Full Judgment Text
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PETITIONER:
KESHAV NILKANTH JOGLEKAR
Vs.
RESPONDENT:
THE COMMISSIONER OF POLICE, GREATERBOMBAY(and connected peti
DATE OF JUDGMENT:
17/09/1956
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
DAS, SUDHI RANJAN (CJ)
SINHA, BHUVNESHWAR P.
DAS, S.K.
MENON, P. GOVINDA
CITATION:
1957 AIR 28 1956 SCR 653
ACT:
Preventive detention-Detention order by the Commissioner-of
Police-Duty to report forthwith to the State Government-
"Forthwith", Meaning of-Time taken for sending report-
Validity of detention-Preventive Detention Act, 1950 (IV of
1950), ss. 3(3), 7.
HEADNOTE:
Section 3(3) of the Preventive Detention Act, 1950, provides
that when an order of detention is made by an officer
mentioned in s. 3(2) he shall forthwith report the fact to
the State Government together with the grounds on which the
order has been made..... and no such order...... shall
remain in force for more than twelve days after the making
thereof unless in the meantime it has been approved by the
State Government.
On 13th January 1956 the Commissioner of Police, Bombay,
passed orders under s. 3(2) of the Preventive Detention Act,
1950 directing the detention of the petitioners and in
pursuance thereof’ they were arrested on 16th January 1956
The grounds on which the orders were made were furnished to
the--petitioners on 20th January 1956 and the next day the
Commissioner reported the fact of the order and the grounds
therefor to the State Government which approved of the same
on 23rd January 1956. The petitioners contested the
validity of the detention on the ground that when the
Commissioner passed the orders for detention on 13th January
1956 it was his duty under s. 3(3) to report that fact
forthwith to the State Government, and as he did not do so
until 21st January’1956 he had acted in contravention of the
statute and that the detention was therefore illegal. It
was found that the delay in sending the report could not
have been avoided by the Commissioner and that it was due to
causes to which the petitioners had very largely con-
tributed.
Held, that the word "forthwith" in s. 3(3) of the Preventive
Detention Act, 1950, has not a fixed and an absolute meaning
and it must be construed with reference to the object of the
section and the circumstances of the case. It cannot mean
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the same thing as "as soon as may be" in s. 7 of the Act and
the former is more peremptory than the latter. The
difference between the two . expressions lies in this that
while under a. 7 the time that is allowed to the authority
to send the communication to the detenu is what is
reasonably convenient, under s. 3(3) what is allowed is only
the
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period during which he could not, without any fault of his
own, send the report.
An act which is to be done forthwith must be held to have
been so done when it is done with all reasonable despatch
and without avoidable delay.
The Queen v. The Justices of Berkshire ([1878-79] 4 Q.B.D.
469), Hudson and others v. Hill and others ([1874] 43 L. J.
C.P. 273), and Beg. v. Price, (8 Moore P.C. 203), relied on.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 102,105 to 110 of
1956.
Petitions under Article 32 of the Constitution for writs in
the nature of Habeas Corpus.
N. C. Chatterjee, Sadhan Chandra Gupta and janardhan
Sharma; for petitioners in Petitions Nos. 102, 105 to 108 of
1956.
Sadhan Chandra Gupta and Janardhan Sharma, for petitioners
in Petitions Nos. 109 and 110 of 1956.
C.K.Daphtary, SoliCitor-General for India, Porus A. Mehta
and R. H Dhebar, for respondents in Petitions Nos. 102 and
105 of 1956.
Porus A. Mehta and R. H. Dhebar, for respondents in
Petitions Nos. 106 to 110 of 1956.
1956. September 17. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-These are petitions filed under article
32 of the Constitution for the issue of writs in the nature
of habeas corpus. They arise on the same facts and raise
the same questions.
