MILAN BANIK

THE STATE OF WEST BENGAL & ORS.

March 26, 1974

[H. R. KHANNA AND P. K. GOSWAMI, JJ.]

Maintet1af1c~ of Internal Securily A.ct-S. 3-Public Order-Meanlng of- W/ierher detention order can be passed for the sa1ne set of activities in respect of wlu"ch cases l1ad already been registered under Indian Penal Code. . The petitioner was detained under S. 3 of the Maintenance of Internal Sccu r!tY Act. 197 .1 on the grounds tt on two occasions he along with other associates. committed robbery on p01nt of dagger in a town in West Bengal and

snatced away money and <?ther valuables. Such activities of the petitioner terronsed the local people and created a panli; in the area and the petitioner 'vas detained al-1; SC in the opi!lion of the Distrit Magistrate, ht was acting in a manner pre1uc1al to the maintenance of publtc ordl!r. ·

In a petition under Art. 32 of the Constitution, the detention was challenged on the following grounds :- (i) That the alleged activities for which tho peth tioner had been detained were not germane to public order; (ii) that tho names

f all the associates of the Petitioner were not mentioned in the grounds of dellon and as such the grounds should be held to be vague; (iii) that two cases were registered against the petitioner in respect of the ac1ivities mentioned in the grounds of detention and therefore for the same activities. the petitioner could not be detained under the Maintenance of Internal Security Act, and (iv) that

the period of the petitioner's detention has not been specified by the State Govment and therefore ii is an infirmity in the detention order.

Pismissing the petition,

HEID : (i} The test for determining whether a particular activity affects law and order or whether it impinges upon public order is : Does it interfere with the current of life of the community so as to amount to disturbance of public order or does it affect merely .an individual leaving the tranquillity of the society undisturbed in whiCh_ Case it would be an activity alfe<:ting law and order. f791 E-Fl

Ka11u Biswas v. State of West Bengal [19731 1 S.C.R. 546 referred to.

Keeping this test in view it was held that the activities of the petitioner bad the effect of disturbi'ng public order.

111 Re : Sus11anta Goswami & Ors. [1969] 3 S.C.R. 138 referred to and dis

tinguhed.

(ii) As regards vagueness of thegrounds, a pen1sal of the grounds of detention shows that the date, time and place of the incidents were specified. Particulan were also given regarding the nature of the activities of the petitioner.

The facts stated in the grounds of detention were sufficient to apprise the petitioner of the precise activities of the petitioner on account of which the order for detention had been made ilnd it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detentiori order.

What hasto be._s_een by the court is that the grounds of detention supplied to the petitionet should not be sO vague as to prevent him from making an effective representation. The• grounds of detention in the present case do not suffer from the infirmity Of vagueness. [792 A-Cl

Sk. Hasan Ali v. State of West Be11gal A.LR. 1972 S.C. 2590 referred to.

(iii) There is no legal bar for a District Magistrate to make an order for detention in respect of the same activities of the detenu for which cases had earlier been registered in a Criminal C.ourt, but in which cases be was discharged_

The detaining authority might well feel that though there - not sufficient evidence for securing conviction, the activities of the t>erson ordered

to be dctaned were of such a nature a~ to justify the order of detention.

A [792F-Gl

Mohd. Salim Khan v. Shri C. C. Bose and anather W.P. No. 435/71 decided on April 2S, 1972 referred to.

(iv) Further, non-specification of an definite period in a detention order n1ade under the Maintenance of Internal Security Act, .i.! not a material omission as would render the order to be invalid. [793 GJ

Sunn Ullah v. State of I. & K. AIR 1972 SC 2431 and Ujagar Singh v. The B State Qf Punjab [19521 S.C.R. 756 referred to.

ORIGINAL JURISDICTION: Writ Petition No. 2023 of 1973.

Under Art. 32 of the Constitution of India for issue of a Writ in the nature of habeas corpus.

G. Narayana Rao, for the petitioner.

Diiip Sinha and G. S. Chatterjee, for the respondent.

The Judgment of the Court was delivered by

KHANNA, J.

Milan Banik petitioner was ordered by District Magistrate Burdwan to be detained under section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

Jn pursuance of the detention order, the petitioner was arrested on July 23, 1973. The petitioner has now filed this petition through jail under article 32 of the Constitution for a writ of habeas corpus.

Aller makir.g the detention order on June l, 1973 the D.M. sent report to the State Government about his having made the detention order along with the grounds of detention and other necessary particulars.

The State Government approved the detention order on June 12, 1973. The petitioner at the time of his arrest on July 23, 1973 was served with the order of detention as well as the grounds of detention together with vernacular translation thereof.

The case of the petitioner was placed before the Advisory Board on August 7, 1973.

The same day the State Government received a representation from the petitioner.

The said representation after being considered was rejected by the State Government on August 8, 1973.

The representation was then forwarded to the Advisory Board.

The Advisory Board 'expressed the opinion on September 25, 1973 that there was sufficient cause for the detention of the petitioner.

On October 1, 1973 the State Government confirmed the detention order.

It has been argued by Mr. Narayana Rao, who has appeared amicus curiae on behalf of the petitioner, that the alleged activities for which the petitioner had been detained were not germane to public order. In this connection we find that according to the grounds of detention, the petitioner was being detained because in the opinion of the District Magistrate he was acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below :

"I. On 8-5-73 at about 04.00 hrs. you along with your associates stopped the rickshaw of Sri Gopal Sharma on

point of dagger while he was coming from Burdwan Railway Station towards Curzon Gate and snatched each Rs. 20/- and other valuables and escaped.

Your commission of this highway robbery created panic amongst local people and thereby disturbed the normal avocation of life in the area.

2. On 15-5-73 at about 04.30 hours your along with yom associates Swapan Singh and others attacked Shri Aditya Monda!, a Bus conductor on B. C. Road, Burdwan and on the point of an open Bhojali rc;>bbed him of each Rs. 30/- one wrist watch and other valuables and forced him to keep silent.

Your such act terrorised the local people and created a sense of panic in their minds and as a result flow of life in the area was highly disturbed.

Your such acts created a panic in the area and the local people were afraid to come out of door as usual and their normal avocation of life was disturbed." It would appear from the above that the petitioner and his associates committed robbery on point of dagger on a public road in Burdwan on two occasions in the month of May, 1973. The activities of the petitioner and his associates were of such a nature as terrorised the local people and created a sense of panic.

On account of the above activities the local people were afraid to come out of their houses and follow the normal avocations of tire.

The activities attributed to the petitioner, in our opinion, have a direct nexus with the maintenance of public order because they had the effect of disturbing the even tempo of life of the people .in the locality.

The test for determining whether a particular activity affects law and order or whether it impinges upon public order is : Does it interfere with the current of life of the community so as to amount to disturbance of public order or does it affect merely an individual leaving the tranquillity of the society undisturbed in which case it would be an activity affecting law and order [see Kanu Biswas v. State of West Benga/( 1)]. Keeping this test in view we have no doubt that the activities of the petitioner had the effect of disturbing public order.

Reference has been made by Mr. Narayana Rao to the case of 111

e : Sushanta Goswami & Ors.(') wherein this Court directed the release of a detenu nal)led Ram Kamal Dhar inspite of the fact that he along with his associates was alleged to have snatched a wrist watch from a person at the point of dagger.

There is, however, nothing to show that in that case the activity of the detenu created panic amongst the local people and thereby disturbed the normal avocation of life in the area.

As such, the petitioner, in our opinion, cannot derive much help from that authority. ·

Another contention advanced by Mr. Narayana Rao is that the names of all the associates of the petitioner were not mentioned in the .11rounds of detention and as such the grounds should be held to be vague.

There is no force in this contention.

Perusal of the grounds

(I) [19731 I SCR 546.

(!) [1960) 3 SCR 138.

of detention shows that the date, time and place of the incidents were specified.

Particulars were also given regarding the nature of the activities of the petitioner.

The facts stated in the grounds of detention were sufficient to apprise the petitioner of the precise activities on account of which the order for detention had been made and, in our opinion, it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detention order. What has to be seen by the court is that the grounds of detention supplied to the petitioner should not be so vague as to prevent him from making an effective representation.

The grounds of detention in the present case do not suffer from the infirmity of vagueness.

The fact that the names of all the associates of the petitioner were not given in the grounds of detention would not make the grounds to be vague [see also Sk. Hasan Ali v. State of West Bengal( 1) wherein a similar content on was repelled). ' ·

It has further been argued by Mr. Narayana Rao that two cases were registered against the petitioner in respect of the activities mentioned in the grounds of detention.

For the same activities the petitioner, according to the learned counsel, could not be detained under the Maintenance of Internal Security Act.

This contention is equally devoid of force.

It would appear from the affidavit of Shri Shyama Charan Chatterjee District Magistrate that in both the cases final reports were submitted and the petitioner was got discharged as the witnesses were unwilling to give evidence against him in open court for [car of their lives.

In the circumstances there was no legal bar in the way of the District Magistrate in making an order for the detention of the petitioner. A similar argument was advanced on behalf of the dctenu in the case o( Sasti @ Satish Chowdhary v. Chowdhary v. State of West Bengal(') and it was repelled in the following words :

"It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made.

The fact that the particular act of the detenu which provides the reason for the making of the detention order constitutes an offence under the Indian Penal Code would not prevent the detaining authority from passing the order for detention instead of proceeding against him in a court of law.

The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention.

There would be no legal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be germane to the object for which a detention order can be made under the Act.

Even in cases where a person has been actually prosecuted in a court of law in res-

(I) AIR [1972] SC 2590. (2)

[1973] I SCR 467.

pect of an incident and has been discharged by the trying magistrate, a valid order of his detention can be passed against him in connection with that very incident. It was recenQy observed by this Court in the case of Mohd. Salim Khan v. Shri C. C. Bose & Anr. (Writ petition No. 435 of 1971 decided on April 25, 1972) that from the mere fact that a detenu was discharged in a criminal case relating to an incident by a magistrate, it could not be said that the detention order on the basis of that incident was incompetent, nor could it be inferred that it was without basis or mala fide.

Reliance in this connection was placed upon the case of Sahib Singh Duggal v. Union of lndia( 1)."

Reference has also been made to the fact that the period of the petitioner's detention has not been specified by the State Government.

This fact, in our opinion, does not introduce an infirmity in the detention order.

A similar question arose before this Court in Suna Ullah

v. State of !. & K. (') while dealing with a detention order under the.

Jammu & Kashmir Preventive Detention Act, 1964. It was held by this Court that it is difficult to infer from the language of section 12 of the Jammu and Kashmir Preventive Detention Act that the State Government while confirming the detention order should also specify the period of detention.

All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may confirm the detention order.

