Anand Behari Mishra v. State — 1950 DIGILAW 47 (MP)

ORDER : 1. This is an application under S. 491, Criminal P. C., by one Ram Behari Lal Mishra on behalf of his father, Mr. Anand Behari Misra, (referred to hereafter as the petitioner) who is detained "under S. 3 (1) (a) (ii), Preventive Detention Act, 1950, by an order passed by the District Magistrate of Gwalior bearing the date 19-8-1950 for release from detention. The order of detention is in Hindi and when translated into English reads as follows: "Whereas I, Namdeo Raw Patil Suba and District Magistrate Gird, am satisfied with respect to Mr. Anand Bebari Mishra, son of Krishna Behari Mishra resident of Sarafa Bazar Lashkar that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it Is necessary to detain him ............ Now therefore in exercise of the powers conferred by sub-s. (2) of S. 3, Preventive Detention Act (IV [4] 1950), I hereby direct that the said Anand Behari be detained." The petitioner was furnished with the grounds of detention under S. 7 of the Act on 22-8-1950. The application is supported by an affidavit of Ram Behari Mishra. On 23-8-1950, Mr. Anand Behari Mishra also filed an affidavit controverting the grounds of detention. The District Magistrate has filed a return supported by an affidavit, against the application. 2. It is stated by the petitioner that be is an advocate of this High Court and the leader of opposition in the Madhya Bharat Legislature. He was arrested on 20-8-1950 at 6 A. M. at his residence under the orders of the District Magistrate, The petitioner goes on to say that his arrest and detention is mala fide. The order of detention was made by the District Magistrate not because he was satisfied as required by S. 3, Preventive Detention Act, in order to safeguard the maintenance of public order, but that it was passed with an ulterior motive to prevent the applicant, from moving the Raj Pramukh and the Government to summon the Legislature to meet for the purpose of censuring the conduct of the Government in relation to certain incidents which occurred in Lashkar on 9-8-1950; that the District Magistrate made the order of detention at the suggestion of the Government without satisfying himself as to the necessity of detaining the petitioner. The applicant further says that he is a respectable and peaceful citizen and his efforts have always been directed towards pacifying "the wounded and enraged feelings of the students in particular and the public in general." It is also stated in the application that the petitioner was detained last year also without any reason and that he was released by this Court and further that the grounds of detention furnished to him are vague. 3. In his return and affidavit the District Magistrate admits that the petitioner is an advocate of this High Court and also a leader of certain group in the Madhya Bharat Legislature. He has further said that it is not true that the order of detention was passed mala fide; it is also not true that the order was passed at the suggestion of the Government without applying his mind to the question as to wheather there were before him sufficient grounds for satisfying himself that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The District Magistrate does not dispute tbat the petitioner is a respectable citizen but he says that his activities in the month of August have been prejudicial to the maintenance of public order. He then says that the order of detention passed last year was not made by him but by his predecessor and that it has no relation to the circumstances in which the order in question in this petition has been made. The District Magistrate states in the end that the grounds of detention supplied to the petitioner are specific and that his detention is neither illegal nor improper. 4. The grounds of detention furnished to the petitioner under S. 7 of the Act read as follows : 5. Mr. Anand who appeared on behalf of the petitioner made three submissions. The first was that the order of detention was and is bad, because the District Magistrate never had any material or facts 'for a reasonable satisfaction' that the applicant had been recently concerned in acts prejudicial to the maintenance of public order. The second was that the District Magistrate did not apply his mind and never satisfied himself as required by S. 3 of the Act. The second was that the District Magistrate did not apply his mind and never satisfied himself as required by S. 3 of the Act. The third submission was that the grounds of detention were vague and general, and as on those grounds the petitioner could not make a representation against the order of detention to the Government, the order of detention under S. 3 was bad. It is also argued by the learned counsel that the District Magistrate acted on hearsay evidence of the police report and did not satisfy himself as to the necessity for detaining the petitioner on legal evidence and further that the facts stated in the grounds of detention are not correct. 