Binod Bihari Mahato Vs. State of Bihar
& Ors [1974] INSC 190 (1 October 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 2125 1975 SCR (2) 215 1975
SCC (3) 328
CITATOR INFO :
R 1987 SC1192 (11)
ACT:
Maintenance of Internal Security Act, 1971,
Section 3(1)(a)(ii)-Petitioner furnished with order of detention and the
grounds of detention in Hindi as well as in EnglishEnglish version of grounds
containing the expression "or the security of the State in addition to
"the maintenance of the public order" in the Hindi version-Order of
detention, if vitiated.
HEADNOTE:
The petitioner was arrested at Dhanbad on 6th March, 1974 and after being produced before the Sub-Divisional Magistrate, he was
taken to Bhagalpur Central Jail from Dhanbad. On an application made by the
petitioner, the Sessions Judge granted bail to the petitioner, and an order
dated 18th, March, 1974, was passed for release of the petitioner. On the same
day that is 18th March, 1974, the District Magistrate, Dhanbad passed an order
detaining the petitioner under section 3 of the Maintenance of Internal Security
Act, 1971, on the ground that it, was necessary to do so with a view to
preventing the petitioner from acting in any manner prejudicial to the
maintenance of public order. Pursuant to the order of detention, the petitioner
was arrested on 21st March, 1974 as soon as he was released on bail. At the
time of his arrest the Hindi as well as English versions of the order of
detention were served on him together with the grounds of detention which were
also in Hindi and English versions. After enumerating the grounds, the Hindi
version proceeded to recite the satisfaction of the District Magistrate that in
the circumstances he was satisfied that if the petitioner "is allowed to
remain at large he will indulge in activities prejudicial to the maintenance of
public order" and for prevention of such activities he considered the
detention of the petitioner necessary. The words "or security of the
State" were added in the recital of the satisfaction in the English
version though they were absent in the Hindi version. The petitioner's
representation to the State Government was rejected by the Govt. on 24th April, 1974.
The Advisory Board before which the case of
the petitioner had been placed by the State Govt. gave ,in opportunity to the
petitioner to be personally heard and after considering all the facts and
circumstances of the case, it gave its opinion on 2nd May, 1974 that there was sufficient cause for the detention of the petitioner. After the rejection of the
petition under Art. 226 of the Constitution by the High Court, the petitioner
filed the present petition under Art.
32 of the Constitution challenging the
validity of his detention.
It was contended that (i) the recital
"or security of the State" in the English version of the grounds of
detention showed that the District Magistrate did not apply his mind with any
seriousness either to the acts alleged in the grounds of detention against the
petitioner or to the question whether they fell within the purview of the
expression "the maintenance of public order" or "the security of
the State" or both and that was sufficient to vitiate the order of
detention; (ii) the first ground in so far as it alleged that the petitioner
was propagating communal hatred between Adivasis and others (Biharis) and also
between Adivasis and non-Advasis was vague and unintelligible and (iii) the
District Magistrate had taken into account many more instances than those set
out in grounds (2) and (6).
Dismissing the petition under Article 32 of
the Constitution,
HELD : If the order of detention purports to
be based on the satisfaction of the detaining authority that it is necessary to
detain the petitioner with a view to preventing him from acting in a manner
prejudicial to the maintenance of public;
order or security of the State, it would
clearly be an invalid order. [220 E-F] 216 Kishori Mohan Bera v. The State of
West Bengal, A.I.R. 1972 S.C. 1749 and Akshoy Konai v. State of West Bengal,
A.I.R.
1973 S.C. 300, relied on.
If it appears in the present case that the
order of detention made by the District Magistrate was based on the
satisfaction that it was necessary to detain the petitioner with a view
preventing him from carrying on activities prejudicial to the maintenance of
public order or the security of the State, it would have to be struck down as
invalid. But there is no such infirmity in the order of detention. It is only
in the English version of the grounds of detention that the words "or
security of the State" has been added. This is obviously the result of
inadvertence and no argument can be founded upon it. In the first place, Hindi
being the official language of the State, it is the Hindi version of the
grounds of detention which must be regarded as authentic and the validity of
the detention must be judged with reference to the Hindi version of the grounds
and not the English version. Secondly, even on the English version of the
grounds of detention, it is clear that at the end of each of the grounds it is
stated in so many words that the acts of the petitioner were prejudicial to the
maintenance of public order and there is no reference to prejudice to the
security of the State. It is only in the con, elusion based on these facts that
there is a recital of the satisfaction that if the petitioner is allowed to
remain at large, he would indulge in activities prejudicial to the maintenance
of public order or the security of the State.