There is nothing in the section which enjoins upon the Government to specify the period of detention also while confirming the detention order.

The .concluding words of sub-section (1) of •ection 12, according to which the Government may continue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consquence of .the confirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the confirmation of the detention-order is subject to the limit of two years. which is the maximum period of detention for which a person can be detained vide section 13 of the Act.

Although the above dictum was laid down while dealing with Jammu & Kashmir Preventive Detention Act, it holds equally good in the case of detention made under the Maintenance of Internal Security Act of which the relevant provisiqns except for the maximum period of detention are in pari materia. It may also be mentioned in the above context that in the case of Ujagar Sing~ v,

The State of Punjab (3) this Court, while dealing with a case under the Preventive Detention Act, held that non-specification of any definite period in a detention order made under section 3 of that Act was not a material omission as would render the order to be. invalid.

The order for the detention of the petitioner has not been shown to be not in accordance with law. We accordingly d.is, mlss the petition.

Petition dismissed-

(1) {1966] 1 SCR 3B ..

(2) AIR [1972) SC 2431.

(J) [1952) SCR 756.

MILAN BANIK

THE STATE OF WEST BENGAL & ORS

March 26, 1974

H. R. KHANNA

P. K. GOSWAMI, JJ.

S. 3

Indian Penal Code

S. 3

West Bengal

Art. 32

[1969] 3 S.C.R. 138

AIR 1972 SC 2431

Art. 32

Constitution of India

Diiip Sinha

G. S. Chatterjee

KHANNA

Milan Banik

section 3

article 32

June l, 1973

June 12, 1973

July 23, 1973

August 7, 1973

August 8, 1973

September 25, 1973

October 1, 1973

Narayana Rao

Gopal Sharma

Swapan Singh

Aditya Monda

Burdwan

Sushanta Goswami

Ram Kamal Dhar

[1960) 3 SCR 138

Shyama Charan Chatterjee

Indian Penal Code

Indian Evidence Act

April 25, 1972

Kashmir Preventive Detention Act, 1964

section 12

section 13

Kashmir Preventive Detention Act

section 3

1966] 1 SCR 3


7 94

JEHAN SINGH

DELHI ADMINISTRATION March 27, 1974

[M. H. BEG AND R. S. SARKARIA, JJ .]

Code of Crinzi11al Procedure, 1898, Sec. 561-A-lnherent powers of the H; gli Court-Interference with i111estigation by tile Po/ice-F.J.R. pri111a facie dis closes cognizable offence.

A bus belonging to one Indraj and Sukhlal was in the/ossession of Munshi Ram, the driver, and other servants. The bus was remove from the custody of the said servants by the appellant and one Mr. Pathak. Munshi Ram filed F.I.R. disclosing these facts.

Jn pursuance of the information the Police started investigaiton, arrested Jehan Singh, the appellant, and Pathak who were later on released on bail.

The bus was seized by the Police.

The proceeding in regard to Pathak was quashed by the High Court but not in respect of the appellant.

The appellant contended before this Court that the F.I.R. did not disclose any offence and therefore, the investigation by PoliCe should be quashed.

Disn1issing the appeal,

HELD :-(I) That the decision of the Privy Council in Kliwaza Nudr Aluned':r case and the decision of the Supreme Court jn S. N. Basok's ca5e have settled lhe Jaw in regari to the High Court's power of interference at th~ interlocutory stage. The statutory power of the pol.ice 'o investigate the cogniz able offences cannot be interferred with in exercise of the inherent power of the Court u/s 561-A of the Cri1ninal Procedure Code.

Jn lhe present case. no charge-sheet or complaint had been filed in the Court and the matter \Vas o; lill at the stageof investigation by the Police. {796]

(II) Held further, that the first information report pri111a facie discloses the commission of a cognizable offence by the appeJlant and his companions.

Applying the decision of the Court in R. P. Kaiur's case held, the High Court was right in not interfering with the police investigation. The interference is justified only if the F .LR. does not disclose any offence. In exercise of it~ jurisdiction u/s. 561-A, the High Court cannot embark upon an enquiry as to whether evidence in a given case is reliable or not.

(79R A-797 D]

King E111peror v. K/iu•aja Nazir Alin1ed, 71 l.A. at 213, followed.

State of We</ Bengal v. S. N. Hasak [1963] 2 S.C.R. 54, applied.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 201 of 1970.

Appeal by Special Leave from the Judgment and Order dated the 3rd February, 1970 of the Delhi High Court in Crl. Mis. (M) No. 93 G of 1969.

S. M. A 11a11d, for the Appellant.

S. N.-Prasad and R. N. Sachthey for Respondent No. I.

The Judgment of the Court was delivered by

SARKARIA, J.-This appeal by special !ave. is directed aaint .an order of a learned single Judge of the Delhi High Court, . d!sm1ssmg appellant's petition made under s. 561-A of the Code of Cnmmal Procedure.

The material facts are these :

On June 15, 1969, a report was lodged in Police Station, Tilak Mark, New Delhi, by one Munshi Ram alleging that he was employed as a Driver of bus, DLP 3867, belonging to Jndraj Singh and Su1<h Lal of Chirag Delhi.

On June 13, 1969 at 6 p.m., he stopped the bus at Mathura Road to talk to one Devi Singh son of Ganesh Lal.

Devi Singh invited the informant and his companions, Mahinder Singh Conductor and Sher Singh helper, to soft-drinks at a nearby shop.

Leavmg the bus unattended, they proceeded to that shop.

In the meantime, Jehan Singh appellant, Sharma, R. K. Pathak and another man of 'stout-build' got into the vehicle.

The stout man took the steering wheel, and all the four drove away in the bus despite the protests of the informant and his companions.

Munshi Ram then went to Chirag Delhi to inform his employer Indraj Singh, but found the latter absent.

It was also mentioned in the report that Pathak and Sharma were employed in Scindia House.

The police started investigation and arrested Jehan Singh appellant, and R. K. Pathak, Assistant Manager of the Industrial Credit Co. Ltd.,

Scindia House (hereinafter called the Company).

They were later released on bail.

The bus was also seized by the police from the possession of the Company.

Pathak and the appellant filed two separate petitions under s. 561- A, Cr. Procedure Code challenging the police proceedings in pursuance of the First Information Report made by Munshi Ram.

The learned Judge by a common judgment allowed Pathak's petition and quashed the proceedings against him, but dismissed the appellant's petition with this observation :

"If Jehan Singh had transferred all his rights in the bus, though against the stipulations in the hire-purchase agreement, it would be a matter for consideration of the trial court whether he could be regarded guilty of the offence of theft if the version contained in the first information report is proved."

At the outset, we inquired from Shri Anand, learned Counsel for the appellant, whether the proceedings sought to be quashed were pending in any court or before the police.

We are told that at the date of the filing of the petitions under s. 561-A, Cr. Procedure Code, no d.ar_ge-sheet or complaint had been laid in court. The matter was still at the stage of investigation by the police.

. Shri Prasad, learned Counsel for the State contends that lhe petioons under s. 561-A to quash the proceedings which were being conducted in the course of policy investigation, were not competent. He Jias referred to King Emperor v. Khwaja Nazir Ahmad(!) and State of

West Bengal v. S. N. Basak('). It is maintained that in these circumstances, the petitions of both Pathak and the appellant Jehan Singh ought to have been dismissed as premature.

H On the other hand Shri Anand maintains that his case falls within one of the exceptions to the general rule enunciated in the cases cited

I I) 71 I.A. 203 at 213.

(2) (t963] 2 S.C.R. 54.

by Shri Prasad.

Reliance has been placed on R. P. Kapur v. State of A Punjab(').

It appears to us that the preliminary objection raised by Shri Prasad must prevail.

In King Emperor v. Khwaja Nazir Ahmad (supra), their Lordship -of the Privy Council pointed out that "the functions of the judiciary .and the police arc complementary, not overlapping" and that the "court's functions begin when a charge is preferred before it, and not until then". It was added that "it has sometimes been thought that s. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved".

The principle enunciated in Khwaja Nazir Ahmed's case (supra) was applied by this Court in S. N. Basak's case (supra).

Therein a First Information Report was registered at the Police Station to the .effect, that S. N. Basak along with three others had committed offences under ss. 420, 120-B read withs. 420, Penal Code.

The police started investigations on the basis of that report.

Basak accused surrendered before the Judicial Magistrate and was enlarged on bail.

Subsequent- 1y, he moved the High Court by a petition under ss. 439 and 561-A of the Code of Criminal Prncedure praying that the proceedings pending .against him be quashed.

At the time he filed the petition them was no case pending before any court. . The High Court quashed the police investigation holding that "the statutory power of investigation given to the police under Chapter XIV is not available in respect ol an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and that being so, the investigation concerned is without jurisdiction".

Against that order, the State came in appeal before this Court on a certificate granted by the High Court under Art. 134(1) (c).

Allowing the appeal, this Court speaking through J. L.

Kapur J., observed :

"The powers of investigation into cognizable•offences arc contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and s. 156_ with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the. exercise of power under s. 439 or under the inherent power of the court under s. 561-A of Criminal Prncedure Code".

The basic facts in the instant case are similar.

Here also, no -police challan or charge-sheet against the accused had been laid in court, when the petitions under s. 561-A were filed.

The impugned proceedings were those which were being conducted in the course of

!!!!:t.

A police investigation.

Prima facit, therefore, the rule in Basak's case would be attracted.

Jn R. P. Kapur v. The State of Punjab (supra), it was clarified that the rule as to non-interference by the High Court, in the exercise of its inherent powers, with the proceedings at an interlocutory stage, was not an inflexible one, and there are some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings.

Gajendragadkar J., as he then was, speaking for the Court indicated one of such categories thus :

"Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Informatin Report to decide whether the offe11ce alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person."

It was held that since the allegations made in the First Information Report against the appellant therein did constitute offences alleged, there was no legal bar to the institution or continuance of the proceedings against him. It was further laid down that in exercise of its jurisdiction under s. 561-A, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not.

The question, therefore, to be considered is, whether in the instant case, the allegations made in the First Information Report, did not, if assumed to be correct, constitute the offence of theft or its abetment against the appellant.

A plain reading of the First Information Report would show that the answer to this question must be in the negative.

