Patna High Court
Subodh Kumar Singh And Anr. vs The State And Ors. on 21 December, 1950
Equivalent citations: AIR1951PAT68, AIR 1951 PATNA 68
JUDGMENT Das, J.
1. These two applns. on behalf of two detenus have been heard together, as they raise common questions of fact & law.
2. The petnr. in Cri. Misc. No. 626 of 1950 is Subodh Kumar Singh, & the petnr. in the other case, Cri. Misc. No. 627 of 1950, is Kishori Prasanna Sinha. I may briefly state the relevant facts. The two petnrs. along with several other persons, were taken in custody on 22-7-1949. It was alleged then that they had committed offences under several sections of the Penal Code & under Section 19 (f), Arms Act, the first information in the case having been lodged on 27-5-1949, & charge sheet having been submitted on 17-7-1949. While in custody the petnrs. moved for bail which was refused by the Mag. & the Ses. J. The petnrs. then moved this Ct. & on 13-10-1950, an order was passed directing the release of the petnrs. on bail to She satisfaction of the Dist. Mag. There was also an order that the hearing of the case against the petnrs. should be expedited. It is stated by the petnrs. that on 19-10-1950, the petnrs. were released on bail, but as they came out of the jail gate, they wore arrested on the strength of an order of detention passed by the Dist. Mag. of Muzaffarpur in exercise of the power vested in him under Sub-section (2) of Section 3 of the Preventive Detention Act, 1950 (hereinafter to be referred to as the Detention Act). On 13-11-1950, the petnrs. made their applns. to this Ct. for a writ of habeas corpus under Article 226 of the Constitution of India, & also under Section 491, Criminal P. C. The applns. were admitted on 14-11-1950, & a rule was issued returnable within ten days. On 17-11-1950, the Dist. Mag., it is stated, served the grounds of detention on the petnrs. The two applns. were listed to be heard on 22-11-1950. On that date, the order of detention passed by the Dist. Mag. was revoked & another order of detention was made by the State Govt. being Govt. order Nos. 365 & 366 C. D. dated 22.11.1950. The grounds of detention were also served on that very day.
3. It is necessary now to state what these grounds are. The first para, of the grounds states that the two petnrs. are important or active members of the Communist Party of India. Then, the plan of action of the Communist Party of India is indicated, the plan being to overthrow the Govt. of India as constituted by law, through violence. Then, follow certain details of the programme of the Communist Party as stated by the General Secretary of the Party at a Congress held in Calcutta on 28-2-1948; the details include such items as gathering stocks of fire arms & ammunition, smuggling of explosives on a large scale, collection of implements for breaking jails, capturing different service associations to bring about a collapse of the administration, inciting Kishans to take forcible possession of the lands of the zamindars, inciting workers to resort to violence in the industrial area, carrying out sabotage of important industrial & other installations, etc. It is stated that secret instructions were issued to party members to offer resistance to the police at the time of arrest. After a statement of the above details of the programme of the Communist Party of India, the grounds refer to the two petnrs. individually & state the following (I am quoting from the grounds given for the detention of Kishori Prasanna Sinha, as the grounds in the case of other detenu are, more or less similar; some of the grounds being the same.) "Kishore Prasanna Sinha continues to be an active member of the Communist Party of India.
He is a firm believer in violent methods & is an ex-terrorist. He joined the Communist Party of India in 1940 & has been a very prominent leader of the same ever since. He is one of the seven members of the Bihar Provincial Committee which was re constituted recently after purging the reformist elements, i. e. those elements which are suspected, by the more extreme elements who are in control of the party, to be more inclined to reformist or constitutional approach rather than a violent revolutionary one.
He attended a meeting of the Bihar Provincial Communist Party which was held at Goraul (Muzaffarpur) on 26-12-1947, & 27-12-1947. In this meeting it was decided to organise 'Bed Volunteers' on military lines to work on the agrarian & labour fronts. Later, on 16-3 1947 he discussed the formation of Lal Sena at a meeting which was held at Saidpur, Gopalpur P. S. (Bhagalpur) in June 1947; he incited the Kisans of Sondho, Mahua P. S. (Muzaffarpur) against the zamindars & exhorted them to forcibly harvest crops standing on bakast lands.