6. Before dealing with the contentions of the petitioner it seems necessary to reiterate the well-established propositions which must be borne in mind in considering how the matter should be approached and in considering the propriety of acceding to the application for the issue of a direction of the nature of a habeas corpus for the release of the petitioner. 7. The order under which the petitioner has been detained has been made under S. 3 (1) (a) (ii), Preventive Detention Act, 1950, which enables the Central Government or the State Government if it is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order directing that he be detained. Sub-section (2) of S. 3 provides that any District Magistrate or Sub Divisional Magistrate may, if satisfied as provided in sub-cls. (ii) and (iii) of Cl. (a) of sub-s. (1), exeroise the power conferred by the said sub-section. The order in the present case was made by the District Magistrate Gwalior, to safeguard the maintenance of public order. It is clear from the wording of S. 3 that it is the satisfaction of the detaining authority that matters, and it is a condition precedent to the exercise of the power of detention under the section. The word 'satisfied' does not import an arbitrary or irrational state of being satisfied. It means 'reasonable satisfaction.' But this condition about 'reasonable satisfaction' is not an objective condition precedent of fact capable of determination by a Court of Law like any other positive fact. The word 'satisfied' does not import an arbitrary or irrational state of being satisfied. It means 'reasonable satisfaction.' But this condition about 'reasonable satisfaction' is not an objective condition precedent of fact capable of determination by a Court of Law like any other positive fact. It is a subjective condition incapable of being determined by a party other than the one who has to take action in the matter. For there is no impersonal standard of reason, able satisfaction and it would be impossible for a third party or a Court of Law to say that the detaining authority had arrived at an erroneous conclusion about the necessity of detaining a person or that its conclusion was incorrect or unwarranted, unless the third party or the Court were also to place itself in the position of the detaining authority and were put in possession of all the information and knowledge both of facts and of policy or of public interest which the detaining authority had. As S. 3 of the Act gives plenary power to the detaining authority it is for him to arrive at the reasonable satisfaction and decide whether it is necessary to detain the person. Where, therefore, an order of detention ex facie shows that the authority, making the order of detention was satisfied, a presumption arises in favour of the detaining authority and the burden lies on the petitioner, who challenges the bona fide of the detaining authority to show, not that there was no 'reasonable satisfaction', but to show that as a matter of fact the order of detention was passed without such satisfaction as is required; and that the detaining authority did not hold the opinion which he professed to bold and that, therefore, although the forms of law have been observed, there has been a fraud on the Act or an abuse of the powers given by the Legislature. As was observed by Lord Wright in Greene v. Secretary of State for Home Affairs, 1941-3 all E. R. 388 : (58 t. l. R. 53) in connection with the construction of the prototype power of detention contained in Regn. As was observed by Lord Wright in Greene v. Secretary of State for Home Affairs, 1941-3 all E. R. 388 : (58 t. l. R. 53) in connection with the construction of the prototype power of detention contained in Regn. 18 (b), Defence General Regulations, 1939 : "The only possible inquiry of fact, once the authenticity of the order and its application to the appellant are conceded or established, is as to whether the Home Secretary had in his own mind what appeared to his mind to be reasonable cause. It is true that, in the words of Lord Bowen, the state of a man's mind is as much a fact as the state of his digestion. If the Home Secretary were to misrepresent the state of his mind, that would be fraud." 8. These propositions have been laid down in Liversidge v. Anderson, (1941) 3 all E. R. 338 : (110 L. J. K. B. 724) and Greene v. Home Secretary, (1941.3 all e. R. 388 : 58 t. l. R. 53) referred to above. These propositions have been accepted by the various High Courts in India, while dealing with the power of detention given to the executive authority under the Defence of India Rules and the various Public Safety Acts. In Greene's case : (1941-3 all E. R. 388 ; 58 t. L. R. 53) the matter was put in the Court of Appeal by Mackinnon L. J., thus : "The power of the Home Secretary to issue a valid order depends upon the fulfilment of a condition. The nature of that condition is very material. It is not the existence of the objective fact e. g., that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary i. e., that he has reasonable grounds for believing certain facts to exist, and