Joshi Girjadharji and Another v.

Lachmanji Panth

and Others.

Das/.

May 26.

SUPREME COURT REPORTS (1952]

mortgagees were the same in both the mortgages ..

Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifically urged before the High Court.

The determination of that question must necessarily involve an investigation into facts.

We do not think, in the absence of a plea in this behalf in the decree-holders' petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact.

The result, therefore, 1s that this appeal must stand dismissed with costs. :-

Appeal dismissed.

Agent for the appellants : C. P. Lall.

Agent for the respondents : N atmit Lall.

THE STATE OF BIHAR

SHAILABALA DEVI

[PATANJALI

SASTRI C.J., MEHER

CHAND

MAHAJAN, MuKHERJEA, DAs and BosE, JJ.]

Indian Press (Emergency Powers) Act (XXlll of 1931), s. 4 (I} (a)-Constitution of India Arts. 19(1) and 19(2)-Restrictions imposed by s. 4(l)(a) on freedom of speech and expression-Whether fall within Art. 19 (2)-Validity of s. 4 (!)-Speeches of political demagogues-Construction-Burden of prosecution .

. Section 4 (!) (a) of the Indian Press (Emergency Powers) Act (XXIII of 1931) is not unconstitutional as the restrictions imposed on freedom of speech and expression by the said sec tion are solely directed against the undermining of the security of the State or the overthrow of it and are within the ambit of Art. 19 (2) of the Constitution.

Romesh Thapar's case ( [1950]

S.C.R. 594]) and Brij Bhushan's case ( [1950] S.C.R. 605) do not 1952 lay down any wide proposition that restrictions of the nature imposed by s. 4 (1) (a) are outside the scope of Art 19 (2) as 'fhe fate of they are conceived generally in the interests of public order. At B1har any rate, the amendment made to Art. 19 (2) by the Constitu- . v. . tion (First Amendment) Act which is retrospective in operation Shatlabala Devi~ makes the matter clear.

In order to determine whether a particular document falls within the ambit of s. 4 ( 1) the writing has to be considered as a whole in a. fair, free and liberal spirit, not dwelling too much on isolated passages or upon a strong word here and there, and an endeavour should be made to gather the general effect which the whole composition would have on the minds of the public.

Expressions which are the stock in trade of political demagogues and have no tendency to excite anybody, and exaggerations in languages, cannot lead to that result.

Rhetoric of this kind might in conceivable circumstances inflame passions, as for example, if addressed to an excited mob, but if such circumstances exist it is for the Government to establish the fact.

APPELLATE JuRISDICTION : Case No. 273 of 1951.

Appeal under Arts. 132(1) and 134(1)(c) of the Constitution of India from the Judgment and Order dated 13th October, 1950, of the High Court of Judicature at Patna (Shearer, Ramaswami and Sarjoo Prosad JJ.) in Miscellaneous Judicial Case No. 220 of 1949.

S. K.. Mitra (K. Dayal, with him), for the appellant.

Basant Chandra Ghosh and Arun Chandra Mitra for .,... the respondent.

1952. May 26. The Court delivered judgment as follows:-

MAHAJAN J.-This appeal has been preferred by the State of Bihar against the judgment of a Special Bench of the High Court of Judicature at Patna allowing the application of the respondent under section 23 of the Indian Press (Emergency Powers) Act, XXIII of 1931.

It appears that the petition was argued by both the sides as it was one made under article 226 of the Constitution.

The respondent was the keeper at all relevant times of the Bharati Press at Purulia. A pamphlet under

The State of

Bihar

Shailabala Devi.

Mahajan T.

the heading "Sangram" was printed at the said press and is alleged to have been circulated in the town of Purulia in the district of Manbhum.

The Government of Bihar considered that the pamphlet contained objectionable matter of the nature described under section 4(1) of the Indian Press (Emergency Powers) Act and required the press to furnish security in the sum of Rs. 2,000, under section 3(3) of the Act by the 19th September, 1949.

On the 26th September, 1949, the respondent applied to the High Court under section 23 for setting aside the above order.

This application was allowed by the majority of the Judges constituting the Bench. Shearer J. was of the view that the application should be dismissed.

Several objections were raised to the validity of the order passed by the Bihar Government but it is unnecessary to mention all of them. The two points which were seriously pressed before the High Court were that the leaflet did not contain any words or signs or visible representation of the nature described in section 4 ( 1) of the Act, and that the provisions of section 4 (1) of the Act were inconsistent with article 19 ( 1) of the Constitution and as such void under article 13.

The High Court reached the conclusion that the pamphlet did come within the mischief of the Act. . Sarjoo Prosad J., with whom Ramaswami J. concurred, on a construction of the decisions of this Court in Ramesh Thapar v. The State of Madras('), and Brij .Bhushan v. The State of Delhi(2), found, though with some reluctance, that section 4 ( 1) (a) of the Act was repugnant to the Constitution and therefore void.

Mr. Justice Shearer, however, held that the pamphlet was a seditious libel and that there was nothing in the two decisions of the Supreme Court referred to above which compelled the court to hold the provisions of section 4 (1) (a) of the Act to be void.

In my opinion, Shearer J. was right in the view that there is nothing in the two decisions of this Court which bears directly or indirectly on the point at issue in the present case and that both Sarjoo Prasad

(!) [1950] S.C.R. 594.

(2) [1950] S.C.R. 605.

""'

T.ie State of

Bilt11r

and Ramaswami JJ. were in error in holding that these decisions were conclusive on the question of the invalidity of clauses (a) and (b) of section 4(1) of the Act.

Towards the concluding part of his judgment Sarjoo Prosaj J. observed as follows:- Sluil11bala Devi. "I am compelled to observe that from the above discussions of the Supreme Court judgments, it follows logically that if a person were to go on inciting murder or other cognisable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression.

Any legislation which seeks or would seek to curb this right of the person concerned would not be saved under article 19 (2) of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel nor slander nor defamation nor contempt of court nor any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound.

I, therefore, wish that my decision on the point would sooner than ever come to be tested by the Supreme Court itself and the position re-examined in the light of the anomalous situation pointed out above. It seems to me that the words used in the Constitution Act should be assigned a wide and liberal connotation even though they occur in a clause which provides an exception to the fundamental right vouchsafed under article 19( 1) (a) of the Constitution Act."

These observations-I speak with great respectdisclose a complete lack of understanding of the precise scope of the two decisions of this Court referred to above. Section 3(3) of the Act under which the notice was issued in the present case enacts as follows :

"Whenever it appears to the Provincial Government that any printing press is used for the purpose

Alllhaian J.

1952 of printing or publishing any newspaper, book or The State o1 other document containing any words, signs or visible Bihar representation of the nature described in section 4, v. sub-section (1), the Provincial Government may, by Shailabala 'FJeui: notice in writing to the keeper of the press .... order

Mahaian f.' the keeper to deposit with the Magistrate security ... "

Clause (a) of section 4 ( 1) deals with words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence.

It is plain that speeches or expressions on the part of an individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be matters which would undermine the security of the State and come within the ambit of a law sanctioned by article 19(2) of the Constitution.

I cannot help observing that the decisions of this Court in Ramesh Thapar's case('), and in Brij Bhushan's case(') have been more than once misapplied and misunderstood and have been construed as laying down the wide proposition that restrictions of the nature imposed by section 4(1) (a) of the Indian Press

(Emergency Powers) Act or of similar character are outside the scope of article 19(2) of the Constitution inasmuch as they are conceived generally in the interests of public order.

Sarjoo Pro sad J. also seems to have fallen into the same error.

The question that arose in Ramesh Thapar's case(') was whether the impugned Act (Madras Maintenance of Public Order Act, XXIII of 1949) in so far as it purported by section 9 (1-A) to authorise the Provincial Government "for the purpose of securing the public safety and the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in tJhe Province of Madras or any part thereof any document or class of documents" was a law relating to any matter which undermined the security of or tended to overthrow the State, and it was observed that whatever ends the impugned Act. may have been intended to subserve and whatever

(!) [1950] S.C.R. 594.

(2) [1950] S.C.R. 605.

."--

~ . __ .,

The State of Bihar v.

aims its framers may have had in view, it:SJ application and scope could not, in the absence of delimiting words in the statute itself, be restricted to those eggravated forms of preiudicial activity which are calculated to endanger the security of the State, nor was there any guarantee that those authorized to exercise the powers under the Act would in using them discriminate between those who act prejudically to the security of the

State and those who do not. Section 4(1)(a) of the impugned Act, however, is restricted to aggravated forms of prejudicial activity.

It deals specifically with incitement to violent crimes and does not deal with acts that generally concern them.selves with the maintenance of public order. That being so, the decision in Ramesh Thapar's case(1) given on the constitutionality of section 9 (1-A) of the Madras Maintenance of Public Order Act has no relevancy for deciding the constitutional.ity of the provisions of section 4(1) (a) of the Indian Press: (Emergency Powers) Act.

Towards the concluding portion in Ramesh Thapar's Judgment(1)

it was observed as follows :-

Shailabala Devi.

- .

"We are therefore of opinion that unless a law restricting freedom of speech and expression is directed " solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of pub~ lie order. It follows that section 9(1-A) which authorizes imposition of restrictions for the wider purpose of securing public safety or the maintenance of public ordet falls outside the scope of authorized restrictions

1 under clause (2), and is therefore void and unconstitutional."

The restrictions imposed by section 4(1) (a) of the

- Indian Press (Emergency Powers) Act on freedom of speech and expression are solely directed against the undermining of the security of the State or the over- ~· throw of it and are within the ambit of article 19(2)

(1) [1950] S.C.R. 594.

Mahajan/.