It is alleged therein that the bus (DLP-3867) belonged to Indraj and Sukhlal of Chirag .Delhi and was at the material time in their possession through their servants, Munshi Ram Driver, Mohinder Singh Conductor and Sher Singh

Helper, and that it was removed in the teeth of opposition from them, without their consent, from their custody or possession by four persons including Jehan Sin.h and R. K. Pathak, who all entered into the vehicle which was then driven by one of them, who was of stron~ build, medium height, dark complexion .etc. to Scindia House. In substance the allegation was that the wrongful removal of the bus was the concerted action of the appellant Jehan Singh and R. K. Pathak and their un-named companions. Prima facie, the allegations in the First Information Report, if taken as correct, did disclose the commission of a cognizable offenee by the appellant and his companions. May be, that further evidence to be collected by the police in the course Vi i1i;-,;; tigation including thy hire-purchase agreement, partnership deed and the receipt etc. would confinn or falsify the allegations made in the First Information Report.

But, the High Court, at this stage, as was pointed out by this Court in R. P. Kapur's case (supra), could not, in

. -;.{~ '..

'"· 798 .?fo

the exercise of its inherent jurisdiction, appraise that evidence or A enquire as to whether it was reliable or not.

Might be, after collecting all the evidence, the police would itself submit a cancellation report.

If, however, a charge-sheet is laid before the Magistrate under s. 173, Criminal Procedure Code, then all these matters will have to be considered by the Magistrate after taking cognizance of the case.

We cannot, at this stage, possibly indicate what B should be done in purely hypothetical situations which may or may not arise in this case.

For the foregoing reasons, we would hold that the petitions under s. 561-A were liable to be dismissed as pre-mature and incompetent.

On this short ground, we would dismiss this appeal.

No observation unwittingly made with regard to the merits of the C case, in the above judgment shall be taken into account to the prejudice of any of the parties.

S.B.W.

Appeal dismissed.

94

JEHAN SINGH

DELHI ADMINISTRATION

March 27, 1974

M. H. BEG

R. S. SARKARIA, JJ

Sec. 561

Indraj

Sukhlal

Munshi Ram

Pathak. Munshi Ram

Jehan Singh

Pathak

Kliwaza Nudr Aluned':r

Supreme Court

S. N. Basok

s 561

R. P. Kaiur

s. 561

[1963] 2 S.C.R. 54

S. N.-Prasad

R. N. Sachthey

SARKARIA

s. 561

June 15, 1969

Jndraj Singh

h Lal

Chirag Delhi

June 13, 1969

Devi Singh

Ganesh Lal

Mahinder Singh

Sher Singh

Sharma

R. K. Pathak

Indraj Singh

Sharma

Jehan Singh

Pathak

s. 561

Anand

s. 561

Prasad

s. 561

Prasad

s. 561

Khwaja Nazir Ahmed

S. N. Basak

ss. 420, 120

Penal Code

Basak

ss. 439 and 561

Art. 134(1)

J. L.

Kapur

Chapter XIV of the Code

Section 154

s. 156

s. 439

s. 561

Criminal Prncedure Code

s. 561

Gajendragadkar

s. 561

Chirag

.Delhi

Mohinder Singh

Jehan Sin.h

R. K. Pathak

R. P. Kapur

s. 173

Criminal Procedure Code

s. 561


• D

. <

• •

RAGHUBIR SINGH

STATE OF HARYANA March 28, 1974

[H. R. KHANNA, V'. R. KRISHNA !HR AND P. K. GOSWAMI, JJ.J Pret:e,11ion of Corrupti~ Act. (2 of i947) S. SA-Sanction to prosecute--:- Aurhority of. sanctio11i11g authority questioned for the first ti1ne in appeal under Art. 136-Contention when may be allowed-Executive. magistrale laying traP- Propriet_v-Trap witnesses, if accomplices-Non-examinfltion of a wUness and allowing a pros•cutio11 witness to be 1'tated as stile-Effect of.

The appellant, an Assistant Station MaSter, was c(>D.victcd of the offence of criminal misconduct in the discharge of his duties punishable under s. S(2) of the Prevention. of Corruption Act. 1947, and the conviction was confirmed by the High Court. In appeal to this Court under Art. 136, it was contended that; ( 1) the~ prosecution was invalid for want of competent sanction;. (2) the investigation was not merely illegal but caused serious prejudice to the accused; (3) the Court should have drawn an adverse. inference aa; ainst the prosecution from .lhe non-!'xani.ination of a key witness like the Deputy Superintendent of Police;

{ 4) ·.the uncorroborated testimony of accomplices .or quasi-accomplices should not have been made the foundation fQr the conviction; a.lid ( 5) the Court should not have drawn a presumption under s. 4 of the Act as the charge was under s. 5(l)(d) rend withs . .S(2).

Dislliissing the appeal.

HELD :-(l)(a) The Divisional Officer (Senior scale) eranted the sanctioa for prosecution in this case, and under r. 134 of the Indian Railway Establishment Code, he has the delegated power to appoint and dismiss officers like the accused, and therfore, was competent to grant the sanction. [802 C-D]

(b) The construction souaht to be put On the rule reading it with r. 3(a). chat ofily 'Divisional Personnel Officers are in executive charge_ of the staff of Divisional Offices and are entitled to control them and therefore, by implication other divisional officers are excluded from the delep.tion of powers in re&ilrd to appointments has no substance.

Rule 3(a) refers to 'E.stablishmenl matters' which ordinarily cover routine items and not appointments and dismissals

(802 H-803 A]

( c) MOreovor the appellant should have produced his appointment order if his case was that it was only a Divisional Personnel Officer and not a Divisional OffiC!'r that appainted him. [803 BJ

(d) .This. cqnte.nti9n was nQt a!sed in th~ low.er cour~ nor in the High .Court.

In special circumstances the vahdny of a sanction which goes to the root of tho case may be permitted to be raised for the first time inthis Court but this. is not one such. [802 G) Vinayak v:. Josl1ib"v. State, A.l.R. 1968 Pun, 120 and Sudarshan/111 Baja;

v. S. P. Agarwaki, A.l.R. 1966 Raj. 37, referred to.

(2) The mandate of s. SA regarding investigation is merely that no police officer below the rank of Deputy Superintendent .of Police shall investigate any of the offences specified therein. There was no inaction by the police or misuse. of tbe executive m8.gilstracy in this case. In the present case, a trap was laid by the Executive Magistrate, because the D.S.P. had no jurisdiction over railway prt'miscs, and after the trap episode was completed and'. the bft'ence committed information was laid before the police officer. who started. the iQVtigation; and he certainty was an officer of competent.rank .. While,.layi!18'. a trap by a police

Officer, may be a sieP ill irivestigation if a case had already: been; registered itl the -palicC station pursuant to which the trap was set, ii Cannof be sald tO: bi a part or investigation where a trap is Jaid only to find out -whether "an offence is going to be committed. There is nothing in s. SA prevenling an Executive, Magistrate or other public officer laying a trap to catch the allegedly conupt official. [804 A-DJ

State of Bihal v. Baawan Singh. J1959] S, C, R .. 195 and Rishbud and lnder Singh V. Stale of Delht, [1955] I s.c.R: 1150 followed.

Hira Lal [1970] 3 S.C.R.. 933, rofe)'rid tg. 8-L84Sup. Cl/75

800 SllPREME COURT- REPORTS

(1974] 3 S.C.R.

(3) The non-examination of th: Deputy Superintenjent of Police is of no A consequence at aII in the case. [807 B] (4)(a) The speci2.I jurisdiction under Art. 136 of the Constitution cannot , be diluted into a second appeal on facts. [804. E-F] . (b) To condemri roundly every public official or man of the people as an accomplice or. quasi-accomplice for participating in a raid is to harm the public cause. 11.Iay be a_ judicial officer, should hesitate to get involved in police traps \Vhen the police provide inducements and instruments to commit crimes, because,

that. \\rould s_uHy the image of the independence of the judiciary.

But there B cannot be a total ban on public officers even though executive . magistrates, { playing a socially useful role. in checking public men's corruption when the r"\,--

ituation needs it. A flexible, realistic approach is the sound ourse. (805 C-E] i In the present cases the magistrate was not a full-blooded judicial officer no de 1iqJ..'O_ temptation or bribe money was offered by the Police and no ground to 4isre_dit the veracity of the magistrate had geen elicited. (805 E]

r:.:.a Shiv Bahadur Singh v. State of Vind/Jya Pradesh, [1954] S.C.R. 1096, C referred to.-·

 (c) The permissioQ. given .by the Court to treat a prosecution witness as hostile \Vas properly granted. It is discretionary power of the trial coilrt and, if_ the. witness strikes. the. court as imbued \vith partisan zea1. cross-examination 1nay bi!· allowed by the party who calls him;;-

[806 E-F]

(5) Even if the statutory presumption is unavailable courts may presume \Vhat may in the ordinary course be the most probable inference.

That an' Assistant Station Master has in his hand a marked currency note made over to him by a passenger whose bedding had been detained by him, for which no. credible. explanation was forthcoming, speaks for itself. Assuming that the passenger was using a. pass intended for himself to take with him his rife and child illegally aiid thus tried to dupe the railway~ it is no alibi for the Assistant Station_ MaStCr to heJp himself to illici_t gratification.

[806 G-807 B] CR.iMINAL APPELLATE JURISDICTION : Criminal Appeal No. 15 of 1971. . .

Appe3J by special leave from the judgment and order dated the 15th May, 1970 of the Punjab and Haryana High Conrt in Criminal Appeal No. 737 of 1968. • ·· Frank Anihony and K. B. Rohatgi, for. the appellant.

H. s, Mmwah, and.R. N. Sachthey, for the respondent.·

The' Judgment of the Court was delivered by, " KRISHNA IYER, J.-Mr. Frank Anthony arguing the case for the accused, in this appeal by special leave, has put forward four main contentions against the appellant's is conviction, namely, (a) that the 'prosecution is invalid for want of competent sanction; (b) that the investigation. is not merely illegal but has in consequence inflicted serious prejudice on the accused; ( c) th<1t the non-examination of key witnesses, like the Deputy Superintendent of Police, should have driven the court to. draw an adverse inference fatal to the case, and the uncorroborated testimony of accomplices or quasi-accomplices should not have been the foundation for a conviction, and ( d) that the Court had drawn a presumption under s. 4 of the Prevention of Corruption Act, although there was no warrant for it in the present case, the charge having been one under s. 5(1)(d), read with s. 5(2) of the said Act.

A brief statement of the facts will lead to a better appreciation of the arguments urged. The accused (appellant) was an . Assistant

' >-

),... __ , (

~ I

Station Master at Ateli in May 1967. P.W. 3, a member of the Armed Forces, was going back home by train from Udaipur with his wife and child on railway concession pass, carrying with him a trunk and bedlling. When the train reached Ateli Railway station in , the afternoon of May 9, 1967, P.W. 3 got down with his baggage arid, when he handed over his ticket to the accused, was told that he had to pay extra for his wife and child and excess luggage-a sum around Rs. 45 or more. P.W. 3 pleaded that he had no money on him then and was suggestedl a way out by the payment of Rs. 10 at once a bribe and a bargain. Promising to bring the money the next day, P.W.