The words "or the security of the
State" are obviously incongruous in the context. There can be no doubt
that these words have crept in the English, version of the grounds of detention
through some mistake. The order of detention cannot be invalidated on the basis
of such an obvious error, ignoring the order of detention in both its Hindi and
English versions, the Hindi vision of the grounds and the totality of the
context so far as the English version is concerned. [220 E-F; 221 E-H] (ii)The
petitioner was, according to the allegation contained in the first ground
stirring hatred between Adivasis and outsiders. The was also propagating hatred
between two other groups of people', namely, Adivasis on the one hand and
non-Adivasis on the other. This allegation can hardly be regarded as vague or
unintelligible. In fact the District Magistrate gave not less than five
instances containing detailed and elaborate particulars and they are
sufficiently informative so as to provide more than adequate opportunity to the
petitioner to make an effective representation. [222 B-C] (iii) What the
District Magistrate meant to say by using the expression "It would not be
possible to give details of such instances" was that instances of this
nature were so many that one could not possibly have details of all of them,
but there were a few before him by way of illustration and since he had relied
on them for arriving at the requisite satisfaction, he proceeded to reproduce
them in grounds (2) to (6). [222E-F] The instance involving removal of paddy
crops from two plots of land asset out in ground (4) does not stand in isolation.
It is part of a se 'es of instances set out
in grounds (2), (3), (5) and (6) and if it is viewed in the context of these
other instances. it is clear that it is not a localised instance affecting
merely maintenance of law and order but a part of public order.[223 B] The
various statements in regard to the activities of the petitioner in paragraphs
5 and 7 of the counter-affidavit of the respondent were obviously intended to
repel the allegations of the petitioner that he was a dedicated social and public
worker devoted to the uplift of the backward and down trodden classes. These
facts were not taken into account by the District Magistrate for the purpose of
arriving at his subjective satisfaction. [223D]
ORIGINAL JURISDICTION : Writ Petition No. 278
of 1974.
Petition under Article 32 of the Constitution
of India.
K. K. Sinha and S. K. Sinha, for the
petitioner.
217 Lal Narayan Sinha, Solicitor General of
India, Gyan Sudha Misra and B. P. Singh, for the respondents.
The Judgment of the Court was delivered by
BHAGWATI, J. The petitioner, who is an advocate practising in the courts in
Dhanbad in the State of Bihar, has filed the present petition challenging the
validity of an order of detention dated 18th March, 1974 made by the District
Magistrate, Dhanbad under section 3 of the Maintenance of Internal Security
Act, 1971. The case of the petitioner is that he is a prominent public figure
in the District of Dhanbad and he has been Pramukh of Baliapur Anchal since the
last about ten years and Vice-Chairman of Zila Parishad, Dhanbad since about
four years. He has been associated with numerous social, educational and
political institutions in the District of Dhanbad and he is engaged in diverse
activ ities calculated to bring about social and economic uplift of
down-trodden people of Dhanbad District. The 16th Annual Convention of Bihar
Rajya Panchayat Parishad was scheduled to be held at Gosaidih in Dhanbad
District on 16th March, 1974 and the petitioner was the Chairman of the
Reception Committee. The ruling party was very much concerned about the growing
popularity of the petitioner with the backward classes, and therefore, with a
view to undermining his position, the ruling party chose this particular time
when the 16th Annual Convention of the Bihar Rajya Panchayat Parishad was
shortly due to be held and got a false case instituted against the petitioner
at P. S. Tundi. The petitioner was arrested at Dhanbad on 6th March, 1974 and
after being produced before the Sub-Divisional Magistrate, he was taken to
Bhagalpur Central Jail from Dhanbad. On March 1 1, 1974 the petitioner made an
application to the Sub-Divisional Magistrate for being released on bail but no
immediate order was passed on that application and the petitioner was,
therefore, constrained to move the Sessions Judge for bail on 14th March, 1974.
