Ram Bali Rajbhar Vs. The State of West
Bengal & Ors [1974] INSC 282 (20 December 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION: 1975 AIR 623 1975 SCR (3) 63 1975
SCC (4) 47
CITATOR INFO :
F 1975 SC 609 (51) F 1975 SC1165 (14)
ACT:
Maintenance of Internal Security Act-Public
order-Section 14 read with Sec. 21 of the General clauses Act-its scope.
HEADNOTE:
The petitioner was detained under MISA on the
grounds that on 2 occasions, he along with his associates, hurled bombs on a
tea-stall and on a watch repairing shop, thereby damaging furniture, watches
showcases etc., endangering the lives and safety of the people; and creating a
great disturbance of public order.
In a habeas corpus petition, the petitioner
challenged the grounds of detention as "Vague, false, malafide, fanciful
& nonexistent, that there was no rational nexus between the grounds with
permissible objects of preventive detention and that the, offences mentioned in
the ground could be the subject-matter of ordinary criminal prosecutions but
not of public order, the breach of which is something more serious than mere
breach of the Criminal Law of the land.
Dismissing the petition,
HELD:(1) "Public Order" is
necessarily an elastic concept which is wider than the "security of the
State"-a category separated in the Act from it by the disjunctive
"or." [66B] (2)In some cases, the facts may clearly indicate that an
ordinary criminal prosecution would suffice and the present case, is not one of
those cases. [66C] (3)In a case of detention, the Court has to be careful to
avoid substituting its own opinion about what is enough for the subjective
satisfaction of the detaining authorities.
and interference could be justified only if
it is clear that no reason nperson could possibly be satisfied about the need
to detain the person on the ground saved. The required satisfaction must have
reference to a need to prevent what is anticipated from the detenu. The past
conduct or activity is only relevant in so far as it furnished reasonable
grounds for an a apprehension. Prevention and punishment have some, common
ultimate aims but their immediate objectives and modes of action are
distinguishable. [66D] (4)In the Present ease, the petitioner was given a
personal hearing by the Advisory gourd. The Board heard another detenu. who was
released )later. The Board did not think that the petitioner should be
released. It shows that the Advisory Board did apply its mind to the case of
the petitioner. [67H] (5)As regards non-application of the minds of the
detaining authorities, the facts of the case speak otherwise. As regards the
affidavit sworn by the Tea-shop owner whose shop was attacked, that the
petitioner did not attack his shot). were considered by a division bench of the
Calcutta High and it rightly held that the affidavit could not vitiate the
initial detention order which was passed at a time when no such affidavit was
either before the detaining authorities or placed before the Advisory Board.
[68D] (6)So far as the second representation
of the petitioner to the State Govt. is concerned, under Sec. 14 of the Act,
the State Govt. can revoke or modify a detention order at any time. Sec. 14 of
the Act apparently vests a wider power than that which the State Govt. may have
possessed under Sec. 21 of the General Clauses Act 1897, which is by having
been specifically mentioned in Sec. 14 of the Act, makes it clear the power
under Sec. 14 is not necessarily subject to the provision of Sec. 21 of the General
Clauses Act. This means that a revocation or modification of an order of the
State Govt.
64 is possible even without complying with
the restriction laid down in Sec. 21 of the General Clauses Act; but a correct
interpretation of the two provisions would be that it is left to the State
Govt. in the exercise of its discretion, either to exercise the power read with
provisions of Sec. 21 of the General Clauses Act or without the aid of Sec. 21.
