Full Judgment Text
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PETITIONER:
BORJAHAN GOREY
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT01/08/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION:
1972 AIR 2256 1973 SCR (1) 751
1972 SCC (2) 550
CITATOR INFO :
F 1973 SC 207 (5)
F 1973 SC 897 (4)
R 1973 SC1062 (5)
R 1974 SC2154 (34)
D 1986 SC2177 (36)
ACT:
Maintenance of Internal Security Act 26 of 1971, s. 3-
Detention under--Grounds supplied containing facts on which
preventive proceedings under ss. 109 & 110 of the Code of
Criminal Procedure could lie--Detention on such facts under
Act whether barred--Corrections of facts whether can be gone
into by this Court--Plea of mala fides whether established.
HEADNOTE:
The petitioner was detained by an order of the District
Magistrate, Howrah and under the provisions of the
Maintenance of Internal Security Act (26 of 1971). He was
supplied the grounds of detention. He made a representation
which was considered by the authorities under the Act and
rejected. A petition under article 32 of the Constitution
was then filed and the petitioner urged : (i) that the
’facts mentioned in the grounds of detention came within the
purview of sections 109 and 110 of the Code of Criminal
Procedure and therefore his detention on those facts under
s. 3 of the Act was unjustified; (ii) that the facts
mentioned in the grounds were not correct and the order of
detention was mala fide.
Dismissing the petition,
HELD : (i) Merely because a detenu is liable to be tried in
Criminal Court for the commission of criminal offences or to
be proceeded against for preventing him from committing
offences dealt with- in Chapter VIII of the Code of Criminal
Procedure would not by itself debar government from taking
action for his detention under the Act. The Act was passed
in order to meet a serious situation affecting the security
of India and the maintenance of public order as contemplated
by section 3 of the Act. Judicial trial for punishing the
accused for the commission of an offence as also preventive
security proceedings in a criminal Court against a person
merely for keeping the peace or for good behaviour is a
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jurisdiction distinct from that of detention under the Act
which has in view the object of preventing the detenu from
acting in any manner prejudicial Inter alia to the security
of the State or maintenance, of public order. The fields of
these two jurisdictions, are not co-extensive nor are they
alternative’ The jurisdiction under the Act may be invoked
when the available evidence does not come up to the standard
of judicial proof but is otherwise cogent enough to give
rise to suspicion in the mind of the authority concerned
that there is reasonable likelihood of repetition of past
conduct which would be prejudicial inter alia to the
security of the State or the maintenance of public order or
even when the witnesses may be frightened or scared of
coming to the Court and deposing about past acts on which
the opinion of the authority concerned is based. This
jurisdiction is sometimes called the Jurisdiction of
suspicion founded on past incidents and depending on
subjective satisfaction. The authorities mentioned in
section 3(2) which include the District Magistrate are best
suited to decide whether it is necessary to proceed under
the Act, which decision rests on their subjective
satisfaction. The grounds of detention relate to the past
acts on which the opinion as to the likelihood of the
repetition of such or similar acts is based, and those
grounds are ’furnished to the detenu to inform
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him as to how and why the subjective satisfaction has been
arrived it so as to enable him to represent against them.
The fact, therefore that a prosecution under the Code could
have also been launched is not a valid ground for saying
that it precludes the authority from acting under the Act.
(2) The District Magistrate is expected to know the
situation prevailing in the district and to take suitable
action for the maintenance of public order. His assessment
of facts and his opinion on the propriety of making a
detention order must be given due consideration and respect
by this Court. The petitioner’s representation was also
duly considered by the State Government and rejected. The
Advisory Board after hearing the detenu-petitioner in person
also expressed opinion that there was sufficient cause for
his detention. In these circumstances it was not possible
for this Court in habeas corpus proceedings to hold an
independent inquiry into the question whether or not the
grounds on which the impugned order or detention was passed
were false or non-existent. Nor could the impugned order be
held to be mala fide. There being no legal infirmity in the
order of the petitioners detention, and the ’facts affirmed
by the District Magistrate which must be accepted on the
facts and circumstances of the case to be true, being
relevant to the object of the detention, this petition must
fail.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 192 of 1972.
(Under Article 32 of the Constitution of India for tile
enforcement of fundamental rights.)
Hiralal fain for the petitioner.
