HARIKISAN versus THE STATE OF MAHARASHTRA & OTHERS

.Jp~tH1'.J 3J.

918 SUPREME qbURT· REP$.'.F~ f~9621 SUPJ .

. jl.~~p~I.S:A.N -~· : .. , .. ,. ~· v .;· ~1· . -~ •.

.THE'STATE Q.F M~HA°R:AsiI'l'RA & 0T~E.RS­(~.P. SINHA;-O<J., .. K. SUlljlA ~A~; ~: Rl\JAG0P~4 ... AY}'Af'l(M·R;J,-R,~~u.r;>:SQ.lKA~ and 'ii'. ·I,,. · V.El'\.KATARA}b\ A'.IY AR,]].) .1 .. .. ' ·_~ ·~~-:~ ·~: ... ~- . '!: '"~-1 ~~· ·-·~ ~-'-'".. '• _ ,,'

Pfeveiltive. ·Difeniion~Ord,~r ·aluf'grounds >;n )!J.nglisli-D~tenue not.knowing. Englisli:..:..pppbitunity ti ',tnake .. rep';-e8enta.-. tion; wh~ther .denie<J-Oon~ti(!'tio1i. of IiJf!ia', Ar~. )2(~)-~ ·

The-<jeteime:,Yas servM . }Vith th~· o~d~r of· detention and the grounds .in English. He did 1lOt know English ·and asked for translation of these .in Hindi. This., r~quesf was refused on the ·grounds that the order and the grounds h"ad been ora1ly translat~d t? him at th:.e time they \vere' seryed upon him and that English still being the official !ang-uage communication o'f. the order and groun<:Js in_ English was in accordance with the law.and the Constitt1tion.

Held, th~t the provisio:ns of Art. 22(5) of the Constitu-tion were not. cpmplied wjth a9cj the c\~te11ti,o.n··was il)egal. Article 22(5) rcqujred,Wat the· gwµf\d~ .sl)ould, bC: ·.coi;rimuni-c~ted to the detenmf iis. soon as ma)'.J:ie'ahd· that: hi! shou11fbe afforded the earlies< oppoi't!lnffy of ·.·waJdng. ;a,\ r.~presentation agairi.st the ·order. Gomrriu'hic:atio'n. . .Ut: thiS cOhtcxt ·meant bringin'{hom~ tq ihe'·i:IO'tenµ6·"e@tt1vii'kllowleage ci~·, · xhe: fl\cts l\Hd 'groµnds on'whicln!le·ohlcr:wai•baseti. 'foa.perso;1 who:. , was-ln<;it. conversan\'~with 'tl\c,.;:Englljli.;.fan_gijagl', !n.:,or<J~r .to· '·,satisfy. the requirj:')ncnt:.of•the ;Gon~tituuon, the detenue. niust. -l:ic gi'ven. th!' ·gr()unds in:a:';J,anguage.wh!cli ho·. ca~n,. ur(dp{)i\and and irl script whfoh,'he caaj~.adiif..J:)e iS'"1·<Jiieya,t2· .petfo11. J\1ere ?ral transfa':ti~.n'at'ih~'time'iir sei":'tce was:llo~'Ontiugh: .

~ .} - • ,.., • " ·'' • . : II. 11 -· .. • .No. ' -189.of C.R1Mil!IAL • ·Hl61'.' ~ ~ :. APPE!XATE, JtmtsnrnTro}< ; : .. ... ¥ ' , ' ' ·:.,. ~ ,,, -., ' ,. ~' .Dr. ·, :A. .. " ' •, . ' •, . ' .. ·~· ~ " . '· .. Ap~eal by-· spe~a:l:l!l,ai~.J~oiri,.the,' -ju_dgment ._aiid or~r .datetl jf.uJ31.-JO:'·itnd·ll,19~),:Qf the ·B.omb~y .High (fourt: rN<Lgpur iJ:leilc)l.);. ·.in· 'Ci-i'mirial ·Appliqa.tion No. '1~ .. of [0]1.1)'\lL, • ~

.. A. S. Bo1jM; ,if::'·A: .. "Masoitkar;~.iJf .. L. Vaidya,

.. .. M. M .. Ki,nkheae Aiid. Q~ripat ;Rai,.forJµ,e ·\tppellitnt.