The Sessions Judge granted bail to the
petitioner and on the bail bonds being verified and accepted by the
Sub-Divisional Magistrate, an order dated 18th March, 1974 was passed for
release of the petitioner. On the same day, that is 18th March, 1974, the
District Magistrate, Dbanbad passed an order detaining the petitioner under
section 3 of the Act on the ground that it was necessary to do so with a view
to preventing the petitioner from acting in any manner prejudicial to the
maintenance of public order. The order of detention was in Hindi, which is the
official language of the State of Bihar but there was also an English version
of the order of detention. There was no material difference between the Hindi
and English versions of the order of detention. Pursuant to the order of
detention, the petitioner was arrested on 21st March, 1974 as soon as he was
released on bail in compliance with the order of release passed by the
Sub-Divisional Magistrate and at the time of his arrest the Hindi as well as
English versions of the order of detention were served on him together with the
grounds of detention which were also in Hindi and English versions. The Hindi
version, as translated in English, set out the following grounds of detention :
"1. He has been propagating communal
hatred between Adibasis and outsiders (Biharis) and also between 218 Adibasis
and non-Adibasis for quite some time.
He has been instigating the Adibasis to take
up arms and laws in their own hands in several speeches and otherwise. As a
result of these instigations and incitements, public order has been disturbed
several times at several places. It would not be possible to give details of
such instances, but as illustration, a few of them are given below :
2. On 25-2-1973, at Katras Ceramic Factory,
Tilatanr, P. S. Katras, District Dhanbad, he instigated the employees of the
said ceramic factory to remove the outsiders (Biharis) by force from the
employment of the said factory and in consequence of the said abetment, 200
persons, armed with deadly weapons like lathi, grass etc., took out a
procession and attacked the shop of one Ram Kripal Dubey and assaulted him and
his father by means of lathi and grasa, and also damaged the factory and
immediately thereafter the violent processions attacked the residential
quarters situated in the factory premises and assaulted the inmates and thereby
committed acts prejudicial to the maintenance of public order;
3. On 29-8-73, in the Railway Football
Maidan, Gomob,P. S. Topchanchi, District Dhanbad, in course of public speech,
he asked the people to take law in their own hands by speaking 'Apna Faisla Ap
Karo', 'Pahle Gherao Karo, Fir Mukka Lath Se Maro, Fir Lathi Chhalao, Uspar Vi
Nahin Sunta Hai To Sar Kat Lo'. Similarly, on 3-11-73, at the said place, he,
in a public meeting orga nised by "Chotanagpur-Santbal Pargana Alag Raj
Nirman Samity", instigated to local advasis and harijans to capture the
lands purchased by the non-Adibasis by means of force and to harvest the
standing paddy crops therefrom. Again on 4-2-74, in Golf Ground, Dhanbad, P.S.