3 left the station leaving his bedding as something of a non-human 'hostage' which was to be released or. the payment of the illicit sum.

On reaching his village late in the night, P.W. 3, the Jawan, thought of informing the authorities about this harassment. Accordingly, be contacted the Deputy Commissioner, Narnaul, on May 11 and related to him what had happened. The Deputy Commissioner instructed the Superintendent of Police to look. into the matter who directed the Deputy Superintendent of Police, Narnaul, to take suitable action. He also sent a telephonic message to Shri Dharamvir, Sub Divisional Magistrate, Narnaul, and told him that Sis Ram had been directed to contact the Deputy Superintendent of Police, Narnaul, in connection with his complaint. thereupon, the Sub Divisional Magistrate, P.W. 5, together with the Deputy Superintendent of Police, decided to. organise a trap, on being apprised of the story by P.W. 3. The team consisted of the Deputy Superintendent, the Sub Divisional Magistrate, a head constable of the railway police, and P.W. 3 himself. The party moved to the railway station and P.W. 4, Lakshmi Narain, also joined them on the way. A .ten-rupee note (Ex. Pl) was handed over by P.W.3 to the Sub Divisional Magistrate, who signed on it, .in token whereof a memo was prepared, Ex. PF. P.W. 3 took back the note, his body' was searched as part of the usual precaution and he was directed to go to the accused and give signal after the money was paid. As arranged, P.W. 3 met the accused, made over the money, gave a signal whereupon the party of the Sub Divisional Magistrate closed in on the accused.

The marked note was. recovered from his right hand ( vido memo. Ex.

PG). Thereafter, the Sub Divisional Magistrate lodged a First Information Report with the police, a case was registered and on completion of investigation by the Deputy Superintendent of Police having jurisdiction over the Railways, P.W. 7, and after obtaining the statutory sanction, Ex. PD/l, the accused was charged with an offence of having accepted illegal gratification of Rs. 10 on May 11, 1967 from P.W. 3 thereby committing criminal misconduct in the discharge of his duties, punishable under s. 5(2) of the Prevention of Corruption Act, 1947. The Special Judge convicted the accused, overruling the defence version set up under s. 342, Cr. P.C., and disbelieving the defence witnesses. The High Court confirmed the. conviction.

The sentence of one year rigorous imprisonment and a fine of Rs. 200 \\'US

also confirmed.

Shri Frank Anthony sought to make good his contention regarding the invalidity of the sanction, Ex. PD/l, by urging that P.W. 2, a Divisional Officer (Senior Scale), who granted the sanction did not

and, under the rules, could not appoint or dismiss the accused. It has A to be mentioned right at the beginning that P.W. 2, who was working as Divisional Operating Superintendent, Western Railway, Udaipur, has sworn that by virtue of delegated powers he was competent to remove an Assistant Stati.on Master like the accused. Although his evidence was a little ambiguous in that he first swore that he was competent to remove but not to dismiss the accused, on a later date he was recalled, and gave evidence bringing with' him the relevant rules B and regulations. He testified that under the rules he was competent to f. dismiss a Class III servant drawing a pay rising up to Rs. 250. The _., l accused came within this category. The High Court, not content with mere oral evidence on this issue, went elaborately into the legality of the sanction and found that the Indian Railway Establishment Code (rule !34) authorised delegation of powers, and in the schedule there is a clear delegation of the powers in favour of Divisional Officers c. (Senior Scale) to make initial appointments to posts in scales of pay rising up lo Rs. 380 per month. P.W. 2 is a Divisional Officer, Senior Scale, and the accused holds a post in a scale of pay not exceeding Rs. 380/- per month. The Court, therefore, concluded that the power to appoint, which also carried with it the power to dismiss, vested in

P.W. 2.

Counsel for the. appellant contended that even though i:. !34 of the, Indian Railway Establishment Code appeared to. vest powers in Divisional Officers, Senior Scale, if read in the light of the Schedule of Powers delegated by the General Manager, control in regard to appointments was vested only in'. the Divisional Personnel Officer as such .. To substantiate this argument counsel invited our attention to certain earlier portions of the Code .. He placed reliance on r. 3(a), which reads: . , ,· ,. ,

"As the DPOs ~; e in executive' charge of the staff of the Divisional Offices, exclusive of those working under the Divisional Accounts Officers, the powers delegated to Divisional Officers (Si. Scale) in Esta]Jlishment matters will, in respect of staff of the Divisional Offices, be exercised by the DPOs." . . . . . ' . .. . ·, . , .

There are.two difficulties in the way of our'accepting this conten- ?- lion. For one tiring, this point admittedly has not been taken before the High Court or the special judge. It is not, therefore, permissible ~- for us to allow it to be argued for the first time in the Supreme Court since the State has no opportunity to explain whether there are other G orders and what the expression 'Establishment matters": means. In special circumstances, the validity of a sanctionwhich goes to the root of the case may be permitted to be raised for the first time in this Court. This case is not one such. For another, the rule is clear that persons like P.W. 2, namely, Divisional Officers, Senior Scale, have the power to .appoint class III officers like the accused. The contruction sought to be put on it by counsel that only DPOs are in H executive charge of the staff of Divisional Offices :j]Id are entitled to control them, and by. implication, therefore, other Divisional Officers are excluded from the delegation of po.vers in regard to appointments

has no substance. 'Establishment maUefS' ordinarily. cover routine items, not appointments and dismissals. May be,, for tier. co-ordina tion and avoidance of conflict among divjsional officer~.d.irections may have been issued regarding exercbe of powers by one which do not contradict existence of powers in others. Moreover, it,, was easy for the appellant to produce his appointment orderif his .a<!ditional c.ase that only a Divisional Personnel Officer and not a .. Divisional Officer appointed him.

Again, all that Ex. P.E. and like.d<)(:umcnts prove is that allotments of selected persons are made .by the higher officer (the

R.T.S.) but the actual appointment is made by the D.T.S. There is thus no force in the 'last straw' plea that the R.T.S. alone could or did appoint him.

Two decisions were pressed before us by Shri Frank Anthony. The first, Vinayak V. Joshi v. State(!), is easily distinguishable. There, a Divisional Medical Officer who was of equal status with a Divisional Personnel Officer granted sanction but be had no delegation of powers of appointment which only the latter enjoyed .. Mere equality of official status with a ddegate cannot clothe the other officer with delegated powers and so in that decision it was helcl. that the Medical Officer's sanction was incompetent, there being no delegation in his favour.

The other ruling of the Rajasthan High Court, Sudarshan/a/ Bajaj v.

S. P. Agarwala('), has no application whatsoever. In these circumstances, we 'have no hesitation in rejecting the plea of the illegality of . the sanction. Couns'l is certainly right that if there is infirmity in the sanction the prosecution must fail. While it is true that provision for sanction before prosecution of 1 a pYblic servant should not be an umbrella for protection of corrupt officers but a shield against reckless or malevolent harassment of officials whose upright discharge of duties may provoke unpleasantness and hostility, that is an area of law reform covered, we find, by the 4 7th Report of the Law Commission of India.

Now we proceed to consider a kinded contention that the investi gation is grossly illegal nnd, without more, spells an acquittal.

Shri Anthony asked why the Deputy Commissioner did not record the statement of P.W. 3, the aggrieved Jawan. Why did the Superintendent of Police or even the Deputy Superintendent of Police desert his duty to register .a case on being apprised of the offence? Was it not a sub. version of the provision of s. SA of the Prevention of Corruption Act, 194 7, to bypass the police establishment by employing a magistrate to lay a trap? These interrogations do not legally wreck the conviction because they do not brand the investigation as invalid. As explained by counsel for the State, P.W. 3 may well have complained of harassment by the accused detaining his bedding and the Deputy O:m1missioner would have in the usual course directed him to the District head of the police. The latter, not improperly, may well have asked his subordinate to take action. Since this D.S.P. had no jurisdiction over the railway premises, he did not act directly but requested the executive magistrate of the place, P.W. 5, who had already been informed by the Deputy Commissioner to initiate steps for catching

(I) AJ.R. 1968 Pun. 120. <2) A.LR. 1966 Raj. 37.

the alleged bribe taker. We do not share Shri Anthony's grave suspicion about the alleged inaction of the police and the misuse of the executive magistracy. The simple legal issue is whether s. SA has been violated or . fraudnlently frustrated and consequent failure of justice inflicted? The mandate of s. SA is merely that no police officer below the rank of a Deputy Superintendent of Police shall investigate any of the offences specified there. Here, no investigation was done by a lesser police officer, for P.W. 7, who did the_investigation, was of competent rank and what the Magistrate, P.W. S, did was not investigation and was de hors s. SA. By \lefinition, only a police officer can investigate (sec . .4(1) Cr. P.C.) A magistrate cannot. In the present case, after the trap episode was completed and the offence committed, - P.W. S laid information before the police whereupon P.W. 7 started investigation. Until then, no investigation in law did or could com- . mence. Moreover,.while laying a trap by a police officer may be a step in investigation if a case has already been registered in a police station pursuant to which the trap is set, it cannot be part of investigation where the exercise is only to find out whether an offence is going to be committed. Hira Lal(') hardly rescues the accused .. There is nothing in s. SA preventing an executive magistrate or other public officer laying a. trap to catch an allegedly corrupt official. The ruling in State of Bihar v. Basawan Singh(2 ) by implication upholds this position. In fact, in the current crisis of rampant corruption polluting the public services-so the public mind demoralisingly believes-the-need for superior officers vigilantly organising Operation Anti-Corruption cannot be discouraged by legalisms. For the present case it is enough to say' that. no violation of law nor serious prejudice has been made out (vide Rishbud and lnder Singh v. State of Delhi) (3). ·

The meat of the matter, if one may say so, is whether the accused has been proved to have helped himself to an illegal gratification of Rs. 101-, as alleged. At the thres!; old we must remind ourselves that the special jurisdiction under art. 136 of the Constitution cannot be diluted intO" a second appeal on facts. The e_nd of the appellate journey is normally 'the High _Court and exceptional circumstances alo[le can justify the exercise of the extraordinary power of the Supreme Court to review the evidence. The strange and expensive spectacle of multitiered appeals built into the system does more injury than justice and strictness inthiS( regard brings finality to litigation early instead of holding out illusory hopes to one who would not have ventured on this costly project had he. known the limitations on the jurisdiction under art. 136, m._ore so when the findings are concurrent.

We shall brieflj examine the strong attack made by Shri Frank Anthony on the evidence adduced and the credence given to it by the courts below. The sharp castigation of traps as. immorar. of trap witnesses as accomplices, of involving magistrates in such dubious exercises as reprehensible, may have had some precedential support but

(1) (1970] 3 S.C.C. 933. (2)

(19591 S.C.R. 195.