On 13-1-1956 the Commissioner of Police, Bombay, passed
orders under section 3(2) of the Preventive Detention Act IV
of 1950 (hereinafter referred to as the Act), directing the
detention of the present petitioners, and pursuant thereto,
they were actually arrested on 16-1-1956. The grounds on
which the orders were made were formulated on 19-1-1956, and
communicated to the petitioners the next day. On 21-1-1956
the Commissioner reported the fact of the order and the
grounds therefor to the State Govern-
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ment, which approved of the same on 231-1956.
The contention of the petitioners before us is that when the
Commissioner passed the orders for detention on 13-1-1956,
it was his duty under section 3(3) to report that fact
forthwith to the State Government -and as be did not do so
until 21-1-1956, he had acted in contravention of the
statute, and that the detention was therefore illegal. That
raises the question as to what "forthwith" in section 3 (3)
of the Act signifies, and whether on the facts the report
was made "forthwith", within the meaning of that word in
that sub-section.
The word "forthwith", it has been observed, is of elastic
import. In its literal sense, it might be construed as
meaning that the act to be performed forth;with in relation
to another should follow it automatically without any
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interval of time, or, -as held in some of the American.
authorities, should be performed at one and the same time as
the other. But even in America, the preponderance of
judicial opinion does not favour this construction. In
Corpus Juris, Volume 26, page 998 the position is thus
stated:
"Although the term has received a strict conStruction,
ordinarily it is not to be strictly construed, but should
receive a liberal or reasonable construction-. Some regard
must be had to the nature of the act or thing to be
performed and the circumstances of the case".
In England, there is a long catena of decisions interpreting
the word "forthwith" occurring in statutes, rules and
contracts, and their trend has been to construe it
liberally. As early as 1767, discussing the meaning of the
word ’immediately’--and the word "forthwith" his been held
to have the same significance-Lord Hardwicke observed in Rex
v. Francis
"But then the word immediately, is strongly insisted on, as,
a word which excludes all mesne acts and time; and
therefore,-that this taking away the money must necessarily
be ’in the presence of Cox.
(1) Cun. 165; 94 E.R. 1129, 1183.
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But all the nine Judges held this word immediately, to be of
so loose a signification, and not to imply necessarily, that
the money was taken away in Cox’s presence. For this word
does neither in its use and application, nor in its
grammatical construction, exclude all mesne acts or time But
it is more necessary and proper in this case, to consider
the signification of this word in the legal, way. And it is
plain, that in this acceptation, it is not understood to
exclude mesne acts or time And on the Statute Hue and Cry,
27 Eliz. c. 13, s. 11, where’ the words with as much
convenient speed as may be, are made use of, all the
precedents have expressed these words, by the word
immediate, as may be seen in the books. The last case which
I shall mention on this point, is that of the writs-of
habeas corpus, issuing out of this Court, which are most
frequently made returnable immediately; and in this case the
word is never understood either to exclude mesne acts or
time, but only means, with convenient speed
In Beg. v. The Justices of Worcester(1), where the question
was as to the meaning of the word "forthwith" in section 50
of 6 Will. IV, Coleridge, J. observed:
"I agree that this word ’forthwith’ is not to receive a
strict construction like the word ’immediately’,, so that
whatever follows, must be done immediately after that which
has been done before. By referring to section 50, it seems
that whatever is to be done under it, ought to be done
without any unreasonable delay. I think that the word
’forthwith’ there used, must be considered as having that
meaning’
The meaning of the word "immediately" came up for
consideration in Thompson v. Gibson(2). Holding that it was
not to be construed literally, Lord Abinger C. B.
observed:
"If they" (acts of Parliament) "could be construed
literally, consistently with common sense and justice,
undoubtedly they ought; and if I could see,
(1) [1889] 7 Dowl. Pr. Cas. 789-791: 54 R.R. 902 (903).
(2) (1841] 8 M. & NV. 282 151 E.R. 1045,1047.
