Punjab-Haryana High Court
Bhajan Vir Singh And Ors. vs State Of Haryana on 25 January, 1990
Equivalent citations: 1991CRILJ1311
JUDGMENT Jai Singh Sekhon, J.
1. The petitioners are being confined in the Central jail at Ambala under the order 29-6-1989 Annexure P-1 passed Under Section 268 of the Cri. P. C. They are also facing trial for some other offences in different Courts at Patiala and are not being produced in those Courts in view of the above referred order of the State Government. The State of Haryana thought of passing the above referred order after the petitioners were arrested in a case registered against them vide FIR No. 336 dated 22-9-1988 at Police Station Assandh for offences Under Sections 3/4/5/6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, and Sections 4 and 5 of the Explosive Substances Act.
2. Through this writ petition, the petitioners have sought the quashment of the above referred order passed by the State of Haryana Under Section 268 of the Code of Criminal Procedure.
3. The learned Sessions Judge, Patiala, on the move of Shri S.S. Kanwal, the learned Additional Sessions Judge, Patiala, had also made a reference to this Court as Bhajan Vir Singh, one of the petitioners in the present writ petition, is not being produced in that Court in a case registered against him vide FIR No. 145 dated 2-9-1987 at Police Station Sadar Patiala for offences Under Sections 4 and 5 of the Explosive Substances Act.
4. Both the matters shall be disposed of by this judgment.
5. The main attack of the learned counsel for the petitioners is that the impugned order Annexure P-1 was not passed by the Haryana State after full application of mind to the facts and circumstances of the case, although Sub-section (2) of Section 268 of the Code of Criminal Procedure envisages full application of mind in this regard.
6. Mr. Raghbir Chaudhary appearing on behalf of the State of Haryana on the other hand maintains that the particulars of the cases and the offences for which cases have been registered against the petitioners are given in the schedule appended under the order and thus it cannot be said that the State had not applied its mind to the facts and circumstances of the case while passing the impugned order.
7. Mr. S.K. Sharma, learned Deputy Advocate General, Punjab, appearing on behalf of the State of Punjab on the other hand states that some cases are pending against the petitioners in Patiala Courts and that the trial is being prolonged in those cases as the petitioners cannot be taken out of Central Jail, Ambala, in pursuance of the impugned order.
The impugned order Annexure P-1 reads as under :
"Whereas the persons mentioned in the schedule given below have been confined in the Jails shown against their names as under-trials in connection with various offences indicated against their names :
And whereas having regard to the nature of the offences for which they have been ordered to be confined and from the material placed before him the Governor of Haryana is satisfied that there is likelihood of the disturbance of public order of the persons mentioned in the said schedule are allowed to be removed from the Jail (prison).
Now, therefore, in exercise of the powers conferred by Section 268 of the Code of Criminal Procedure, 1973, the Governor of Haryana hereby directs that till further orders, the persons mentioned in the said schedule shall not be removed from the Jails in which they are confined."
Relevant portion of the schedule pertaining to the present petitioners reads as under:
"Name and parentage FIR No. & date Police Station Offence Name of the
Jail in which
confined
(1) (2) (3) (4) (5)
4. Bajanbir Singh alias Lali 336/22-9-88 Assandh Distt. U/Ss 3/4/5 Ambala Jail.
Sukhdev Singh Jat r/ o H. Karnal TDAP Act
No. 65, Indira Puri
Colony, Patiala.
5. Surinderpal Singh -do- -do- -do- -do-
Chadda s/o Kirpal Singh
Khatri Sikh r/o Gali No. 6,
Lahori Gate, Patiala.
6. Jatinder Singh 336/ 22-9-88 Assandh Distt. U/ss 3/4/5 Ambala Jail."
s/o Kundan Singh r/o Lal Karnal TDAP Act
Kothi, Sarhandi Gate,
Patiala.
A perusal of the above-referred order leaves no doubt that although the number of the FIR and the particular sections under which the case was registered against the present petitioners figure in the schedule but the facts and circumstances of a particular case are conspicuously missing therefrom. In para 2 of the order, it is simply mentioned that having regard to the nature of the offences for which they have been ordered to be confined and from the material placed before him, the Governor of Haryana is satisfied that there is likelihood of the disturbance of public order if the persons mentioned in the said schedule are allowed to be removed from the Jail. Thus from the impugned order it is not clear whether the Government of Haryana applied its mind to the facts and circumstances of each case for which the petitioners are being confined in the Central Jail, Ambala.
8. The provisions of Section 268 of the Code of Cr. P. are exceptional in nature as ordinarily the accused are produced before the concerned Courts on the relevant dates. Thus these provisions had to be construed strictly. Section 268 of the Code of Criminal Procedure reads as under:
"268. Power of State Government to exclude certain persons from operation of Section 267(1). The State Government may, at any time, having regard to the matters specified in Sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made Under Section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under Sub-section (1), the State Government shall have regard to the following matters, namely --
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
(c) the public interest, generally."
A glance through the provisions of Sub-section (2) of this Section leaves absolutely no doubt that before making an order under Sub-section (1), the State Government shall have regard to the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison; the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and the public interest, generally. Thus there is no doubt that the State Government has to apply its mind to all these factors before passing any order Under Section 268 of the Code of Cr. P. The law is well settled that in such like cases, the application of mind to the facts of the case should be apparent from the very reading of the impugned order or in order words, it can be well said that in such like cases, the impugned order should be self-contained and speaking one, but strange enough the impugned order is a sketchy one and it is bereft of the details of the offence committed by the petitioners or the circumstances in which the removal of the petitioners from the Jail would result in disturbance of the public order.
9. The learned counsel for the State of Haryana tried to cover up this infirmity in the impugned order contending that the bare perusal of the FIR of the cases registered against these petitioners leaves no doubt about the circumstances of the case under which the petitioners had indulged in committing those offences. He has also drawn my attention to para 2 of the return filed by the State of Haryana. I fail to agree with this contention of the learned counsel for the State of Haryana as the mere giving of FIR number of the relevant cases in the schedule appended under this order will not make it a self-contained or a speaking order, what to say of showing the full application of mind of the State Government to the facts and circumstances of the particular case. In Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851, similar controversy regarding the Supplementing of the impugned order by fresh reasons in the shape of affidavit filed during the pendency of the judicial proceedings was commented upon as under (at p. 858 of AIR):--
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji AIR 1952 SC 16 at p. 18 :
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine, becoming better as they grow older. A Caveat."
Examining the facts of the case in hand in the light of the above rule of law laid down by the Supreme Court, it transpires that the validity of the impugned order Annexure P-1 cannot be adjudged from the facts and circumstances disclosed by the respondent-State in its written statement or from the contents of relevant FIR.
10. For the foregoing reasons, the impugned order Annexure P-1 is ordered to be quashed by accepting this petition.
11. A copy of this order be sent to the learned Sessions Judge, Patiala, for necessary information.