.. c

. !

RAGHUBIR SINGI! v. l!ARYANA (Krishna Iyer, J.) 805

time and circumstance, the compulsions of public demand for arresting an insidious but expandin_g evil and a sense of judicial realism and appreciation of the specific facts of each case guide the pragmatic yet principled approach the court has to make. It is not necessary ihat executive magistrates should always keep away from operations in tended to catch the criminal red-handed. He is not so strongly moti. vated to get a suspect somehow or other punished. He is professionally detached and has a public responsibility to help detect a bribe-taker if credible requests are made. Such a magistrate is not a cloistered virtue unconcerned with social claims _on his services. It is apathy of good citizens that induces police officers to go after the lesser breed

of. search witnesses in the enforcement of social welfare statutes. To condemn roundly every public offiCial or man of the people as a quasi-accomplice for participating in a raid is to harm the public cause. May be, a judicial officer, unlike an executive magistrate, should hesitate to get involved in police trap experiments and expose him self to charges of unveracity. However, there is force in the censure made in Rao Shiv Bahadur Singh v. State of Vindhya Pradeshc') when the police provide inducements and instruments to commit crimes and judicial personages willingly lend themselves to be enmeshed in such shady attempts, sullying the image of indepenclence of_the judi ciary. But we cannot exaggerate these dicta into a total ban on public officers, even though executive magistrates, playing a socially useful role in checking public men's corruption when the situation needs it.

This is best illustrated by the observations of Das, J., in State of Bihar

v. Basawan Singh(') where the learned Judge emphasized that a flexible, realistic approach is the sound course. In the present case, the magistrate was not a full-blooded judicial officer but only exercised limited preventivei powers after separation of the judiciary from the executive. No. de nove temptation nor bribe money was offered by the police in the present case. The magistrate merely sought to do his public duty of. intercepting a crime which was otherwise in the process of fulfilment. It was service, not sin, to have done it. No ground to discredit the veracity or taint the testimony of P.W. 5 has been elicited. And, what dissolves scepticism and builds up credence is the seizure of the marked currency note from the accused's right hand and the presence of the bedding of the jawan on the railway station. The briginal story of P.W. 3 fits in with the facts while the accused's strained version stands unproven. The murky evidence of the miUtary man, P.W. 3, who perhaps stood to gain by paying Rs. 10 and avoiding excess. baggage and extra passepger charges may be insufficient to prove guilt if uncorroborated by better testimony. A bribe deal is usually a benefit-both syndrome and the payer's lips carry little con. viction in the absence of re-assuring support. Before us, the executive magistrate, P.W. 5, and the casual member of the trap team, P.W. 4, have given testimonial boost. But real reinforcement comes from the right hand of the accused which held the guilty note and gave it over to P.W. 5 on being challenged. The counter-story of the Assistant Station Master (accused) was that the Jawan was stopped by the attender (or water carrier) of the station at the gate for insufficient ---··- - Ol [19541 s.c.R. 1096.

(2) [19591 S.C.R. 195.

tickets and excess baggage but, after some sound and fury over an interpolation in the military pass, was allowed. to go by the accused who promptly reported to the Jaipur Station Master to know how many passengers were covered by the pass. The inconvenient 'bedding' of the J a wan was explained by the accused as. having been left behind by P.W. 3 in .the heat of the moment and had bee!! kept in the lost property room and entered in the relevant register. The courts below have rejected this exculpatory case of th~ appellant and we see noth ing too odd in the appreciation or too unnatural in the inference to warrant our 5nterference. True, P.W. 1, the fellow station master, has endeavoured to substantiate the appellant's plea hut has been disbelieved. After all, the successful and sustained prevalence of rackets like corruption is built on the artful network of sharing agencies and the rescue operations of P.W. 1 cannot be regarded as independent evidence of an unconnected officer. We hope that the authorities in charge of cleansing our public sector of corruption wjll view each detected act as symbolic of a chain scheme and symptomatic of a deeper systr 11ic malady and not as an isolated aberration of a delinquent official. A massive purge, not stray traps, can alone be the strategy. That P.W. 1 supports the accused is no surprise if we realise how dubious 'distributjve_ justice' works in some of these public offices where money is illicitly collected. An honest Assistant Station Master in the place of the accused cJuld not have allowed P.W. 3 to leave without reporting to the raiI.vay polic.::. Nor is th<;_ frivolous explana. tion that the ten-rupee note was brought by P.W. 3 when the accused wanted only one rupee as official charge for keeping the bedding in the lost property room worth a serious look. We regret our inability to accede to the forceful submissions of Shri Frank Anthony on this aspect of the case. ·

In passii!g we may mention that the criticism made by learned counsel that P.W. 1 has been illegally permit!ed to be treated as 'hostile' is pa, i.ntless. It is a c;!iscretionary power of the trial judge and , when a witness strikes him as imbued with partisan zeal cross-exami nation may be allowed by the party who calls him. After . all, these rules are only to further the end of truth, not clogs in the quest for it.

We see nci merit in the argument. To sum.up, the case against the accused has been made out beyond reasonable doubt. Infallibility 'is -the attribute of the omniscient and judges can only act on pragmatic sense and reasonable doubts. ·

The last submission turns on the presumption under Section 4 of the Act: The contention of counsel for the appellant that the presumption

aviailable under s. 4 of the Act cannot be raised in the present case since the charge is under s. 5(l)(d), read withs. 5(2), is apparently attractive. But we may notice that even if the statutory {'resumption is unavailable, courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master like the accused has in his hand a marked! cm:rency note made over to him

by a passenger whose bedding has been detained by him for which no H credible explanation is forthcoming, and he is caught red-handed wjth the note, is a case of res ipsa /oquitur. The very thing. speaks for itself in the circumstances. We need not, therefore, scrutinise the

'/"----.

,. -

substance of the argument based on the inapplicability of s. 4. We also feel that there may be some force in the _argument of counsel that the jawan, P.W. 3, might have duped the railway by using a pass for one passenger and carrying ii family of wife and! child together. Of course, we cannot finally pronounce on this matter for want of sufficient documents. All that we nee.ct say is that even assuming that the passenger so tried to dupe the railway, that is no alibi for the Assistant Station Master to help himself to illicit grarification. Nor is the non-examination of the Peputy Superintendent of Police of any consequence in the case.

In these circumstances we find no reason for interfering with the concurrent conviction and sentence. The appeal is dismissed.

V.P.S.

Appeal dismissed.

RAGHUBIR SINGH

STATE OF HARYANA

H. R. KHANNA

P. K. GOSWAMI, JJ

Art. 136

Art. 136

s. 4

s. 5(l)(d)

D.S.P.

Rishbud

Art. 136

Frank Anihony

K. B. Rohatgi

R. N. Sachthey

KRISHNA IYER

Frank Anthony

s. 4

Prevention of Corruption Act

s. 5(1)(d)

s. 5(2)

Ateli

Assistant

' >-

),...  , (

~ I

Station Master at Ateli in May 1967.

Udaipur

May 9, 1967

Narnaul

Dharamvir

Sis Ram

Sub Divisional Magistrate

Lakshmi Narain

May 11, 1967

s. 5(2)

Prevention of Corruption Act, 1947

s. 342

Frank Anthony

Indian Railway Establishment Code

Supreme Court

Frank Anthony

Rajasthan High Court, Sudarshan

Anthony

Jawan

SA of the Prevention of Corruption Act

Hira Lal

art. 136

art. 136

Das

Section 4

s. 4

s. 5(l)(d)

s. 4


SURAJMAL SUROLIA

THE BAR. COUNCIL OF INDIA & OTHERS

March 28, 1974

[A. N. RAY, C.J., P. JAGANMOHAN REDDY, P. K. GOSWAMI AND

R. S. SARKARIA, JJ.)

Advocaus Act 1961, (25 of 1961)-Sanai granted by a princely State which was not a covenanting state-Sanad did rwt show under what law II was issued- // entitled to enrol as an advocate under the A.ct.

The petitioner was granted .a Sanad by Jiias Tbikana Khetri which was the highest court in a native state. On the basis of the Sanad the petitioner practised in another native State for some years and later joined service. In 19SS his applicatioD. for recomlnencing practice was rejected by the High Court of Rajasthan on a.ccount of his not making an application before the appointed day in December, 1951.

Later the petitioner applied to the Delhi State Bar Council for enrolment under s. 24(3)· of the Advocates Act Which was reiected.

Sub-section 3 to section 24 says that a person who has for at least three years

been a vakil or a pleader or a mukhtar or was entitled at any time to be enrolled ut1der any Jaw as an Advocate of a High Court (including a High Court of a former part B State) may be admitted as an advocate on a State roll Dismissing the appeal.

HELD : On the material placed before the Delhi Bar Council for the purpose D of the petitioner's enrolment it could not be held that the decision of the Bar Council was incorrect. If the petitioner were actually qualified under the Act for enrolment as an advocate and had been wrongfully refused enrolment by the authorities the question of infringement of his fundamental rights under Article l9(l)(g) would have arisen. [~12 D-E] Admittedly the petitioner did not come under the first part of sub+section 3(a) of section 24 of the Advocate Act since he was neither a vakil nor a pleader nor a mukhtar. The Sanad on which he relied upon did not show under what law it E was issued. Further,· Thikana Khetri was not one of the covenanting States of the United State of Rajasthan. [81! E] The petitioner had not taken any steps in accordance with the law to get him self _enrolled under the Bar Council Act or any other Act entitling him for enrol

ment; nor did be pursue the matter furthei: in that behalf when his application had been rejected by the High Court under s. 49 of the Rajasthan High Court Ordinance (JS of 1949) [812 DJ

ORIGINAL JURISDICTION : Writ Petition No. 424 of 1971.

F Under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

Ch. Rant Sarup and R. A. Gupta, for the petitioner.

N. H. Hingorani, for respondent no. 1.

Hardev Singh, for respondent no. 2.

G R. N. Sachthey, for respondent no. 3.

ARGUMENTS For the petitioner : The petitioner's-ease was fully covered by s. 24(3) of the Advocates' Act as he had practised as Vakil for three years before the coming into force of this Act. He 'Yas allwed to pra~- tise at Loharu by endorsement upon the sanad by Iilas Thikana Khetr1.

H By reasQn of this he was entitled to practise in Punjab including the High Court of Punjab. Secondly, the petitioner was entitled to be enrolled as an advocate under r. 421 of the Rajasthan High Court Rules

1952 but the date mentioned for application for enrolment had expired before the publication of the rules and hence he could not apply with\n the time limit prescribed.

