Patna High Court
Subodh Singh vs Province Of Bihar on 26 October, 1948
Equivalent citations: 1949CRILJ518, AIR 1949 PATNA 247
JUDGMENT Das, J.
1. This rule was issued by a Bench of this Court in respect of a detenu who was order. ed to be released by this Court on 7th October 1948. A petition was received from the detenu, from jail, to the effect that in spite of the order of this Court he was not released. The rule was issued on receipt of this petition from the detenu. We have heard the learned Advocate-General on behalf of the Province of Bihar, and Mr. Basantaohandra Ghose on. behalf of the detenu.
2. The material foots are the following. The petitioner Subbed Kumar Singh was arrested on Slat March 1948, by an order of the District Magistrate of Muzaffarpur. On 24th (12th?) April 1948, an order of detention was passed against him by the Provincial Government under section S (X)(a), Bihar Maintenance of Public Order Act, 1947. On 12th (24th?) April 1948, the grounds of his detention were communicated to him under the provisions of Section 4, Bihar Maintenance of Public Order Act, 1947. On 80th August 1948, the petitioner sent an application under Section 491, Cri-minal P. 0., from jail. On this petition a rule was issued by this Court on 16th September 1948. The rule, which was issued to the District Magistrate, directed the latter to show cause and send the relevant papers by 28th September 1948, and 1st October 1948 was fixed for hearing of the case. The case was actually heard on 7th October 1948, on which date this Court considered the legality or otherwise of the detention, and held that the petitioner was not being legally detained. This Court directed the release of the petitioner forthwith. But some events which happened previous to 7th October 1948, must also be stated here. In compliance with the rule issued by this Court, the District Magistrate sent the relevant papers on 25th September 1948. On 1st October 1948 the order of detention passed against the petitioner expired, because the period of six months for which the petitioner could be detained under the first order of detention expired on 1st October 1948, counting from the date of the petitioner's arrest on 3lat March 1948. On 30th September 1948, however, a fresh order of detention was passed against the pefcitionor. This fresh order of detention may be called the second order of detention for the sake of convenience. On 2nd October 1948, the petitionerfiled another petition in which he raised the question that his detention on 1st October 1948, was illegal, inasmuch as the first order of detention had expired on 30th September 1948. This petition of the prisoner, or at least a report about such a petition, from the Superintendent of the Central Jail Hazaribagh, appears to have been received by the office of this Court on 4th October 1948. But neither the second order of detention, nor the report of the Superintendent of the Central Jail Hazaribagh, dated 2nd October 1948, and received on 4th October 1948, were brought to the notice of this Court when it passed the order of release on 7th October 1018.
3. The order of release passed on 7th October 1948, was communicated to the District Magistrate on 10th October 1948. The District Magia. trate sent the order of release to the Superintendent of the Central Jail, Hazaribagb, and the latter officer received the order of release on 14th October 1948. On that very date, the Superintendent of the Central Jail, Hazaribagb, wrote to the Deputy Commissioner of Hazaribagh enquiring as to what the effect of the order of release passed by this Court was, and if in face of the second order of detention the petitioner should still be detained. The Deputy Commissioner of Hazaribagh made a note on the letter of the Superintendent of the Central Jail to the following effect:
The prisoner may be retained until farther orders of the Hon'ble High Court or Government. The Collector, Muzaflfarpur, may be informed.
On the same date, the Superintendent of the Hazaribagh, Central Jail, forwarded a copy of his correspondence with the Deputy Commissioner to this Court, and asked for necessary orders by return of post. This was received by the office on 18th October 1948, and on 20th catch. bee 1948, this Court issued a rule on the Advocate-General. Three days after the issue of the rule on the Advocate-General, that is, on 28rd October 1948, an order purporting to contain the grounds of detention as per the second order of detention, was made, and this was served on the petitioner on 24th October 1948, on which date the petitioner was also released. It is worthy of note that the grounds of detention as per the second order of detention were served only a short time before the release of the petitioner on the same date.
4. On the facts stated above, three questions have been agitated before us. The first question is if the petitioner can still be detained after the order of release passed by this Court. That question is of no importance now, except so far as it is necessary to answer it for future guidance of the officers concerned, inasmuch as the petitioner was released on 24th October 1948, day before the case was Hated for bearing by this Court.