by implication, that he honestly entertains that belief. If an order asserting the existence of that state of mind and belief has been made in valid form, the onus upon the applicant of disproving its existence is obviously much more difficult to discharge than would be the disproof of one objective fact e. g., that the man is an alien. If an order asserting the existence of that state of mind and belief has been made in valid form, the onus upon the applicant of disproving its existence is obviously much more difficult to discharge than would be the disproof of one objective fact e. g., that the man is an alien. Evidence of the applicant that he does not know that there are any reasons for the Home Secretary's belief, or denial that there are or can be, any reasons for it, is not a sufficient discharge of the onus so as to call upon the Home Secretary to explain and justify the assertion of his order." 9. Similar observations were made by the Privy Council in Emperor v. Sibnath Banerjee, a. I. R. (32) 1945 P. C. 156 : (I. L. R. (1945) Kar P. C. 371). Their Lordship of the Privy Council approved the dictum of the learned Chief Justice of the Federal Court of India in which he said : "It is quite a different thing to question the accuracy of a recital contained In a duly authenciated order, particularly where that recital purports to state as a act 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." 10. The same view was very recently expressed by the Federal Court in Machindar Shiwaji v. The King, A. I. R. (37) 1950 P. C. 129 : (51 Cr. l. J. 1480). In this case while dealing with S. 2, C. P. and Berar Public Safety Act, 1948, it was observed: "In the present case, S. 2 (1) (a), like most other similar enactments, authorises the detention of any person if the Provincial Government is 'satisfied' that he is acting or is likely to act in a manner prejudicial to public safety, order or tranquillity. The language clearly shows that the responsibility for making a detention order rests on the provincial executive. The language clearly shows that the responsibility for making a detention order rests on the provincial executive. As they alone are entrusted with the duty of maintaining public peace, and it would be a serious derogation from that responsibility if the Court were to substitute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials of which such satisfaction was grounded." 11. It may also be pointed out that the heavy burden which lies on the petitioner is not discharged by a mere denial or by asserting that he is not aware of any reasons, or that he does not know why he has been detained or that he has not done anything wrong. This proposition has also been laid down by Goddard L. J., in Greene's case (1941-3 all. e. R. 388 : 58 T. L. R. 53) in the Court of Appeal. There are also, besides several decisions of High Courts, two cases of the Federal Court directly in point. In Emperor v. Sibnath Banerjee, a. I. R. (30) 1943 P. C. 75 : (45 Cr. L. j. 341), Spens C. J., whose judgment was upheld on appeal by the Privy Council observed: "It is not sufficient merely to allege that the detention is not in good faith or bona fide or anything of that sort. Facts have got to be alleged by the detenu sufficient to persuade the Court that, although the order ex facie indicates that everything that should have been done has been properly done, it is entitled or it is proper for the Court to call upon the Crown further to justify what is expressed to have been done in the order." 12. To the same effect are the observations of the learned Chief Justice in Basanta Chandra v. Emperor, a. I. R. (32) 1945 P. C. 18 : (46 Cr. L. J. 559). Further, it is to be noted that the detaining authority can act on hearsay evidence and is not required to obtain any legal evidence to found his satisfaction. The authority for this proposition is the dictum of Viscount Maugham in Liversidge v. Anderson, (1941-3 ALL E. R. 338 : 110 L. J. E. R. 724). 13. L. J. 559). Further, it is to be noted that the detaining authority can act on hearsay evidence and is not required to obtain any legal evidence to found his satisfaction. The authority for this proposition is the dictum of Viscount Maugham in Liversidge v. Anderson, (1941-3 ALL E. R. 338 : 110 L. J. E. R. 724). 13. Coming now to the examination of the petition itself in the light to these settled principles, we find that the petitioner has altogether failed to discharge the heavy burden which lies on him to show that the order of his detention was or is mala fide. The petitioner is not entitled to urge that this Court should enquire into the sufficiency of the material which was before the District Magistrate or reasonableness of his satisfaction with regard to the detention of the petitioner. All that he can urge is that the satisfaction of the detaining authority is not a real satisfaction. Now, all that the petitioner has done in this case in discharging the onus which is upon him to show that the District Magistrate was acting mala fide and that on his part there was no