For the respondent No. 1 : The petitioner's application to the Delhi Bar Council for enrolment as an Advocate under section 24 of the Advocates Act, 196! was rejected on the ground that the petitioner was not a law graduate and that the court of Ijlas Thikana Khetri where he was enrolled as an advocate was not a High Court. It is conceded by him that he is not qualified to be enrolled as an Advocate under section 24( I} of the said Act but contended that Jiis case is covered by section 24 ( 3} as he had practised as a vakil for three years i11 the court of Ijlas Thikana Khetri and was entitled at any time to be e'.lrolled under any law as an Advocate of a High Court of a former

Part B State.

Th.e question arises whether Khetri State was one of the covenanting states of United State of Rajasthan. The United State of Rajasthan (consisting of 14 covenanting states) came into existence with effect from May 15, 1949 and Thikana Khetri was not one of them.

The Rajasthan High Court Ordinance No. XV of 1949 provided for the establishment of the Rajasthan High Court and abolition of all High Courts in the covenanting States. The Part B States (Law) Act No. III of 1951, provided for extension of the Indian Bar Councils Act, 1926 to Part B States. Under section 8(2) of the Bar Councils Act it was obligatory for the R, ajasthan High Court "to prepare and maintain a roll of Advocates of the High Court in which shall be entered the names of all persons who were as Advocates, Vakils or pleaders entitled as of. right to practise in the High Court before the date on which the section comes foto force in respect thereof" and as the petitioner was not practising or was not entitled lo practise in the High Court of any of the covenanting states his name could not be

etered on the roll of Advocates under the said section. The Rajasthan High Court Rules 1952 had no application to his case.

The petitioner's alternative argument that by virtue of endorsement on his sanad he was entitled to practise in the State of Loharu, which was one of the States merged in East Punjab and in view of its merger he was entitled to practise in Punjab including the High Court cf that state is. without any substance. The petitioner has.not produced anything to show that he was entitled to be enrolled as an Advcx; ate in the State of Loharu and later in the state of East Punjab.

G The case of the petitioner is not covered by section 24(3) of the Advocates Act. ·

For the Bar Council of India : Assuming that the impugned decision was erroneous it c.annot amount to infringement of the petitioner's fundlamental right under Art. 19(1 )(g} of the Constitution [(1955) 2 S.C.R. 1113; A.LR. 1962 S.C. 1183 and 1971 Supp.

S.C.R. 688]. Since Ijlas Thikana Khetri was not a High Court and

Khetri was not even a 'State' the sanad relied upon by the petitioner did not give him the status of a vak'il so as to confer a right under s 24(3) of the Advocates Act to entitle him to enrol as an Advocate.

The Judgment of the Court was delivered by

GOSWAMI, J. This writ petition under Article 32 of the Consti tution is directed against an or_der passec! by the Bar Council of Delhi

refuing to enrol the petitioner as an advocate under the Advocates Act, 1961 (Act 25 of 1961), hereinafter referred to as the Act. Since the order was passed by the Delhi Bar Council after reference to the Bar Council of India under section 26(2) of the Act, both the Bar Councils are impleaded as the first and the second respondents respectively. The third• respondent is the Union of India in the l\llinistry of Law since the petitioner takes an additional ground that section 26(2) of the Act is in conffict with section 48A of the same Act.

The facts, as disclosed in the Writ Petition, are as follows :-

The petitioner is a citizen of India. Under the laws then prevailing he was granted sanad by the highest court ljlas Thikana Khetri on 22nd November, 1936. The petitioner states that Thikana Khetri was a small native state having jw-isdiction to make Jaws and enforce the same. On the bas'is of that sanad the petition.er started practice at Loharu, another I\ative state, in I 944 and continued to practise till May 1947 when he joined• service as a Civil Supply Officer, Khetri.

The petitioner informed about his joining service to the enrolment authority and received a telegram from Diwan of Khetri (Annexure-A) which takes note of his joining. service and discontnuance of practice.

Although the petitioner has stated that this telegram was received from Diwan of Khetri, a perusal of the same shows that the telegram was really from Diwan of Loharu, which was the office of origin of the telegram. The petitioner's sanad (Annexure-C) which bears the seal of ljlas Thikana Khetri dated 22nd November, I 936, is signed by one Hari Prasad, Secretary, ljlas Thikana Khetri and shows that "he has been enrolled us a vakil and authorised to practise in all the Ci, il, Criminal, Custom and Excise and Revenue Courts of Thikana Khetri".

There 1is an endorsement below the Secretary's signature to the effect "practice allowed", "Sd/-Loharu State". It is, .therefore, understaDdable that the petitioner would have received the telegram (Annexure-A) from Diwan, Lo.haru. The petitioner resigned from service in I 948 ar.d in 1955 he applied to the District Judge, Jaipur, intimating Iris intention to recommence practice. But his application was rejected by the Rajasthan High Court on September IO, 1955. The petitioner further states in his petition that his applicaticnr was rejected by the High Court under rule 421 of the Rajasthan High Court Rules, 1952, on account <>f his not making the application before the appointed day in Decemb?r

1951. It is, however, not necessary to deal with the order of the High Court in this case and we may only note in passing that under rule 421 the following persons shall be qualified for admission as advocates of the High Court :

"Any person whose name is borne on the roll of Advocates or Vakils of the I (sic) grade of any High Court or any H authority exercising the powers of a High Court in any of the Covenanting States of Rajasthan and who was entitled to

appar, act or plead in such Court or authority :

Provided, that if such person not holding the LL.B. or any higher or equivalent degree of any 'university established by law in the Union of India fails to apply by the end of December, 1951, he shall not be enrolled as an Advocate thereafter".

There is an Explanation to this rule as follows :-

"Practice as a Vakil of the 2nd grade under the rules of a High Court or an authority exercising the powers of a High Court in any of the Covenanting States shall be deemed to be a practice as a pleader".

It appears later on the pelitioner applied to the Delhi State Bar Council for enrolment basing his claim under section 24(3) of the Act. He does not admittedly have a degree in Law from any university.

He, therefore, rests his claim under section 24(3)(a) which may be quoted:-

24(3): "Notwithstanding anything contained in subsection (I) a person who-

(a) has, for atleast three years, been a vakil or a pleader or a mukhtar, or was entitled at any time to be enrolled under any law as an advocate of a High Court (including a High Court of a former Part B State) ...... .

• • * •

may be admitted a• an advocate on a State roll ..... , . "

Admittedly he does not come under the first part of sub-section (3) (a)> since he is neither a vakil nor a pleader nor a mukhtar. His entire claim is that he was-. enrolled as. an ad.vocate of a High Court in "' former Part B State, riamely, Rajasthan. In ordr to , come under the second part, he has not drawn our attention to any law under which he was entitled to be enrolled as an acivocate of the former Part B State of Rajasthan. He entirely relies upon the sanad (Annexure-C).

It does not show under what law the sanad was issued. Besides, the most formidable stumbling-block to his claim is that Thikana Khetri 's not one of the covenanting States of the United State of Rajasthan The White Paper on Indian States does not show Thikana Khetri as one of the covenanting States (see Pages 53-55 of' the White Paper on Indian States; paras 134-138; Appendix XL and Appendix XU at pages 274 and 283; also pages 326-335). Under the Part B States

(Laws) Act No. III of 1951, which came into force on !st April

1951. the Legal Practitioners Act No. XVIII of 1879 and the India~ Bar Councils Act No. XXXVIII of 1926 were extended to Part B States. Under section 8(2) of the Bar Council Act. "the High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of-

(a) all persons who were, as advocates vakils or pleaders, entitled as of right to practise ' in the High Court immediately before the date on which this section comes into force in respect thereof; and

( b) all other persons who have been ad."Ditted to be A advocates of the High Court under this Act : • • • • Earlier. after the formation of the United State of Rajasthan, ;; o Rajpramukh promnlgated the Rajasthan High Court Ordinance No. XV of 1949; which came into force on 79th August, 1949. The Ordinanco provided for the esta_blishment of the Rajasthan High Court and abo- B lition of all High Courts in the covenanting States. Under section 49 of the Orclinance, on and from the appointed day, namely, 29th August, 1949, "every Tribunal functioning as the High Court of a covenanting State or any authority exercising the powers of a High Court in such State shall cease to exist, and all cases pending before the said High Court or authority at that date shall be transferred to and heard by the High Court constituted by this Ordl.nance, and all the records and C documents of the several Courts which so cease to exist, shall become, and be, the records and documents of the High Court".

Th~ pe_titioner had not taken any steps in accordance with la\v tu get himself enrolled under the Bar Council Act or any other Act entitling him for enrolment. He also did not pursue the l)latter further in that behalf when his applicatfon had been rejected by the High D Court under the Ordinance. We are unable to hold that the decision of the Delhi Bar Council is not correct on the materials produced before it for the purpose of the petitioner's enrolment. If the petitioner were actually qualified undr the law for enrolment as an advocate am! he has been wrongfully refused enrolment by the authorities, the question of infringement of his fundamental rights under Article 19 (1) (g l would have arisen. This, however, has not happened in this case since E the very foundation of his claim is non-existent. The Writ Petition is. therefore, without any merit and is rejected. We will, however, make no order as to costs.

P.B.R.

Petition disn1issed.

SURAJMAL SUROLIA

THE BAR. COUNCIL OF INDIA & OTHERS

March 28, 1974

A. N. RAY, C.J.

P. JAGANMOHAN REDDY

P. K. GOSWAMI

R. S. SARKARIA, JJ.

Advocaus Act 1961

Jiias Tbikana Khetri

High Court of Rajasthan

Delhi State Bar Council

s. 24(3)

Advocates Act

section 3

section 24

Delhi Bar Council

section 3(a)

section 24

Thikana Khetri

United State of Rajasthan

s. 49

Art. 32

Constitution of India

Rant Sarup

R. A. Gupta

N. H. Hingorani

Hardev Singh

G R. N. Sachthey

s. 24(3)

Loharu

Iilas Thikana Khetr1

Punjab

High Court of Punjab

Rajasthan High Court Rules

section 24

Advocates Act

Ijlas Thikana Khetri

Khetri State

United State of Rajasthan

May 15, 1949

Thikana Khetri

Rajasthan High Court

Indian Bar Councils Act, 1926

section 8(2)

Rajasthan High Court Rules 1952

East Punjab

section 24(3)

Advocates Act

Bar Council of India

Ijlas Thikana Khetri

s 24(3)

Advocates Act

GOSWAMI

Article 32

section 26(2)

Union of India

section 26(2)

section 48A

India

Thikana Khetri

Hari Prasad

Diwan

Lo.haru

District Judge, Jaipur

September IO, 1955

Rajasthan High Court Rules, 1952

section 24(3)

section 24(3)(a)

st April

1951

Legal Practitioners Act

Bar Councils Act

section 8(2)

79th August, 1949

section 49

29th August, 1949

Article 19


l ~

i c

-...

