NIRANJAN SINGH versus STATE OF MADHYA PRADESH

NIRANJAN SINGH

STATE OF MADHYA PRADESH

July 18, 1972

(P. JAGANMOHAN REDDY AND K. K. MATHEW, JJ.J

Constitution of India 1950 Art. 22(5) State Govt. must consider detenu's repre!lqltation expeditiously-when there is inordinate delay which is unexplained the detention muat be held to be illegal.

Res Judicata-Petition under Art. 226 rejected-Petition under A.rt.

32 whether oarred by res judicata.

The Distric: ~lagistrate of. Gwalior by his order dated May 26, 1971 under s. 2-A of the Madhya Pradesh Public Security Act (Amendment Act) of 1970 detained the pet'1ioner with view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were served on the detenu. The petitioner made representation within the prescribed period to the State <l<>vernment on June 19, 1971. It was dismissed by the Governor of Madhya Pradesh on Augus· 17, 1971, and the Government directed that the order of detention would remain in force till 26th May 1972. The petitioner filed writ petition under Art. 226 of the Constitution challenging :he detention order. The !>'tition was rejected by the High Court. Thereupon the petitioner filed writ petition under Art. 32 of the Constitution in thls Court. preliminary objection was taken on behalf of the respondent that the writ petition under Art. 226 having been dismissed, the petition under Art. 32 was barred by res judicata. In support of the petition it was urged that the o'der of the State Government rejecting the petitioner's repre·sentation was made after undue delay and was therefore in violation of Art. 22(5). HELD: (i) In view of the earlter decisions of this Court the pie-a of res judicata must be rejected. [693C-F] Ghu/am Sarvar v. Union of India and others [1967] 2 S.C.R. 271 am\ Writ Petitions Nos. 227 and 228 of 1969 decided on September 16 1969 re!ied on. '

(ii) Th_e words "afford him th~ earliest opportunity" in Art. 22(5) nave be"n mterpreted by the Court tn Abul Kasim"s case to 'imply that the State Government to whoift the representation is made should properly oo.nsider it 'llS expeditiously as possible. In Jayanarayan Suku/'s case also thlS eourt held t~;1_t the detenu's. representation must be considered expeditiously and bcrore reference 1s made to the Advisory Board. :!694C-F] In the present case the petitio_ner had specifically given the date of hJs representatton a!'d the date on which he said it was considered and rejected On the fac'i> of II there had been inordinate delay whi'ch made it incumbeni t t~e State to e~plain it and satisfy the Court that there was justification . or t ·ht delay. Stnce th~ State had not filed any counter-affidavit explain-mg " Y the repres~ntatIQn of the detenu had not been ditiousl ~ifi,o~~d of ncy had tt. ch?'!en to set out the various steps takenxi;;; cor1 rl~ be illeg~l.ma~9~~irovmons of the Act, the detention must be he:" :.o

Abdul Karim and others v. StGte of West Bengal ~1969] 3 s CR. re 471?. red and on. Jayanarayan Sukul v. State of West Bengal ' [!970] 3 SC · · · R "22· 5" '

Arun Kumar Roy Katu v. Stale of West Bengal, (Writ Pelition No. 52/1972) distinguished.

Prof. Khaidem lbocha Singh v. The State of Manlpur, A.LR. 1972 S.C. 438 and Ran;it Singh v. S:ate of West Bengal (W.P. No. 14/1972 decided by Shela! and Khanna, J.J. on 24th April, 1972), referred to.

ORIGINAL JURISDICTION : Writ Petition No. 450 of 1971.

Petition under article 32 of the Constitution for issue of. writ in the nature of habeas corpus.