In September, 1947, he was reported to have been planning extensive Kisan trouble in Sakra P. S. jurisdiction of Muzaffarpur which led to rioting cases in the zamindari of Rai Bahadur Shyamnandan Sahay. Trouble subsided only when the communist workers were put under arrest. In November 1947, at a secret meeting at Bisesar Pethia, Kanti, Muzafiarpur, he advised forcible harvesting of crops on bakast lands. In November 1947, he held a Kisan meeting at Bahua, sadar P. S. (Muzaffarpur) in which he incited the Kisans against the zamindars & as a result the Kisans later indulged in acts of lawlessness for which an armed police contingent had to be deputed for some time to control the situation.
In January, 1949, he moved in the jurisdiction of Lalganj P. S. particularly in the vicinity of Patehri & Karenji villages to organise the loyal youths against the Govt. He also held secret meetings & instigated the tenants to forcibly harvest standing crops on bakast lands. On 11-5-1949, he along with other communists fed a violent mob which lattempted to rescue communist Chitranjan Singh who had been arrested by a police party at Belsar, Lalganj P. S. (MuzaSarpur). Two constables of the escort party were severely assaulted & the situation became so alarming that the police party had to open fire killing one & injuring four.
On 11.5.49, Deonandan Sinha of Arara P. S. Hajipur (Muzaffarpur) complained before the S. D. O. that the communists of Jagodih P. S. Lalganj used to vex him by catching fish from his pond forcibly & also looted his standing crops. The S. D. O. had enquiries made by the local S. I. & issued notices against 31 communists of Jagodih to show cause against action under Section 107, Cr. P. C. Kishori Prasanna Sinha visited Jagodih. On 10-7-1949 & 11-7-1949 & asked his followers not to obey the Ct's. orders. On 16-7-1949, he again visited Jagodih & threatened Deonarain Sinha the complainant.
Kishori Prasanna Sinha with Subodh & other held a secret meeting on 11-6-1949 in Chookaha P. S. Paru at 12 in the night. At this meeting Kishori Prasanna Sinha gave out that he had gone to Patna to attend a meeting of the Provincial Committee where he stressed the necessity of starting a terrorist movement against the zamindars & cultivators of Patehri.
Kishori Prasanna & Subodh Kumar Sinha held a cell meeting in village Chakviki P. S. Lalganj on the 18th June, 1949 at 11.30 in the night. At the meeting Kishori Prasanna reviewed the international situation & said that the kisans and labourers of India will very soon follow the examples of those of Burma, China, Italy & France. At the second session of this meeting in the early hours of the following morning Subodh, the Dist. Secretary of the Party, read out his report on party activities in the Dist. & said that arrangements for terrorist activities should be made immediately.
Kishori Prasanna Sinha stated that Kalika Singh of Patehri should be made the first target of such activities & Ramagar Singh took upon himself the responsibility for this.
He is one of the principal communist leaders who directed the entire communist activities including the numerous unlawful activities throughout north Bihar, & is one of the trusted workers who is likely to throw himself heart & soul, as soon as he has an opportunity, in setting up through violence what the C. P. I. describe as liberated areas on the Telangana model.
He is an accused in the case under Sections 148/353/225, I. P. C. & 19 (f), Arms Act which was instituted. On July 1949, (sic) he instigated the agricultural labourers of village Jagodih not to work for a local zamindar on whose report some communists of the locality were being prosecuted under Section 107, Cr. P. C. At the time of his arrest on 22-7-1949, important party documents were recovered from the house of Mahabir Pasi where he was concealing. One of the documents was proof copy of an unauthorised news sheet entitled 'Muzafiarpur Zila men Congressi Sarkar ka zulum aur atank ka raj', a slip in his handwriting showing the expenditure incurred in getting the leaflet printed was also recovered.
