Patna High Court
Karamvir Singh vs State Of Bihar And Ors. on 26 March, 1953
Equivalent citations: AIR1953PAT334, 1953(1)BLJR354, AIR 1953 PATNA 334, ILR 32 PATNA480
JUDGMENT Sinha, J.
1. This is an application under Article 226 of the Constitution of India and Section 491, Cr. P. C.
2. An order for the detention of the petitioner, Karamvir Singh, under the Preventive Detention Act (Act 4 of 1950), was passed on 20-9-1952, and he was arrested on 22nd September. The grounds of detention were served upon him on 26-9-1952. He had made an application to this Court under Article 226 of the Constitution of India and Section 491, Cr P. C. (Criminal Misc. No. 403 of 1952). It appears that he had also filed an application for 'habeas corpus' from jail (Criminal Misc. No. 351 of 1952). Both these applications were heard by this Court on 2-12-1952, and the judgment was delivered on 19-12-1952. This Court held that, in view of the amendment of the Act (Act 4 of 1951), the reference by the State Government to the Advisory Board was bad because at the time the reference was made the Chairman of the Advisory Board had not been appointed and therefore the Advisory Board had not been properly constituted. Accordingly, the detenu was ordered to be released from preventive detention. A fresh order of detention was, however, passed on 20-12-1952, and was served upon the petitioner on 23-12-1952.
3. It was contended on behalf of the petitioner that, in spite of the order of release by this Court holding that the detention of the petitioner was illegal, this petitioner was not released. The Jailor of the Central Jail, Hazaribagh, where the petitioner was detained and is under detention, has filed an affidavit in this Court. According to the affidavit, the order of this Court releasing the petitioner from detention was received by the Superintendent, Central Jail, Hazaribagh, on 22-12-1952, and the detenu was released forthwith. But, as two intermediate custody warrants dated 2 and 16-12-1952, had been issued from, the Court of Sri C. N. Tewari, Magistrate, 1st Class, Hazaribagh, in respect of two pending cases under Section 186, Penal Code, and as no bail had been granted, the petitioner was not actually released from custody on 22-12-1952, in spite of his release from detention. It is further stated in the affidavit that a fresh order of detention dated 20-12-1952 (No. A/D-1-1402/ 52 SS-C. D. 2) issued by the Governor of Bihar was served on the petitioner at 10-30 A.M. on 23-12-1952, and since then he is detained in pursuance of that order.
It is also stated that on 23-12-1952, at 5-55 P.M. orders releasing the petitioner from jail custody as under-trial prisoner in the two cases mentioned above were received by the Jail Superintendent, Hazaribagh, but as the detention order, referred to above, had already been served on the petitioner, he was not re leased from jail custody.
4. Mr. Ghosh, on behalf of the petitioner, has contended that, under the amended Section 13(2) of the Preventive Detention Act, the detention of the petitioner is illegal because no fresh facts could have arisen, after the previous order of detention was held illegal by this Court, as the man was never released and was throughout in jail. The amended Section 13 of the Preventive Detention Act, 1950 runs as follows :
"(1) "Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897. (10 of 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 State Government to which that officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The revocation, or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made."
5. The questions which fall to be considered under Sub-clause (2), referred to above, are :--
(1) Whether the order of this Court holding the detention of the petitioner, under the previous detention order, as illegal amounts to expiry of the order, and (2) if the order of this Court amounts to 'expiry', whether fresh facts, since the expiry of the order, have arisen.
6. Mr. Ghosh, contends that the effect of the order of this Court will, in law, amount to expiry of the previous order of detention, and, therefore, fresh facts were needed to enable the State Government to issue a fresh order of detention. It is conceded on behalf of the State that no fresh facts have arisen since the previous order of detention was held illegal by this Court as the petitioner was not released from jail custody after the order of this Court dated 19-12-1952, and the petitioner was not out of jail for a single moment before the fresh order of detention was served upon him.
