the facts mentioned in the grounds were not
correct and the order of detention was mala fide.
Dismissing the petition,
HELD : (i) Merely because a detenu is liable
to be tried in Criminal Court for the commission of criminal offences or to be
proceeded against for preventing him from committing offences dealt within
Chapter VIII of the Code of Criminal Procedure would not by itself debar
government from taking action for his detention under the Act. The Act was
passed in order to meet a serious situation affecting the security of India and
the maintenance of public order as contemplated by section 3 of the Act.
Judicial trial for punishing the accused for the commission of an offence as
also preventive security proceedings in a criminal Court against a person
merely for keeping the peace or for good behaviour is a jurisdiction distinct
from that of detention under the Act which has in view the object of preventing
the detenu from acting in any manner prejudicial Inter alia to the security of
the State or maintenance, of public order. The fields of these two
jurisdictions, are not co-extensive nor are they alternative' The jurisdiction
under the Act may be invoked when the available evidence does not come up to
the standard of judicial proof but is otherwise cogent enough to give rise to
suspicion in the mind of the authority concerned that there is reasonable
likelihood of repetition of past conduct which would be prejudicial inter alia
to the security of the State or the maintenance of public order or even when
the witnesses may be frightened or scared of coming to the Court and deposing
about past acts on which the opinion of the authority concerned is based. This
jurisdiction is sometimes called the Jurisdiction of suspicion founded on past
incidents and depending on subjective satisfaction. The authorities mentioned
in section 3(2) which include the District Magistrate are best suited to decide
whether it is necessary to proceed under the Act, which decision rests on their
subjective satisfaction. The grounds of detention relate to the past acts on
which the opinion as to the likelihood of the repetition of such or similar
acts is based, and those grounds are 'furnished to the detenu to inform 752 him
as to how and why the subjective satisfaction has been arrived it so as to
enable him to represent against them.
The fact, therefore that a prosecution under
the Code could have also been launched is not a valid ground for saying that it
precludes the authority from acting under the Act.
(2) The District Magistrate is expected to
know the situation prevailing in the district and to take suitable action for
the maintenance of public order. His assessment of facts and his opinion on the
propriety of making a detention order must be given due consideration and respect
by this Court. The petitioner's representation was also duly considered by the
State Government and rejected. The Advisory Board after hearing the
detenu-petitioner in person also expressed opinion that there was sufficient
cause for his detention. In these circumstances it was not possible for this
Court in habeas corpus proceedings to hold an independent inquiry into the
question whether or not the grounds on which the impugned order or detention
was passed were false or non-existent. Nor could the impugned order be held to
be mala fide. There being no legal infirmity in the order of the petitioners
detention, and the 'facts affirmed by the District Magistrate which must be
accepted on the facts and circumstances of the case to be true, being relevant to
the object of the detention, this petition must fail.
ORIGINAL JURISDICTION: Writ Petition No. 192
of 1972.
(Under Article 32 of the Constitution of
India for tile enforcement of fundamental rights.) Hiralal fain for the
petitioner.
P. K. Chakraborty and G. S. Chatterjee for
the respondent.
The Judgment of the Court was delivered by
Dua, J This is a petition under Art. 32 of the Constitution challenging the
order of the petitioner's detention dated September 23, 1971 made by the
District Magistrate, Howrah, under S. 3, sub-ss. (1) and (2) of the Maintenance
of Internal Security Act, 26 of 1971 (hereinafter called the Act). The
petitioner Borjahan Gorey, who claims to be a laborer working in Gogalbhai Jute
Mills was arrested on October 5, 1971 pursuant to the impugned order of
detention.
The grounds of detention were served on him
on the same day.
He made a representation to the State
Government on October
25. 1971 which was duly considered by the
said Government on October 29, 1971. His case was placed before the Advisory
Board on November 1, 1971 as required by S. 10 of the Act and the said Board
made_ its report on December 10, 197 1.