R. K. Garg, for the petitioner.

R. P. Kapur and I. N. Shroff, for the respondent.

The Judgment of the Court was dPlivered by

Jaganmohan Reddy, J. By this application under Art. 32 of. the Constitution, the petitioner challenges his detention under s. 2-A of the Madhya Pradesh Public Security Act (Amendment Act) of 1970 (hereinafter called the 'Act'). The District Magis-trate of Gwalior by his order dated May 26, 1971 under the said Act thought it necessary to detain the petitioner with view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the deten-tion was sought to be justified were dated the same day and appear to have be.:n served on the detenu, though it is not apparent on what date those jOunds were served on hJll. As he was informed by the Government that he has right to make representation within period of 30 days, tbe petitioner says that he submitted his representation to the State Governm.:nt on June 19, 1971 but here again there is nothing to show from the counter affidavit of the respondent as to when that representa-tion was received or on that date it was considered and rejected. The petitioner, however, alleges that his representation was dis-missed on August 17, 1971 by the Governor of Madhya Pra-desh relying on the recommendation of the Advisory Board. In other words, it is his contention that his representation was not considered till after the Advisory Board had given its opinion to the State Government and only then it was rejected. Whether this is so or not, we are in no position to asce~tain. It is true that the Advisory Board, as appears from the order of the Governor, was of the opinion that there exists sufficient grounds for the detention of the petitioner and consequently the Govern-ment acting on that opinion confirmed the .order of detention passed against the petitioner and directed that the order of deten-tion shall remain in force till 26th May, 1972. The detenu filed Writ Petition in the High Court of Madhya Pradesh under Art. 226 of the Constitution challenging the detention order on the ground that his previous conviction in 1964 could not form the

basis for detention and that the other grounds mentioned in lhe grounds served on him were all vague and non-existent as on the d<1te the detention order was passed, Jagmohan was no more. Ev~n the ground that in May-June, 1969, four rifles of 303 bore were given to Sobran Singh for Rs. 4,000/-wa_s also vague. This petition was, however, rejected by Division Bench of the High Court by its judgment dated September 18, 1971. The learned advocate on behalf of the State of Madhya Pra-desh, at the '1Utset, raised preliminary objection to the main-tainability of this petition because according to him the dismissal of the petition of the detenu by the High Court under Art. 226 operates as res judicata. This contention is opposed to the view taken by this Court. Ln Ghulam Sarvar v. Union of India and others(!) Constitution Bench held that the order of the High Court does not operate as res judicata. We are not here con-cerned with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri, and Shelat, JJ. and the other by Bachawat, J. for arriving at this conclusion except to state that the majority was of the view that it does not operate as res judicata as it is not judgment and also because the principle is inapplicable to fundamentally lawless order which this Court has to decide on merits. Bachawat, J. while substantially agreeing with this view thought that the order of the High Court is not judgment and the previous dismissal of such petition by the High Court is only one of the matters taken into consideration under 0.35 rr. 3 and 4 of the Supreme Court Rules before issuing rule nisi. The petitioner, however, would not have right to move this Court under Art. 32 more than once on the same facts. In Writ Peti-tions Nos. 227 and 228 of 196:) decided on September 16, 1969, similar view as that expressed by the majority was expressed, viz., that there is no bar of res judicata to petition under Art. ' 32 in case where earlier the High Court had dismissed the peti-tion un~er. Art. 226 .. In view of this legal i)osition, we reject the prelunrnary o!J!iecuon.

The learned advocate for the petitioner contends inter alia that since the State has not in its counter affidavit denied the allegation made in the petition nor has it stated when it is that the representation of the petitioner was considered and dismissed, the detention is illegal inasmuch as the right to make represen-tation as well as to have it considered and determined is valu-able right implicit in clause ( 5) of Art. 22. As the law relating to preventive detention, which has to conform to the limits im-.N posed in Art. 22, is restriction on the fundamental right of the freedom of citizen, it has :necessarily to be construed in a·

manner which will not restrict that right to any extent greater than is necessary to effectuate the object of that provision. Clause ( 5) of Art. 22 prescribe; that

"When any person is detained in pursuance at an order made under any law providing for preventive detention, the authority making the order shall, as spon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order."

The words "afford him the earliest opportunity" in this clause have been interpreted by this Court in Abdul Karim and others v. State of West Bengal(!) to imply that the State Government to whom the representation is made should properly consider it as expeditiously as possible. Nor is the constitution of an Advi-sory Boar~ under s. 8 of the Act relieves the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it, and take appropri1te action thereon including the revocation of the Order which it is em-powered to make under s. 13 of the Act. It was further empha sised that the right under Art. 22(5) to make representation has been guaranteed and is independent of the duration of. the perioc. of detention irrespective of the existence or non-existence of the Advisory Board. Even if reference has to be made to the Advisory Bo?rd under s. 9 of the Act, the appropriate Gov-ernment is under legal ob~igation to consider the representation of the detenu before such reference is made. Thisjnatter was again considered by Constitution Bench of this Court in Jayanarayan Sukul v. State of West Bengal(!) which held that broadly stated, four principles are to be followed in regard to the representation of detenu. These have been summarised in the head note thus :-

"Firstly, the appropriate authority is bound to give an opportunity to the detenu to make representation and to consider the representation as early as possible.

Secondly, the consideration of the representation .Qf the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the repre-sentation of the detP.nu by the Advisory Board.

