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1949 DIGILAW 27 (PAT)

Jagdish Prasad Pal v. Province Of Bihar

1949-07-12

NARAYAN, V.RAMASWAMI

body1949
Judgment Ramaswami, J. 1. These applications are on behalf of Sri Jagdish Prasad Pal and Sri Ramcharan Sao complaining that they are illegally and improperly detained under the Bihar Ordinance IV [4] of 1949. 2. In the batch of criminal miscellaneous cases Bhuthnath V/s. Province of Bihar, (A. I. R. (37) 1950 Pat. 35) in which judgment has just been pronounced we have discussed the constitutional validity of the Ordinance and have held that in promulgating it the Governor of Bihar did not exceed his legislative competence. 3. In these two cases a question is involved as to the construction of Sec.2 (1) of the Ordinance, Learned advocate addressed the argument that the Provincial Government have no sufficient material before it to hold that the applicants would act in a manner prejudicial to public safety or maintenance of public order. It was argued that the Court could apply an objective test and consider whether the materials on which the detention orders were passed were sufficient. 4. In case No. 450 the material portion of the order is to the effect: "That he is an important member of Communist Party of India is clearly associated with Shri B.K. Azad one of the principal Communist leader of this province who absconded for more than a year and he is also one of the secret workers of the party. Although the railway strike did not take place on 9th March 1949, Government have reasons to believe that he is likely to participate In the Communist Partys scheme of carrying out acts of sabotage on important railway and other installations with a view to subvert Government by force. Government have received secret information, the nature of which cannot be fully disclosed, that he himself has been actually trying to sabotage vital installations. His being an employer in the Jamalpur workshop places him at a point of advantage in this regard." 5. In case No. 451 the material portion of the order states: "That Shri Ramcharan Sao is a very active member of the C. P. I. and is one of the secret workers functioning in Jamalpur, When his house was searched on 3rd March 1949, the police recovered a letter from a very important Communist named Shri B.K. Azad who was absconding, directing Shri Ramcharan Sao to pay Rs. 40 to Jagdish Prasad. 40 to Jagdish Prasad. Another letter was recovered which was written by Shri Surendra Narain Mali, a Communist, who is now under detention and the fact that this letter did not pass through the jail authorities shows that it had been smuggled out of the jail. Government received dependable information that he was trying to arrange for the escape of Shri B. K. Azad from jail through a relation of his who is a jail contractor. Again Government have received dependable information which cannot be fully divulged in the public interest that in a secret meeting Shri Ramcharan Sao professed that he could stop the railway communications with the help of a few wrenches and then he proposed that from 10th March 1949, i.e., on the day following the scheduled general strike sponsored by the Communists, the work of the E. O. Railway workshop at Jamalpore should be brought to a standstill by carrying out sabotage of the electric supply on which the running of the workshop depends. The Communists who are active in the Jamalpore area have been instructed by the party to carry out sabotage of important installations and Government have reasons to believe that Shri Ramcharan Sao being one of the secret agents of the party is likely to participate in execution of such plans with a view to achieve the party objective of overthrowing Government by force." 6. The section to be construed is 2 (1) of the Ordinance which runs as follows: "The Provincial Government if satisfied with respect to any particular person that with a view to preventing him from acting in a manner prejudicial to public safety and maintenance of public order it is necessary so to do, may make an order." 