and district Dhunbad, in a meeting of Adibasis organised by Jharkhand Party, be
instigated the people to take the law in their hands and to disturb the public
peace by uttering "Agar Aaaz Hame Koi Hat Dikhaega To Uska Hat Kat Lange,
Aur Angali Dhikaega To Angali Kat Lange' and thereby committed acts prejudicial
to the maintenance of public order;
4. On 1-1 1-73, at village Maachkocha and
Mahatotund,P. S. Topabanchi, District Dhanbad, in consequence of instigation
given by him and his co-associates, namely, Gopal Chandra Munsbi, Sriram
Manjhi. Rashiklal Majhi, Shibu Soren and others in village Maichokocha in the
preceding night, Jhari Manjhi, Buddhu Manjbi, and others, belonging to 'Shivaji
Samaj' forcibly took away the standing paddy crops from plot No. 383 in 219
village Maichakocha and plot No. 340 in village Mahatotanr, belonging to one
Ram Anandi Singh, and grown by him, and thus committed acts prejudicial to the
maintenance of public order;
5. On 3-3-74, at village Singhdih, P.S. Topchanchi,
district Dhanbad, he instigated the local Adivasis and Harijans in a Public
meeting convened by "Jharkhand Alag Raj Nirman Samiti" to capture the
lands of non-Adibasis by means of force and violence and so in consequence of
the said instigation immediately thereafter the Adibasis and Harijans,
numbering about 4,000, took out a procession being armed with deadly weapons,
under his leadership and on way, in between Singdih and Amalkhori damaged a
motor car bearing No. BRW 9981 and thus committed acts prejudicial to the
maintenance of public order;
6. On 4-3-74, at village Dumanda, P.S. Tundi,
District Dhanbad, he organised a meeting of the Manjhis (Adibasis) and
instigated them to loot the properties of 'Dikus' (non-Adivasis) namely, Joy
Narayan Choudhury of village Durgadih, K. C. Chopra, Ismail Mia and others and
in consequence of the said abetment on 5-3-74, at about 1.30 p.m. 500 persons,
armed with deadly weapons like bows and arrows, bhalla, farsha, lathi etc.,
formed an unlawful assembly with the common object of looting the properties of
'Dikus' and forcibly removing them from there, and in prosecution of the said
common object they surrounded the house of the said Joy Narayan Choudhury in
village Durgadih, P.S.
Tundi, District Dhanbad, and started petting
brickbats and shooting arrows as a result of which Ganga Bishnu Prasad and
Girdhari Rai sustained injuries and thereafter set fire to the house of said
Joy Narayan Choudhury and thus committed acts prejudicial to the maintenance of
public order." Then the Hindi version proceeded to recite the satisfaction
of the District Magistrate that in the circumstances he was satisfied that if
the petitioner "is allowed to remain at large, he will indulge in
activities prejudicial to the maintenance of public order" and for
prevention of such activities he considered the detention of the petitioner
necessary. The English version also gave the same grounds of detention but the
satisfaction of the District Magistrate recited in the English version was a
little different. It stated that the District Magistrate was satisfied that if
the petitioner "is allowed to remain at large he will indulge in
activities prejudicial to the maintenance of public order or security of the
State" and for prevention of such activities he considered the detention of
the petitioner necessary. The words "or security of the State" were
added in the recital of the satisfaction in the English version though they
were absent in the Hindi version. The petitioner, made an elaborate and
exhaustive representation to the State Government against the order of
detention in an attempt to answer the grounds on 220 which the order of
detention was based, but this representation was rejected by the State
Government on 24th April, 1974. In the mean time the case of the petitioner was
placed by the State Government before the Advisory Board and the representation
of the petitioner was also forwarded to the Advisory Board for its
consideration. The Advisory Board gave an opportunity to the petitioner to be
personally heard and after considering all the facts and circumstances of the
case :gave its opinion on 2nd May, 1974 that there was sufficient cause for the
detention of the petitioner. The State Government thereafter confirmed the
order of detention on 11th May, 1974. This detention order was challenged by
the petitioner by filling a petition under Art. 226 of the Constitution in the
High Court of Judicature at Patna. But a Division Bench of the High Court did
not find any infirmity in the detention and by an order dated 14th May, 1974
rejected the petition. 'The petitioner thereupon filed the present petition in
this Court under Art.
32 of the Constitution challenging the
validity of his detention on various grounds.
The first ground on which the validity of his
detention was challenged on behalf of the petitioner was that the English
version of the grounds of detention recited that the District Magistrate was
satisfied 'that if the petitioner was allowed to remain at large he would
indulge 'in activities prejudicial to the maintenance of public order or
security of the State. This recital showed that the District Magistrate did not
apply his mind with any seriousness either to the acts alleged in the ,grounds
of detention against the petitioner or to the question whether they fell within
the purview of the expression "the maintenance of public order" or
"the security of the State" or both and that was sufficient to
vitiate the order of detention. Now, there can be no doubt, in view of the
decisions of this Court in Kishori Mohan Bera v. The State of West Bengal(1)
and Akshoy Konai v. State of West Bengal(2) that if the order of detention
purports to be based on the satisfaction of the detaining authority that it is
necessary to detain the petitioner with a view to preventing him from acting in
a manner prejudicial to the maintenance of public order or security of the
State, it would clearly be an invalid order. The satisfaction of the detaining
authority in such a case would be on the disjunctive and not conjunctive
grounds and that would me-an that the detaining authority was not certain
whether it had reached its subjective satisfaction as to the necessity of
exercising the power of detention on the ground of danger to public order or
danger to the security of the State. If the detaining authority felt that it
was necessary to detain the petitioner on the ground that his activities
affected or were likely to affect both public order and the security of the
State, it would use the conjunctive 'and not the disjunctive 'or' in reciting
its satisfaction. Where, however, the distinctive ,or' is used instead of the
conjunctive 'and', it would mean that the detaining authority was either not
certain whether the alleged activities of the petitioner endangered public
order or the security of the State, or it did not seriously apply its mind to
the question whether such activities fell under one, head or the other and
merely reproduced mechanically the language of section 3 (1) (a) (ii). When
such equi(1) A. T. R. 1972 S. C. 1749.