satisfaction, is to file his own affidavit making a general assertion, that his detention is not in good faith, that he has been detained with an ulterior motive at the suggestion of the Government and that he has not concerned himself with the activities of the type mentioned by the District Magistrate in the grounds of detention, and that his efforts have always been directed to calm the agitated students and the members of the public. But, as already pointed out, such assertions by the detenu do not displace the onus that lies on him to show that the order of detention is mala fide and that the District Magistrate misrepresented the state of his mind and that on his part there was no satisfaction. But, as already pointed out, such assertions by the detenu do not displace the onus that lies on him to show that the order of detention is mala fide and that the District Magistrate misrepresented the state of his mind and that on his part there was no satisfaction. The state of mind of the detaining authority is primarily a fact within his own knowledge, and on this point the District Magistrate said in his affidavit that, as a matter of fact there was material before him on which he was satisfied in effect that the petitioner was concerning himself in the events which followed the firing of 9th August and was inciting by delivering speeches and by secret propaganda, the students to break law and to disturb public order and inciting the displaced persons to resort to violence against Mohammedans. The grounds furnished to the petitioner contained a statement of all the material on which the District Magistrate has formed his satisfaction. In our view, neither the assertion in the petitioner's affidavit nor anything which has been pointed out on behalf of the applicant by his learned counsel shows that the District Magistrate had not that state of mind which is necessary for making an order under S. 3 of the Act, and that the District Magistrate without applying his mind to the material before him came to the conclusion that it was necessary to detain the petitioner. 14. Turning now to the contention of the learned counsel for the petitioner that the grounds furnished to the petitioner are vague and consequently the order of detention is bad, we are inclined to think that in the present case the grounds supplied do not suffer from any vagueness. In support of his contention learned counsel referred us to several decisions of other High Courts given in connection with local Public Safety Acts and maintained that the grounds would be vague if they do not disclose all the facts and details for the purpose of enabling him to make an effective representation against the order of detention. In our opinion, very little assistance can be derived in the present case from the decisions of the High Courts bearing on the provisions in this respect contained in the local Public Safety Acts. In our opinion, very little assistance can be derived in the present case from the decisions of the High Courts bearing on the provisions in this respect contained in the local Public Safety Acts. Many of these Acts draw a distinction between grounds, particulars and facts and require the detaining authority to furnish to the detenu without disclosing facts which would be against the public interest, to disclose the grounds and such other particulars as are in the opinion of the detaining authority sufficient to enable the detenu to make a representation. There is a material difference in the section of Preventive Detention Act, 1950, and the provisions in the local Public Safety Acts about famishing the grounds. Section 7 of the Act makes it incumbent upon the detaining authority to communicate to the person detained the grounds on which the order has been made and to afford him the earliest opportunity of making a representation against the order. Subsection (2) of this section says that the detaining authority shall not be required to disclose facts which it considers to be against the public interest to disclose. It must be remembered that sub-s. (2) does not prohibit the disclosure of facts. Ail that it does, is to give the detaining authority a discretion to withhold certain facts in public interest. It is clear from the scheme of the Preventive Detention Act, 1950, that S. 7 provides a very important and valuable safeguard to the citizens. It is to be noted that the grounds are not given to justify the detention but to afford the detenu a chance to make a representation. Section 7 enjoins that the detaining authority shall afford to the detenu an earliest opportunity of making a representation. The opportunity must be early in duration of time, and at the same time it must be an opportunity by giving the detenu facilities and by apprising him of facts to enable him to make a representation. It is, therefore, not sufficient to tell the detenu merely the clause of sub-s. (1) of S. 3, under which he has been detained or the conclusions which the detaining authority has formed on facts. It is, therefore, not sufficient to tell the