The State of Bihar v.

Shailabala Devi.

Mahajan /.

of the Constitution.

The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in Romesh Thapar's case(') could easily have been avoided as it was avoided by Shearer J. who in very emphatic terms said as follows :-

"I have read and re-read the judgments of the Supreme Court, and I can find nothing in them myself which bear directly on the point at issue, and leads me to think that, in their opinion, a restriction of this kind is no longer permissible." Be that as it may, the matter is now concluded by the language of the amended article 19(2) made by the Constitution (First Amendment) Act which is retrospective in operation, and the decision of the High Court on this point cannot be sustained.

Mr. Basant Chander Ghosh contended that the amendment made in article 19(2) of the Constitution with retrospective operation was repugnant to article 20 of the Constitution inasmuch as it declared a certain act an offence which was not an offence at the time when the act was committed. This contention is untenable. The respondent is alleged to have violated the provisions of section 4(1)(a) of the Indian Press (Emergency Powers) Act which was a law in force in the year 1949 when the offending pamphlet was published. She has not been convicted of any offence so far and is not being again convicted for the same by reason of the amendment in article 19(2).

Article 2(} has no application whatever to the present case.

Article 19(2) empowers a legislature to make laws imposing reasonable restrictions on the fundamental rights conferred under article 19(1) of the Constitution.

It does not declare any acts which were not offences. before as offences with retrospective effect.

Moreover, in the year 1949 the respondent was not possessed of any fundamental rights which could be said to have been contravened by the amendment.

Though, as I have said above, the High Court 1s m error in the finding that the provisions of section 4(1)(a)

(1) [1950] S.C.R. 594.

J.,. • ._. -,

' -

~. -·

_,,

.. -

.. , '

of the Indian Press (Emergency Powers) Act are repugnant to the Constitution, its judgment has to be maintained as it is also in error in holding that the pamphlet in question fell within the mischief of section 4(1) (a) of the Indian Press (Emergency Powers) Act.

The document is written in high-flown Bengali language and contairu; a good deal of demagogic claptrap with some pretence to poetic flourish.

It enunciates certain abstract propositions in somewhat involved language and it cannot be followed except with considerable effort.

The High Court held that the document offended against the provisions of section 4 ( 1) (a) inasmuch as certain parts of it contemplate a bloody and violent revolution and that the central theme that runs through the whole gamut of the offending pamphlet is that author is anxious to bring about a bloody revolution and change completely the present order of things by causing a total annihilation of the persons and the policies of those who according to him are in the opposite camp.

Particular reference was. made to the following passages in the writing which in the opinion of the learned Judges support that conclusion.

The first of these passages is in these words:-

"Oh thou foolish oppressor, you want to cause abject terror in me with your red eyes and full throated voice-do that, I am not afraid ...... My protest is against parochial national politics."

Another passage reads thus :-

"Death is my secret love ; poison i s my drink ; the flames of fire are my sweet breeze; the wailing of a hundred breaved childless mothers is just a tune in my flute ; the weeping of widows at their widowhood is just a rhythm of my song."

The next passage referred to is in these terms :-

"I am the cremation ground.

I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. Plague or famine is my great joy ...... I am thirsty, I want blood, I want revolution,

6-7 S.C.l./71

T lu State •l

Bihar v.

Shailabala Devi.

Mahajan f.

The State of Bihar v.

Skailabala Devi.

Mahajan /.

I want faith in the struggle. Tear, tear the chain of wrongs; Break thou the proud head of the oppressor."

Reference was also made to a passage in which the writer desires that his cries should be heard by people far and near, that his call should be hearkened far far away. across the hills, the jungles, across the rivers and rivulets and all those who hear should come forward to join .the ranks in destroying the oppressor and in which he claims that he is the messenger of death, . that his revolutionary song signals the door of each of the listeners and signals to them to come out if they have life, if they have health, if they have courage to come and dash to pieces those who commit oppression on the mother, and he says that with the blood of those followers kt the revolution grow.

It winds up with an invocation to the readers in these terms :-

"If you are true, if you ai:e the gift of God, if you

re not a bastard, then come forward with a fearless heart to struggle against the oppressors' improper conduct, oppression and injustice. We should no.t tolerate wrongful oppression. Oh, thou the people with the burning pain of thine heart burn the heart of the oppressive, high-handed oppressor.

Let all wrongs, all high-handedness, all oppressions, all tyrannies be burnt in the flame."

It seems to me that the learned Judge~ of the High Court took this writing too seriously. It did not &serve that consideration. It is some kind of patch-up work, with no consistency or cohesion between its different parts. Portions of it are unmeaning nonsense and in other parts it .talks of revolution in the abstract.

There is no appeal to anybody in particular or for any known or specific cause. No mention is made of any specific kind of oppression or injustice that is intended to be remedied. The desire is to change the face of the earth by ending a!J oppression, tyranny and injustice. There is no evidence whatsoever for connecting this pamphlet with any agitation or movement at the time it was written in tl1at locality.

I have read the writing several times anc\ I tl ink that Mr. Ghosh is

• ' . -

- __.

• )

right wll; n 4e s; iys tha, t the: paµiphkt contains merely li~ empty slogans, carrying no particular 111eaning except '[he Siqte. of some amount of figurative expression or language \Jor- Bihar rowed at ranqom from various authors with a touch v. of poetic flourish about it.

Writings of this c:; haracter Shaila, bCifa 1)evi. at the present moment an\} in he present back- Ajaai4~ /. ground of our country neither excite nor have he

tendency to excite any person from among the clss which is likely to reaCl a pamphlet of this naf:1Ire, They wjll necessarily be equated, people.

Such writings leave their reac:lers cold and nobody takes them seriously.

People lal.:Jgh and scoff at such stuff as they have become too famili<1r with it and such writings have lost all sting.

Any non descript person who prom_ises tq chaJ1ge the ord<; r of things by bloody

revolution and assumes the role of a new Messiah is

erely the' li!4ghingcstock of hi& readers and creats an a, dverse impressio!l against hiµiself, rather than succeeq in stirring up any excitement in the minds of the readers.

Rhetoric of this kinq might in conceivable cin; ui; ns.van1=es inflame passions as, for example, if :i.ddressed tq an: excited mob, but if such exceptional circumstan:ces exist it was for the State Govemment to establish the fact. In the absence of y s4ch pnmf we must assume that the pamphlet would be rea~ by educateci persons in the quietness of

heir hotµes or in other places where the atmosphere

i~ normal.. wo4ld therefore hold, in the words of my bg)tlier Bose in 8hagwati Charan Shukla v. Government of C~ P. & J3.erar(1), that though the pamphlet in question uses extravagant language and there is in it the usual crude emotional appeal which is the stock-in-trade of the demagogue as well as a blundering and ineffective attempt to ape the poets, that is all, and there is nothing n:mre in it. The time is long past when writings qf tpis kind can in normal circumstances excite people t() cotn1Uit crimes of violence or murder or tend to ex\:ite ;µiypody to commit acts of violence. Again, the lap.uage employed is full of mysticism and (D I.L.R~ 1946 Nag. 865. 86

7-7 S.C.T.171

1952 - The State of Bihar v.

S/Jailabala Devi.

Mahajan f,

cannot be easily understood and it creates no impression of any kind on any person.

In order to determine whether a particular document falls within the ambit of any of the clauses of section 4 ( 1), the writing has to be considered as a whole and in a fair and free and liberal spirit, not dwelling too much upon isolated passages or upon a strong word here and there, and an endeavour should be made to gather the general effect which the whole composition would have on the mind of the public. Expressions which are the stock-in-trade of political demagogues and have no tendency to excite anybody, and exaggerations in language cannot lead to that result.

The learned Government Advocate placed reliance on the decision of Harries C. J. in Badri Narain v. Chief Secretary, Bihar Government(').

The learned Chief Justice therein held that in order to show that certain words fall under section 4(1)(a) it is not necessary to show that the words tend to incite or to encourage the commission of a particular offence or offences and that it is sufficient if they tend to incite to or to encourage the commission of cognizable offences of violence in general. In that case, a poem entitled "Labourers, the mainstay of the world" began by emphasising that labourers are the mainstay of the present world and then proceeded to describe their unfortunate and pitiful lot.

In a subsequent portion the author stated that though speechless today, when organized, the labourers will be as powerful as millions and this portion of the poem ended with these words :

"Why are you helplessly tolerating the exploitation of your masters."

The remaining line.s, were as follows :-

"Labourers, raise now the cry of revolution. The heavens will tremble, the Universe will shake and the flames of revolution will burst forth from land and water. You who have been the object of exploitation, now dance the fearful dance of destruction on this earth ; truly, labourers, only total destruction , will

(2) A.LR. 1941 Pat. 132.

' )

- .

' '

create -a new world order. and that will bring happiness to the whole world."

It is quite clear that here an appeal was made to labourers inciting and encouraging them to commit acts of violence. The words used certainly tended to achieve that result.

They were no empty slogans or abstract propositions.

It had one consistent and coherent purpose, i.e., to excite labourers and to bring them into action. Any observation made about this writing can have no apt application for the determination of the present case.

The learned Chief Justice in the concluding part of the judgment very pertinently pointed out that a commonsense interpretation must be given to the document complained of, the question to be answered always being, what impression will the documents or words give to a man of ordinary commonsense. My answer to this query in the pres, ent case is that the document read at first sight is not intelligible unless it is explained to that man of ordinary commonsense by a learned person and hence it can by itself create no impression of any kind on such a person. After the writing is explained to such a man, he will merely laugh at it and throw it in the waste paper basket without taking it seriously. He will refuse to believe that a person of this kind can create a new world order by appealing to a bloody revolution.