The only question, therefore, is whether the order of this Court will have the effect of 'expiry' of the order of detention passed on 20-9-1952. If the previous order can be said to expire as a result of the order of this Court, a fresh order of detention cannot be passed without fresh facts under Section 13(2) of the Act. The word 'expiry' has not been defined any-where in the Act. The word 'expiry' must, therefore, be understood in the popular and the dictionary sense. The word 'expire', according to the Chamber's Twentieth Century Dictionary, means 'to breathe out, to emit or throw out from the lungs ... to breathe out the breath of life, to the out ... to come to an end"; and the word 'expiry', means 'the end or termination.' The word 'expiry', therefore, connotes termination, but, in my opinion, the idea of time is implicit in termination by expiry. Whether the termination is by efflux of time or by operation of law, in either case, 'expiry' must have reference to time as opposed to invalidity or any illegality which may have the effect of putting an end to the order. Mr. Ghosh contended that since the order of this Court was passed holding that the detention was illegal, the detention order came to an end. I agree that the order of detention, being held illegal by This Court, came to an end; it did not, however, the a natural death by having run its full Span of life; it only ceased to have effect. The word 'expiry' as such has not been commented upon in Craies on Statute Law (Fifth Edition), but some guidance may be had from the several meanings of the expression 'ceased, to be in force' used with reference to enactments at page 328 of the book, where we find the following :
"For the purposes of the schedule, six different classes of enactments are considered as having ceased to be in force, although not expressly and specifically repealed; namely, such enactments as are --
1. Expired -- that is, enactments which, having been originally limited to endure only for a specified period by a distinct provision, have not been either perpetuated or kept in force by continuance, or which nave merely had for their object the continuance of previous temporary enactments for periods now gone by effluxion of time;
2. Spent -- that is, enactments spent or exhausted in operation by the accomplishment of the purposes for which they were passed, either at the moment of their first taking effect or on the happening of, some event or on the doing of some act authorised or required;
3. Repealed in general terms -- that is, repealed by the operation of an enactment expressed only in general terms as distinguished from an enactment specifying the Acts on which it is to operate;
4. Virtually repealed -- where an earlier enactment is inconsistent with, or is rendered nugatory by, later one;
5. Superseded -- where a later enactment effects the same purposes as an earlier one by repetition of its terms or otherwise;
6. Obsolete--where the state of things contemplated by the enactment has ceased to exist, or the enactment is of such a nature as to be no longer capable of being put in force, regard being had to the alteration of political or social circumstances."
In the same book at page 377, with reference-to temporary Acts the word 'expiration' has been commented upon as follows:
"As a general rule, and unless it contains, some Special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect."
In my judgment, the word 'expiry' must necessarily have reference to time. If an order or an Act is held illegal, it becomes invalid as if it never existed. If an order or an Act is said to expire, it must convey the idea that the order or the Act has run out its full course with reference to time. I would, accordingly, hold that the declaration by this Court that the detention of the petitioner was illegal did not amount to expiry of the order of detention; it was merely held illegal, invalid and of no effect. The intention of the legislature appears to be that in cases where the order of detention has run out its course by efflux of time, or the authorities have revoked the order, a fresh order can only be passed if fresh facts have arisen after the expiry or revocation of the previous order. In either case, the old grounds based on facts existing before expiry or revocation of the order would not justify a fresh order, and the reason is obvious. In the one (in case of expiry), the detention for a particular period was considered sufficient on the grounds then available, and, after the period had expired, there could be no justification for extending the period by issuing fresh orders on those very grounds: and in the other (in case of revocation), though the detaining authority had decided to issue detention order, on further consideration, it decided to revoke the order which may be because on reconsideration the authority did not feel satisfied about the sufficiency or adequacy of the grounds. It will thus be seen that in either case fresh grounds were essential under the original Section 13, as it stood before the amendment, the detaining authority was entitled, in law, to issue fresh orders of detention even upon the facts existing when the previous order was passed. This was a lacuna which has been filled up by the amendment of 1951 (Act 4 of 1951). Under the present law, therefore, there can be no fresh order of detention without fresh facts having come into existence after the expiry or revocation of the previous order. The present case not being one of expiry or revocation of the order, the fresh order of detention did not require fresh facts. The contention of Mr. Ghosh must, therefore, be rejected, and Section 13 (2) of the Act must be held to have no application. (7) His next contention is that the order of detention is 'mala fide'. It was suggested that the reference to the custody warrants in the pending cases under Section 186 of the Penal Code was merely to explain away the reason why the petitioner was not released as per order of this Court dated 19-12-1952. The order sheets of the two cases, referred to in the affidavit of the Jailor, Central Jail, Hazaribagh, have been sent to this Court. The crucial question is whether on 22-12-1952, when the order of this Court was received by the Superintendent of the Central Jail, Hazaribagh, the petitioner was an under-trial prisoner in some pending case or not; in other words, whether his custody was legal.