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upon this act of, Parliament, that it was the intention of
the legislature that not a single moment’s interval should
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take place before the granting of the certificate, I should
think myself bound to defer to that declared intention. But
it is admitted that this cannot be its interpretation; we
are therefore to see how, consistently with common sense and
the principles of justice, the words ’immediately
afterwards’ are to be construed. If they do not mean that
it is to be done the very instant afterwards,do they mean
within ten minutes, or a quarter of an hour, afterwards? I
think we should interpret them to mean, within such reason-
able time as will exclude the danger of intervening facts
operating upon the mind of the Judge, so as to disturb the
impression made upon it by the evidence in the cause".
In agreeing with this opinion, Alderson, B. expressly
approved of the decision of Lord Hardwicke in Rex v.
Francis(1). This construction of the word ’immediately’ was
adopted in Page v. Pearce(), Lord Abinger C. B. observing:
"It has already been decided, and necessarily so, that the
words ’immediately afterwards’in the statute, cannot be
construed literally; and if you abandon the literal
construction of the words, what can you substitute but
’within a reasonable time?’...."
In The Queen v. The Justice-3 of Berkshire(3), where the
point was as to the meaning of "forthwith" in section 52 of
35 & 36 Vict., Chapter 94, Cockburn C. J. observed:
"The question is substantially one of fact. It is
impossible to lay down any bard and fast rule as to what is
the meaning of the word ’immediately’, in all cases. The
words ’forthwith’ and ’immediately’ have the same meaning.
They are stronger than the expression within a reasonable
time’, and imply prompt, vigorous action, without any delay,
and whether there has been such action is a question of
fact, having regard to the circumstances of the particular
case".
(1) dun. 165: 94 E.R. 1129, 1188.
(2) [1841] 8 M. & W. 677 (678): 161 E.R. 1211 (1212).
(3) [1878-79] 4 Q.B.D. 469 (471).
658
The same construction. has been put on the word "forthwith
" occurring in contracts. In Hudson and others v. Hill and
others(1) which was a case of charterparty, it was observed
at page 280:
"
Forthwith’ means without unreasonable delay. The
difference between undertaking to do something ’forthwith’
and kithin a specified time is familiar to everyone
conversant with law. To do a thing ’forthwith’ is to do it
as soon as is reasonably convenient".
In Reg. v. Price(2), it was held by the Privy Council that
the word "forthwith" in a bail bond meant within a
reasonable time from the service of notice. On these
authorities, it may be taken, an act which is to be done
forthwith must be held to have been so done, when it is done
with all reasonable despatch and without avoidable delay.
But it is argued by Mr. N. C. Chatterjee that the view taken
in the above decisions as to the meaning of the word
"forthwith" has been abandoned in the later decisions, and
that under the law as it stands, when an act has to be
performed forthwith in relation to another, what has to be
decided is not whether it was done within a reasonable time,
but whether it was done so closely upon the other as to form
together one continuous act. He relied in support of this
opinion on the decision in Be Muscovitch(3), affirming that
in Re Muscovitch(1). That was a decision on rule 132 of the
Bankruptcy Rules which provided that "Upon entering an
appeal, a copy of the notice of appeal shall forthwith be
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sent by the appellant to the registrar of the court appealed
from". The facts were that the appeal was lodged in time on
25-10-1938 but the notice was served on 28-10-1938, and it
was found that there was "no satisfactory reason or no
reason at all, why there was any delay in the matter" (Re
Muscovitch(4)). On that, it was held that the requisition
that "the notice shall forthwith be sent" was not satisfied.
This is authority only for the position that when an Act is
done after an interval of time and there is no explanation
forthcoming for
(1) [1874] 43 L.J. C.P. 273 (280).
(2) 8 Moore P.C. 208: 14 E.R. 78.
(3) [1939] 1 A.E.R. 135.
(4) [1988] 4 A.E.R. 570,
659
the delay, it cannot be held to have been done "forthwith".
That is made clear by Sir Wilfrid Greene M. R. in the
following passage in Re Muscovitch(1) at page 139:
"Having regard to the construction which was put upon the
word ’forthwith’ which is peremptory, and. admits of no
interval of time between the entry of the appeal and the
sending of the notice save such as may be imposed by
circumstances, which cannot be avoided, I find it impossible
in the present case to say that the notice was sent
forthwith within the meaning of the rule".