As I pointed out in my judgment in Harkrishan Singh v. Emperor(1), the use of such words as appear in this document creates no impression on the mind of any reasonable reader.

That case dealt with clause (d) of section 4(1), but: the principle underlying it also applies to the construction of writings which are alleged to fall under section 4(1)(a). I do not mean to suggest or to lay down as a general proposition that some of .the words used in the pamphlet in question in the context of any other writing would not fall within the mischief of section 4(1)(a). Certain parts of the pamphlet, if read as isolated passages, may have the tendency to excite people to commit (I) A.LR. 1946 Lah. 22.

The State f

Bihar

v.

Shailabala Devi.

Mahajan f.

195~

The $we of Bi bar

Shail~a/a l)evi.

SQP~EME COURT REPORTS [1%2]

crimllll of violnc, but that is not the effect if the pamphlet is read in its entirety.

The result is th?t I would dismiss the appeal but in the circumstances would make no order as to costs.

The State Government has succeeded in its contention that section 4(1) (a) of the Act is constitutional and that ws the real ground on which it came to this Q:!urt.

)?P,.T,\NJAL!

SAsTR! <;::. J.=l ; igree with \he judgment rnst deli'v"ecl gy µiy \earnei:\ brother Mahajan J, ancl jiav~ not44lg to add.

MuKHERJEA J.-I . concur in the jud11ment delivered by my learned brother Mahajan J. and I wpulcl like to say a few words, regarding the publication itself which led to the demand of security by th~ Government under th~ provision of the Indian Press (Emergency) Act.

Tl}, point thi!t fNWrs qmsideration is, whether the wqrds contained in th, impugned publication are of th~ natur~ c!esgribed jµ section 4(1) (a) of the Act; qr in other wprds whether they incite to or encourage or tend to incite to or to encourage the commission of any pffence of murder or any cognizable offence involving violence.

It is well settled that to arrive at a decision on this point, the writing is to be looked at as ; i whole: without laying stress on isolated passages or particular expresions used here and there, and that the court should take into consideration what effect the writing is likely to produce on . the m'ind; of the readers for whom the pµbljcation is intended. Account shoqld alsl) be taken of the place, circumstances and occasion of the publication, as a clear appreciation of the background in which the words are used is of very great assistance in enabling the court to view them in t)ipir proper perspective. ·

Th~ )eaRet in question 1s entitled "Sangam" or

,_ -

'\ • '

5trµggle. It is written in high-flown Bengali prose v with ll!rge mixture of poetic expressions borrowed at random from the writings of some welloknown

poets of Bengal.

The object of the writing as far as could be gathered from the document is tq give a poetic or idealistic picture of what is meant and eonnotated by "struggle" or revolution. The aim and end of "struggle", as stated in the leaflet, is to wipe out ''oppression", injustice or wrong" which is "pervading all over the world from the past to the future"; and it is only after all wrongs, injustice and oppression have

periilied that a new world could be built up.

This seems to be the main or central theme of the composition, clothed, though it is, under much incoherent talk and seemingly meaningless utterances.

There is no indication throughout the writings as to what kind of oppression, injustice or wrong the author had in mind. Far from referring , to grievances of any specific character, the writer does not even hint at such general causes of discontent as political inequality, economic exploitation or class warfare which are the subject-matter of agitation in many parts of the world. The leaflet does not give indication also of any unpopular measure or act of injustice affecting the minds of the people in the particular area where it was published and within which it was intended to be circulated. In or.e part of the document the following words are found to occur :

"If mother be true, let no disgrace spread in the name of the mother. If mother tongue be equal to mother, then the said language is your most revered goddess. Do not allow disgrace to spread in her name".

It is not the case of the Government and there is no statement or affidavit to that effect, that the passages here have any reference to the language controversy which agitated and probably is still agitating this particular district. In another part of the document the expression "narrow parochial politics" has been used, but here again the Government has not made any attempt to explain, what .this expression could, in the particular context, mean or refer to. As no acts of injustice or oppression are actually mentioned in the document, it: is difficult to say who the "oppressors" a.re, whose "proud heads" the author asks his

Last.

1'/it Stou of

Biltu

•• S/J11illlbolt1 Dni.

The State 'of

Bihar

.v.

Shailabala Devi.

readers to break. It is quite clear that the "oppressor" mentioned here is neither the Government nor the party in power, nor has it any relation to any particular class or persons or a sect or community which might be harassing others and trampling upon their rights. Ii may be, that to attract the operation of section 4(1)(a) of the Indian Press Act, the incitement to murder or violence need not be specifically directed against particular individuals or class of persons ; but when the whole talk is about injustice or operation in the abstract, which is stated by the author to be in existence from , the beginning of time and when in hyperbolic language a hope is expressed of establishing a better and a cleaner world through struggle, sweet and blood, the words used may not improperly be looked upon as an effusion of poetic fancy which, having no relation to actual facts can have very little potency for doing mischief. I will now proceed to examine the contents of the pamphlet in derail. ·

The writer begins in an affected poetic vein and describes, in language, to which it is difficult to attach any rational meaning, what "struggle" or revolution is. The "struggle" which is personified in the article introduces itself in the following manner :

"I am not wealth, nor popular strength, not the people nor fame ; ... I am not joy nor a brag, nor the timid look of the beloved's eyes .... I am not mother's affection, nor sister's love".

If these words convey any sense, they can only mean that the struggle or revolution which the writer wants to depict is something different from what we ordinarily associate with our social life and happiness ; it is a negation of all natural human feelings and senti- .ments. The next paragraph says in equal enigmatical language what "Sangram" or "struggle" actually is. "I

am old antiquated history" thus the article proceeds ; "I am time eternal, I am the future, the present and the past, in my heart is written the story of the past, the problems of the present and the voice of the

future".

I do not know whether this is a poetic way of depicting the entire life process which is said to lie through struggle and guide our evolution in this planet.

Struggle, according to the author, is coeval with time and eternity.

In the next paragraph the writer passes on to say with many repetitions of the word "wrong" that "it

is wrong which is pervading all over from the past to the future", and it is this wrong that is to be righted by the struggle. The struggle here is likened for reasons best known to the author to a piece of torn grass in the middle stream of a turbulent river, and to a grain of dust thrown in the face of a cyclone. "It is dishonour, unhappiness, endless pain .. " It is again likened sue- . cessively to the frown of the beloved, to famine, storm and evil days. The call is sent to everybody to come on "where the sky is cracking and the endless rough and thorny path is shrouded in darkness" and assist in building up a new world.

Many of the expressions used here are taken verbatim from the writings of some well-known Bengalee authors, though they sound nothing but a rigmarole in the present context.

The next paragraph begins with the word "revolution".

Struggle is revolution and through struggle and revolution the world is to be built anew. It is then said that "death is my darling and death is the only truth in this world". If one has to die, there is no sense in dying of illness. Let a man choose an honourable death by standing against oppressors.

Quite abruptly the author brings in the name of Sri Subhas

Chandra Bose in the midst of this talk and asks his readers to listen "far far away across the hills, across the jungle, across the rivers and rivulets the call of Subhas Chandra Bose, the greatest revolutionary leader of the world". The people are asked not to stop until the objective is attained. A.gain it is said "I am struggle, I am revolution .... I am a Hindu, I am a Mussalman, I am a Christian, I am a Jew, I am a Keduin, I am severed from all religions by the fruits of my action in previous births".

Without the least attention to any sequence of thought, immediately

'The State of Bihar v.

Shailabala Devi,

Mukherjea /.

"f he State of

Bihar

Shailabala Devi.

Mukherj•a /.

afrer this, the imaginary pppressor is addressed by the author as follows :

"Oh you foolish oppressor you want to terrify with your red eyes, I fear not."

The author, or rather the personified "struggle" which purports to speak, then repeats the well-known words of poet Tagore and says 'that he does not seek salvation through renunciation ; he wants that salvation which lies in joy amidst innumerable dangers and dijliculties. The idea of finding joy in all that is hated, avoided and dreaded in this world is elaborated in the passages that follow. "Death" it is said "is my secret love, poison is my drink, the flames of fire are y sweet breeze, the cry of childless mothers a tune m my flute and the weeping of widows a rythm of my song".

In this vein the author goes on conjuring up all the uncanny and weird things in the world and associating them with struggle. "I am not joy, I am the remnant of the dying cfies ......... I am the bloodthirsty goddess Kali who lives and moves about in the cremation ground. I want blood .......... Break the proud head of the oppressor.

I bathe in flames ............ Thunder is my kiss of affection .......... I do not understand myself.

I do not know myself.

I do not recognise myself, still I want revolution, still I want struggle". T!ie learned Judges of the High Court laid very great stress on these passages which in their opinion constitute a direct incitement to bloody revolution ; and that is also the line of argument adopted l:Jy Mr. Mitter who appeared before us on behalf of the State. It has been argued by Mr. Ghosh appearing for the respondent that the "struggle" which the author has depicted and which he aims at is a non-violent struggle and the blood that is to be shed is the blood of those who are called l!pon to resist oppression and miustice.

On the other hand, it is argued on behalf of the State that the passages quoted above can only mean th:i.t it is a bloody and violent revolution which could carry men to their desired end. In my opinion, neither of these contentions furnish to us the proper I)lethod ~£ approach to the question which requires

,._

S.CJL

SUPREME COURT REPORTS

decision in the present case. We would have to look at the article as a whole find focus our attention on what can be regarded to be its central theme or purpose.

As has been said already, what the writer wants is to draw an ideal picture of "struggle" o:r revolution quite unconnected with any particular place, or any particular political or social environment.