Removing Shri Banadive from the post of the General Secretary, the Communist Party of India has formed a new Central Committee also called the Action Committee or steering Committee under Shri Bajeshwar Rao of Andhra & some of the main features of the future strategy & tactics of the Communist Party of India, expressed in a resolution are as follows:
(a) The Chinese experience tells that a decisive condition for the victorious outcome of the national liberation struggle is the formation, when the necessary internal conditions allow for it, for peoples' liberation armies under the leadership of the Communist Party.
(b) Many activities of the Chinese Working class went to the country side & set in motion the broad present peasant (?) masses against the landlords, built up numerous small armed forces & setup guerilla bases which grew into powerful people's liberation army in course of long period of guerilla warfare. Once we realise that the key tasks of the working class is to lead armed struggle of the peasantry in the rural areas, the whole question becomes clear. All activities must be guided by this prime consideration how to develop Telanganas in as many areas as possible. Telangana must be our principal way.' As the facts stated above show Shree Kishori Prasanna Sinha has been active in implementing this resolution.
In the circumstances, the State Govt. are satisfied that if he is allowed to remain at large, he will indulge in activities to the prejudice of public safety & the maintenance of public order. For prevention of such activities the State Govt. consider his detention necessary."
4. Mr. Basanta Bhandra Ghose, appearing for the two petnrs. has urged the following points in support of his contention that the detention of the two petnrs. is illegal. First, he has contended that it was not open to the State Govt. to pass an order of detention in respect of the two petnrs. when there was already an order of detention by the Dist. Mag. I think that the answer to this contention is provided by Section 13, Detention Act. That section, so far as it is relevant for our purpose, states that the State Govt. has the power to revoke an order passed by a subordinate officer mentioned in Sub-section (2) of Section 3. The section also makes it clear that the Dist. Mag. himself can revoke an order passed by him. Then, there is Sub-section (2) of Section 13 which, I think, is important. It states:
"The revocation of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person." If, therefore, the order of detention passed by the Dist. Mag. of Muzaffarpur was revoked & we are satisfied that it was revoked, then it was open to the State Govt. to issue a fresh order of detention against the two petnrs. There was no illegality in the issue of a fresh order of detention.
5. Mr. Ghose has contended, however, that the order of the State Govt. was mala fide, & he gave various reasons in support of his contention. I propose to consider these reasons seriatim. It is stated by Mr. Ghose that there was great delay in serving the grounds of detention on the petnrs. in respect of the orders of detention passed by the Dist. Mag. of Muzaffarpur. The Dist. Mag. passed the orders of detention on 19-10-1950, & the grounds were communicated to the petnrs. on 17-11-1950. There was thus, a delay of 28 or 29 days. Mr. Ghose's contention is that when this Ct. admitted the applns. & issued a Rule, the State Govt. realised that the Dist. Mag's, orders might be held to be bad on the ground of delay in communicating the grounds of detention: therefore, the State Govt. stepped in & passed the orders of detention & communicated the grounds of detention in a great hurry on the same day on which the applns. were listed to be heard. The dates given by Mr. Ghose of the different orders etc. are, I think, correct; but the question is if the orders of detention passed by the State Govt. can be said to be mala fide because of the facts stated above. It is well-settled that the burden of proving bad faith is on the petnrs. & the burden is a fairly heavy burden. In my view, it does not necessarily follow from the facts stated above that the orders of detention passed by the State Govt. were mala fide. It is to be remembered that under Sub-section (3) of Section 3, Detention Act, the Dist. Mag. has to send a report to the State Govt. to which he is subordinate, together with the grounds on which the order has been made & such other particulars as in his opinion have a bearing on the necessity for the order. On receipt of the report of the Dist. Mag., the State Govt. may well have come to the conclusion that the orders of detention should be passed in these cases by them instead of by a subordinate officer. Some of the grounds of detention given by the Dist. Mag. were read to us. Though the grounds are similar, they are not identical. The grounds given by the State Govt. cover a much wider field than the grounds given by the Dist. Mag. When the law gives the State Govt. the power to issue a fresh order of detention after the revocation of the Order of the Dist. Mag., the exercise of that power cannot be held to be mala fide merely because the State Govt. passed the orders of detention at a time when a habeas corpus appln. was pending in this Ct. It is also worthy of note that under the law the grounds of detention have to be communicated "as soon as may be." No hard & fast rule can be, or has been, laid down as to the time limit within which the grounds should be communicated: that will depend on the circumstance of each case. It cannot, therefore, be said that the delay made by the Dist. Mag. in communicating the grounds of detention was such as to make it certain to the State Govt. that the orders of detention passed by him were invalid. To say that the State Govt. passed fresh orders of detention in order to get over the invalidity of the orders of detention passed by the Dist. Mag. seems to mo to be going too far.