[69B-D] (7)Further, it will be reasonable
that judicious exercise of the power tinder Sec. 14 of the Act to refer a case
once again to the, Advisory Board for its opinion before the subsequent
representation made on fresh material by a detenu is rejected and the Advisory
Board can then adopt such parts of the procedure laid down in Sec. 11 of the
Act as could be applied to a second representation. [69E-F; 70B] (8)On a habeas
corpus petition, what has to be considered by the Court is whether the
detention is prima facie legal or not, and not whether the detaining
authorities have wrongly or rightly reached a satisfaction on every question of
fact. Further, in a habeas Corpus petition, the petitioner has to show, in a
case under Maintenance of Internal Security Act, 1971. that there has been a
violation of either Art. 21 or Art. 22 of the constitution. [70E-F;
71A] in the present case, the Court directs
that the State Govt.
would consider and take an early decision
upon the pending fresh representation of the petitioner in accordance with the
law laid down above.
ORIGINAL JURISDICTION : Writ Petition No. 322
of 1974.
(Petition Under Article 32 of the
Constitution of India.) P. K. Chatterjee for the Petitioner.
D. N. Mukherjee and G. S. Chatterjee, for the
Respondents.
The Judgment of the Court was delivered by
BEG, J.-The petitioner, Ram Bali Rajbhar, in this Habeas Corpus petition under
Article 32 of the Constitution of India, seeks release from a detention ordered
on 1-10-1973 by the Commissioner of Police, Calcutta, on the following grounds
supplied on the same day to him "(1) On 5-9-1973 at about 17-40 hrs., you
long with your associates Anwar Hossain of 18/2, Mominpur Road, Subal Das of Jhupri
at Dock East Boundary Road, Calcutta, and others, all being armed with iron
rods, lathis and bombs created a great disturbance of public order by hurling
bombs at the tea-stall of Lal Mohan Jadav at 19, Coal Berth, Calcutta,
endangering the lives and safety of the stall-owner and other nearby
shop-keepers, as he had refused to supply tea to you all, without payment.
The incident brought widespread panic in the
locality, led to the closure of shops, suspension of vehicular traffic, thereby
jeopardising the, maintenance of public order.
(2)On 7-9-1973 at about 20.05 hrs., you along
with your associates Kali Das alias Tenia of Jhupri at Strand Road, Calcutta,
Subed Ali of 5/2 Bhukailash Road and others, all being armed with iron-rods,
lathis and bombs, attacked a Watch Repairing Shop styled as M/s. Babloo Watch
& Repairing Co., at 52, Circular Garden Reach Road, Calcutta, by hurling
bombs and damaging furniture, 65 watches, show-cases of the said shop as Sk.
Azim, the owner of this shop had earlier
refused to pay you all for drinks, when the local people came to intervene, you
all hurled bombs indiscriminately with a view to kill them. The incident
clamped fear, frightfulness and insecurity in the minds of the public thereby
affecting public order.
And if left free and unfettered you are
likely to continue to disturb maintenance of public order by acting in a
similar manner as aforesaid".
The petitioner complains that the grounds of
detention are "vague, false, malafide, fanciful, non-existent". It is
submitted that there is no rational nexus of the grounds with permissible
objects of preventive detention. It is urged that criminal offences for which
the authorities charged with maintaining law and order can institute ordinary
criminal prosecutions are not meant to be made the subject matter of detention
orders. "Public Order", it is contended, is something more serious
than mere breach of;
the, criminal law for which the offender must
be dealt with under the ordinary law. "Public Order" mentioned in
Section 3(a)(ii), it is suggested, must be read in conjunction with the
"security of the State" so that only a person who indulges in
activities which endanger something a kinto the security of the State should be
deemed to be covered by provisions relating to preventive detention.
We think it is too late in the day to argue
that there is any misuse of the provisions of Maintenance of Internal Security
Act (hereinafter referred to as 'the Act') merely because, in order to arrive
at a satisfaction that it is necessary to detain a person for the purposes of
the security of the State or the maintenance of public order, some instances
are given of criminal activity, whether they could have or have formed the
subject matter of successful or unsuccessful prosecution.. (See Golam Hussain
alias Gama of West Bengal. (4) An order based upon such grounds cannot be said
to be affected by extraneous considerations or become mala-fide for this reason
only. The legal position on this subject has been recently clarified by a State
of West Bengal & Ors.,(5) where it was pointed out p.