. M. 0, Setalvid-( ·.Atf!?rwy,General: for India, B. flen 'and R.l!, Dlielxirj,f.Q,r the Pespo~d!mts. ., .

19!32. Ja:nuary 3-i .. 'The 'Judgment qf th!l was deli:iere<:I' deli:iere<:I' B.t · . '.- · _, ·. ·

09urt was deli:iere<:I' deli:iere<:I' B.t · .

. SINlIA, C.J.-This appeal is. direot.ed against the Judgment a.nd order dated July 11, 1961 of Division Bench of the Bom b!ly High Court (Nagpur Bench), dismissing the appellant's appli-cation, under Art. 226 of the Constitution, read with s. 491 of the Code of Criminal Procedure, wherein he had pray&d for writ of Habeas Corpus against the State of Maharashtra and. the District Magistrate of Nagpur, directing them to produce the petitioner in Court and to set him at liberty. This application was heard by us on January 8 and 9, 1962, and after hearing Shri A. S. Bobde for the appellant and the learned Attorney-General for the State of Maharashtra, we directed that the appellant be released forthwith, and that the reasons for our judgment will follow later. We now proceed to set out our reasons for the order passed on that day.

It. appears that an Order of Detention, under

s. 3(1) (a)(ii) of the Preventive Detention Act (IV of 1950) (hereinafter referred to as the Act) was made by the District Megistrate (.)f Nagpur on April IO, 1961. · The Order of. Detention is in these ttrms : · ·

"No.CC/X-(2) of 196:1

Office of the .

District Magistrate, Nagpur, · Dt. 10th April, 1961.

ORDER OF DETENTION UNDER SEC . . 3(1)(a) (ii) OF THE PREVENTIVJJJ. DETENTION AOT, 1950. . . .• . .

Whereas I am satisfied that it is neces-

sary to · prev:ent Shri .. Harikisan . Kishorilal Agarwal of Nagpur from acting in: manner prejudicial to the maintenance of public order and that therefore, it is necessary to detain him.

Now, therefore; in exercise of the powers

conferred <in me by Section 3(l)(a}(ii) of the

IIJIJ2

Hllfikisan v. Tfte814t<of M ahuosAtra Sinha C.J.

11161 ---B.rliJa ~· 1/1 S1at10/ II d.,aslar.J Sinlto C.J.

Preventive Detention Act, 1950, I Dinkarrao Hanjantrao Deshmukh, I.A.S .. District Magis-trate, Nagpur hereby direct that ihe said Shri Harikisa.n Kishorilal Agarwal be so detained.

Given this 1( th day of April 1961 under mJ signature and seal.

Seal of the

Sd/D.H. Deshmukh

D.M. Nagpur

District Magistrate. Nagpur"

He also directed that the appellant should be detained in the District Prison, Tbana, and that for the purpose of the Bombay Condition of Deten-tion Order, 1951, be treated as Class II Prison.,r. The grounds of detention were served on the same day. The substance of the grounds is that since his release from previous detention in October, 1960, he had been instigating persons at Nagpur to defy and disobey reasonable directions and law-ful orders isaued by competent authorities, from time to time, prohibiting and regulating proces-sions and assemblies at Nagpur ; that by use of highly provocative words, expreBBions and slogans in meetings and proceBSions in Nagpur, in which he took prominent part, he had instigated persons on several occasions at Nagpur to indulge in acts of TI.olence and mischief and to create disturbance in the city of Nagpur; and that he had been acting since October 1960, in manner prejudicial to the maintenance of public order, in that city. And then follow 'notable particular' of his activities, running into five closely typed pages and contained in many paragraphs. In his petition to the High Court, the petitioner raised number of grounds of attack against the legality of the order of his detention, and most of those grounds have been reiterated in this Court. We do not think it neoeseary to go into all the points raised, on behalf of the appellant, by the learned counsel. In our opinion, it is enough to say that we are satiafied

2 S.C.R.

that, in the circumstances of this case, the provi-

Rions of Art. 22( 5) of the Constitution have not been fully complied with, and that, therefore, the appel-lant had not the full opportunity provided or contemplated by t.hat Article of making his repre-sentation against the Order of Detentidn.