6. Mr. Ghose has then contention that the grounds of detention were incorrect, at least, in two particulars, & showed that the detaining authority had not applied its mind before passing the orders of detention: & therefore, the orders were not bona fide orders. The two particulars in respect of which an inaccuracy is alleged relate to the name of the police station mentioned in ground No. 12 against Kishori Prasanna Sinha. The name of the village mentioned there is village Chakbhiki in police station Lalganj, where it is stated that a "cell' meeting was held on 18-6-1949. It is stated in a supplementary affidavit (para. 7) made by one Arjun Singh on behalf of the petnrs. that the "petnrs, do not know of any village of the name of Chakbhiki in Lalganj police station, & to the knowledge of the petnrs. there is no such village in Lalganj police station."
We consulted the than map of Lalganj, & it appears that there are several villages beginning with the name "Chak", though we could not trace a village with exactly the same name. On the days when we heard arguments in this case, the learned Govt. Advocate was not in a position to explain the inaccuracy. Subsequently, on receipt of further instructions from the State Govt., the Govt. Advocate stated, in the presence of & after notice to the learned Advocate for the detenus, that the name of the village is correct, but it is in police station Kurhani which borders Lalganj police station. It appears, therefore, that there is a mistake in the name of the police station. In my view, this inaccuracy does not, by itself, show that the order was not made in good faith. The other inaccuracy relates to the date '11-5-1949' mentioned in ground No. 9, where it is stated that on that day the petnrs. along with others led a violent mob which attempted to rescue one Chitranjan Singh. It is not denied that such an incident took place, but in para. 8 of the supplementary affidavit made by Arjun Singh it is stated that no attempt to rescue was made on that particular date. This contention of inaccuracy is based on certain statements made in the appln. for bail in crim. Miac. No. 521 of 1950. It appears that the first information was lodged on 27th May, & charge-sheet was submitted on 17th July. It appears that the correct date is 27th May, & there is an inaccuracy about the date; I am of the view, however, that the inaccuracy does not, in substance, affect the ground mentioned. Our attention has been drawn to the decision in Re Shoilen Dey, A. I. R. (36) 1949 Bom. 75 : (50 Cr. L. J. 173), where the ground supplied to the detenu under Section 3, Bombay Public Security Measures Act, was that ho was inciting a section of labourers of Tata Air India, Bombay, & it was found that there was no company as 'Tata Air India,' but Air India Ltd., which did not belong to the Tatas & that the Tatas had interest in more than one Air Go.; but there was no indication as to which company was meant. In these circumstances, it was held that the detaining authority had been casual in its approach & had not applied its mind with that diligence which was necessary. The detaining authority in that case was the Comr. of Police. Having regard to the facts of the Bombay case, I am of the opinion that the decision does not lay down any rule of law that any inaccuracy in the statement of grounds must necessarily render the detention illegal: all that the decision, amounts to is that in that particular case the error was not considered trivial, & showed want of due care & caution on the part of the detaining authority. If that decision were intended to lay down a rule of law that any departure from absolute accuracy in every detail of the grounds stated must necessarily invalidate a detention order, I must respectfully dissent from the decision.