2160) "The power of preventive detention
is qualitatively different from punitive detention. The power of preventive
detention is a precautionary power exercised in reasonable anticipation. It may
or may not relate to an offence. It is not a parallel proceeding. It does
not-overlap with prosecu(1) [1974] (4) S.C.C. p.530.
(2) AIR 1972 S.C. 1214.
(3) AIR 1972 S.C. 1670.
(4) [1973] 1 S.C.R. 467.
(5) AIR 1974 S.C. 2154 at 2160.
6-379SupCI/75 66 tion even if it relies on
certain facts for which prosecution may be launched or may have, been launched.
An order of preventive detention may be made before or during Prosecution. An
order of preventive detention may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency of prosecution
is no bar to an order of preventive detention. An order of preventive detention
is also not a bar toprosecution".
"Public Order" is necessarily an
elastic concept which is, in any case, wider than the "security of the
State" cat.--gory separated in the Act from it by the disjunctive
"or". It is true that, in some cases, the facts may so clearly
indicate that an ordinary criminal prosecution would suffice that the necessity
to order the detention of an offender for one of the objects of the Act could
not be said to be reasonably made out. The case before us, however, is not one
of those cases. We have to be careful to avoid substituting our own opinion
about what is enough for the subjective satisfaction of the detaining
authorities with which interference could be justified only if it is clear that
no reasonable person could possibly be satisfied about the need to detain on
the grounds given in which case the detention would be in excess of the power
to detain. The required satisfaction must have reference to a need to prevent
what is anticipated from the detenu. The past conduct or activity is only
relevant in so far as it furnishes reasonable grounds for an apprehension.
Prevention and punishment have some common
ultimate aims but their immediate objectives and modes of action are
distinguishable.
A reference to the facts of the decided cases
cited above will indicate that it is not enough that a criminal persecution was
launched against the petitioner on 6-9-1973 for the alleged participation of
the petitioner in the incident of 5-9-1973. It is, however, alleged that on
20-11-1973, Lal Mohan Jadav, whose tea shop had been attacked by a number of
persons who, according to the State, include the petitioner, himself swore an
affidavit in which he stated that he knew the petitioner and could say that the
petitioner had not participated in the attack on his tea shop.
In his counter affidavit in this Court,
Respondent No. 2, the Commissioner of Police, Calcutta, gave the following
sequence of events which is not disputed by the petitioner :
1.The Petitioner was discharged by the
Criminal Court on 1-10 1973, the very date on which the detention order was
made by the Commissioner of Police.
2.The grounds of detention were also served
upon the petitioner on 1-10-1973.
3.On 18-10-1973, a representation by the
petitioner against his ,detention was received by the State Government.
4.On 22-10-1973, the detention order of the
Commissioner of Police was approved by the State Government.
67 5.On 23-10-1973, the State, Government
sent the petitioner's case to the Advisory Board together with the grounds on
which the detention was ordered, the representation against it made by the
petitioner, and a report made by the Commissioner of Police under Sec. 3, sub.
s. (3) of the Act.
6.On 5-11-1973, the Advisory Board, after
examining. the case, gave its opinion to the State Government that there was
sufficient cause for the petitioner's detention.
7. The State Government confirmed the
detention order on 811-1973 andits order was served on the petitioner in jail
on 14-11-1973.
8. On 20-11-1973, Lal Mohan Jadav swore an
affidavit, 'in the Court of Magistrate 1st Class at Alipore, stating that the
petitioner Ram Bali Rajbhar did not participate in the attack on his shop on
5-9-1973 and that he did not mention his name in the First Information Report
for that reason.
9. On 27-11-1973, the petitioner made a
second representation which was received by the State Government on 28-11-1973.