7. In Kamla Kant V/s. Emperor, 23 Pat. 252 : (A. I. R. (31) 1944 pat. 354), Shearer J. held that it was not open to a Court of law on an application by a detenu for a writ of habeas corpus or in a suit to recover damages for false imprisonment to enquire into the validity of reasons which led to making of an order by the Provincial Government. In Basanta Chandra Ghosh V/s. Emperor, A. I. R. (32) 1945 pat. 44 : (23 Pat. In Basanta Chandra Ghosh V/s. Emperor, A. I. R. (32) 1945 pat. 44 : (23 Pat. 968), a Full Bench of this Court held that it was for the Governor alone to decide in the forum of his own conscience whether he had reasonable cause. In other words the Court cannot apply any objective test to the reasonableness of the Governors satisfaction and was not entitled to consider whether the materials on which the detention order was passed were sufficient. In Emperor V/s. Sibnath Banerjia, A. I. R. (32) 1945 P. C. 156 : (I. L. R. (1945) Kar. p. c. 37l), the Judicial Committee approved the following passage from the judgment of the Federal Court : "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital In the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate." These cases relate to the construction of Rule 26 (1) (b), Defence of India Rules. But the critical phrase of the Bihar Ordinance "if the Provincial Government is satisfied" appears to be a mere replica of Rule 26 and the two provisions are in many respects pari materia though not ad idem. It is manifest that Sec.2 (1) must be construed in a similar manner to Rule 26 (1) (b), Defence of India Rules, The reasons for adopting this construction is that the powers of this Court are not the powers of a Court of appeal. We cannot compel the Crown to disclose all the materials on which the order was made; and hence we cannot pronounce on their validity or otherwise. We cannot compel the Crown to disclose all the materials on which the order was made; and hence we cannot pronounce on their validity or otherwise. Since the Court knows only a fraction of the case, it manifestly cannot judge upon the reasons of the satisfaction unless it were able to place itself in the position of the Government and were put in possession of all the knowledge which Government bad. In such cases full legal evidence or proof is impossible, for Government may act on highly confidential information and claim that its disclosure is against public interest, a claim which a Judge has necessarily to admit. 8 The principles applicable have been fully discussed in two decisions of House of Lords, Liversidge V/s. Anderson, (1941) 3 ALL E. R. 338: (110 L. J. K. B. 724) and Greene V/s. Home Secretary, (1941) 3 ALL E. R. 388 : (58 T. L. R. 53). The former case arose for decision upon the application of the plaintiff for particulars of the defence in an action claiming damages for false imprisonment, the latter on an application for a writ of habeas corpus. In each case, the decision was based upon the view of the House as to the substantial issue involved, namely, whether it was open to any Court to enquire into the reasonableness of belief of the Secretary of State in matters in which the regulation required him to have reasonable cause to believe, before a detention order could be made. The opinion of the majority of the House upon the substantial issue was that the administrative plenary decision was vested in the Home Secretary and it was for him to decide whether he had reasonable grounds. No outsiders decision was involved and the issue was not within the competence of any Court. 9. In Liversidge V/s. Anderson, (1941) 3 ALL E. R. 338 : (110 L. J. K. B. 724), even Lord Atkin the dissenting Law Lord drew a vital distinction between "satisfied" and "reasonable cause." He stated that in the former case it was plain that unlimited discretion was given to Secretary of State, but in the latter the discretion was subject to an objective condition to the ministers power to detain, the existence of which would be cognizable in the Court of law. The correct position would appear to be that when the minister is merely "to be satisfied," his bare certificate is enough. When he has "reasonable cause to believe" the majority decision of the House of Lords indicates that the test is subjective and not objective. The administrative discretion is fully vested in Home Secretary and it is for him to decide whether he has reasonable grounds. When the Secretary of State has what appears to him reasonable cause, the Court cannot enquire into the truth of the matters in which he believes or reasonableness of his belief in them. A fortiori in any matter where the Secretary of State is merely to be satisfied, no enquiry by a Court is possible. 10. It is, therefore, impossible to accept the argument of learned advocate that the Court is entitled to apply the objective standard and to examine the adequacy of the grounds on which the Provincial Government have ordered dentention of the applicants. 11. It is manifest that in these cases orders of detention by the Provincial Government, regular on their face, have been produced. Since their authenticity and good faith are not impugned, the production of these orders constitutes a complete and peremptory answer to the applications filed. In my opinion these applications must be dismissed. 12. Let a certificate be granted under Sec.205 (1), Government of India Act. Narayan, J. 13 I agree.