7. Another decision to which the learned Advocate has made a reference is M. B. S. Mani v. Dist. Mag., Mathurai, A. I. R. (37) 1950 Mad. 162 : (51 Cr. L. J. 525). It is laid down in that decision that it is open to the detenu, if ho can, to establish that the detaining authority has not applied its mind to the materials placed before it & has not satisfied itself about the necessity for the detention &, therefore, the order of detention, though purporting to be passed under Section 2 (1) (a), Madras Maintenance of Public Order Act, must be deemed not to be an order under that section. Whether the rule laid down therein applies or not must depend Jon the facts of each case. Any slight inaccuracy cannot, in my view, be held to invalidate an order of detention. In the two cases before us, a large number of grounds, sufficiently precise & clear, have been communicated to the two detenus. It is, I think, impossible to raise any contention that the detenus have not been afforded the earliest opportunity of making a representation against the orders of detention.
8. While on this point, I must make a reference to Clauses (5) & (6) Article 22 of the Constitution of India. Clause (5) lays down, in substance, that the authority making the order shall, as soon as may be, communicate to the detenu the grounds on which the order has been made & shall afford him the earliest opportunity of making a representation against the order. Clause (6) says that nothing in the above clause shall require the authority to disclose facts which such authority considers to be against, the public interest to disclose. In the cases before us, the grounds contain clear details & also a number of facts. & if there has been an inaccuracy with regard to the name of a village or a date, the inaccuracy has to be considered in the light of, & against the background of all the grounds which have been communicated to the petnrs. It would, I think, be pushing technicality to an unreasonable extent, if we are to hold that a slight inaccuracy in the name of the village or regarding a date amounts to a contravention of Clause (5) of Article 22 of the Constitution, or shows that the order is mala fide or that the detaining authority did not apply its mind before passing the orders of detention. I say this, though I am fully aware of the observations made in several cases that an order of detention, which deprives a person of his liberty without a trial, must be entirely regular in form & the detaining authority must take care to see that every step in the process of detention without trial is carried out with extreme regularity : see the observations in Dale's case, (1881) 6 Q. B. D. 376. In the oases' before us, the orders of detention are completely regular in form; the grounds of detention have been communicated as soon as possible & in sufficient detail. The two inaccuracies complained of are not inaccuracies which affect either the form or substance of the orders of detention. Therefore, I am unable to hold that there has been any failure to comply with the provisions of Clause (5) of Article 22 of the Constitution of India or Section 7, Detention Act.
9. Another argument of Mr. Ghose has been that the two petnrs. are in jail for about fifteen months, & the acts which they are alleged to have committed relate to the past & have no immediate connection with the orders of detention. Mr. Ghose has relied on certain observations made by his Lordship Chagla C. J. in Be S. V. Ghate, 52 Bom. L. B. 711: (A.I.R. (88) 1951 Bom. 161 : 52 Cr. L. J. 62). The observations are these :
"The past activities must be related to the situation existing at the moment when the detaining authority makes the order, because it is necessary to emphasise again, the satisfaction which the law requires is the satisfaction of the detaining authority making the order at the time when the order is made. It is not open to the detaining authority in 1950 to fall back upon the satisfaction of the detaining authority in 1948 Therefore, if in this case we are satisfied that there was not the satisfaction which the law requires, then undoubtedly the petnr. is entitled to succeed even on this ground."
These observations & similar observations made in other oases were considered by a Bench of this Ct. in Cri., Misc. No. 525 of 1950 disposed of on 4-12-1950. Their Lordships expressed the view, a view with which I respectfully agree, that those observations did not lay down any rule of law. The earlier decision of the Bombay H. C. in Hirji Shivram v. Commissioner of Police, A. I. R. (35) 1948 Bom. 417 : (49 Cr. L. J. 579) on which also Mr. Ghose, relied, can be clearly distinguished on the ground that Section 2, Bombay Public Security Measures Act, 1947, used the words "any person is acting in a manner prejudicial to the public safety." In the later decision of S. V. Ghate, 52 Bom. L. R. 711 : (A.I.R. (38) 1951 Bom. 161 : 52 Cr. L. J. 62), the question no doubt, arose under the Preventive Detention Act of 1950; but Chagla C. J. himself observed that "it would be very difficult to lay down at what point of time a particular activity of a particular person ceases to furnish any connection with the subsequent order directing him to be detained,"
and his Lordship said, "we refuse to express any opinion that necessarily a period or two years would lead the Ct. to come to the conclusion that there could be no connection whatever between the activities of a detained person two years prior to the making of the order & the apprehension felt by the detaining authority."