This %as still under consideration when the petitioner filed a Writ Petition
under Article 226 of the Constitution to the Calcutta High Court questioning
his detention.
10. On 21-3-1973, the Calcutta High Court
rejected the Hebeas Corpus petition.
The petitioner asserts that, on the very
grounds on which he was detained, one Kamal Singh @ Tiger son of Gurmel Singh,
who, like the petitioner, was alleged to be "homeless' in Calcutta, was
detained but released after a consideration of his case by the Advisory Board.
The petitioner has attached a copy of the order of the State Government on the
case of Kamal Singh which shows that, although, Kamal Singh made no
representation at all to the State Government under Section 8 of the Act, yet,
he was released because the Advisory Board, after considering all the materials
placed before it and after hearing Kamal Singh @ Tiger, in person, reported
that in its opinion, "no sufficient cause for the detention" of Kamal
Singh existed. In reply to the petitioner's assertions about the case of Kamal
Singh, the Commissioner of Police stated, in paragraph 20 of his affidavit,
that they are not relevant for the petitioner's case. We think that they would
be relevant to determine whether the cases of the petitioner and of Kamal Singh
were identical or distinguishable. It is evident that Kamal Singh, although
served with identical grounds of detention, and, similarly described as
"homeless', asked for and obtained a personal hearing which satisfied the
Advisory Board that his detention was not justified. Apparently, the petitioner
could not persuade the Advisory Board, similarly, to believe that his case fell
in the same category. This, therefore, shows that the Advisory Board applied
its mind to the case of the petitioner which in its opinion, stood in. a
different class from the case of Kamal Singh 68 Learned Counsel.for the
petitioner then contended that the detaining authorities did not appear to have
applied their minds to the case of the petitioner as they ought to have done
and that this is evident from the fact that he is described as "homeless'
when he holds a licence for money lending and has an address in. Calcutta. It
was suggested that the petitioner may have been falsely and maliciously
implicated.by some of his,debtors and that the detaining authorities would have
discovered this if they had investigated facts properly. In support of such an
inference, it was submitted that it had been alleged that the petitioner had
participated in an attack upon a tea shop when Lal Mohan Jadav, who ran the tea
shop, had himself sworn that the petitioner had not participated in the attack.
On the other hand, it is asserted, in the affidavit sworn in by the
Commissioner of Police, Calcutta, that the Commissioner was satisfied, from the
enquiries made by him through reliable officers, that the petitioner did
participate in the alleged incident although he, may have been able to secure
an affidavit from Lal Mohan Jadav after his discharge, the suggestion being
that the affidavit was dishonestly sworn and procured after the petitioner had
been discharged.
A Division Bench of the Calcutta High Court
had considered the effect of the affidavit of Lal Mohan Jadav on the
petitioner's detention. In our opinion, it had rightly held that the affidavit
could not vitiate the initial detention order which was passed at a time when
no such information contained in an affidavit was either before the detaining
authorities or placed before the Advisory Board. The petitioner had made no assertion
that he did not get a personal hearing by the Advisory Board or that he did not
have a full opportunity to make his representations or to put forward his case
fully before the Advisory Board which could fairly and impartially consider
every allegation on every question of fact. The petitioner has not alleged any
hostility of the Commissioner of Police of Calcutta or of any other officer
towards him.On the materials before us, we cannot be satisfied that neither the
detaining authorities nor the Advisory Board had properly investigated or
applied their minds to all the relevant facts relating to the petitioner's
case, Nevertheless, it does appear to us.
from the affidavit of the Commissioner of
Police, that the State Govt. had Perhaps not passed any order upon the second
representation of the petitioner due to the belief that it may be improper to
pass any order on it when, a Habeas Corpus petition of the petitioner is
pending. There could be no reason whatsoever, now, after this Court as well as
the High Court of Calcutta have considered the petitioner's Habeas Corpus
petitions, for the State Govt. to delay further investigation or action upon
the petitioner's second representation. The question which arises here is :
what is the action which the State Govt. can take on the petitioner's second
representation? Section 14(1) of the Act lays down "14(1) Without
prejudice to the provisions of section 21 of the General Clauses Act, 1897, a
detention order may, at any time. be revoked or modified(a)notwithstanding that
the order has been made by an officer mentioned in sub-section (2) of section
3, by the 69 State Government to which the officer is subordinate or. by the
Central Government;
(b)notwithstanding that the, order has been
made by a State Government, by the Central Government".