(2) A. 1. R. 1973 S. C. 300.
221 vocal language is used and the detenu is
not told whether his alleged activities set out in the grounds of detention
fell under one head or the other or both, it would be difficult for him to make
an adequate representation against the order of detention. If, therefore, it
appears in the present case that the order of detention made by the District
Magistrate was based on the satisfaction that it was necessary to detain the
petitioner with a view to preventing him from carrying on activities prejudicial
to the maintenance of public order or the security of the State, it would have
to be struck down as invalid. But we do not find that there is any such
infirmity in the order of detention. Whether we look at the Hindi version or
the English version, the satisfaction which is recited in the order of
detention and on which the order of detention is manifestly and avowedly based,
is that it is necessary to detain the petitioner with a view to preventing him
from acting in any manner prejudicial to the maintenance of public order. There
is no reference to the security of the State in the recital of the satisfaction
contained in the order of detention. The District Magistrate was satisfied that
it was necessary to detain the petitioner only on the ground that his
activities were prejudicial to the maintenance of public order and it was on
the basis of this satisfaction that he made the order of detention. The, Hindi
version of the grounds of detention also reiterated the satisfaction of the
District Magistrate based on the same ground, namely, that the petitioner, if
allowed to remain at large, would indulge in activities prejudicial to the
maintenance of public order. The recital of the satisfaction in the Hindi
version of the grounds of detention did not make any reference to danger to the
security of the State by reason of the activities of the petitioner. It is only
in the English version of the grounds of detention that we find the words
"security of the State"' added in the recital of the satisfaction of
the District Magistrate.
That is obviously the result of inadvertence
and no argument can be founded upon it. In the first place, Hindi being the
official language of the State, it is the Hindi version of the grounds of
detention which must be regarded as authentic and the validity of the detention
must be judged with reference to the Hindi version of the grounds of detention
and not the English version. Secondly, even if we confine ourselves to the
English version of the grounds of detention, it is clear that at the end of
each of the grounds it is stated in so many words that the acts of the
petitioner were prejudicial to the maintenance of public order and there is no
reference there to prejudice to the security of the State and it is only in the
conclusion based on these acts that we find a recital of the satisfaction that
if the petitioner is allowed to remain at large he would indulge in activities
prejudicial to the maintenance of public order or the security of the State.
The words "or the security of the, State" are obviously incongruous
in the context. They do not fit in with the conclusion drawn at the end of each
of the grounds which is confined only to the maintenance of public order and
nothing more. There can be no doubt that these words have crept in the English
version of the grounds of detention through some mistake. We cannot invalidate
the order of detention on the basis of such an obvious error, ignoring the
order of detention in both its Hindi and English versions, the Hindi version of
the grounds of detention and the totality of the context so far as the English
version is concerned.
222 The petitioner then contended that the
first ground insofar as it alleged that the petitioner was propagating communal
hatred, between Adivasis and other (Biharis) and also between Adivasis and
non-Adivasis was vague and unintelligible and the order of detention was on
that account invalid. We do not see any force in this contention. Adivasis are
the original inhabitants of the area while outsiders are those Biharis who have
come from outside and who are, therefore, regarded as outsiders by the original
inhabitants. The petitioner was, according to this allegation contained in the
first ground, stirring hatred -between these two groups of people. He was also
propagating hatred between two other groups of people, namely, Adivasis on the
one hand and non-Adivasis on the other. This allegation can hardly be regarded
as vague and unintelligible. In fact the District Magistrate gave not less than
five instances containing detailed and elaborate particulars and they were
sufficiently informative so as to provide more than adequate opportunity to the
petitioner to made an effective representation. This ground must, therefore, be
regarded as wholly unjustified and must be rejected.