Reliance is also placed for the petitioners on the decision
in Ex parte Lamb: In re Southam(2), which was followed in Re
Muscovitch(1). There, construing the word "forthwith" in
rule 144 of the Bankruptcy Rules, 1870, which corresponds to
rule 132, which was the subject of interpretation in Re
Muscovitch(1), Jessel M. R. observed at page 173:
"Ithink that the word ’forthwith’ must be construed
according to the circumstances in which it is used Where,
as in Hyde v. Watt8(3), there is- a covenant to insure a
man’s life, there must of necessity be some delay, for the
act could not be done in a moment. But where an act which
is required to be done ’forthwith’ can be done without
delay, it ought to be so done".
In that case also, the learned Judges found that the delay
was not explained. And the observation of Lush L. J. in the
same case was that "the word ’forthwith’ has not -a fixed
and an absolute meaning; it must be construed with reference
to the objects of the rule and the circumstances of the
case". There is nothing in the decisions in Re
Muscovitch(1) and Ex parte Lamb: In re Southam(2) which can
be considered as marking a departure from the construction
put on the word "forthwith" in the earlier authorities that
it meant only that the act should be performed with
reasonable speed and expedition, and that any delay in the
matter should be satisfactorily explained.
(1) [1939] 1 A.E.R. 185 (2) [1881-82] 19 Ch. D. 169.
(3) 12 M & W. 254.
660
It is argued for the petitioners that even if the con.
struction put on the word "forthwith" in the above decisions
is accepted as correct, it must, in any event, yield to any
contrary intention expressed in the statute, and that the
provisions of the Act afforded clear indication of such an
intention. It is co intended that the legislature while
providing in section 7 that the grounds should be
communicated to the detenu "as soon as may be" has enacted
that the report under section 3(3) should be sent "forth-
with", that the use of two different expressions in the two
sections is a clear indication that they do not mean the
same thing, that as the words "as soon as may be" import
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that the act might be performed in a reasonable time, the
word "forthwith" which is more peremptory must be construed
as excluding it. The decisions in Emperor v. Phuchai(1) and
in K. U. Kulkarni v. Ganpat Teli(2) were quoted in support
of the position that when two different expressions are used
in different parts of the same clause or section, they
should be construed as used in different senses.
We agree that "forthwith" in section 3(3) cannot mean the
same thing as "as soon as may be" in section 7, and that the
former is more peremptory than the latter. The difference
between the two expressions lies, in our opinion, in this
that while under section 7 the time that is allowed to the
authority to send the communication to the detenu is what is
reasonably convenient, under section 3(3) what is allowed is
only the period during which he could not, without any fault
of his own, send the report. Under section 7 the question
is whether the time taken for communicating the grounds is
reasonably requisite. Under section 3(3) it is whether the
report has been sent at the earliest point of time possible,
and when there is an inter-val of time between the date of
the order and the date of the report, what has to be con-
sidered is whether the delay in sending the report could
have been avoided.
(1) I.L.R. 50 All. 909: A.I.R. 1929 All. 38.
(2) I.L.R. [1942] Bom. 287: A.I.R. 1942 Bom. 191.
661
It was contended that as section 7 required that the
communication should be made not later than 5 days from the
date of the order, and as section 3(3) was more peremptory
than section 7 in that it required that the report should be
made forthwith, the period allowable under section 3(3)
could not exceed 5 days, and that as in these cases the
reports were sent 8 days later, they could not be held to
have been sent forthwith. This argument mixes up two
different matters contained in section 7. The period of 5
days provided therein-is an absolute one and is independent
of the period which is permissible under the expression "as
soon as may be", which must, by its very nature, be
indefinite depending on the facts and circumstances of the
case. It will be as erroneous to read 5 days into the
period allowable under the expression "as soon as may be" as
to read the 12 days within which the State has to approve
the order under section 3(3) into the period which is
allowable under the expression "forthwith". The result then
is that the report sent by the Commissioner to the State on
21-1-1956 could be held to have been sent "forthwith" as
required by section 3(3), only if the authority could
satisfy us that, in spite of all diligence, it was not in a
position to send the report during the period from 13th to
21st January 1956.