In this connection, it is necessary to state the following facts. The appellant wrote letter to the District Magistrate of Nagpur on April 19, 1961, to the effect that he had been served with an urder of Detention d1>ted April IO, 1961, and that the Order and the grounds of detention being in English, he was unable to understand them, and therefore, asked for Hindi version of the same so that he may be able to follow and understand the charges levelled against him and take necessary steps for his release from jail. He raised some other questions also in that letter, but it is not necessary to refer to them here. To that letter the District Magistrate replied by his letter dated April 23, 19ol, the second paragraph of which, in the following terms, sets out his views of the matter:"The order of detention and the grounds of detention already communicated to you are given in English which is the official language in this district. It is not possible to supply any translation of the same for is (sio) it legally necessary under the Preventive Detention Act, 1950. The order and the grounds of detflntion served on you were fully explained to you by the .Police Officer in the presence of the D.8.P. Nagpur City."

The High Court, dealing with this contention on behalf of the detenue, ca.me to the conclusion that under the Constitution English still continued to be the officia.l la.nguage of the State of Mahara-shtra., and that service of the Order in English upon the detenue was sufficient compliance with

lHI

H.WU.. •• Tiw81ot.of MaltM.uhlr• Sinlla C.J.

1161 Harilrisci v, n.s11z1 .. 1 Mttlior911ttr• SW.• C.J.

922 SUPREME OOURT REPORTS [1962] SUPP.

theTequircmeute of cl. ( 5) of Art. 22 or' the Constitu-tion. It also held that the failure oft.he District Ma-gistrate to supply the grounds in Hindi did not have the effect of preventing him from making his repre-sentation to the authorities. Furthermore, the High Court pointed out that the District Magistrate had stated in his letter that the grounds were explained to the appellant in Hindi by the Police Officer at t.he ti:ne the Order and the grounds were served upon him. In the view of the High Court, there-fore, the explanation or translation of the grounds by the PolicP Officer at the time he served those on the appellant should be .. emed to be enough to enable him to make an effoctive representation against hiR detention.

Mr. Bobde, for the appellant, has vehemently

argued that the requirements of the Constitution had not been complied with inasmuch as cl. (5) of Art. 22 of the Constitution required that the grounds on which the Order of Detention had been based had to be communicated .o the detained person. His argument further was that "communi-cation" of the grounds was not equivalent to serving the grounds in English upon person who was not convel'l!ant with the English language, and that oral tra.mlation by the police officer, said to have been made to the detenue, was not sufficient compliance \Vith the requirements of the constitu-tional provisions, which must be fully satisfied in order that the detenue may be in position to make an effective representation against the Order of Detention. He also contended that we do not know in what terms the police officer translated the lengthy document or whether his translation was correct.

On behalf of the ~late !Jf Maharashtra, the

lea.med Attorney-General first attempted to show that the appellant knew En11lish. In this connec-tion he hati referred to the aliidavit of the District Magistmtc, the exact words of which arc as follows:

2 S.C.R.

"He (the detenue) had also asked me to supply the grounds in Hindi to enable him to understand the same. l admit that I had replied to this letter and had declined to eom- · munieate the grounds in Hindi. I deny that this hJtS been done with view to keep the petitioner in.dark as to the grounds of his detention. The petitioner as per my informa-. tion, is ail educated ma~ and ean understand English. The question th&t the petitioner did not underStand the grounds, therefore. does not a.rise. ·I deny that the petitioner is entitled to receive · the grounds in Hindi. The grounds were supplied to the petitioner in the court language and also they were explained to him by the Police Inspector Shri W.B. Bobde who had served them on the pe t 't' i 1oner ........ . "

That statement of the District Magistrate is apparen-tly based on the following statement, in the affidavit of Shri W.B. Bobde, the Police Inspector :

"The Order of Detention as well as the grounds of detention were translated by me orally in Hindi and explained to Shri Hari-kisan Kishorilal Agrawal, in the presence of the District Superintendent of Police, Xagpur City."

It has not been found by the High Court that the appellant knew enough English to understand the grounds of his detention. The High Court has only stated that "he has studied upto 7th Hindi Standard, which is equivalent to 3rd English Stan-dard". The High Court negatived the contention raised on behalf of the appellant not on the ground that the appellant knew enough English, to under-stand the case against him, but on the ground, a,s already indicated, that the service upon him of the Order and grounds · of detention in English was · enough communication to him fo enable him to

116f Hariltisan v. Tl., s1a1 .. M"'"""'""" SiMo c.J.

Horikis1111 v, Tltt 111•1,.f M .Ila as/ti'° SU1~0 C.J.