It is clear that the detaining authority in the two cases before us applied its mind afresh to the past activities of the two detenus, & then stated in the clearest terms possible that if the detenus be allowed to remain at large, they will indulge in activities to the prejudice of public safety & the maintenance of public order. It was open, I think to the detaining authority to draw that inference from the past activities of the two petnrs. It is worthy of note that in the grounds communicated to Subodh Kumar Singh it was stated by the State Govt. that he was detained under the Bihar Maintenance of Public Order Act, but was later released on 23-10-1948. On 13-12-1948, the State Govt. passed orders restraining his movements within his own home village This order could not, however, be served on him as he went underground immediately after his release, & while underground he made strenuous efforts to organise & incite Kishans against zamindars. This shows clearly enough that the State Govt. considered the past activities of the detenus with reference to the situation existing at the moment when the detaining authority made the orders of detention.
10. Lastly, Mr. Ghose has very strenuously contended that the orders of detention were mala fide, inasmuch as a criminal case against the two detenus, for various offences, was pending at the time when the petnrs. were detained, & it is pointed out that the grounds of detention communicated to the detenus referred to the facts of that very case. It must be made clear at this stage that the grounds of detention communicated to the two detenus cover a much wider field than the facts of the criminal case pending against them: as a matter of fact, the grounds of detention are not identical with the grounds for which the detenus were being prosecuted. I must also state that though we have not the entire record of the criminal case before us & are not, therefore, in full possession of the details of the criminal prosecution, it was stated at the bar that the case against the two detenus was separated from the case of twenty-eight others who were sent up in the same case, & the case against the two detenus appears to be still pending. Mr. Ghose has contended that (a) when a person is accused of an offence, there is no power in the detaining authority to pass an order of detention without waiting for the result of the prosecution, & (b) even if the detaining authority has a choice of two alternatives prosecution or detention, the detaining, authority must elect or make its choice at the earliest point of time & cannot pursue both "remedies" at the same time. A large number of eases have been cited before us in support of these contentions: Kamla Kant v. Emperor, 23 Pat. 252 : A. I. R. (31) 1944 Pat. 354), Hirji Shivram v. Commr. of Police, A. I. R. (55) 1948 Bom. 417 : (49 Cr. L. J. 579), Maledath Bharathan v. Commissioner of Police, A.I.R. (37) 1950 Bom. 202 : (51 Cr. L. J. 1126 F. B.) Vimlabai v. Emperor, A. I. R. (32) 1945 Nag. 8 : (I. L. R. (1945) Nag. 6) & M. R. S. Mani v. District Magistrate Mathurai, A. I. R. (87) 1950 Mad. 162 : (51 Cr. L. J. 525) Since the observations in Kamla Kant Azad's case, 23 Pat. 252: (A. I. R. (31) 1944 Pat. 354), this question has been considered by this Ct. on more than one occasion. In the P. B. decision of L. K. Burman v. The State, 29 Pat. 502 F. B., this very question was raised, & Meredith C. J. (as he then was) said as follows :
"Lastly, Mr. Ghosh has argued on the question of mala fides. His contention is that a detention order cannot be bona fide in the case of a man on trial for a substantive offence because he can always be dealt, with, if he is dangerous, by expediting his trial & refusing him bail. But I am not prepared to go so far as that, The offence might be a petty one, a bailable offence in regard to which a Ct. would not be justified on the facts & the evidence before it in refusing bail. Yet the man might conceivably be a dangerous man whom it was necessary to detain in the interests of public security. In such circumstances, it seems to me that a detention order might be perfectly bona fide & legitimate. If the Govt. had waited until the man was released on bail before making a detention order it might be too late, & it might then be said with some force that the order had been made only to frustrate the order of the Ct. granting bail. In the present ease Govt. might vary well have thought it would not be wise to wait the doubtful issue of the bail appln. Nor would it be possible for the Govt. to oppose bail on grounds not strictly relevant to the offence charged. The consideration which determines a bail appln. are generally the possibility of absconding & the possibility of suborning witnesses. It is easy to think of a case where neither of these grounds could be successfully urged, & yet, on grounds quite extraneous to the case, it might be dangerous in the opinion of the State for the man to be at large. Therefore, I do not' think that the course adopted by Govt. in the present case necessarily implies mala fides, & there is nothing in the particulars of the case as disclosed in the grounds to suggest any mala fides on the part of the Govt."