Injustice or oppression exists, according to the author, from the very dawn of time and so also does struggle or revolution.

It is an integral part of the world process and is a sort of irrational or blind impulse.

This is expressed by saying "I do not understand myself, I do not recognise myself, still I want revolution". In painting death or war, the artist would naturally choose some uncanny associations.

The .trappings of revolution, as the author paints it, are all the fearful and hideous things in this world. It is linked up with thunder and storm, fire and devastation, cataclysm, famine, danger, destruction and death.

It is immaterial so far as this ideal picture is concerned whether the blood that is spoken of is the blood of the oppressor or of the oppressed, and whether the struggle is violent or pacific. The goddess Kali in the Hindu mythology is the goddess of destruction and death, but she is the benign goddess also whose protecting hands ward off all oppressions, danger and calamity. That is the reason why revolution or struggle is assimilated to this goddess.

It cannot be denied that in painting this picture of "struggle" or revolution the author has used very strong words ; but they would not be unnatural if it is only an ideal picture that the author really desired to paint. If however, it can be shown that under the cloud of these general enigmatical words something concrete and tangible lies hidden, that the "oppression" and "oppressor" are not imaginary abstractions but are real things not unknown to the people to whom the article is addressed' and there is in fact a grievance agitating the popular mind, no matter whether it is well or ill founded, against which the author desires to inflame public opinion; then even though he uses veiled or covert language, there

Tire Statt! •f

Bihllr

Skm'lahala Detli.

M111(/1erjea f,

:1952

.The State of Bihar v.

Shailabala Devi.

. Muk.herjea J. ., .

can be no doubt that the article would come within the purview of section 4( 1) (a) of the Indian Press Act.

But the difficulty is that the Government has not made any attempt to establish any of these facts.

Without knowing the attendant circumstances and the actual background of the publication, it is not possible for us to ascertain the real intention that lies behind the writing ; and absolutely no materials have been placed before us by the Government which might enable us to find out what in reality was the substance behind this camouflage of words, if camouflage it actually is.

The rest of the article proceeds in the same hyperbolic and enigmatical style. There is repetition atl nauseam of the same stock phrases and expressions.

It goes on to say "I am the messenger of death. I am untouchable, I am vague, I am queer, I am nightmare,

I am robber, I am enemy, I am unknown, I am not Falgoon with its sweet smelling flowers ; I am eternal separation, I am restlessness".

I am extremely doubtful whether expressions like these would not, to an ordinary reader, appear to be anything better than 'the ravings of a mad man. I will cull a few more expressions which occur subsequently and which fortify this impression.

"I see struggle on my darling's struggle in the honey of flowers ... I am Deepak Ragini ... I am misfortune. distress, I am jealousy, I am evil days."

face, I see storm, I am the I am cry of

The concluding portion of the article follows: reads as

"Let me speak the last word : If you are true, if you are gift of God, if you are not a bastard ... then come forward with a fearless heart, struggle against the oppressor's improper conduct, oppression and injustice. We shall not tolerate wrongful oppression.

Oh, the people, with the pain of your heart-burn, the heart of the oppressive high-handed oppressor, let all wrongs, all high-handedness, all oppressions, all tyrannies be burnt in the flame."

' -

....

There was a good deal of discussion before us as to whether these passages hint at a violent or a nonviolent struggle. It may be capable of either interpretation, but as I have said already, that by itself would not afford a decisive solution of the question before us.

It is also not much material .to consider whether the author wants that "jealousy and malice" which he has referred to at the end of the article, are to develop and spread or they are to be transformed into innocuous and sweet smelling flowers.

This is certainly a matter upon which difference of opinion is possible. After all, we are to see what impression the article read as a whole would produce upon ordinary people. An ordinary reader is not expected to seek the assistance of an interpreter. in trying to find out the true meaning of the words used.

As has been said already, many of the expressions used here have been taken verbatim from the writings of certain noted Bengalee authors.

They are stock phrases current in Bengal and amongst the Bengali speaking community elsewhere.

If it strikes the reader that what the author wanted was to pass himself off as a noted writer by sheer plagiarism, then whatever else may be said about the article, it certainly does not come within the purview of section 4(1) (a) of the Press Act. Taking the article as it is, it is nothing but a tissue of high sounding and meaningless words and whether the author wanted to imitate some of the well-known poets of Bengal in attempting to give a poetic description of "struggle" or revolution or wanted to give himself the pose of a liberator of mankind, out to wipe out the last vestiges of oppression and injustice from the face of the earth, no rational person would take him seriously and would look upon this composition as the vapourings of a deranged brain.

If, on the other hand, the whole thing is a cleaver ruse resorted to with the object of inflaming the popular mind against certain persons or authorities, and although. only general and vague words are used, the words have their meaning and significance to those

. 1~52

.. The Stateof

' Bihar .. v.

Shailabala Devi.

. . Mu.k.hr:riea /.

Tlie State of

BihtJr

Shailaba/a De11i.

Ma1 26.

who are acquainted with the actual situation, it was incumbent upon the Government to clear up these matters and present before us the background and the context without which no meaning could be attributed to this species of empty verbiage.

As Government did not discharge the duty that lay upon them, I am clearly of opinion that no security order could be passed against the respondent under the provision of section 4(l)(a) of the Press Emergency Act.

DAs J.-During the course of the arguments I entertained some doubt as to the innocence of the meaning and implication of the pamphlet in question, but, in the light of the judgments of my learned brothers Mahajan. J. and Mukherjea J., which I have had the advantage of perusing since, I do not fee) that I would be justified in dissenting from the construction they have put upon the language used in the pamphlet.

I accordingly concur in their conclusion.

BosE J.-1 agree with my brothers Mahajan and Mukherjea.

Appeal dismissed.

 Agent for the appellant : R. C. Prasad.

Agent for the respondent: P. K. Chatterjee.

THE STATE OF BOMBAY

ti.

PURUSHOTTAM JOG NAIK

[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN, MuKHERJEA, DAs and BosE JJ.]

Preventive Detention Act (IV of 1950), s. 3-Constitution of India, 1950, Art. 166--0rder of deteotion-Form of order-Order stating that Government is satisfied-Not stating exf"essl'f that it is issued in the name of the Governor'-Valid£ty-Proof by other evidence-Valt1e of Secretary's evidence-Form of verification.

The tnatetial , portio~ of an order of detention made under s, 3 of. the: Ptevo11ti.e Detention Act, 1950, ran as fol!bws:

, -.

- .. .

Das

C. P. Lall

THE STATE OF BIHAR

SHAILABALA DEVI

SASTRI C.J.

MAHAJAN

MuKHERJEA

BosE, JJ.

s. 4

Constitution of India

Arts. 19(1) and 19(2)

s. 4(l)(a)

Art. 19

s. 4

Section 4

Art. 19

Romesh Thapar

Brij Bhushan

s. 4

Art 19

Art. 19

Shatlabala Devi~

s. 4

Arts. 132(1) and 134(1)(c)

Constitution of India

High Court of Judicature at Patna

Shearer

Ramaswami

Sarjoo Prosad

S. K.. Mitra

K. Dayal

Basant Chandra Ghosh

Arun Chandra Mitra

MAHAJAN

State of Bihar

section 23

article 226

State of

Bihar

Shailabala Devi

Mahajan T.

Purulia

Manbhum

Government of Bihar

section 4(1)

section 3(3)

19th September, 1949

26th September, 1949

section 23

Bihar Government

section 4

section 4

article 19

article 13

section 4

Supreme Court

section 4

State of

Bilt11r

and Ramaswami

section 4(1)

Sarjoo Prosaj

Sluil11bala Devi

article 19

article 19( 1)

Section 3(3)

Alllhaian

section 4

Shailabala 'FJeui

section 4

article 19(2)

Ramesh Thapar

section 4(1)

article 19(2)

Sarjoo Pro

Madras Maintenance of Public Order Act

section 9

Section 4(1)(a)

section 9

section 4(1)

article 19

section 9(1-A)

section 4(1)

article 19(2)

article 19(2)

Basant Chander Ghosh

article 19(2)

article 20

section 4(1)(a)

article 19(2)

article 19(1)

section 4(1)(a)

section 4(1)

section 4

Kali

State

Shailabala Devi

Ghosh

section 4

Harries

section 4(1)(a)

section 4(1)

section 4(1)(a)

section 4(1)(a)

State f

Bihar

The State f

Bihar

v.

Shailabala Devi.

Mahajan

section 4(1)

Mahajan

section 4(1)

Bengal

State 'of

Bihar

section 4(1)(a)

Subhas

Chandra Bose

Subhas Chandra Bose

Tagore

Mitter

section 4( 1)

Deepak Ragini

section 4(1)

section 4(l)(a)

Mukherjea

Mahajan

Mukherjea

R. C. Prasad

P. K. Chatterjee

STATE OF BOMBAY

PURUSHOTTAM JOG NAIK

PATANJALI SASTRI

MEHER CHAND MAHAJAN

Preventive Detention Act

s. 3

Constitution of India

Art. 166

Detention Act, 1950


Tlie State of

BihtJr

Shailaba/a De11i.

Ma1 26.

SUPREME COURT REPORTS [1952]

who are acquainted with the actual situation, it was incumbent upon the Government to clear up these matters and present before us the background and the context without which no meaning could be attributed to this species of empty verbiage.

As Government did not discharge the duty that lay upon them, I am clearly of opinion that no security order could be passed against the respondent under the provision of section 4(l)(a) of the Press Emergency Act.

DAs J.-During the course of the arguments I entertained some doubt as to the innocence of the meaning and implication of the pamphlet in question, but, in the light of the judgments of my learned brothers Mahajan. J. and Mukherjea J., which I have had the advantage of perusing since, I do not fee) that I would be justified in dissenting from the construction they have put upon the language used in the pamphlet.