BIRAM CHAND v.

STATE OF UTTAR PRADESH _&ORS.

1\--larch 28. 1974 ·

[H. R. KHANNA AND P. K. GOSWAMI, JJ.] . . .. : '

Jt.laintellance of lntemal Security Act, 1971, S. 3 (I)(a) (iii)-Detention when prosemtion is. pending on the same facts-Validity. . ·

The petitioner was detained by an order of the District Magistrate, Varanasi, U.P. under Sec. 3(1) (a)(iii) of the Maintenance of Internal Security Act, 1971, with a view to preventing hjm from acting in any manner , prejudicial to the maintenance of supplies and services essential to the community.

Un the questions, whether, when some ot the gmunds furntshed by the detain ing authority form the subject-matter of trial rn criminal cases which are still mb-judice, the detention would be valid, and whether tbe detenu can be said to be reasonably able to make an effective representation against those grounds :

HELD : (a) In the case of preventive detention the grounds must be clear and de.Jinlt~ to enable.the detenu to make a real and effective representation to the Government to establish his. innocence. [818 q

(b) Being faced with a criminal prosecution in a . trial which is pending against him,_ although, the detenu has not got a proper and reasonable opportunity in accordance with law to make an effective . representation against the

in1pugned order of detention covered by the said prding, because, by dis clt>sing his defence and cet1ain facts Jte would behandicapped in defending himself in the criminal court. [818 B-DJ ·

(c) On_ the question. whether i~ is open to the detaining authority to choose tw_o parallel. proceedings against the detenu held that the fact that the ground of detention could be a subject matter of criminal pecution is not enough to

\itiate a detentionorder if the detaining authority does not choose to prosecute him but only passes an order of detention. in accordance wtth law. The choke of theauthority. concerned for the, mode of tackling the illegal activity cannot per se be illegal and the order of detention is to be judged on its merits. The position however will 1.1~ entirely different if the authority concerned makes an order of. detntion, uni!er, the Act and also prosecutes. him in a criminal case on

the self-same facts.· Tbe detaining authority cannot take recourse to two parallel and simultaneou~ proceedings nor can take recourse to a wound which is the subject matter of a criminal trial: [818 D-G] ·. · .

(dJ Under the Act. the. decision of the authorities is subjcive one and if one of the !,'fOUnds. is non-existent or irrelevant' or is not available under the Jaw the entire detention order will f:l.ll since it is not possible to predicate as to

whether the de[aining aut!J.ority would have m; ufe an order of detention even in tJ:e absence of the non-ex.istent or, irrelevant ground [819 CE]

(e) Although the aim and object of the order of detention would be laudable and the antecedents of a detenu be extremely reproachable, yel, it is essential that

if it is desired to detain a person without trial, .the auth01it1es concerned should conform to the requirements of' the Jaw. The shady antecedents of the detenu cannot provide. a JUStification for:· non-t.:ompliance with the mandatory provisions.

The scope of the inquiry in the case of preventive detention bast:d upon subjective satisfaction being necessarily narrow und limited; the scrutiny of the comt has to he even stricter than in a normal case of puni!ive trial. [819 EFJ

In the present case, if the District Magistrate had not at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in coming to a conclusion about. his reasonable satisfaction for making the order of detention

the matter would have been different.

But it is clear that the District Magistrate has been influenced by the existence of the criminal nrosecutions in Bihar and he has chosen those J:rOtl!lds to furnish as aids to his satisfaction in order to make

SUPREME COURT REPORTS

[1974] 3 S.C.R.

an _orde! of _detention. The gro':'nds wit~ reference to the pending crin1inal prose

CUh~?ns 10 Bihar could not provide a valid basis for making the order of detention particularly because those cases are pending trial in Bihar and in view of the decision of the Patna High Court in connection with one of them. Hence the detention order is invalid. [8 t,9 A-C]

Mohd. Salim Khan v. Shri C. C. Bose, Deputy Secretary to the Government of Wt>st Bt>ntal and anotllu, A.l.R. 1972 S.C. 1670/1672 di8tinauished.

ORIGINAL JURISDICTION: Writ Petition No. 23 of 1974.

Petition Under Article 32 of the Constitution of India.

Frank Anthony and K. B. Rohtagi for the Petitioner.

D. P. {!niyal, R. Bana and 0. P. Rana for the Respondent.

The Judgment of the Court was delivered by GoswAMI, J.-This habeas corpus petition un9.er Article 32 of the Constitution of India is directed against the order of the District Magistrate, Varanasi, of 3rd September, 1973, whereby .the petitioner was detained under sub-section (iii) of clause (a) of sub-section (l) of section 3 of the Maintenance of Internal Security Act, 1971 (briefly the Act) , The order has been _Passed "with a view to preventing him from. acting in any manner' prejudicial to the maintenance of supplies and services essential to the community".

The grounds of detention were served on the petitioner on 7th September, 1973. Leaving out the prefatory and descriptive portions, the ~:rounds of detention may be S<:t out as under :-

Ground No. 3 : "That you and your other associates have been char~:e sheeted by Mohania Police on 28-11-66 for the offence punishable under section 7 F.C. Act and 125 DIR 1962 and the case is 'till pending in the Court, Magistrate of Bhabhua (Bihar) s the proceedings have been stayed by the orders of the High. Court, Patna".

Ground No. 4 : "That with a view to continue your anti-social activities and to save yourself from the clutches of law you have started a firm under the name and style of M/s Shyam Sunder Ashok Kumar, in Mohalla Machchodari P. S. Kotwali, Varanasi City some time in the year 1966 or 1967 and you have purposely associated your minor son Ashok Kumar, your brother Shyam Sunder and a lady of your family as partners in the said firm only in name while, in fact, you are actively transacting the entire business of the said firm to carry on the illegal activities".

Ground No, 5 : "That taking undue advantage of the acute shortage of the foodgrains in the state due to the failure of the rains disrupt the fair and equitable distribution amongst the public you have succeeqed in getting large quantity of maize, bajra and jawa_r an? smuggled to and stored in your goodown at Mohama (B1har), a non-producing area of these foodgrains in the State of Bihar, just on the border of U.P. through yo.ur said firm which will be evidenced the facts given below:-

BIRAM CHAND V.-.U.P. STATE (Goswami, J.) 815.

lhen follows a det_ailed list of sales of bajra, jawar and maize to numerous persons as .per, cash memos mentioned-therein showing.sales. on 21~6-197jt 26-6-1973, 7-7-1973, 16-6-1973 and 16-7-1973: '

- Ground -No. 6 : "That the persons named above are neither foodgrains 'Arhatias' nor retail shopkeepers either at Chandsuli Bazar or in Chandsuli village".

Ground No. 7: "That the aforesaid sales are fictitious - and have been show, n with a view to smuggle bajra, jawar and maiie to Bihar from where enough quantities of bjra and. jwar ave been booked by rail to Delhi and Pooha as shown below:-

Then is given a list of various bookings o£225 bags of jwar to Delhi, 116 bags of bajra to Poona, 1 50 bags of bajra to Poona, 220 C bags of bajra to P9.ona and 22_? bags of jawar to Poona and even railway wagon numbers are mentioned. ·

Thi 7th groUJ)d ends as under:-

"All these consignments were booked to self.

The consigners of all these consignments were searched at Mohania on the address given in the railway records but no such persons or Bbandar were available on that address.

Enquires show that you were the person behind these transactions";

Ground No. 8 : "That five trucks bearing registration No. UPF 2039, USF 3253, UPF 2927, USS 7745.p.nd UPF 2015 loaded with jawar and bajra were apprehended by Mohania Police on 2-3-1973 (2/3 July 1973?) on the ground that all the trucks belonged to Uttar Pradesh and the jawar and bajra loaded on them were being smuggled from U.P. to Bihar at your instance".

Ground No. 9 : "That 3 bags of ri~ No. 2, 499 bags gram, 70 bags of 'Matar' and 90 ba~ of 'Dal matar' were found short on the actual verification of the stock of finn

Shyam Suitdei Ashok Kumar on 17-7~1973 by Deputy Regional Marketing Officer, V aranasi (Enforcement)".

Ground No. 10 : "That the firm Shyam Sunder Askok Kumar have not maintained any stock register and satta

hai since 1~70 of oil-seeds and oil-seeds product but at _the ttme of checkt, ng on 17-7.,.73, 30S bags of 'Tisi' and 10 bags of 'Sarson' were found": , Ground No. ll : "In view of the aforesaid mentioned

grunds I am 5!ltisfied that the activities carried on by you are such as to mterfere with the scheme underlying the Essential Commodities Act and the Movement Orders promulgated by Government under the above Act in a man.ner prejudicial to the maintenance of supplies and Services essential to the community and it is necessary to detain you,.

9-L84Sup.C.I. /15

:.·,.

\ .. \

: ·,~ ·· ' . ' .. ::~·

SlG

SUPREME COURT REPORTS [1974j 3 S.C.R.

The petltioner applie? t? the High. Cour~ of Allahabad under Article 226 of the Consututton read wtth sectton 49.1 of the Cod!! 0; Criminal Procedure for quashing the order of detentton and the same was dismissed by the Divtsion Bench on 26th :t; fovembe~, 1973. The petitioner obtained special leave to appeal agams~ the judgm~:n.t . on

19th December 1973 and the same has been regtsterC'.ri as Ctrtmtnal Apeal No. 231' of 1973. The petitionr also filed writ pcitin No. 23 of 1974 before this Court under Arttcle 32 of the ConstttUlton on

20th December, 1973, against the order of te State Government of 21st November, 1973, confirming the afor~td or?er of detention under section 12 ( 1 ) of the Act and rule mst was tssued on 31st January,_1974. Both the matters arc heard together and are dispoed

of by this common judgment.

On behalf of the petitioner, the following submissions arc made by Mr. Frank Anthony :

(1) There was considerable dday in the Government

disposing of the representation of the dctenu and hence it vitiates the detention order.

(2) Ground No. 8 is non-existent and irrelevant and

hence it vitiates the detention order.

(3) Some grounds furnished by the detaining authority

arc the subject matters of criminal case:; which arc still sub judice. ( 4) Two remote plst incidents of th;: detcnu arc made the basi~ ofsomc grounds of detention.

Alt[Jough Mr. Anthony made a strong p!c:a on the lirt gr0unJ £ r.!garding delay in forwarding the reprcscntJtion of the detenu to the Government and in its ultimate dispor.al, we will first take up his thirJ

ubmi-; sion. .