The next ground urged on behalf of the
petitioner was that the District Magistrate had taken into account many more
instances than those set out in grounds (2) to (6) and that was apparent from
the use of the expression "It would not be possible to give details of
such instances" in ground (1).
This ground is also, in our opinion,
unsustainable. It is true that the District Magistrate stated in ground (1)
that it would not be possible to give details of instances where by reason of
instigation and abetment of the petitioner disturbances of public order had
taken place, but that does not mean that the District Magistrate bad various
instances in mind which he took into account in arriving at his subjective
satisfaction without disclosing them to the petitioner. What the District
Magistrate meant to say by using tills expression was that instances of this
nature were so many that one could not possibly have details of all of them,
but there were a few before him by way of illustration and since he bad relied
on them for arriving at the requisite satisfaction, he proceeded to reproduce
them in grounds (2) to (6). The only instances on which the District Magistrate
relied for arriving at the requisite satisfaction were those set out in rounds
(2) to (6) and no others. This ground also, therefore, cannot avail the
petitioner.
It was then contended on behalf of the
petitioner that the instance set out in ground (2) could not be regarded as one
where communal hatred was propagated by the petitioner either between Adivasis
and outsiders or between Adivasis and non-Adivasis and it did not, therefore,
justify the inference set out in ground (1). But this contention is also
futile, because it is clear from the instance as narrated in ground (2) that
the petitioner instigated the employees of Katras Ceramic Factory to remove the
outsiders (Biharis) by force from the employment of that factory, and in
consequence of this instigation, violence was committed by 200 persons armed
with deadly weapons like lathis, bhalas etc. and if this could not be regarded
as Propagation of communal hatred between Advasis and outsiders (Biharis), we
fail to see 223 what other instance can be so branded. This incident also had
direct nexus with maintenance of public order.
The petitioner also contended that the
instance set out in ground (4) was an instance involving removal of paddy crops
from two plots of land in villages Marchacocha and Mahatotund and that could
have no relation to maintenance of public order. But is must be remembered that
this instance does riot stand in isolation. It is a part of a series of
instances set out in grounds (2), (3), (5) and (6) and if it is viewed in the
context of these other instances, it is clear that it is not a localised
instance affecting merely maintenance of law and order but a part of a series
of acts affecting maintenance of public order.
The last ground urged on behalf of the
petitioner was that paragraphs 5 and 7 of the affidavit filed by Miss Sunila
Dayal, Deputy Secretary to Government of Bihar, Home Department, in reply to
the petition showed that there were various other materials in regard to the
petitioner which were taken into account by the District Magistrate in arriving
at his subjective satisfaction and since no opportunity was given to the
petitioner to make an affective representation in regard lo such materials, the
order of detention was bad. This ground is also untenable. It is true that
various statements in regard to the activities of the petitioner were made in
paragraphs 5 and 7 of the counter affidavit of Miss Sunila Dayal but these were
obviously intended to repel the allegations of the petitioner that he was a
dedicated social and public worker devoted to the uplift of the backward and
down-trodden classes. They were not set out a facts taken into account by the
District Magistrate for the purpose of arriving at his subjective satisfaction
in regard to the necessity of the detention of the petitioner. Miss Sunila
Dayal did not state anywhere in her counter affidavit that these facts weighed
with the District Magistrate in reaching the requisite satisfaction. In fact,
the District Magistrate himself had made an affidavit in reply to the petition
filed by the petitioner in the High Court of Patna and in that affidavit, he
did not refer to any of these facts as having been taken into account by him in
passing the order of detention. This ground must also, therefore, fail.
These were the only grounds urged in support
of the petition and since there is no substance in them, the petition fails and
the rule is discharged.
V.M.K.
Petition dismissed.
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