I accordingly concur in their conclusion.

BosE J.-1 agree with my brothers Mahajan and Mukherjea.

Appeal dismissed.

 Agent for the appellant : R. C. Prasad.

Agent for the respondent: P. K. Chatterjee.

THE STATE OF BOMBAY

ti.

PURUSHOTTAM JOG NAIK

[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN, MuKHERJEA, DAs and BosE JJ.]

Preventive Detention Act (IV of 1950), s. 3-Constitution of India, 1950, Art. 166--0rder of deteotion-Form of order-Order stating that Government is satisfied-Not stating exf"essl'f that it is issued in the name of the Governor'-Valid£ty-Proof by other evidence-Valt1e of Secretary's evidence-Form of verification.

The tnatetial , portio~ of an order of detention made under s, 3 of. the: Ptevo11ti.e Detention Act, 1950, ran as fol!bws:

, -.

- .. .

- .... ,

' l

"Whereas the Government of Bombay is satisfied with respect to the person known as J. N. . ..... that with a view to preventing him from acting in a manner prejudicial to the min tenance of public order it is necessary to make the followmg order : Now, therefore,. ....... the Government of Bombay is pleased to direct that the said J. N. be detained.

By order of the Governor of Bombay

(Sd.) V. T. D.

Secretary to the Government of Bombay, Home Department".

The High Court of Bombay held that the order was defective as it was not "expressed to be in the name of the Governor" within the meaning of Art. 166 (1) and was not accordingly protected by Art. 166 (2) :

Held, that the order was not defective merely because it stated that the Government of Bombay was satisfied and that the Government of Bombay was pleased to direct that J. N. be detained, and, though the addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have placed the matter beyond controversy, the order was really one expressed to be taken in the name of the Governor of Bombay within Art. 166.

Held further, that, assuming that the order was defective it was open to the State Government to prove by other means that such an order has been validly made.

It is not absolutely necessary in evety case to call the Minister in charge ; if the Secretary or any other person has the requisite means of knowledge and his affidavit is believed, that will ht: enough.

Verification should invariably be modelled .on the lines of

0. XIX, r. 3, of the Civil Procedure Code, whether the Code applied in terms or not, and when the matter deposed to is not based on personal knowledge the sources of information must be clearly disclosed.

APPELLATE

JURISDICTION: Case No. 30 of 1950.

Appeal under Art. 132(1) of the Constitution of India from the Judgment and Order dated 24th October, 1950, of the High Court of Judicature at Bombay (Bavdekar and Vyas JJ.) m Criminal Application No. 1003 of 1950.

C. Setalvad (Attorney-General for India) and C. K. Daphtary (Solicitor-General for India) with G. N.

Joshi for the apellant.

Respondent ex parte.

Thi: Stat1: uf

Bombay

Purushottam Jog Naik.

The State of Bombay v.

Purushottam fog Naik.

Bose/.

1952.

May 26.

The judgment of the Court was delivered by BoSE J.-This is an appeal from an order of the Bombay High Court directing the release of the respondent who had been detained under section 3 of the Preventive Detention Act of 1950.

The learned Attorney-General states at the outset that Government does not want to re-arrest the respondent but merely desires to test the High Court's decision on certain points which will have far-reaching effects on preventive detentions in the State of Bombay. Following the precedent of their Lordships of the Privy Council in King-Emperor v. Vimlabat Deshpande(') we proceed to decide the appeal but direct that the respondent shall not in any event be re-arrested in respect of the matters to which the appeal relates.

The respondent was originally arrested under an order of the District Magistrate, Belgaum, dated the 26th February, 1950, though he was then beyond the jurisdiction of that authority. On the 11th of July, 1950, the Bombay High Court held that a detention of that kind was invalid. The decision was given in the case of In re Ghate(2). This necessitated a review of 57 cases, among them the respondent's. Orders were passed in all those cases on the 17th of July,

1950. About 52 of the detenus were released and in the remaining cases fresh orders of detention were passed by the Government of Bombay.

In the respondent's case the order was in these .terms:

"Whereas the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga Village, Taluka Karwar, District Kanara, that with a view to preventing him from acting iri a manner prejudicial to the maintenance of public order, it is ncessary to make the following order: Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Preventive

(1) I.L.R. 1946 Nag. 651 at 655.

(2) (1950) 52 Born. L.R. 711..

.. _ ._../,,

S.C.R.1

Detention Act, 1950 (No. IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained.

By order of the Governor of Bombay,

Sd/-V. T. Dehejia, Secretary to the Government of Bombay, Home Department.

Dated at Bombay Castle, this 17th day of July, 1950." He was served with the grounds of detention on the 26th of July, 1950, and with a fuller set on the 9th of August. The original grounds were as follows :

"In furtherance of your campaign for non-payment of rent, you were instigating the people in the Belgaum District to commit acts of violence against landlords.

In all probability, you will continue to do so." The second set gave the following additional particulars :

"The people in Belgaum District, whom you were instigating to commit acts of violence against landlords in furtherance of your campaign for non-payment of rent, were the tenants in Hadalge and round about villages in the Khanapur Taluka of Belgaum District, and the said instigation was carried on by you for some months till your arrest in April, 1949."

On the 24th of August, 1950, the respondent applied to the Bombay High Court under section 491 of the Criminal Procedure Code for an order of release. He succeeded, and the appeal is against that order.

The first ground on which the learned High Court Judges proceeded was that the detention order of the 17th July was defective as it was not expressed in proper legal form. The basis of their reasoning is this.

Ardcle 166(1) of the Constitution requires that- "All executive action of the Government of a State shall be expressed to be taken in the name of the Governor."

It will be seen that the order of detention states m the preamble.

The Statr:of

Bombay

Purushottam Jog Naik.

.Bose/.

T ht Staie of

Bombay

Purushottam

fog Nail(.

Bose/.

"Whereas the Government of Bombay is satisfied ... " and the operative part of the otder runs~

"Now, therefore. . . . . . . . the Government of Bombay is pleased to direct etc."

It does not say that the Governor of Bombay is pleased to direct.

The learned Judges held that this is not an order expressed to be made in the name of the Governor and accordingly is not protected by clause (2) of article 166. They conceded that the State could prove by other tneans that a valid order had been passed by the proper authority, but they held that the writing, (Record No. 3), which purports to embody the order, cannot be used to prove that a valid order was made because the formula set out in article 166(1) was not employed. We are unable to agree.

Now we do not wish to encourage laxity of expression, nor do we mean to suggest that ingenious experiments regarding the permissible limits of departure from the language of a Statute or of the Constitution will be worthwhile, but when all is said and done we lnust look to the substance of article 166 and of the Order.

The short answer in this case is that the order under consideration is "expressed" to be made in the name of the Governor because it says "By order of the Governor," One of the meanings of "expressed" 1s to make known the opinions or the feelings of a particular person and when a Secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor.

In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there.

It has to be remembered that this order was made under the Preventive Detention Act, 1950, and therefore had to conform to its tertns.

Section 3 of the Act provides that the State Government may if satisfied,

. ~

.•·

"make an order directing that such person be detained."

It is true that under section 3[ ( 43a) (a)) of the General Clauses Act the words "the State Government" mean the Governor, but if that be so, then the expression must be given the same meaning in the order which merely reproduces the language of section 3, not indeed because the General .Clauses Act applie$ t() the order (it does not) but because the order is reproducing the language of the Act and must therefore be taken to have the same meaning as in the Act itself, particularly as the order concludes with the words,

"By qrder of the Governor of Bombay."

It will be noticed that section 3 of the Preventive Detention Act enables certain authorities specified by it to rµake orders of detention. These include, not only State Governments but also the Central Government, any District Magistrate or Sub-Divisional Magistrate and certain Commissioners of Police.

The list does not include the Governor of a State. Now, though the term "State Government" appearing in an enactment means the Governor of the State, there is no provision of law which equates the term Governor with the State Government of which he happens to be the head. On the contrary, the Constitution invests him with certain functions and powers which are separate from those of his Government. It was therefore appropriate that the order in this case should have set out that the Government of Bombay was satisfied and not some other authority not contemplated by the Act and that that Government directed the detention.

It was also proper that the 6rder should have been executed under the orders of the Governor autihenticated, under the rules, by the signature of the Secretary. It is true that addition of the words "and in his name" to the words "By order of the Governor of Bombay" would have

0 placed the matter beyond controversy but we are unable to see how an order which purports to be an order

T lie S1ate ti/

Bombay

P1m11iattam

fog Naik_.

Bose /.

: 1952 -- The Staie'of

"Bombay

. 'v. .Purushottam

'/og Naik.

Bose/.

of the Governor of Bombay can fail to be otherwise than in his name. If A signs his name to a communication that communication goes out in his name.

Equally, if he employs an agent to sign on his behalf and the agent states that he is signing under the orders of A, the document still goes forth in the name of A.

In our opinion, the High Court was wrong on this point.

The next step in the High Court's reasoning was this. The learned Judges held that the writing produced as the order did not prove itself because of the defect we have just considered but that nevertheless it was open to the State Government to prove by other means that such an order had been validly made. The learned Judges therefore called upon Government to make an affidavit setting out the facts.

An affidavit was made by the Home Secretary but the learned Judges were not satisfied and asked for a further affidavit. The Home Secretary thereupon made a second one but the learned Judges were still not satisfied and considered that the Minister in charge should have made an affidavit himself.

We do not intend to discuss this matter because once an order of this kind is unable to prove itself and has to be proved by other means it becomes impos- . sible to lay down any rule regarding either the quantum of evidence necessary to satisfy the Court which is called upon to decide 'the question or the nature of the evidence required. This is a question of fact which must be different in each case.