There were two case's pending against the petitioner on 22-12-1952, under Section 186 of the Penal Code. One of these cases (63/T 154 of 52/52) was started on 26-5-1952. It appears, on 9-7-1952, order for releasing him on bail was passed, and on the subsequent dates the accused was present in Court. On 6-10-1952, the accused was absent, and it was reported by the Bench Clerk that the accused was in jail in connection with some other case, and production warrant for the 11th of October was ordered to be issued. The accused was produced on that date in custody and he was produced before the Court from day-to-day. On 6th October statement of the accused was taken and a certain defence witness was ordered to be summoned for 4-1-1953. The order in the order-sheet dated 22-12-1952, runs as follows:
"Bail bond furnished, but it does not bear the signature of the accused. Inform the bailor to get it signed by the accused........."
On 23-12-1952, release order was ordered to be issued after the bail bond had been accepted, and the order seems to have been issued on that date. From the order-sheet of this case it appears that bail was granted, but there is no indication whether the petitioner was actually released on bail or whether the bail bond offered was properly executed or not; the defect in the bail bond is pointed out on the 22nd of December as mentioned above. On the 23rd of December, perhaps, the bail bond was signed by the accused and it was accepted and the accused was ordered to be released.
The second case (90/Tr. 156 of 52/52) was started on 20-11-1952, when the petitioner was undergoing detention. On the next date, that is, 16-12-1952, the accused was produced in custody, and an order for bail was passed on that very date. Again, in this case also, as the petitioner had not signed the bail bond, the bailor was directed on the 22nd of December to be informed to have the, bail bond signed by the accused, The order of release was passed in this case on 23-12-1952. From the order sheet of the first case it does not appear that the man was not released on bail when the order for bail was passed on 9-7-1952. From the order of the 22nd of December, it appears that the bail bond had not been signed by the petitioner. It is, however, clear from the order sheet of the second case that the petitioner was produced in custody on the 16th of December after the cognizance of the case under Section 186 of the Penal Code was taken and he was directed to be released on bail of Rs. 300/- on 22-12-1952. The bail bond was signed by the petitioner, and he was ordered to be released on the 23rd of December, as on the 22nd of December the presiding officer was on leave. It is thus clear that on 22-12-1952, the petitioner was an under-trial prisoner without proper bail bond having been furnished, either in one case or in both, and, therefore, he could not have been released on the 22nd of December when the order of this Court was received by the Superintendent of the Central Jail, Hazaribagh, and that he was in legal custody even after the receipt of the order of this Court by the Jail Superintendent on 22-12-1952.
8. No other fact has been brought to the notice of this Court to show that there was any 'mala fide' on the part of the State Government. It was contended that the fact that the man was an under-trial prisoner should have been brought to the notice of this Court when the application for 'habeas corpus' was heard by this Court on 2-12-1952, and it was said that this fact was not brought to the notice of the Court. From the judgment of this Court it does not appear that this fast was brought to the Court's notice, but I find from the record of Criminal Misc. No. 403 of 1952 that there is a document purporting to be a reply to the grounds taken. In Para. 7 of that document, there is a reference to two cases under Section 186 of Penal Code being pending against the petitioner. To show 'mala fide' on the part of the State Government, the onus lay heavy on the petitioner, and there are no facts, other than those already mentioned, to show that there was any 'mala fide' on the part of the State Government.
9. It was faintly contended that if the previous order of detention was declared invalid by this Court, it was 'mala fide' on the part of the authorities to have issued another order of detention on the same facts. I am unable to subscribe to this view. There can be no reason to hold that the subsequent order of detention is 'mala fide' merely because it is based on the same facts which were declared invalid on some formal grounds. Where the earlier order of detention is held invalid on more or less formal grounds, there is nothing in law, to prevent a proper order of detention being passed on the same grounds, and the mere fact that the subsequent detention order has been passed on the grounds as were mentioned in the previous order cannot lead the Court to hold that the detaining authorities acted 'mala fide'.
10. I would, accordingly, hold that there is no merit in this application, and it must be dismissed.
Das, J.
11. I agree.