5. The second question is the propriety or otherwise of not bringing to the notice of this Court the second order of detention, and the legal effect of the second order of detention as respects the order of release by this Court. The learned Advocate-General appearing for the province of Bihar has contended before us that though it might have been proper for the Provincial Government to bring to the notice of this Court the second order of detention passed on 30th September 1948, but as a matter of law, the order of release passed by this Court on the application filed by the petitioner relates to the first order of detention against which the application was directed, and does not affect the legality of the second order of detention, nor does the order of release automatically discharge the second order of detention. The learned Advocate-General has also referred to certain practical difficulties in the Secretariat in the matter of keeping this Court posted up to date as to the orders of detention passed against a particular detenu who has made an application to this Court. I must say that the contention of the learned Advocate-General that, as a matter of law, the order of release passed by this Court relates only to the first order of detention, has caused me some surprise. In my opinion, this contention is based on a misapprehension of the nature of the proceedings under Section 491, Criminal P.O. Section 491, Criminal P. C, says inter alia, that any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law, and, (b) that a person illegally or improperly detained in public of private custody within such limits be set at liberty. There are order clauses which are not material for our present purpose, and need not be recited. It is clear to me that in a proceeding under Section 491, Criminal P. C., this Court has to consider the legality or otherwise of the detention of a particular person in public or private custody. The legality of the detention has to be considered Dot with reference to a particular order only. If there are more orders than one against a partioular person on the date on which the question of his detention is under consideration, it is certainly the duty of the detaining authority to produce the orders of detention in support of, oe in justification of the detention. I do not think it is open to the Provincial Government to keep a second order of detention up its sleeve, and allow an order of release to be passed on the first order of detention, and then produce the second order of detention for the purpose of detaining the man after the order of release has been passed, To allow or encourage such a practice would be. tantamount to stultifying tbe order of this Court. The nature of a proceeding under Section 491, Criminal P. C, was considered by the Federal Court in Basantaohandra Ghose v. King Emperor 1945 P. C. B. 81: U. I. E. (32) 1945 P. C. 18 : 46 Cr. L. J. 669. Dealing with the contention that the High Court could enquire into the validity of detention under an earlier order onlyi their Lordships said as follows:
It was finally contended that as the- previous order of this Court directed an enquiry into the validity of the detention under the order of 19th March 1942 the decision o the High Court must be limited to that quection, end that it was not open to the High Court to base its decision on the subsequent order of 3rd July 1944. This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the dato of the Institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced 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 valid order the Court can direct the release of the petitioner.
Therefore, the true question for consideration in a proceeding under Section 491, Criminal P 0., is if the person who has been detained is illegally or improperly detained in public or private custody. A habeas corpus writ in England directs the production of the body of the prisoner, and the return to the writ should ordinarily show the justification for the detention. No rules have been framed by this Court under sub-s (2) of Section 491, Criminal P. 0., and there is no uniform practice for the production of the prisoner in Court when the question of his detention is under consideration. It is clear, however, that under cl, (a) of subs (l) of Section 491 this Court can direct that a person within the limits of this Court's jurisdiction be brought up before the Court to be dealt with according to law. If the Provincial Government have a second order of detention, which would justify the detention of the prisoner, it ia clearly the duty of the Provincial Govern, ffient to bring forward that order to the notice of the Court. If, in spite of the opportunity given to the Provincial Government to justify the detention of a particular person, the Provincial Government do not produce a second order of detention passed antecedent to the hearing of the case, the blame lies on the Provincial Govern-ment. I do not think that it is open to the Provincial Government in such circumstances to bring forward the second order of detention for detaining the person in spite of the order of release passed by this Court. I must make it clear that these observations relate only to an antecedent order of detention passed before the order of release and which the Provincial Government had an opportunity of producing in support of the detention of the prisoner. These observations would not apply to a case where an order of detention is passed subsequent to the order of release on fresh or different grounds, nor would they apply to a case where the Provincial Government have bad no opportunity of producing the order of detention in reply to the rule issued by this Court. If the contention of the learned Advocate General is accepted, namely, that in fipite of the order of release passed by this Court the second order of detention still remains valid, some very ab3urd results are likely to follow Take for example, the present casa. The learnefi Advocate General has conceded before us that the grounds of detention in support of the second order of detention were substantially the same as the grounds of detention in support of the first order of detention. This Court held that the grounds of detention in this case did not fulfil the requirements of B. 4 Bihar Maintenance of Public Order Act, 1947. Obviously, the Provincial Government could not pass a second order of detention on the same grounds. The second order of detention, if passed on the same grounds, would naturally fall with the first order of detention. Moreover, it would be highly improper and also unfair to keep this Court ignorant of an order of detention which might have justified the detention of the prisoner and allow this Court to pass an order of release and then bring up that order of detention in justification of the detention of the prisoner. I am clearly of the view that it was the duty of the Provincial Government to bring to the notice of this Court ali orders of detention which might justify the detention of the person whose application for re. lease was being considered by this Court on 7tL" October 1948. As to the practical difficulties mentioned by the learned Advocate General, I am hot satisfied that, those practical difficulties were of such a character as to prevent the Provincial Government from bringing to the notice of this Court the second order of detention passed against the detenu whose application was under consideration by this Court. Even if there were any practical difficulties, they cannot override the law ; nor can they override the basic principia of the liberty of the subject on which the ordered progress of society and the State depends I consider it necessary that it should b& made clear once for all that no officer can flout or disobey the order of this Court for the release of a prisoner. If any officer, however highly placed he may be, does so intentionally, he does so at his peril.