P. K. Chakraborty and G. S. Chatterjee for the respondent.
The Judgment of the Court was delivered by
Dua, J This is a petition under Art. 32 of the Constitution
challenging the order of the petitioner’s detention dated
September 23, 1971 made by the District Magistrate, Howrah,
under S. 3, sub-ss. (1) and (2) of the Maintenance of
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Internal Security Act, 26 of 1971 (hereinafter called the
Act). The petitioner Borjahan Gorey, who claims to be a
laborer working in Gogalbhai Jute Mills was arrested on
October 5, 1971 pursuant to the impugned order of detention.
The grounds of detention were served on him on the same day.
He made a representation to the State Government on October
25. 1971 which was duly considered by the said Government on
October 29, 1971. His case was placed before the Advisory
Board on November 1, 1971 as required by S. 10 of the Act
and the said Board made_ its report on December 10, 197 1.
As in the opinion of the Board there was sufficient cause
for the petitioner’s detention the State Government
confirmed the impugned order on December 23, 1971 and
communicated this fact to the petitioner on the same day.
The grounds for the petitioner’s detention duly communicated
to him under S. 8(1) of the Act are :-
"(1) On 7-7-71 after 19.30 hours you and your
associates As to Patra, Netai Patra, Habi
Khara and
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others terrorised the members of the public,
who assembled in the field of Shri Saraj
Ghosal near Fuleswar Rly. Station to decide
the actions to be taken against the anti-
social activities, like snatching away
valuables from the passengers from running
trains, carried on by you and your associates,
by exploding bombs at a distance of 8/10
cubits from the place of meeting. The local
people being panicky started running helter
and skelter but you and your associates
obstructed them by brandishing. swords and
iron rods.
2. On 6-8-71 at about 11.45 hours, you and
your associates Netai Patra, Asto Patra,
Amjed, Habi Khara and 15/20 others being armed
with ballam, sword and bombs etc., formed an
unlawful assembly in front of the shop _of
Pranab Sarkar of Kalsafa market, P. S.
Uluberia and ’attacked one Basudev Sarkar
causing severe injuries on his person. When
resisted by the members of the public, you and
your associates attacked them causing injuries
to some of them and terrorised them by hurling
bombs towards them. Being panickstricken, the
local people started to run aimlessly and the
market was closed instantaneously. You and
your associates created a reign of terror and
continued your rowdy activities till a police
party reached there."
The first point presented by Shri Hiralal Jain, learned
counsel appearing as amicus curiae against the petitioner’s
detention is that the grounds, on the basis of which the
impugned detention order has been made, disclose facts which
would squarely fall within the purview of ss. 109 and 110 of
the Code of Criminal Procedure and, therefore, the
petitioner should have been appropriately proceeded against
under those sections rather than detained under s. 3 of the
Act. Our attention was not drawn by the learned counsel to
any statutory provision, nor was any precedent or principle
cited by him in suport of this contention.
Now merely because a detenu is liable to be tried in a
criminal court for the commission of a criminal offence or
to be proceeded against for preventing him from committing
offences dealt with in Chapter VIII of the Code of Criminal
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Procedure, would not by itself debar the government from
taking action for his detention under the Act. The scheme
of the Act as disclosed by its clear language does not lend
any support to the contention urged by Shri Jain. Besides,
the object and purpose of bringing the Act on the statute
book also clearly shows that in view of the prevailing
situation in the country
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and the developments across the border in July, 1971 the
need was felt for urgent and effective preventive action in
the interest of national security and the Act was
retrospectively enacted to replace the Maintenance of
Internal Security Ordinance, 1971. The preventive detention
provided by the Act is apparently designed to deal urgently
and effectively with the more serious situation,, inter
alia, affecting the security of India and the maintenance of
public order as contemplated by S. 3 of the Act. The
liability of the detenu also to be tried for commission of
an offence or to be proceeded against under Chapter VIII of
the Code of Criminal Procedure which deals with prevention
of less serious disturbances and requires execution of bonds
on the basis of the acts disclosed in the grounds do not in
any way as a matter of law affect or impinge upon the full
operation of the Act. The reason is obvious. Judicial
trial for punishing the accused for the commission of an
offence as also preventive security proceedings in a
criminal court against a person Merely for keeping the peace
or for good behavior under Chapter VIII ,of the Code of
Criminal Procedure, we may appropriately point out, is a
jurisdiction distinct from that of detention under the Act,
which has in view, the object of preventing the detenu from
acting in any manner prejudicial inter alia to the security
of the State or maintenance of public order. The fields of
these two jurisdictions are not co-extensive nor are they
alternative. The jurisdiction under the Act may be invoked,
when the available evidence does not come up to the standard
of judicial proof but is otherwise cogent enough to give
rise to suspicion in the mind of the authority concerned
that there is a reasonable likelihood of repletion of past
conduct which would be prejudicial inter alia to the
security of the State or the maintenance of public order or
even when the witnesses may be frightened or scared of
coming to a court and deposing about past acts on which the
opinion of the authority concerned is based. This
jurissdiction is sometimes called the jurisdiction of
suspicion founded on past incidents and depending on
subjective satisfaction. The jurisdiction for trial or for
preventive proceedings under Chapter VIII. Code of Criminal
Procedure cannot be successfully invoked in such a
situation. In other words a case under the Code of Criminal
Procedure whether punitive or preventive depends on the
proof of objective facts which have already taken PI-ace
whereas a case under the Act providing for preventive deten-
tion depends on the subjective satisfaction of the
authorities concerned of the likelihood of the person to be
detained to act in future in a manner similar to the one
seen from his past acts. The authorities mentioned in S.