The State Government can revoke or modify a
detention order if it is satisfied, on new or supervening conditions or facts
coming to light, that a revocation or modification had become necessary.
Section 14 of the Act apparently vests a wider power than that which the State
Govt. may have possessed' under the provisions of Section 21 of the General Clauses
Act. 1897 which is, by having been specifically mentioned in section 14 of the
Act, made applicable in such cases. The language of Section 14 of the Act,
however, makes it clear that the power under Section 14 is not necessarily
subject to the provisions of Section 21 of the General Clauses Act. This means
that a revocation or modification of an order of the State Govt. is possible
even without complying with the restrictions laid down in Section 21 of the
General Clause Act. Nevertheless, as the wider power under Section 14 of the
Act does not over-ride but exists "without prejudice to the provisions of
Section 21 of the General Clauses Act", we think that the correct
interpretation of the provisions, read together, would be that it is left to
the State Government in the exercise of the discretion, either to exercise the
power read with provisions of Section 21 of the General Clauses Act or without
the aid of Section 21 of the General Clauses Act.
We think it will be a reasonable, and
judicious exercise of the power under Section 14 of the Act to refer a case
once again to the Advisory Board for its opinion before a subsequent
representation made on fresh materials by a detenu is rejected. It is true that
the conditions under which a reference is made for the opinion of the Advisory
Board under Section 10 of the Act cannot be repeated. It is also clear that the
express and mandatory duty to refer arises only under the conditions laid down
by Section. 10 of the Act and there is no specific or separate provision for
calling for the opinion of the Advisory Board from time to time. Nevertheless,
if the power under Section 14 of the Act can be exercised ','in the like manner
and subject to the like sanctions and conditions (if any), to use the language
employed by Section 21 of the General Clauses Act, we can only interpret
"like manner" and subjection to "like conditions" to mean
similar and not identical manner and conditions. We think that a situation in
which a power of revocation or modification of a detention order is invoked by
a second or a subsequent representation can, after making allowance for
intervening events which cannot be wiped out of existence, be compared to and
resembles a situation in which the opinion of the Advisory Board is sought
after an approval or a preliminary confirmation of a detention order by the
State Government under Section 3(3) of the Act, awaiting the opinion of the
Advisory Board, which is expected to function quite impartially and
independently before the Government makes a final order under Section 12 of the
Act. Section 70 10 of the Act only provides, for the 1st representation.
But, it appears to us that the power under
Section 14 of the Act, read with Section 21 of the General Clauses Act, which
is specifically mentioned in Section 14 of the Act, could import or imply a
power of the State Government to refer a second representation likewise to the
Advisory Board, if the State Government so decades in an analogous situation.
And, the Advisory Board can then adopt such parts of the procedure laid down in
Section 1 1 of the Act as could be applied to a second representation. In such
a case, the reference would not be under Section 10 of the Act but under
Section,14 of the Act read with the necessary implication of preserving the power
of the Govt. to act as laid down in Section 21 of the General Clauses Act. In
other words, the subsequent reference would result from a necessarily implied
power of the Govt. to act. so far as possible, in a like manner to the one it
has to adopt in confirming or revoking the initial detention order under
Section, 12 of the Act.
And, if there is such a power in the
Government to refer a subsequent representation on fresh grounds to the Advisory
Board for its opinion, there will, we think, be a corresponding implied power
and obligation of the, Advisory Board to give its opinion in accordance with
the procedure prescribed by Section 1 1 of the Act exception that its report
will necessarily have to be submitted in such cases beyond ten weeks from the
date of detention order but within a reasonable time.