As in the opinion of the Board there was
sufficient cause for the petitioner's detention the State Government confirmed
the impugned order on December 23, 1971 and communicated this fact to the
petitioner on the same day.
The grounds for the petitioner's detention
duly communicated to him under S. 8(1) of the Act are :"(1) On 7-7-71
after 19.30 hours you and your associates As to Patra, Netai Patra, Habi Khara
and 753 others terrorised the members of the public, who assembled in the field
of Shri Saraj Ghosal near Fuleswar Rly. Station to decide the actions to be
taken against the antisocial activities, like snatching away valuables from the
passengers from running trains, carried on by you and your associates, by
exploding bombs at a distance of 8/10 cubits from the place of meeting. The
local people being panicky started running helter and skelter but you and your
associates obstructed them by brandishing. swords and iron rods.
2. On 6-8-71 at about 11.45 hours, you and
your associates Netai Patra, Asto Patra, Amjed, Habi Khara and 15/20 others
being armed with ballam, sword and bombs etc., formed an unlawful assembly in
front of the shop _of Pranab Sarkar of Kalsafa market, P. S. Uluberia and
'attacked one Basudev Sarkar causing severe injuries on his person. When
resisted by the members of the public, you and your associates attacked them
causing injuries to some of them and terrorised them by hurling bombs towards
them. Being panickstricken, the local people started to run aimlessly and the
market was closed instantaneously. You and your associates created a reign of
terror and continued your rowdy activities till a police party reached
there." The first point presented by Shri Hiralal Jain, learned counsel
appearing as amicus curiae against the petitioner's detention is that the
grounds, on the basis of which the impugned detention order has been made,
disclose facts which would squarely fall within the purview of ss. 109 and 110
of the Code of Criminal Procedure and, therefore, the petitioner should have
been appropriately proceeded against under those sections rather than detained
under s. 3 of the Act. Our attention was not drawn by the learned counsel to
any statutory provision, nor was any precedent or principle cited by him in
suport of this contention.
Now merely because a detenu is liable to be
tried in a criminal court for the commission of a criminal offence or to be
proceeded against for preventing him from committing offences dealt with in
Chapter VIII of the Code of Criminal Procedure, would not by itself debar the
government from taking action for his detention under the Act. The scheme of
the Act as disclosed by its clear language does not lend any support to the
contention urged by Shri Jain. Besides, the object and purpose of bringing the
Act on the statute book also clearly shows that in view of the prevailing
situation in the country 754 and the developments across the border in July,
1971 the need was felt for urgent and effective preventive action in the
interest of national security and the Act was retrospectively enacted to
replace the Maintenance of Internal Security Ordinance, 1971. The preventive
detention provided by the Act is apparently designed to deal urgently and
effectively with the more serious situation,, inter alia, affecting the
security of India and the maintenance of public order as contemplated by S. 3
of the Act. The liability of the detenu also to be tried for commission of an
offence or to be proceeded against under Chapter VIII of the Code of Criminal
Procedure which deals with prevention of less serious disturbances and requires
execution of bonds on the basis of the acts disclosed in the grounds do not in
any way as a matter of law affect or impinge upon the full operation of the
Act. The reason is obvious. Judicial trial for punishing the accused for the
commission of an offence as also preventive security proceedings in a criminal court
against a person Merely for keeping the peace or for good behavior under
Chapter VIII ,of the Code of Criminal Procedure, we may appropriately point
out, is a jurisdiction distinct from that of detention under the Act, which has
in view, the object of preventing the detenu from acting in any manner
prejudicial inter alia to the security of the State or maintenance of public
order. The fields of these two jurisdictions are not co-extensive nor are they
alternative. The jurisdiction under the Act may be invoked, when the available
evidence does not come up to the standard of judicial proof but is otherwise
cogent enough to give rise to suspicion in the mind of the authority concerned
that there is a reasonable likelihood of repletion of past conduct which would
be prejudicial inter alia to the security of the State or the maintenance of
public order or even when the witnesses may be frightened or scared of coming
to a court and deposing about past acts on which the opinion of the authority
concerned is based. This jurisdiction is sometimes called the jurisdiction of
suspicion founded on past incidents and depending on subjective satisfaction.