Of course, sitting as a court of appeal, it would have been necessary for us to decide this had we reached a differ- . ent conclusion on the first point and had the State

Government desired the re-arrest of the respondent.

But' as we are only asked to deal with general principles, all we need say as regards this is that it is not necessary in every case to call the Minister in charge.

If the Secretary, or any other person, has the requisite means of knowledge and his affidavit is believed, that will be enough.

, I

We wish, however, to observe that the verification of the affidavits produced here 1s defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief.

We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order XIX, rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to 1s not based on personal knowledge the sources of information should be dearly disclosed.

We draw attention to the remarks of Jenkins C. J. and Woodroffe J. in Padmabati Dasi

v. Rasik Lal Dhar(1) and endorse the learned Judges' observations.

In fairness to the Home Secretary we deem it right to say that his veracity was neither doubted nor impugned by the High Court, but only his means of knowledge. He was speaking of the "satisfaction" of the Minister and the High Court was not satisfied regarding his knowledge of the state of the Minister's mind.

The learned Judges considered that the Minister himself would have been a more satisfactory source of information, but as we say, this 1s not a question of law. As a matter of abstract law, of course, the state of man's mind can be proved by evidence other than that of the man himself, and if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his conduct and acts, and the Home Secretary's affidavit was regarded as sufficient in the particular case, then that would constitute legally sufficient proof.

But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in , trictness in that particular case, must necessarily depend upon its facts. In the present case, there was the element that 57 cases were dealt with in the course of 6 days

(1) (1910) I.L.R. 37 Cal. 259.

The State of Bombay v.

Purushottam Jog Naik.

Bose /.

The Stote of

Bombay

PuNlshottam

fog Naik_.

Bose /.

and orders passed in all on one day. But we do not intend to enter into the merits. All we desire to ay is that if the learned Judges of the High Court mtended to lay down as a proposition of law that an affidavit from the Minister in charge of the department is indispensable in all such cases, then they went too far.

The learned Attorney-General contended that the Minister in charge could not be asked to divulge these matters because of article 163(3) of the Constitution. We do not decide this question and leave it open.

Another point which was argued related to the privilege which the Home Secretary claimed on behal.f of the State Government under article 22 ( 6) of the Constitution. Government disclosed certain facts in the ground~ furnished to the detenu and claimed privilege regarding the rest of the facts in its possession.

In our opinion, the grounds supplied were sufficiently specific and they could form a proper basis for the "satisfaction" of the Government.

As regards the rest, Government has claimed privilege in the affidavit of the Home Secretary on the ground of public interest. This raises further questions which we do not intend to examine as the respondent is not to be re-arrested.

The order of release was, in our opinion, wrong, but in view of Government's undertaking not to re-arrest the respondent, we direct that he be not re-arrested in respect of the matters to which .this appeal relates.

Order. of High Court set aside.

Agent for the appelant: P.A. Mehta.

GIPN-S3-7 S. C. lndia/71-25-1-73-700

' •

State of

BihtJr

Tlie State of

BihtJr

Shailaba/a De11i.

section 4(l)(a)

DAs J.

Mukherjea J.

BosE J.

R. C. Prasad

P. K. Chatterjee

THE STATE OF BOMBAY

PURUSHOTTAM JOG NAIK

PATANJALI SASTRI

Preventive Detention Act

s. 3

Constitution of India

Art. 166

Detention Act, 1950

Government of Bombay

Bombay

V. T. D.

High Court of Bombay

Art. 166

Art. 166

J. N.

Art. 166

Art. 132(1)

Constitution of India

High Court of Judicature at Bombay

Bavdekar

Vyas

C. Setalvad

C. K. Daphtary

G. N.

Joshi

Purushottam Jog Naik

BoSE

section 3

26th February, 1950

11th of July, 1950

Bombay High Court

17th of July,

1950

Purushottam Jog Naik

Kanara

section 3

Detention Act, 1950

T. Dehejia

Belgaum District

Hadalge

24th of August, 1950

section 491

Government of Bombay

article 166

article 166(1)

article 166

Section 3

section 3

General Clauses Act

section 3

section 3

Central Government

.Purushottam

Jenkins

Woodroffe

article 163(3)

article 22

P.A. Mehta


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S.C.R.

SUPREME COURT REPORTS

SHAMARAO V. PARULEKAR

THE DISTRICT MAGISTRATE, THANA,

BOMBAY AND TWO OTHERS

Petition No. 86 of 1952.

D. M. PANGARKAR v.

THE STATE OF BOMBAY AND ANOTHER

Petition No. 147 of 1952.

MRS.GODAVARIPARULEKAR

THE DISTRICT MAGISTRATE, THANA,

BOMBAY AND TWO OTHERS

Petition No. 157 of 1952.

GANESH LAXMAN PATIL FOR TUKARAM HARI

WAZEKAR

THE DISTRICT MAGISTRATE, KOLABA

AND TWO OTHERS

THE STATE OF HYDERABAD-INTERVENER

Petition No. 155 of 1952.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, MuKHERJEA, DAs and VIVIAN BosE JJ.]

Preventive Detention Act (IV of 1950)-Amendment Acts of .1951 and 1952-Detention order under Act of 1950 as amended in 1951 -Extension of duration of Act by Amending Act of 1952 until 1st October, 1952-Whether extends period of detention-Amendment Act-Rule of construction-"Principal Act," meaning of- Validity of s. 3 of Amending Act of 1952-Legality of detention after 1st April, 1952-Constitution of India, Arts. 14, 22 (4) and (7).

May 26.

Shamarao V. Parulek_at

v. 2"he District

Magistrate ..

Thana, and Others.

1\i1 or<lcr directing the detention of the petitioner was n1ade on the 15th of Nove1nber, 1951, under the Preventive Detention Act of J 950 as a1nen<led by the A111ending Act of 1951, \Vhich pfolonged the duration of the Act of 1950 up to the 1st April, 1952. 'The Preventive Detention (An1en<lment) Act of 1952 extended the duration of the Act of 1950 for a further period of six 1nonths, that is to say, until the 1st October, 1952.

Section 3 of the Act of 1952 provided further that detention orders con finned under the principal Act and in -force itnn1ediately before the conunencement of the Act of 1952, sh~1ll, 1,-vhere the period of detention is not specified in the order, re1nain in force "for so long as the principal Act (which was defined as the Act of 1950) \\'as in force." It \Vas contended on behalf of the petitioner that his <letention after 1st 1\pril, 1952, \Vi.ls illegal.

1-Ield, (i) \Vhen a subsequent Act an1cnds an earlier one in such a \Vay as to incorporate itself or a part of itself into the earlier, then the earlier 1\ct 1nust thereafter be read and construed (except where that \vould lead to a repugnancy, inconsistency or absurdity) as if the altered \vords had been written into the earlier Act \Vith pen and ink and the old words scored out so that there is no need to refer to the atneuding Act at all.

After the passing of the Act of 1952 the expressions "the Act of 1950'" and "the principal Act" incant the 1\ct of 1950 as a111ended by the Act of 1952, and the effect of s. 3 of the Act of I 952 was that the detention of the petitioner \Vould re1nain in force until the 1st October, 1952, without prejudice to the po\ver of the Govern n1ent to 1nodify or revoke it;

(ii) section 3 did not contravene Art. 14 of the Constitution as there \Vas a rational classificatien of the cases of detention orders in the section, and the period of detention was left in every case to the discretion of the State;

(iii) the words "any person in sub-cl. (b) of cl. 7 of Art. 22 of the Constitution do not contemplate that individual attention should be paid to each case; on the contrary, the words used in the said sub-clause empower the Parlian1ent to pres cribe the maxin1um for a class taken as a \vholc as it has done in s. 3, ands. 3 does not therefore offend cl. (4) or cl. (7) of Art. 22;

(iv) the power of the Parliament to fix a maxi1nu!P period does not exhaust itself once it has exercised 'that power but can be exercised again in respect of the same detention;

( v) section 3 1s not repugnnt to the Constitution on the ground that it does not fix a time limit, for it specifies the

period as until the expiry of the Act; nor on the ground that it ...,.-1 introduces the idea of potentially indefinite detention by periodical amendments; for the Parliament has the power to do that.

ORIGINAL JumsorcnoN : Petitions (Nos. 86, 147, 157 and 155 of 1952) under article 32 of the Const'itution for writs in the nature of habeas corpus.

Petitioners in person in petitions Nos. 86, 147 and 157 of 1952.

Rajani Patel for the petitioner in petition No. 155.

M. C. Setalvad, Attomey-General for India, ( G. N. /oshi, with him) for the respondents.

Ganapathi Iyer for the intervener (State of Hyderabad).

1952.

May 26.

The Judgment of the Court was delivered by BosE J.-This petition and three others, namely petitions Nos. 147, 155 and 157 of 1952, raise issues regarding the vires and applicability to these cases of section 3 of the Preventive Detention (Amendment) Act, 1952.

This judgment is confined to those points and will govern these cases only in so far as they raise those points.

The remaining points wliich do not touch these issues will be dealt with by another Bench.

The only exception is a point raised in petition No. 155 of 1952 with which the other petitions are not concerned. \Ve will deal with that separately.

The present petition (No. 86 of 1952) was argued very ably and with commendable conCiseness by the petitioner in person.

The fact that he has not been able to persuade us to his view is not due to any defect in his presentation of the case.