We must now examine the facts from the above standpoint.
The Commissioner of Police has filed an affidavit explaining
why the reports were not sent till 21,st January 1956,
though the orders themselves had been made as early as 13th
January 1956. Ever since the publication of the proposal to
form a State of Maharashtra without the city of Bombay,
there ,had been considerable agitation for the establishment
of a Samyuktha Maharashtra with the city of Bombay included
in it. An action committee had been set up on 15-11-1955
for the purpose, and there had been hartal and morchas
resulting in outbursts of lawlessness and violence and in
the burning of a police chowki. The final decision on the
question was expected to be taken and announced in the
middle of January 1956, and the atmosphere was highly sur-
charged. It was in this situation that the Commis-
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662
sioner decided to take action under section 3(2) of the Act
against the leading spirits of -the movement, and passed the
present orders for detention against the petitioners on
13-1-1956. In his affidavit the Commissioner states that he
decided first "to locate the persons against whom orders of
detention were made by me on the 13th January 1956 and after
having done so, to arrest all of them simultaneously so that
none of them may go underground or abscond or evade
execution of the detention orders". Then the affidavit goes
on to state:
"It was not possible for me to send the report earlier as
the situation in the City of Greater Bombay was tense,
pregnant with danger on the 13th January 1956, and continued
to be so till 16th January 1956, and actual rioting occurred
during that night and those riots continued till 22nd
January 1956. I and my staff were kept extremely busy all
throughout in maintaining law and order and simultaneously
taking steps to round up miscreants. In this unusual and
tense situation, it was not possible to make a report
earlier than the day on which it was made". -
We see no reason for not accepting these statements. What
happened on the 16th and the following days are now matters
of history. The great city of bombay was convulsed in
disorders, which are among the worst that this country has
witnessed. The Bombay police had a most difficult task to
perform in securing life and property, and the authorities
must have been working at high pressure in maintaining law
and order. It is obvious that the Commissioner was not
sleeping over the orders which he had passed or lounging
supinely over them. The delay such as it is due, to causes
not of his making, but to causes to which the activities of
the petitioners very largely contributed. We have no
hesitation in accepting the affidavit, and we bold that the
delay in sending the report could not have been avoided by
the Commissioner and that when they were sent by him, they
were sent "forthwith" within the meaning of section 3(3) of
the Act.
663
Mr. S. C. Gupta put forward some special contentions on
behalf of the petitioners in C.M.Ps. Nos. 109 and 110 of
1956. He contended that as the order originally made against
the petitioner in C.M.P. No. 109 of 1956 was that he should
be detained in Arthur Road Prison, Bombay the subsequent
order of the Commissioner by which he was detained in Nasik
Prison was without jurisdiction. It is clear from the
affidavit of the Commissioner that the petitioner was not
ordered to be detained in Arthur Road Prison but in Nasik
Road Central Prison, and that he was kept temporarily in
Arthur Road Prison, pending arrangements to transport him to
Nasik. It was next contended that the materials on which
the orders of detention- were made and set out in the
communications addressed to the petitioners all related to
their past activities, and that they could not constitute
grounds for detention in future. This contention is clearly
unsound. What a person is likely to do in future can only
be a matter of inference from various circumstances, and his
past record will be valuable, and often the only, record on
which it could be made. It was finally contended that what
was alleged against the petitioners was only that they
advocated hartal, and that was not a ground for making an
order of detention. But the charge in these cases was that
the petitioners instigated hartal bringing about a complete
stoppage of work, business and transport with a view to
promote lawlessness and disorder, and that is a ground on
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which an order could be made under section 3(2).
All the contentions urged by the petitioners therefore fail,
and these petitions must be dismissed.
664