The jurisdiction for trial or for preventive proceedings under Chapter VIII.
Code of Criminal Procedure cannot be successfully invoked in such a situation.
In other words a case under the Code of Criminal Procedure whether punitive or
preventive depends on the proof of objective facts which have already taken
PI-ace whereas a case under the Act providing for preventive detention depends
on the subjective satisfaction of the authorities concerned of the likelihood
of the person to be detained to act in future in a manner similar to the one
seen from his past acts. The authorities mentioned in S.
3(2) which include the District Magistrate
are, in our view, best suited, to decide whether it is necessary to proceed
under the Act which decision rests on their subjective satisfaction. The
grounds of detention relate 755 to the past acts on which the opinion as to the
likelihood of the repetition of such or similar acts is based and those grounds
are furnished to the detenu to inform him as to how and why the subjective
satisfaction has been arrived at so as to enable him to represent against them.
The fact, therefore, that a prosecution under the Code could also have been
launched is not a valid ground for saying that it precludes the authority from
acting under the Act. This contention is thus devoid of merit. We have
discussed this aspect somewhat elaborately go as to eliminate any
misunderstanding of the True import of our decision and to exclude the
possibility of any impression that the Act vests in the authority arbitrary
power to select one or the other course dealing,, with the same or exactly
similarly situation.
The learned counsel then referred us to the
petitioner's denial in his representation of the truth of the allegations
contained in the two grounds. According to him on the date on which the
incident mentioned in ground no. 1 is alleged to have occurred he was present
on duty in the mill and, therefore, he could not have participated in that
occurrence. That ground must, therefore, be considered to be false, con-.
tended Shri Jain. In so far as the second ground is concerned, according to the
petitioner, at the time of the alleged incident, i.e., at 11.45 a.m. on August
6, 1971, he was at the dispensary of the doctor appointed by the Employees'
State Insurance for Gogalbbai Jute Mills where he had done with the object of
taking medical 'leave for a couple of days because he was sick and was running
temperature. In other words the petitioner ,pleads alibi with respect to both
the grounds. On the basis of these contentions, according to Shri Jain, the
impugned order should be held to be based on allegations which are not true.
The impugned order of detention is accordingly contended to be insupportable
being based on non-existing facts.
We are unable to agree with this submission.
The District Magistrate who made the impugned order has, in the counter affidavit,
sworn "that the detenu-petitioner is one of the notorious rowdies and
anti-social elements of P.S. Pudubalia, District Howrah. He has further added
that after receiving reliable information relating to the alleged antisocial
and prejudicial activities of the, detenu-petitioner relating to the
maintenance of public order he passed the order of detention under the Act. In
para 7 of the counteraffidavit he affirmed both the grounds in express
language.
We do not find any cogent ground for not
accepting the facts affirmed in the counter-affidavit. The District Magistrate
is expected to know the situation prevailing in the district and to take
suitable action for the maintenance of public order. His assessment of facts
and his opinion on the 756 propriety of making a detention order must be given
due consideration and respect by this Court. The petitioner's representation
was also duly considered by the State Government and rejected. The Advisory
Board, after hearing the detenu-petitioner in person also expressed the opinion
that there was sufficient cause for his detention. In these circumstances, it
is not possible for us in habeas corpus proceedings to hold an independent
enquiry into the question whether or not the grounds on which the impugned
order of detention is passed are false or non-existent. Nor can the impugned
order be held to be mala fide as suggested by Shri Jain. There being no legal
infirmity in the order of the petitioner's detention and, the facts affirmed
by_ the District Magistrate, which must be accepted on the facts and
circumstances of this case to be true, being relevant to the object of
detention, this petition must fail and is dismissed.
Petition dismissed G.C.
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