BORJAHAN GOREY versus THE STATE OF WEST BENGAL

BORJAHAN GOREY

THE STATE OF WEST BENGAL August 1, 1972.

U. M. SHELAT, I. D. DUA AND H. R. KHANNA, JI.]

Maintenance of Im :nwl Security Act 26 oj !971, s. 3--Detention tJ11der-Grounds supplied containing facts on which preventive proceed-ings under ss. 1.09 & 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 tides whether estab-lished.

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 detent!on. He made representation which wa• considered by the authorities under the Act and rejected. petition under article 32 of the Constitution was then filed and the petitioner urged : 0) 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 ·Jnjustified; (ii) that the facts mentioned in th<> grounds were not correct and the order of detention was ma/a fide.

Dismissing the petition,

HELD: (i) Merely because detenu is liable to be tried in Criminal Court for the commission of criminal P.ffences or to be proceeded against for preventing him from committing offences dealt wlth 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 serious situation affecting the securitr 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 offonce as also preventive security proceedings in criminal Court against per-p son merely for )ceeping the peace or for good bchavlour ia jurisdlctlon distinct from that of detention under the Act wblch bu in view the ob ie"t of preventing the detenu from acting in any manner prejudicial lnt•r aUa to the security of the State or maintenanc<J 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 avail•ble evidence does not come up to the standard of judicial prodf but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is reasonable likelihood of reoetition of past conduct which would be prejudicial in'rer alia to the security of the State or the mainte-nance 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 iurisdiction of suspicion founded on past incidents and depend· ing on. subjective satisfaction. The authorities mentioned i" section 3(2) which include the District Magistrate are hest suited to decide whether it i• necessary to proceed under the Act, which decision rests on their subjec-tive 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 nets is based, and those grounds are 'furnished to the detenu to inform

-him as to hov.' anct 'vhy the subjective satisfaction has hccn arrive<l at ;.;.Q as to enable him to represent against them. The fact, therefore thnt prosecution under the Code could have also been launched is not valid ground for saying that it precludes the authority from acting under tl1: Act. (2) Tlje District Magistrate is expected to know the situati.on prevail· ing 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 detention order must be given due consideration and respect by this Court. The petitioner's representation was also duly qonsidered by the State Government and rejected. The Advisory Board after hear-ing the detenu-petitioner in person also expressed opinion that there was sufficient cause for his detention. Jn these circumstances it was not posS'i-ble for this Court in habeas corpris proceedings to hold an independent inquiry into the question whether or cot the grounds on which the im-c pugned order or detention was passed Vl'·ere false or non~cxistent. N·or could the impugned order be held to be ma/a fide. There being no legal infirmity in the order of the petitioners detention, and the 'facts affirmed by the District Magistrate which must he accepted on tltc facts anJ ,circumstances of the case to be true, loein,g relevant to the object of the detention, this petition must fail.

ORIGINAL JURISDICTION : Writ Petition No. 192 of 1972. (Umfor Article 32 of the Constitution of Inr1i1 for the enforcement of fundame'l\tnl rights.)

Hiralal Jain for the petition~r.

P. K. Chakraborty and G. S. Chatterjee for the respomknt

The Judgment of the Court was delivered by

Dua, J. This is petition under Art. 32 of the Constitutior challenging the order ·of the petitioner's detention dated Sep-tember 23, 1971 made by ~he District Magislrate, Howrah, under s. 3, sub-ss. (1) and (2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act). The· petitioner Bo;jahan Gorey, ·Who claims to be laboup~r \\(Orking in 'Gogalbhai Jute Mills was arres•ted on October 5, 1971 pur-F suant to the impugned order of detention. The grounds of detention were served on him on the same day. He made representation to the State Government on October 25, 1971 which was duly considered by the said Government qn October 29, 1971. Hi§ case ·was placed before the Advisory Board on November 1, 1971 as required by s. 10 of the Act and the said Board mad~ its report on December 10, 1971. As in the opi-nion 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 peti-tioner on the same day.

The grounds ior the petitioner's detention duly cated to him under s. 8 (1) of the Act are :-

commuai-II

"(1) On 7-7-71 after 19,30 hours you and your

associates Asto Patra, Netai Patra, Habi Khara and

ll()l\JAI' ,N I', STA TE (Dua, J.)

others ti;.rrorised tlte members of the public, who thsembled in the field of Shri Saraj Ghosal near Fules-war Rly. Statil :i. to decide the actions to' be taken against tl)e anti-social activities, like snat<:hing away '"waoles from the passengers from running trains, carried on by you and your associates, ·by explodinj! bombs at distance of 8/10 cubits from the place of m~ing. _ The local people bein.g panicky started rm1-ning helter and skelter but you and your associates obstruct>~d them by brandishing swords and iron rods.2. On 6-8-7 l at <tbout l l .45 hours, you and your associates Netai Patra, Asto Patra; Ami•w, Habi Khara and 15/20 others being armed with ballam, sword and bombs etc., formed an Wllawful assembly in front o\ the shop of Pranab Sarkar of K alsafa market, P. S. Uluberia and attacked one Basudev Sarkar causinir severe injuries on his person. When re&isted by the members of the public, you and your associates attack-ed them causing iniuries to some of them and terrori-sed them by hurling bombs towards them. Being panick-stricken, rthe local people started to run aimlessly and the market was closed instantaneously. You and your .1ssociates created reign of terror and continued your rowdy activities till police party reached •there."