detenu merely the clause of sub-s. (1) of S. 3, under which he has been detained or the conclusions which the detaining authority has formed on facts. The grounds furnished must be clear, precise and must disclose facts except those which the detaining authority considers to be against the public interest to disclose; otherwise the grounds would fail to serve the purpose for which they were intended by the Parliament. The discretion given to the detaining authority under S. 7 (2) is not to be exercised capriciously, and if no facts are given or if they are given in such a way as to make it impossible for the detenu to make a representation against the order then there is a failure to comply with the mandatory provision of the section and the detenu is deprived of the valuable safeguard of "the earliest opportunity, of making a representation." If the communication under S. 7 of the Act is bad for want of precision, the order of detention under S. 3 cannot be held to be good. The reason is that an order of detention under S. 3 is in the nature of a preliminary order against which a detenu can make a representation on being furnished with the grounds of detention. The final orders after a consideration of the representation are passed under S. 11 confirming or modifying or cancelling the order under S. 3. If, therefore, the communication under S. 7 of the Act is defective, the final order passed on the representation made on such a defective communication cannot be held to be good. 15. It is, however, impossible to lay down an inflexible rule for determining whether the grounds furnished to the detenu are vague or clear and precise. The question is to be deter, mined in each case with reference to its facts and circumstances remembering that a certain amount of vagueness is bound to occur when the facts are interwoven with the grounds and the detaining authority may consider the disclosure of those facts to be against the public interest. 16. The question is to be deter, mined in each case with reference to its facts and circumstances remembering that a certain amount of vagueness is bound to occur when the facts are interwoven with the grounds and the detaining authority may consider the disclosure of those facts to be against the public interest. 16. In the present case, the grounds furnished to the petitioner informed him that taking advantage of the unfortunate incident which occurred on 9-8-1950, he was by delivering speeches and secret propagandas inciting the students to disturb public peace, and that as a result of the petitioner's incitement the students took out a procession and forcibly removed dead bodies from the hospital, and further that the petitioner incited the displaced persons to resort to violence against Mohammedans, and that the petitioner continues to indulge in such activities. Learned counsel for the petitioner said that in these grounds no details are given as to the time and place of the speeches said to have been delivered by the petitioner or as to the nature of the speeches or as to the manner in which he incited the students and the displaced persons to do the acts mentioned in the grounds. It is true that these details have not been furnished to the petitioner. But it cannot be said that the grounds do not at all give any indication of the nature of the activities of the petitioner so as to make it impossible for him to make a representation against the order. It is significant that the petitioner in his affidavit has not stated that during the period from 9-8-50 until the making of the order of detention he was not in Lashkar or that he made no speeches during this period or that he bad no contacts with the students. On the other hand it is clear from Para. 8 of the petitioner's affidavit that during this period he had contacts with the students and that he was actively interesting himself in securing the release of some other persons arrested. The petitioner, no doubt, says that his activities during this period were not prejudicial to the maintenance of public order. On the other hand it is clear from Para. 8 of the petitioner's affidavit that during this period he had contacts with the students and that he was actively interesting himself in securing the release of some other persons arrested. The petitioner, no doubt, says that his activities during this period were not prejudicial to the maintenance of public order. But all the same if we start with the presumption, as we must as already indicated, that the District Magistrate came to the conclusion that the petitioner's activities were prejudicial to the maintenance of public order, then we have no doubt that the detaining authority had satisfied itself that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, and we cannot enter into the question whether the satisfaction of the District Magistrate was reasonable or not. 17. We are accordingly satisfied that the petitioner Mr. Anand Behari Mishra is legally and properly detained and is, therefore, not entitled to be released. The application fails and is dismissed.