I also expressed a similar view in the following words:
"Lastly, it has been contended that the order of detention was not bona fide, because it was in respect of a person who was already in detention as an under-trial person on a charge under the Explosive Substances Act. Our attention has been drawn to certain observations made by a Bench of this Ct. in Kamla Kant v. Emperor, 23 Pat. 252 : (A. I. R. (31) 1944 Pat. 354), in connection with certain persons detained under Rule 26, Defence of India Rules when they were already under detention for a substantive offence. If it were possible to hold that the order of detention passed against the petnr. in this case was for the purpose of frustrating his trial for the substantive offence, the position might have been different; but on the materials before us, it cannot be held that the order of detention was passed for the purpose of frustrating the trial of the petnr. for a substantive offence."
These observations were quoted with approval in later D. B. decisions in what is known as Yusuf Churihara's case, cri. Misc. No. 340 of 1950, D/- 31-8-1950 & the second Lalit Burman's case, Cri. Misc. No. 398 of 1950, D/-1-9-1950. Mr. Ghose has contended that the observations in the F. B. decision were obiter, because the petnrs. had been convicted before we heard the appln. He has further submitted, that the decision in second Lalit Burman's case, Cri. Misc. No. 898 of 1950, D/- 1-9-1950 is under appeal in the S. C.
11. I have examined with care the decisions which Mr. Ghose has placed before us. I do not think that any useful purpose will be served by examining each decision in detail, because I do not think that the question raised rests on a rule of law. From an examination of the decisions it seems to me that the first contention of Mr. Ghose, stated as (a) above, is not correct. It cannot be stated as a rule of law that when a person is accused of an offence, the only alternative is to prosecute him, & there is no legal authority to detain him.' As was observed in Gajanan Krishna v. Emperor, A. I. R. (32) 1945 Bom. 533 : (47 Cr. L. J. 297), it is a fallacy to say that the right to prosecute a person under the ordinary criminal law & the right to detain him are mutually exclusive. In this matter, I respectfully agree with the view expressed in that decision. I think that in each of the decisions which Mr. Ghose has placed before us, the question has been considered not as a proposition or rule of law, but on the footing whether, in the circumstance of the case, the order of detention can be held to be mala fide (in the sense of "malice in law" as explained in Vimlabai v. Emperor, A. I. R. (32) 1945 Nag. 8 : (I. L. R. (1945) Nag. 6). Therefore, the facts of each case have to be considered, & the test, as explained in the case of Maledath Bharathan v. Commr. of Police, A. I. R. (37) 1950 Bom. 202 : (51 Cr. L. J. 1126 F. B.) is whether the order of detention has been made for "an ulterior motive or a collateral purpose," such as holding a secret investigation in disregard of the safeguards provided by Criminal P. C. stifling defence, etc. There is no rule of law that unless a choice of one of two alternatives, prosecution or detention, is made at the earliest moment, the order of detention must be held to be invalid. In my view, the proper approach is to consider the facts of each case & then consider whether the order of detention is mala fide, or not in the sense in which the expression mala fide has been explained in the decisions referred to above.
