INURADEO MAHATO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner in this case is being detained in Dum Dum Central Jail, pursuant to an order of detention dated August 18, 1971 made by the District Magistrate, Howrah in exercise of the powers conferred on him by S. 3 (1) and (2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act). The District Magistrate duly reported to the State Government the fact of having made the order together with the grounds of detention and all other particulars having a bearing on the matter. The State Government considered this report and approved the detention order on August 26, 1971 when it also submitted to the Central Government the necessary report as required by S. 3 (4) of the Act. The petitioner could, however, be arrested only on June 16, 1972 as, according to the return "soon after the said order the detenu-petitioner was found to be absconding". The grounds on which the detention was ordered read :

(2.) Shri V. C. Parashar, learned counsel appearing as amicus curiae to assist this Court, submitted in the first instance that the gap of about 10 months between the order of detention and the arrest suggest that there was no real and genuine apprehension that the petitioner was likely to act in a manner prejudicial to the maintenance of public order. According to the submission, had the matter been grave and serious enough, the State would have taken adequate steps under Sections 87 and 88, Cr. P. C. for the purpose of securing the petitioner's early arrest. On this reasoning it was contended that the District Magistrate was in reality not satisfied 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 the case, therefore, does not fall within the purview of Section 3 of the Act. The petitioner's detention must accordingly be held to be contrary to law. We are unable to accept this contention.

(3.) Section 87, Cr. P. C. which occurs in Part C of Chapter VI of that Code merely empowers a court issuing a warrant of arrest to publish a written proclamation requiring the person concerned to appear at a specified place and time as required by that section, if the court has reason to believe that the said person has absconded or is concealing himself to evade execution of the warrant. Section 88 empowers the said court to attach the property belonging to the proclaimed person. In the case in hand no warrant was issued by any court as indeed S. 3 of the Act does not contemplate the authorities empowered to make orders of detention to function as courts. In terms, therefore, these sections may not be attracted. But even assuming it is permissible to have resort to such procedure the mere omission to do so could not, in our opinion, render the order of detention either illegal or mala fide as the suggestion connoted. The petitioner's detention cannot, therefore, be considered illegal on this ground.