3(2) which include the District Magistrate are, in our view,
best suited, to decide whether it is necessary to proceed
under the Act which decision rests on their subjective
satisfaction. The grounds of detention relate
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to the past acts on which the opinion as to the likelihood
of the repetition of such or similar acts is based and those
grounds are furnished to the detenu to inform him as to how
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and why the subjective satisfaction has been arrived at so
as to enable him to represent against them. The fact,
therefore, that a prosecution under the Code could also have
been launched is not a valid ground for saying that it
precludes the authority from acting under the Act. This
contention is thus devoid of merit. We have discussed this
aspect somewhat elaborately go as to eliminate any
misunderstanding of the True import of our decision and to
exclude the possibility of any impression that the Act vests
in the authority arbitrary power to select one or the other
course dealing,, with the same or exactly similarly
situation.
The learned counsel then referred us to the petitioner’s
denial in his representation of the truth of the allegations
contained in the two grounds. According to him on the date
on which the incident mentioned in ground no. 1 is alleged
to have occurred he was present on duty in the mill and,
therefore, he could not have participated in that
occurrence. That ground must, therefore, be considered to
be false, con-. tended Shri Jain. In so far as the second
ground is concerned, according to the petitioner, at the
time of the alleged incident, i.e., at 11.45 a.m. on August
6, 1971, he was at the dispensary of the doctor appointed by
the Employees’ State Insurance for Gogalbbai Jute Mills
where he had eone with the object of taking medical ’leave
for a couple of days because he was sick and was running
temperature. In other words the petitioner ,pleads alibi
with respect to both the grounds. On the basis of these
contentions, according to Shri Jain, the impugned order
should be held to be based on allegations which are not
true. The impugned order of detention is accordingly
contended to be insupportable being based on non-existing
facts.
We are unable to agree with this submission. The District
Magistrate who made the impugned order has, in the counter-
affidavit, sworn "that the detenu-petitioner is one of the
notorious rowdies and anti-social elements of P.S.
Pudubalia, District Howrah. He has further added that after
receiving reliable information relating to the alleged anti-
social and prejudicial activities of the, detenu-petitioner
relating to the maintenance of public order he passed the
order of detention under the Act. In para 7 of the counter-
affidavit he affirmed both the grounds in express language.
We do not find any cogent ground for not accepting the facts
affirmed in the counter-affidavit. The District Magistrate
is expected to know the situation prevailing in the district
and to take suitable action for the maintenance of public
order. His assessment of facts and his opinion on the
756
propriety of making a detention order must be given due
consideration and respect by this Court. The petitioner’s
representation was also duly considered by the State
Government and rejected. The Advisory Board, after hearing
the detenu-petitioner in person also expressed the opinion
that there was sufficient cause for his detention. In these
circumstances, it is not possible for us in habeas corpus
proceedings to hold an independent enquiry into the question
whether or not the grounds on which the impugned order of
detention is passed are false or non-existent. Nor can the
impugned order be held to be mala fide as suggested by Shri
Jain. There being no legal infirmity in the order of the
petitioner’s detention and, the facts affirmed by_ the
District Magistrate, which must be accepted on the facts and
circumstances of this case to be true, being relevant to the
object of detention, this petition must fail and is dis-
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missed.
Petition dismissed G.C.
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