We think that the High Court of Calcutta
while dismissing the Writ Petition, need not have expressed any opinion about
the worth of the affidavit sworn by Lal Mohan jadav, the tea shop owner. That,
we think, is the function of authorities constituted under the Act for deciding
questions of fact.
On a Habeas Corpus petition, what has to be
considered by the Court is whether the detention is prima facie legal or not,
and not whether the detaining authorities have wrongly or rightly reached a
satisfaction on every question of fact.
Courts have, no doubt, to zealously guard the
personal liberty of the citizen and to ensure that the case of a detenu is
justly and impartially considered and dealt with by the detaining authorities
and the Advisory Board But, this does not mean that they have to or can rightly
and properly assume either the duties cast upon the detaining authorities and
Advisory Board by the law of preventive detention or function as Courts of
Appeal on questions of fact. The law of preventive detention, whether we like
it or not, is authorised by our Constitution presumably because it was foreseen
by the Constitution-makers that there may arise occasions in the life of the
nation when the need to prevent citizens from acting in ways which unlawfully
subvert or disrupt the bases of an established order may outweigh the claims of
personal liberty.
Every petitioner under Article 32 of the Constitution
has to establish an infringement of a fundamental right. Hence, this Court
cannot order a release from detention, upon a Habeas Corpus petition, until it
is satisfied that a petitioner's detention is really unwarranted by law. This
means that, in a case of detention under the Maintenance of 71 Internal
Security Act, 1971, the petitioner has to show a violation of either Article 21
or Article 22 of the Constitution. That personal liberty of the citizen which
the law so sedulously and carefully protects can also be taken away by the
procedure established by law when it is used to jeopardise public good and not
merely private interests.
Learned Counsel for the petitioner could not
indicate material which could convince us that the petitioner has been denied
the protection of either Article 21 or Article 22 of the Constitution. There is
nothing here to show that the petitioner did not have the opportunity of making
an effective representation against his detention. We are also not satisfied,
as we have already indicated, that the powers under the Act are being utilised
in this case for a collateral purpose or in a manner which is malafide simply
because a criminal prosecution was launched against the petitioner which
failed. That is one of the matters which the Advisory Board and the State
Government can take into account in forming an the opinion on the question
whether the petitioner's detention or continued detention is necessary. In
order to make out a case of malafide or misuse of powers under the Act, we
think that better and more convincing material has to be forthcoming than what
the petitioner in the instant case has been able to place before us.
We, however, must observe here that some of
the facts noticed above are enough to put the detaining authorities and the
Advisory Board on their guard so that they should also examine the possibility
of having been misled by mechanically reproduced assertions made by subordinate
police officers acting at the instance of persons with questionable motives.
The detaining authorities and the Advisory Board are the best judges of that.
They are armed with ample power and means to lift the cast iron curtain of
impeccable form behind which this Court does not, in the absence of good and
substantial reasons, try to peep in an attempt to discover malafides or misuse
of drastic powers meant to be used honestly, carefully reasonably, and fairly.
This Court presumes that they are being so
used unless and until the contrary is palpable, but no such presumption need hamper
the efforts which the detaining authorities and the Advisory Boards ought to
make to discover the real or the whole and unvarnished truth before determining
the need for a preventive detention. At any rate, no mere amour propre or self
esteem or any police officer should be, allowed to stand in the, way of. anhonest,
careful, and impartial investigation and decision.
For the reasons given above while we reject
the petitioner's prayer for quashing the detention order, we direct the
Government of West Bengal to consider and take up an early decision upon the
pending fresh representation of the petitioner in accordance with the
requirements of law and justice as indicated by us above. Subject to this
direction, this petition is dismissed.
S.C. Petition dismissed.
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