The first point presertted by- Shri Hiralal Jain, learned coun-sel appearing as amicus curiae against the petitioner's deteirtion is that the grounds, on the basis of which the impugn·~d dete:a· tion 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 ,,roceeded against under those s·~ctions rather than defafned under s. 3 of the Act. Our attention was not c.lra.t•i'i Liy the learned couMel to any statutory provision, nor was any precedent or principle cited by him in suport of this contention.

Now merely because delenu is liable to be trieu in criminal court for the commission .of criminal offeno~ or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedt.rc. wc.,1ld not by itself debar the .government from taki'.ig 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 PUfP<>'e of bringin~ the Act on the statute book also clearly 'hows that in view of the prevailing situation in the countryand the developments across the border in July, 1971 the need was felt for urJ!;ent and effective preventive action in the interest of national security and 1the Act was · restrospectively 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 tire more se1ious 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 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 PP~ventive security proceedings in criminal court against person merely for keeping the peace or for good behaviour under Chapter VU! of the Code of Criminal Procedure, we may appropriately point out, is jurisdiction distinct 'from 1that of detention under the Act, which has in view, the object of preventing the detcnu from actinl!: in any manner prejudicial inter alia to the security of the State or maintenance of public order. The fields of \hese two jurisdictions are not co-extensive nor are they alternative. The jurisdiction under the Act may be invoked, when the avail-able evidence does not come up [1]to the standard of judicial proof bqt is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is reasonable likeli-hood of repetition of past conduct which would be prejudici11l Inter alia to the securi'ty of the State or the maill'lenance of public order or even when the witnesses may be frightened or scared of coming to court and deposing about past acts on which the opinion of the authority concerned is based. This .iurisdic-t!on is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subj~tive satisfaction. The jurisdiction for trial or for preve111tive proceedings under Chapter VIll. Code of Criminal Procedure cannot be successfully invo-ked in such situation. In other words case under the Code of Criminal Procedure whether punltive or preventive depends on the proof of objective facts which have already taken place whereas 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 manne~ similar [1]to the one seen from his pas·t acts. The authorities mentioned in s. 3 (2) which include the District Magistrate are, in our view, best suited. to deci~e, wlP;,thcr it i~ necessary to proceed under the Act which dec1s1on rests on their subjective satisfaction. The grounds of deterrtion relate

to the past acts on which the opinion as to the likelihood of tht repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why the subjective satisfaction has been arrived at so as 'lo enable him to represent a,1zainst them. The fact, therefore, that pro· secution under the Code could also have been launched is not valid l!,f()Und for saying that it precludes the authority from acting under the Act. This contention is thus devoid of meri't. We have discussed this aspect somewha1 elaborately so as to eliminate any misunderstandin11: of the true import of our deci sion and to exclude the possibility of any impression that the Act vests in the authority arbitrary power to select one or the other course dealin.e: 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 con-tained in the two 11;rounds. According to him on the dat. · en which the incident mentioned in ground no. 1 is alleged to have occo.1rred he was present on duty in the mill and, there-D fore, he could not have participated in that occu1'4lnce. That ,;round must, iherefore, be considered to be false, con-· tended Shri Jain. In so far as the second l!.fOUnd is concerlled. according to the petitioner, at the time of the aileged 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 Insuranc,} for Go11:albhai Jute Mills where he had gone with the object of taking mediCl!I leave for couple of days because he was sick and was running temperature. In other words the petitioner l)leads alibi with respect to both the grounds. On the basis of the8e contentions, according to Shri Jain, th'3 impugned order should be held to be based on allegations which are not true p The impuRUed order of detention is accordingly contended to be insupportable being based on non-existing facts.

We arP- unable to a11:ree with this submission. Tl1e District Mal(istrate 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 H0wrah". He has further added that after receiiVing reliable information relatin1t to the alleged anti-social and pre-iudicial activities of the detenu-petitioner relating to •the mainte-nance of public order he passed the oi:d·~r of detention under the Act. In para 7 of the counter-affidavit he affirmed both the "rounds in express language. We do nO't find any cogent ground If for not accepting the facts affirmed in the counter-affidavit. The District Maltistrate is expected to know the sHuation prevailinJ! in the district and to take suitable action for the maintenance of public order. His assessment of fac1s and his opinion on the

propriety of making detention order must be given due consi-deration and respect by this Com't. The petitioner's represen-tation was alsp duly considered by the State Government and rejected. The Adviliory Board, afte:r hearing the detenu-peti-tioner in person also expressed the opinion that there was suffi-dent 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 malt.; fide as sugges1ed by Shri Jain. There being no legal infirm-ity in the order of the petitioner's detention and, the facts affirmed by. the Distriot Magistrate, which r.!ust be accepted on the facts and circumstances of this case tcr be true, being relevant to the object of detention. ithis petition must fail and is dis-missed.

Petition dismissed