12. Let me now come back to the facts of these two cases. There was no order of detention at the time when the investigation of the criminal case against the detenus was proceeding. I have already given the dates when the first information was lodged & the charge sheet was submitted. There can be no complaint that the provisions of Criminal P. C., were not then complied with; therefore, there was no attempt at a secret investigation in disregard of the safeguards of the Code of Criminal P. C, as in the case of Maledath Bharathan Malyali, A. I. R. (37) 1950 Bom. 202 : (51 Cr. L. J. 1126 F. B.). The petnrs. were not released on bail for a long time; & when they obtained an order in their favour from this Ct. they were released but arrested at the jail gate under the orders of detention passed by the Dist. Mag. Those orders were revoked, & the State Govt. then passed orders of detention. The question is--do these facts show that the order of detention is mala fide ? I would answer this question in the negative. As I have already observed, the grounds of detention cover a much wider field than the incidents which led to the prosecution of the petnrs. On the materials placed before us, I am unable to come to the conclusion that there was any attempt to stifle the defence by passing the order of detention. I do not wish to way anything more on this point, because if there has been any disregard of the provisions of the Criminal P. C. with regard to the trial of the petnrs., it would certainly be open to thorn to raise that point at the appropriate time. We are not at the present moment directly concerned with the validity or invalidity of the trial On the days on which we heard arguments, the learned Govt. Advocate was not in a position to state whether the prosecution against the two petnrs. will or will not be withdrawn, as no final order bad been passed by the State Govt. by that time. Subsequently, the learned Govt. Advocate stated that the State Govt. did not propose to move for the withdrawal of the prosecution against the two petnrs., as, in their opinion their detention under the Detention Act is on altogether different grounds.
13. Mr. Ghose has drawn our attention to some decisions in which the possibility of a loss or deprivation of the rights of an under-trial prisoner under Criminal P. C. or under Clauses (1) A (2) of Article 22, Constitution of India, as a result of an order of detention, has boon adverted to : in some of these cases, it has boon held that if such a loss or deprivation is the primary object of detention, then the order of detention will be mala fide. A reference may be made in this connection to Clause (a) of Article 22 of the Constitution, the relevant part of which states that nothing in Clauses (l) & (2) of. Article 22 shall apply to any person who is arrested or detained under any law providing for preventive detention. I realise that there may be cases in which there will be a clash between the different rights, if & when both detention & prosecution are made & pursued at the some time. If the State Govt. wish to pursue the prosecution, I think that it must be prepared to comply with the safeguards of Criminal P. C., & must give to the under-trial prisoner such rights as he may have under the law. I do not think that it would be open to the State Govt. to fall back on Clause (3) of Article 22 it hold an investigation or trial in disregard of the provisions of Criminal P. C. Apart, however, from this difficulty which may arise in some oases, the teat whether a detention order is or is not mala fide depends on whether the order is for the purpose mentioned in the order itself, namely, the maintenance) of public order, or whether it is for any ulterior or collateral purpose. Therefore, it is that test which has to be applied to the facts of each case. On the materials so far placed before us, we cannot hold that the purpose of the detention of the petnr. is other than what in stated in the order of detention, namely, the maintenance of public order in the Stale of Bihar.
14. The detaining authority had clearly stated that it would be taking an undue risk to the maintenance of public order if the petnrs. were allowed to remain at large. In the matter of the bail appln. which the petnrs. filed in this Ct., the relevant considerations were different. The question of public security or the maintenance of public order did not then arise, & this Ct. dealt with the appln. for bail on the principles embodied in Sections 497 & 498, Criminal P. C. In these circumstances, I think that it would be wrong to assume that the detaining authority had some ulterior or collateral purpose & not the purpose of maintenance of public order, for the detention of these two persons.
15. My conclusion, therefore, is that the petnrs. have been legally detained, & there are no grounds for interference by us. I would accordingly dismiss the two applns. & discharge the Rule.
Narayan, J.
16. I entirely agree.