• Jr is admitted by Mr. Uniyal, lc:rncJ counsc.:l for the Star~. that the Mohania Police Station case rcfcrr.:d to in groun 1 No. 3 i; s ill pending in the criminal cour~ in ilihar.

He, howcvt'r, ub: tlir.~ tha:

);.rond No. 3 is _merely descriptive and is not a ground in itself upon

h.tch the detcntton order ha> been based..

We may, th~:rdon:, scruttoJe the aforesaid submission of Mr. Uniyal.

What is rcfcm:d IO m ground No. 3 jo; the criminal ca~~.: und~.:r s~.:ctlon 7 "1f the Essential Commoditk,~ Act and ruh: 125 of the Ddcncc of India Rule>,

1962. This has_ reference to the firt information nport JoJgcJ by th~

~~p\!ctor of Pohcl.', Karm Na.., ha Chcd. Pot. Camp h>hania r\rra~.

Bta.r, on the 11th Octoh::r, 196-l (A11ncxurc-P ut pa)!c 137 of the wnt p.:tJll(ln!.

The relative: chargc-h!!ct da'cll 2'Jth Novcmb.::r. !96.6

12k.t~ Noc:mber, 1 ~66 ?) is at 1\nncxurcO ; tt Page 140 of th.: wnt

P~: lJtton . . fhe charg.-:-hcc:t h<idf mention'! ahout the saiJ urJcr uf the

atoa l_f1!!-h Court. It i-;, thcrdorc. ckar that the 3rd gn.>unJ fortn' t!,!: !.ubJtXt ~<ttr of a Cr.imin; tl trial which is ~>till sub juJice. The

\.h..trl'~~.llct mdcatc' manrfold , inter-stat..: ilkgal activities of the ·~~~~

vr ~-~ .' Sh) cm Sundr Ahok Kumar of Mohania uttractint the r-1 •11

llr(J\,'wm'. ,, t _tho.: E~:.nti.al Cu:nmoditk~ Act and th.: Dd..:n~.: of InJlil RvL h~\Jd~:' other sect tons of the lndiatt Pcual Cllllc. 1t is bccau' c

F l

BIRAM CHAND V. U.P. STA'fE (Goswami, J.) 817

of this 3rd ground tl'!at the 4th ground has been worded in the way it has been done, namely, "that with a view to continue your anti-social activities and to save yourself from the clutches of law you have started a finn under the name and style of M/S Shy~ Sudcr Asbok Kumar .... ".

We are, therefore, unable to accept the submission of Mr. Uniyal that ground No. 3 is merely descriptive i!ild is not germane with regard to the order of detention. On the other hand, there i~ great force in the submission of Mr. Anthony that ground No. 3 is

the corncrstone of ground No. 4. It is clear that ground No. 3 is covered by a prosecution in the criminal court which is pending trial in Bihar.

It shoulq be mentioned here that the High Court of Palna in Criminal Writ Jurisdiction cases Nos. 39 and 40 of 1965 by order dated 21st August, 1965, quashed an order of detention of the petitioner made on 1 9th July, 1 965, based on the allegation~ in the same first information report of 1 lth October, 1964, of Mohania Police Station under section 7 of ihe Essential Commodities A::t, 1955 and various other sections of the Indian Penal Code. The. iJcntical facts arc

now relied upon .in ground No: 3.

Again ground No. 8 is also the ubject matter of criminal case with reference to the first information report of 3rd July 1973 (Annexure 12 at page 288 of the writ petition).

There is no c9ntroversy that the said criminal case is still pending.

Similarly grounds Nos. 9 and 10 arc covered by a criminal case with reference to first information report dated 5th August, 1973 and the relative charge-sheet dated 19th September, 1973 under section

317 of the Essential Commodities Act, pending in the criminal court at Varanasi (U.P.).

We arc informed that there is no direct authority o[ this Court on the point. Mr. Uniyal has, however, drawn .our attention to a decision of this Court in Mohd. Salim Klum v. Shri C. C. Bf)se, [)eput}' Sec:relllr.'' to the Government of West BenRal a11d another,( 1 ) to which one of us (Brother Khanna) was a party. The decision is clearly distinguish~ able as will be clear from the following excerpt from the same :-

"The mere fact, however. that criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying

Magistrate docs not mean that no valid order of Jctclltion

old be passed again!>t him in connection with those very

mc1dcnts, or that such an order can for that reason be

chractcrisc~ as mala fide. ll might well be that a magistrate trymg a parttcular person under the Code of Criminal Procc~

rlure. ha~ insufllcicnt cviJcnce before him, and, thcr.::forc, has to. d1scharc such a person. Btt the detaining authorities m•ght well feel that though there was not sullicicnt evidence

admissible under the Evidence Act for a conviction the activities of that person, which they had hcen watching,' were

Ill AIR 1972SC 1670,'167.:.

{1974] 3 S.C.R

of such .a nature as to justify an order of de_tention. From the

mere fact,· therefore,· that the Magisate discharged the petitioner from the criminal ase lodged against him It cannot

be said that the impugned: rder was incompetent, nor can iLbe inferred that it was' without a basis or mala fide.

See Sahib Singh Dugal v. Union of India"(!).

In the above premises, more tltan one question may arise for consideration with regard to the third submission of Mr. Anthony.

\ Firstly by whether the detenu can be said to be reasonably able to make an effective representation against this ground when he has been fadng a trial in the criminal courts. By disclosing his defence and

cert~Un, facts, can he not complain that he will be handicapped in defend_ -ing; himself in the criminal courts? It iS well settled that in a case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce the authorities. to take a view in his favour. He must, therefore, have a real and affective opportunity to make his representation to establish his innocence.

Being faced with a: criminal prosecution which is pending against him all through, we are clearly of the view that the . detenu has not got a proper and reasonable opportunity in accordance with Jaw to make an effective representation against the impugned order of detention covered by the said proceeding.

Secondly, the question is whether it is open to the detaining authority to choose two parallel proceedings against the detenu as in this case.

The fact that the ground of detention could be a subject matter of criminal prosecution is not enough to vitiate a detention order if the detaining authority does not choose to prosecute him and only passes an open trial.

The choice of the authority concerned for the mode of nr> answer that the detenu must be prosecuted in the criminal court in an open trial. The choice of the authority concerned for the mode of tackling the illegal activity cannot per se be illegal and the order of detention will be judged on its merits in accordance with the Jaw laid down by this Court. The position will be, however, entirely different if the authority concerned makes an order of detention under the Act' and also prosecutes him in a criminal case on the self-same facts. This, in our view, is totally barred. The detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take recourse to a ground which is the subject mater of a criminal trial as in the case of the first information report dated 5th August, 1973 furnishing the grounds 9 and 10 of the detention order.

That fact itself introduces a serious infirmity in the order of detention for which the same must be held to be invalid.

: Similarly it is obvious that two of the cases are pending in the criminal courts in Bihar. But it is also clear, as noted above, that the Patna High Court had quashed the order of detention of the Government of Bihar based on facts relating to the first information report of 11th October, 1964, although on grounds different from those which we H are now considering. If the District Magistrate in the instant case had

(I) [1966] (I) SCR 313 quoted in ATR 1972 SC 1670.

BIRAM CHAND V. U.P. STATE (Goswami, J.) 819

not at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in coming to the conclusion about his reasonable satisfaction for making an order of detention, the matter would have

bten different. It is clear that the District Magistrate has been influenced by the existence of the criminal prosecutions in Bihar and he has chosen those grounds to furnish as aids to his satisfaction in order to make the order of detention. We are clearly of the view that the grounds with reference to the pending criminal prosecutions in Bihar could not provide •

a valid basis for maki1'lg the impugned order of delentiori, panicularly because those cases are pending trial in the criminal courts in Bihar and in view of the decision of the Patna High Court in connection with one of these cases. Since the detention order is based on these grounds, the same must be held to be invalid. The third submission of the learned counsel, is, therefore, accepted.

It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the' grQunds is nonexistent or irrelevant or is not available under the law, the entire . detention order will fall since it is not possible to predicate as to whether

the detaining authority/ would have made an order for detention even in the absence of non1xistent or irrelevant ground. The conclusion is, therefore, irresistible, in this case that the impugned order is invalid and tlte detention in this case must be held to be illegal.

As too many cooks spoil the broth so also too many grounds may vitiate an order of detention if any one of them is irrelevant or non .existent.

The authority, therefore, has to be careful enough to see that. only relevant and valid grounds arc selected having a nexus with the object of the order of detention.

Although the aim and object of tile order of detention be laudable and the antecedents of a detenu be extremely reproachable yet it is essential that if it is desired to detain a person without trial, the authorities concerned should confor:m to the requlrements of the law. The shady antecedents of the dctenu cannot provide a justification for non-compliance with the mandatory

provisions. The scope of the inquiry in the case of preventive detention based upon subjctive satisfaction being necessarily narrow and tlimited, the scrutiny of the court has to be even stricter than in a normal case of punitive trial.

Since we have held the order of detention as invalid for the reasons given above, it is not necessary to deal with the other grounds submitted by Mr: Anthony. The writ petition and the appeal are al1owed.

The judgment of the Allahabad High Court is set aside and in the view we have taken we do not feel called upon to pronounce upon the variou_s .n; asons given by the High C?rt in rejecting the petition. The rule msz ts made absolute. The petitioner shall be released forth with from the jail unless he is required in any other case. Criminal Miscellaneous Petition No. 318 of 1974-is allowed.

The application. for taking additional papers on record is rejected.

V.P.S.

Petition allowtd~ .. ·.:

BIRAM CHAND

STATE OF UTTAR PRADESH _&ORS

H. R. KHANNA

P. K. GOSWAMI, JJ.

Security Act, 1971

S. 3

Sec. 3(1)

Bihar

Patna High Court

Article 32

Constitution of India

Frank Anthony

K. B. Rohtagi

D. P. {!

R. Bana

0. P. Rana

GoswAMI

Article 32

Constitution of India

section 3

Mohania Police

section 7

High. Court, Patna

Shyam Sunder Ashok Kumar

Varanasi City

Mohama

U.P.

BIRAM CHAND

V.-.U.P. STATE

Chandsuli village

Delhi

Pooha

Poona

Mohania

Uttar Pradesh

Suitdei Ashok Kumar

17-7~1973 by

Shyam Sunder Askok Kumar

Essential Commodities Act

Article 226

section 12

Frank Anthony

Anthony

Uniyal

Uniyal

Goswami

High Court of Palna

21st August, 1965

1 9th July, 1 965

section 7

Indian Penal Code

section

317

Essential Commodities Act

Government of West BenRal

Khanna

5th August, 1973

Government of Bihar

11th October, 1964

Allahabad High Court