The petitioner was arrested on the 15th of NoYembcr, 1951, and an order of detention under the Preventive Detention Act of 1950 was served on him the same .day, and he was given the grounds of detention on the following day, the 16th. His case was placed before an Advisory Board and on the 8th of February, 1952, the Bombay Government "confirmed and continued"

the detention under section 11 (1) of the Preventive Detention Act of 1950.

This Act, as it originally stood, was due to expire <>n the 1st of April, 1951, but in that year an amending

Shamarao V. Parttlekar

The Dfrtrict

Magistrate,

Thana, and Others.

Bose /.

Shamarao V. Parulekar v.

The District Magistrate,

Thana, and Others.

Bose f.

Act was passed which, among other things.. prolonged its life to the 1st of April, 1952. The order of detention in ths case was passed under tl1e Act of 1950 as amended by the Act of 1951. According to past decisions of this Court, the detention would have expired on the 1st of April, 1952, when the Act of 1950 as amended in 1951 would itself have expired.

But a fresh Act was passed in 1952 (Act XXXIV of 1952), the Preventive Detention (Amendment) Act, 1952.

The effect of this Act was to prolong the life of the Act of 1950 for a further six months, namely till the 1st of October, 1952.

The question is whether that Act also prolonged the deten6on and whether it had the vires to do so.

It was contended that the mere prolongation of the life of an Act does not, by reason of that alone, prolong the life of a detention which was due to expire when the Act under which it was made expired. Therefore, as the Act under which the present detention was made was due to expire on the 1st of April, 1952, the mere prolongation of its life by the amending Act did not affect a prolongation of the detention.

Accordingly, the petitioner should have been released on the 1st of April, 1952, and as tl1ere is no fresh order of detention he is entitled to immediate release.

We need not express any opinion on that point because there is present in the amending Act something more than a mere prolongation of tl1e life of the old one. There is section 3 which is in these terms :

"Validity and duration of dete11tio11 in certain cases.- Every detention order confirmed under section 11 of the principal Act and in force immediately before the commencement of this Act shall have effect as if it had been confirmed under the provisions of the principal Act as amended by this Act; and accordingly, where the period of detention is either not specified in such detention order or specified (by whatever form of words) to be for the duration or un.til the -d expiry of the principal Act or until the 31st day of March. 1952, such detention order shall continue te>

. 1952 remain in force for so long as the principal Act is in force, but without prejudice to the power of the appropriate Government. to revoke or modify it at any tirrie. "_ - ---- --·

ShamaraQ V .. Paroleka'I'

v, It will be noticed that the concluding part of this section states that the detention order shall remain in force "for so long as the principal Act is in force." Section 2 of the amending Act defines the "principal

Act" to mean the Act of 1950. Therefore, it was argued, as the Act of 1950 was due to expire on 'the 1st of April, 1952; the. present detention also came to an end on that date and so, in the absence of a.fresh order of detention, the petitioner's detention after that· date was illegal. .This argument; though ingenious, -

The District

..;.lJagistrate.

is fallacious. - The construction of an Act which has been amended is now governed by technical rules and we. must first be clear regarding the proper canons of construction.

The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to . a _repugnancy, inconsistency or absurdity) as if the altered word~ had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th edition, page 207; it is the law in America: see Crawford on Statutory Construction, page 1 IO; and it is the law . which the Privy Council applied to India in Keshoram Poddar v. Nundo Lal l.1allick('). Bearing this in mind it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed andsection 2 came into operation, the Act of 1950 meant the Act of 1950 as amended by section 2, that is to say, the Act of 1950 now due to expire on the 1st of October; 1952; · · ·

(1) (1927) 54 I:A• 152 at 155

Tna, and Otha-a.

Bo, eJ.

Shamarao V. Parulek.ar

The District

'Magistrate,

Thana, 1md Others.

Bose /.

Turning now to section 3, whose vires is questioned, and examining it clause by clause we first get these words:

"Every detention order confirmed under seetion II of the principal Act and in force immediately before the commencement of this Act."

According to the rule of construction just examined, the words "'principal Act" means the Act of 1950 as amended by the Acts of 1951 and of 1952, that is to say, the Act of 1950 due to expire on the 1st of October, 1952.

Incidentally, in the particular centext it could not mean the Act of 1950 as it stood in 1950 because no order confirmed under it as it then stood could have been alive "at the commencement of this Act", namely .on the 15th of March, 1952.

The section continues-

"shall have effect as if it had been cunfirmcd under the provisions of the principal Act as amended by this Act."

The underlined words "as amended by this Act"' were relied on to show that wherever the words "the principal Act" were referred to they meant the unamended original Act of 1950, otherwise these words would have been unnecessary.

In our opinion, they were unnecessary in the sense that their absence would not have made any difference to the interpretation though it would have made the section barder to follow and understand.

We say that for this reason.

Without the underlined words the section paraphrased would read-

"Every detention order confirmed under the original Act shall have effect as if confirmed under its . ' ,, prov1s10ns.

If this were to be read literally it would lead to an absurdity, for if the order is actually confirmed under the original unamended Act it would be pointless to introduce a fiction and say that the order shall be deemed to be confirmed under that Act as unamended.

But even apart from a strictly technical construction, the language of the section is accurate because, as we

,.._ -

have said, the rule is that an amended Act must be :ead as if the words of amendment had been written into the Act except where that would lead to an 111consistency, and this woul<l be one of those cases unless the words are construed in a sensible and commonsense way.

The draughtsman therefore had either to leave the words as they were, with an apparent inconsistency, or make his meaning clear by adding the words he did.

But we do not think the addit1on made any difference to the result.

We now turn to the second half of section 3, that is to say, to the words following the semi-colon.

It is important to note here that this part is conequential on the first and merely explains the effect of the first

half.

It is also relc\'ant to note that it deals with four different kinds of orders, different, that is to say, in the form of the words used though in the end they all come to the same thing. It deals with the following kinds of order :-

(1) an order in which the period of detention is not specified at all; in that event the detention would end at midnight on the night of the 31st of March, 1952.

It is clear that in this context the words "the principal Act" cam1ot mean the Act expiring on the 1st of October, 1952, because it envisages an order made before the Act of 1952 was in being and so on the date of its making the order could only refer to the Act then in being;

(2) an order in which the period is stated to be "fo1 the duration of the principal Act", that is to ay, till the 31st of March, 1952 ;

(3) an order in which the period is specified to be until the expiry of the principal Act, which again brings us back to the 31st of March, 1952, as the last day of detention;

(4) an order in which the period is specified to be till the 31st of March, 1952. In all these four cases the section says that the detention order shall "continue to remain in force, for so long as the principal Act is iFl force'', that is to say, till the 1st October, 1952.

Shamarao V. Parulekar v.

The District

Magistrate,

Thana, and Others.

Bose f.

Shamarao V. Parulekar v.

The District

Magistrate, Thana, Qnd Others.

Bose/.

That follows from the first part of the section because that is the meaning which the law directs shall be placed on these words unless the context otherwise directs and the context does not direct otherwise here.

This part of the section is only explanatory.

But we wish to found deeper than this.

It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what common sense would show was obviously intended the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently.

Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided.

Sec the speech of Lord Wensleydale in Grey v. Pearson(') quoted with approval by the Privy Council in Narayana Swami v. Emperor('); also Salmon v. Duncombe("). The rule is also set out in the text books = See Maxwell on the Interpretation of Statutes, 9th edition, page 236, and Craies on Statute Law, 5th. edition, pages 89 to 93. The meaning of section 3 is quite plain ancl only desperate hair splitting can reduce it to an absurdity. Courts should not be astute to defeat the provisions of an Act whose meaning is, on the face of it, reasonably plain.

Of course, this does not mean that an Act, or any part of it, can be recast. It must be possible to spell the meaning contended for out of the words actually used. We hold that there is no difficulty of construction.

It was next argued that in any event the extended detention became a fresh detention (because of the Act of 1952) from the date the Act came into force, and reliance was placed upon the judgments of two of us, Mahajan and Das JJ. in S. Krishnan v. The State of Madras('). It is enough to say that that was not the

(') [1857] 6 H.L.C. 61 at 106. (') 1l App. Cas. 627 at 634.

(') A.I.R.1939 P. C.47. (') [1951] S.C.R.621 at635and640.

\.-----

......

decision of the Court in that case, and further, that the

two Judges who held it was a fresh detention nevertheless considered that a fresh order with its concomitant fresh grounds and a fresh reference to the Advisory Board were not required; therefore, either way the petitioner must fail.

Reference was made to the equality clause in article 14 of tlte Constitution but that argument is easily met because the classification which section 3 makes is reasonable.

In one class it places all those whose cases have already been considered by the Advisory Board and in the other those whose cases have yet to go before it; also the law is fair, or at any rate as fair as detention laws can be, despite this distinction because power is left to the appropriate Government to revoke or modify these orders, or any of them, at any time.

Substantially therefore there is no _differentiation.

Article 14 was considered at length in The State of West Bengal v. Anwar Ali Sarkar(1), and according to the law laid down there, the Court must be satisfied on two points before it can strike at a law on the ground of unlawful discrimination. It must be satisfied (1) that the law in fact discriminates and (2) that such discrimination is not permissible on the prindple --- of a rational classification made for the purposes of the legislation.

The argument here was that section 3 discriminated against those detenus whose cases had been referred to the Advisory Board and whose detention was confirmed, on the strength of its report, under section 11 ( 1) before the amending Act of 1952 was passed. The reason given was that these detentions are automatically extended up to the 1st of October, 1952, by section 3 without further reference to an Advisory Board, whereas in other cases, that is to say, in the case of those who were detained before the amending Act but whose cases had not been referred at the date it came into force, and in the case of those detained after the

(t) [1952] S.C.R. 284.