924 SUPREiIE COURT REPORTS [1962) SUPP.

make his representation. We must, therefore, pro-ceed on the l\8811mption th11.t the appellant did not know enough English to understand the l(rounds, contained in many para.graphs, as indicated above, in order to be able effectively to make his rt"presen-tation against the Order of Detention. The learned Attorney-General has tried to answer this conten-tion in several ways. He has first contf'nded that when the Constitution speaks of communicating the grounds of detention to the dotenu!'I, it means communication in tho official language, which con-tinues to be English ; 'llccondly the communication nood not be in writing and the translation and explanation in Hindi offered by the Inspector of Police, while serving the Order of Detention and the grounds, would. be enough compliance with the retjuirementa, of the law and thll Constitution ; and thirdly, that it was not necessary in t.he circum-stances of the case to supply the grounds in Hindi, in our opinion, this was not sufficient compliance in this case with the requirements of the Constitution, as laid down in cl. ( 5) of Art. 22. To person, who is not conversant with tho English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law. As has been explained by this Court in the case of The Sf/JU of Bomhay v. Atma Ram Sridhar Vidya, ([1]) cl. (5) of Art. 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of mak-ing representation against the Order should also bo afforded to him. In order tha.t the detenuu should have that opportunity, it is not sufficient thai he u been physically delivered the means of knowledge with which to make his representation. In order tha.t tho detenue should be in position effectively to make his represcnta.tion against tho Order, ho should have knowledge of thti grounds of (II (19SIJ s.c.R. 157.

2 S.C.R. SUPREME COURT REPORTS

detention, which are in t.he nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communi-cation, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the ground& on which the Order of Detention is based. In this case the grounds are several, and are based on numerous speeches said to have been made by the appt>llant himself on different occa-sions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communication, in this context, must mean bringing home to the detenue effective know-ledge of the facts and cir<'nmstances on which the Order of Detention is based.We do not agree with the High Court in its conclusion that in every case communication of the grounds of detention in English, so long as it continues to be the official language of the State, is enough complia:nce with the requirements of the Constitution. If the detained person is conversant with the English language, he will ne.turally he in position to understand the gravamen of the charge against him and the- facts and circumstances on which the order of detention is baw~d. But to person who is not so conversant with the Enp;lish language, in order to satisfy the requirements of the Constitution, the detenue must be given the grounds in language which he can understand, and in script which he can read, if he is literate person.

The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limit&tions upon the freedom of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certain safeguards in favour of the detained

1962 Harikisan v. The State of ,\.laharashtra Sinha C.J.

a.au .. v. TIN St.u •f 14 Uar11s•tra

.SW.. J.

JHI FbU4? I.

person, as laid down in els. (4) & (5) of Art. 22. One of those safegui.rds is that the detained peraon has the right to be communicated the grounds on which the ordor of detention has been made against him, in order that he may be able to make his representation against the order of dentention. In our opinion, in the circumstances of this oaee, it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, making an effective representation against his detention. On this ground alone we declare his detention illegal, and ~et aside the Order of the High Court and the Order of Detention pa88ed against him.

Appeal allo!jled.

THE HO:N'ORA:i;tY SECRETARY, SOUTH INDIA MILLOWl\"ERS' ASSOCIATION AND OTHERS

THE SECRETARY, COfMBATOH.E DISTRlill TEXTILE WO~KERS' UNION

[And connected avpeals)

(P. B. GA.JENDRAGADKAR, and K. N. WANCHOO, JJ.)

I ndll8trial Di8puie-Boniu-Rehabilitation-Life of t.z-tile mnchinery-C/aim in. ruptel of old machi~ Det1elopmntt rebate-D•dwction-U ae of dtprtciatwn amount-lnt.rut-Tu•o Reparate conce,.,.._When eonali· It& one unit-Indian lnoome-kJ:c Act, 1922 (11of1922), •· IO

(2)(vi), Erp/anation (2), prolliao (b).

In respect of the di.pules which arose between certain textile mills a.ild their respective employees in regard to the bonus for the year 1956, the matter was reftrred to the Indus-trial Tribunal which made its award on September 5, ·19~8. The Tribunal held, (1) that the period allowed for rehabilita-ting textile machlne1y should be 25 years and n'>t 15 as con-tended by the appellants, and that eome addition should be made to the estimated life of the machinery by reference to