6. This brings me to the third question in-volved in this case. Mr. Basantaehandra Gboab appearing for the petitioner has very seriously contended before us that a rule for contempt of Court should issue at least against two of the officers concerned, viz., the Deputy Commissions: of Hazaribagh and the Joint Secretary to the Government of Bihar, Political Department, We have considered the materials in the record and the arguments advanced by Mr. Basantaehandra Ghosh. We are unable to find, however, that there was any intentional disobedience of the order of the Court. So far as the Superintendent of the Central Jail at Hazaribagh is concerned Mr. Basantacbandra Ghosh has conceded that that officer was not to blame ; ho asked for instructions from the Deputy Commissioner and then from the Provincial Government and this Court. On the letter of the Superintendent of the Central Jail dated 14th October 1048, enquiring from the Deputy Commissioner as to the effect of the second order of detention, the Deputy Commissioner noted that the prisoner should be retained until further orders of the High Court or Government. Personally, I think the Deputy Commissioner was wrong. He should have told the Superintendent of the Central Jail to seek the orders of this Court at once if the latter was in any doubt about the order of this Court. It was no business of his to direct the detention of a prisoner who had been ordered to be released by this Court, I am satisfied, however, that the Deputy Commissioner himself was under a misapprehension as to the effect of the second order of detention and did not appreciate the legal position. I do not think that there was any intention to flout or disobey the order of this Court. As to the Secretary to the Government of Bihar, the learned Advocate General has pointed out to us that the certified copy of the judgment of this Court dated 7th October 1948, was sent to the Political Department on 21st October 1948, and it was only on receipt of the complete judgment that the Secretary to the Government was in a position to know why the order of deten-tion waa held to be illegal. Mr. Basantachandra Ghosh, on the contrary, haa drawn our attention to the fact that the Superintendent of the Central Jail had all along sent copies of the correspondence to the Provincial Government, and from that correspondence the Secretary to the Government of Bihar should have been in a position to know that an order of release had been passed in respect of the petitioner and that the latter could not be detained under the second order of detention. Taking the most charitable view of the matter, I am inclined to think that there was probably a misapprehension regarding the legal position all round. In the circumstances, I do not think that this is a fit case in which a rule for contempt of Court should issue. I must not be understood, however, to hold that this Court take3 a lenient view of such action as amounts to a disobedience of the order of this Court. If in future any officer i3 found to have flouted or disobeyed the order of this Court, this Court will not hesitate to take severe action.
7. There is one other matter which I need mention. I have not been able to understand why it was considered necessary to serve more or lesa the same grounds of detention on the petitioner on 34th October 1948, the very same date on which he was order to be released. Mr. Basantachandra Ghose has argued that this was a mere make-believe, and the order of reles be was passed in fear of the fact that the case was listed for hearing on 25th October 1943. On the materials in the record it is difficult to appreciate the reason why the order containing the grounds of detention and the order of release were served on the same day. The learned Advocate General has stated that the grounds of detention were served probably to validate the detention for the days following the order of release by this Court, in pursuance of the second order of detention. I doubt very much if an illegal detention could be legalised in that way. Be that as it may, I do not think that any further action should be taken r in this case by way of issuing a rule for contempt. I only hope that this Court, will not have any occasion in future to deal with a case of intentional flouting or disobedience of an order of this Court.
8. The rule is disposed of accordingly.
Narayan, J.
9. I agree.