Shamarao V. Parvlek.ar

The District

Magistrate, Thana, and Others.

Bose /.

Shamarao V. Parulekar • v.

The District

Magistrate,

Thana, and Others.

Bose /.

amending Act, the Advisory Board is called into play an,\ individual attention is given to each case with the result that many of those detentions might not be for as long as six months. They might, for example. be only for one month or two .. It was urged that this was discrimination of a kind which cannot be supported by any principle of permissible classification because classification into the above categories has llC\ reasonable relation to the objects of tl1e legislation, such as security ' of the State, maintenance of public order and so forth.

We are unable to accept this line of reasoning. To say that section 3 automatically extends the detention of persons in the petitioner's position to the 1st of October, 1952, and stops iliere, is only to make a partial statement of the effect of section 3 because the extension is subject to the power of the appropriate Government to revoke or modify it at any time.

In other words, the automatic continuation of the detention till the 1st of October is not absolute and irrevocable but is made dependent on the power of the appropriate Government to revoke or modify it at its discretion under section 13 of the Act. The State may or may not continue the detention for the whole of thc extended period.

In both classes of cases the duration of the detention within the overall limit of the life of the Act is left to the discretion of the State. The only difference is that in the one class of cases the discretion is exercised after the period has been extended by the amending Act, in the other the appropriate Govtrnment fixes the period itself in its discretion and can again at its discretion revoke or modify '1t.

In both cases, the substance of ilie law is that tl1e period of detention is left to the discretion of the State, and so tbere is no substantial discrimination.

It was argued that however fair this may look t>n paper, in pract1ice that will be grave discrimination because, as a matter of fact, tl1e State will not apply its mind in ilie majority of cases like the petitioner's That is an argument we cannot accept and no material was placed before us to justify such a conclusion.

~· '

We turn now to the next point. It was contended that section 3 offends the Constitution because article 22 ( 4) and (7) do not envisage the direct intervention of Parliament in a whole batch of cases.

The protectiem guaranteed is that there shall be individual attention and consideration to each separate case by some duly specified and constituted authority.

In our opinion, this is not accurate.

Article 22 ( 4) guarantees that there shall be no preventive detention for more than ili.ree months unless the law authorising it makes provision for an Advisory Board and the Board after considering each individual case separately reports . that there is in its opinion sufficient cause for such detentim1.

To that extent there must be individual consideration of ead1 case, but once the report is made and is unfavourable to the detenu, then the detention can be for a longer period

provided it does not exceed "the maximum period prescribed by any law made by Parliament under subclause (b) of clause (7) ." Sub-clause (b) of clause (7) emp0wcrs Parliament to prescribe "the maximum period for which any person may in any class or ....... . of cases be detained under any law providing for preventive detention." Parliament is accordingly empowered to specify a class. It has done so. The class is all persons whose cases have already been considered by an Advisory Board.

It is empowered to prescribe a maximum period.

That also it has done.

The extended detention (that is to say, for more than three months) can then be "under any law providing for preventive detention." A law made by Parliament falls within these words. Parliament is equally authar'ised to say who shall determine the period of detention, and as there is nothing in the Constitution to prevent it, it can itself exercise the authority it is empowered to delegate to others.

Stress was laid on the words "any person" in sub. clause (b) of clause (7) and it was contended that this contemplates individual attention in each case.

But

Shamarao V. Parulek_11r

The District

Magistrate,

Thana, and Others.

Bose/.

Shamarao V. Parulekar v.

The District Magistrate, Thana, and Others.

Bose /.

if that is so, then it means that Parliament must itself direct the maximum period for each separate person falling. within the class individually. The words are, we th111k, reasonably plain and we hold that Parliament can prescribe the maximum for a class taken as a whole as it has done in section 3.

It was next argued that once the power given under clause (7) to fix a maximum period has been exercised '-· the power exhausts itself and cannot be exercised again in respect of the same detention. In our opinion, no such limitation is imposed upon Parliament by the Constitution.

Then it was said that secuon 3 stands on a footing different from section 12 of the amending Act of 1951 as it introduces the idea of potentially indefinite detention and accordingly is repugnant to the Constitution, and in any event is a fraud upon it. In so far as this means that section 3 fixes no time limit, the contention is unsound because the section specifies the exact period of the qetention, namely till the expiry of the Act of 1950, that is to say, till the 1st of October, 1952.

In so far as it means that Parliament is enabled to continue detention indefinitely by the expedient of periodic amendments in the Act of 1950, the answer is that Parliament has the power.

This was precisely the power exercised In the amending Act of 1951 and upheld by this Court in S. Krishnan v.

The State of Madras('). The present Act is no different from that in this respect.

So far, we have dealt with the facts in petition No. 86 of 1952.

The facts in the other three petitions naturally differ in their details but they all conform to the same general pattern so far as the points d!s cussed above are concerned, so there is no need to discuss them individually. \Ve hold that section 3 of the amending Act of 1952 is intra vires and that the detentions are not bad on any of the grounds discu5'- ed above. The rest of the points raised in each individual case are left open except for one point which

f1) [1951] S.C.R. 621.

. - -..,.-

anses m petition No. 155 of 1952. That point 1s as follows.

The first ground of detention given to the petitioner in this case reads :

"Being the President of Jamat of Agris you have used your position as such to increase your influence over the residents of Uran Peta, have created a band of obedient and trusted associates, have inflicted heavy fines on villagers in Uran Peta who have disregarded your wishes and have imposed on them boycott or excommunication in cases of their refusal to pay the

fines."

It was argued that at the very outset these allegations import noth'ing more than an exercise of functions such as the infliction of fines and excommuni- <:ation which the petitioner as head of the caste had authority to do. They do not touch any of the matters covered by section 3 (1) (a) of the Preventive Detention Act, 1950, under which the petitioner is detained.

For example, they do not touch the security of the

State or the maintenance of public order or any of the other matters specified in section 3. They are therefore irrelevant to the detention, and as it is impossible to say how far these irrelevant matters influenced the detention, the petitioner is entitled to release. Reliance was placed upon certain observations of the Federal Court in Rex v. Basudev(1).

We think 'it unnecessary to examine this point because we do not think the ground is irrelevant nor do we agree that it means what the petitioner says.

In our opinion, the grounds of detention must be regarded as a whole and when that is done the relevance of the first ground becomes plain.

The gravemen of the charge against the petitioner is that he aimed at setting up a parallel government in the Uran Peta area and that in order to achieve that end he did various acts such as intimidating the workers in the salt pans with threats of murder, and his own workers with threats of death, unless they carried out his

(1) [ 1949] F.C.R. 657 at 661.

Shamarao V. Parulekar

The District

Magistrate,

Thana, and Others.

Bose /.

Evacce Evuee

The District

Mllgistrttte,

Thana, and Others.

Bose /.

May 26.

orders; and among the lesser instances given to illustrate the exercise of parallel governmental authority are the ones set out in the first ground, namely the mfliction of fines with the sanction of excommunication and boycott to ensure their payment and due obedience to his orders. This point has no force and is decided against the petitioner.

It will not be open to him to re-agitate this afresh when his case is reheard on the remaining issues.

All the four cases will now be set down for hearing on the remaining points which arise in them. As they do not involve constitutional issues they need not go before a Constitution Bench.

Agent for the petitioner m Petition No. 155 : M.SK.

Sastri for P. G. Goklzale.

Agent for the respondents and Intervener : P. A.

Mehta.

EBRAHIM ABOOBAKAR AND ANOTHER

CUSTODIAN GENERAL OF

EVACUEE PROPERTY.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN,

MuKHERJEA, DAs and VIVIAN BosE JJ.]

Bomba)' Evacuees (Admi11istratio11 of Property) Act, 1949- 0rdinance No. XXVII of 1949, ss. 7, 24-0rder refusing to declare

person evacuee-Whether appea/able-lnformant, whether "person aggrieved"-Right to appeal-CoHrts with limited juristliction-- Pau1er to decide facts upon which iurisdiction depends-Powers of an appellate court-Grant of writ of certiorari-Guiding principles.

A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.

It must be shown before such writ is issued that the authority which passed the order acted without jurisdiction or in excess of it, or in violation of the principle~ of natural justice.

Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of

SHAMARAO V. PARULEKAR

PATANJALI SASTRI C.J.

MEHR CHAND MAHAJAN

MuKHERJEA

DAs

VIVIAN BosE JJ.

Preventive Detention Act

s. 3

Constitution of India

Arts. 14, 22

Section 3

s. 3

1st October, 1952

section 3

Art. 14

cl. 7

Art. 22

s. 3

Art. 22

Parliament

section 3

article 32

Rajani Patel

M. C. Setalvad

G. N. /oshi

Ganapathi Iyer

section 3

15th of NoYembcr, 1951

8th of February, 1952

Bombay Government

section 11

Shamarao V. Parttlekar

1st of April, 1952

1st of October, 1952

section 3

section 11

31st day of March.

Section 2

England

India

section 2

section 2

Shamarao V. Parulek.ar

section 3

15th of March, 1952

section 3

31st of March, 1952

Wensleydale

section 3

Mahajan

Das

article 14

section 3

Article 14

section 3

section 11

section 3

Shamarao V. Parvlek.ar

section 3

section 3

1st of October

section 13

section 3

article 22

Article 22

Shamarao V. Parulek_11r

District

Magistrate,

Thana

section 3

section 12

section 3

section 3

Uran Peta

section 3

Preventive Detention Act, 1950

section 3

1949] F.C.R. 657

Shamarao V. Parulekar

M.SK

P. A.

Mehta

EBRAHIM ABOOBAKAR

CUSTODIAN GENERAL OF

EVACUEE PROPERTY

ss. 7, 24