Thirdly, there should not be any delay in the matter of con-sideration. Though no hard and fast rule can be laid down as to

(I) [1969] 3 s.c.R. 479.

(2) [1970] 3 S.C.R. 225.

the measure of time taken by the appropriate_ authority for con-sideration it has to be remem~red that the Government has to be vigiian't in the governance of the citize~s. The. fundamental right of the detenu to have his representation cons!dered ~ the appropriate Government wo~d be rendered mea~1;igless if ~e Government does not deal with the matter exped1t1ovsly but at its own sweet will and convenience.

Fourthly, the appropriate Governmen~ is to exerc!se its opinion and judgment on the representa.tion before sending. the case along with the detenu's representation to the Advisory Board. If t~e appropriate Government will release. the detenu the Go\ernment will not send the matter to the Advisory Board. If however the Government will not release the detenu the Gov-ernment will send the case along with the rletenu's representa-tion to the Advisory Board. If-th·"reafter the Advisory Board will express an opinion in favour of release of_ the detenu t~e Government wiH release the detenu. If the Advisory Board w,n express any opinion against the release of the getenu the Govern-ment may still exercise the power to release the detenu. These principles are now well established in their application to the detention of citizen under. any law made by State legislature or by the Ce~.tral Parliament.

The next question is, whether it is incumbent 1 ,:>on the State in habeas corpus petition where rule nisi has been issued to satisfy the Court that the detention of the p .. titioner w<_1s legal and in conformity not only with the mandatory provisjons of the Act, but is also in accord with the requirements implicit-in· cl. (5) of Art. 22 of the Constitution. It is contended by the learned advo-cate for the petitioner that in habeas corpus petFtion under Art. 32 when return is made by the State, it should set out the facts r~lied upon as constituting valid and sufficient grounds of deten-tJ0n of persons alleged to be legally detained. The return must set forth clearly ar:i with sufficient particularity the facts upon which ~ Sta!e relies. He further contends that 'the CJ)nsequence of an msuffic1ency of return would entitle this Court to declare !he detention as illegal. In view of this implication, duty is imposed upon the State to justify the detention where it is challenged before court empowered to ·determine the legality or otherwise of that detention. The learned advocate on behalf ?f the State, _however, by referenc<o to decis;or of this Court '!1 Arun Kumar Roy Katu v. :Jtate of West Bengal (Writ Peti-tion No. 52/1972 to which both of us were parties) contends ff that Mittf'r, J. speakin~ for the Court had observec that where a. detenu has not allegeu !hat the representation has not been con-~1d.ered o~ has been considered but 'not expedWously dealt with it is ,not mcumbent upon the Government to explain the reason~for any delay or for not disposing it of at the earliest possible time. True it is that in that case certain observations have been made to the effect that bi:fore requiring the State to explain any delay the detenu must allege that his representation was not expe-ditiously considered and disposed of. In that case, the represen-tation of the detenu was received on day before the 30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer the case to tile Advi-sory Board forthwith and subsequently consider that representa-tion. In view of the delay in making the representatiou, the Government could not be blamed in not cosidering it expedi-tiously and once the matter was before the Board, it had no papers with it to consider that representation and arrive at decision thereon. It was only subsequently that they were in position to consider. It is in this context that the observations must be understood. In several cases, the delay has been explained-see Prof. Khaidem lbocha Singh v. The State of Manipur([1 ]) and Ranjit Dam v. State of West Bengal (W.P. No. 14/1972 decided by Shelat and Khanna, JJ. on 24th April, l 972). It is contended that as the State Government does not communicate to the detenu its decision on his representation, he cannot be expected to raise any question of delay by the State Government to consider his representation, nor is there anything to show on the face of an order so made, the reason or the basis on which that representation was rejected. Merely to say that it is rejected does not indicate what is it that weightd with the State Government and what materials were taken into considera-tion in arriving at that conclusion. This objection suggests that the order rejecting the representation should be speaking order. In our view it is not necessary in this case to refer to or deal with any of these aspects because the petitioner has specifically given the date of his representation and the date on which he said it was considered and rejected, which on the face of it shows that there has been an inordinate delay which makes it incum-bent on the State to explain it and satisfy the Court that there was justification for that delay. Since the State has not filed any counter affidavit explaining why the representation of the detenu has not been expeditiously disposed of nor has it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be held to be illegal. We had after the hearing itself, directed the detenu to be set free. We accordingly all0w the petition.

Petition allowed.