THAKUR PRASAD BANIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) These five are petitions by five individuals who are now under detention for the issue of a writ in the nature of 'habeas corpus' in respect of each of them. The orders of detention in question were issued by the District Magistrate of Saran on 17-10-1954, and the Government passed further orders under S. 3 of the Preventive Detention Act, 1950 (Act IV of 1950) on 27-10-1954, approving the detention orders passed by the District Magistrate. These orders were confirmed later by the Government, on 5-1-1955, presumably after the consideration thereof by the Advisory Board and the detention in respect of each was directed to be continued until 17-10-1955. The grounds of detention in all these cases arise out of the same set of facts and are more or less similar, if not the same. The validity of the detention in each of the cases is attacked on the same grounds and there has been only one single argument in respect of all these petitions. Hence they are dealt with by this common order.

(2.) One argument of a general nature relating to all these matters arises with reference to the facts set out in paras. 1 to 10 in cach of these petitions, the substance of which is as follows. In respect of an alleged disobedience of a prohibitory order banning processions in the town of Siwan on 9-10-1954, i.e. the Dasara day and for alleged rioting arising out of the said disobedience, there was launched on 10-10-1954 a criminal prosecution against these five petitioners and some others under Ss. 143, 145, 147 and 352 of of the Penal Code. On 11-10-1954, a proceeding under S. l67 of the Criminal P. C. was also started against them in view of the alleged disturbances of the 9th October. While these two proceedings were in the initial stages the Government passed the preventive detention orders now under challenge with reference to the same facts as against the present five petitioners and thereafter withdrew the above two criminal proceedings only as against them, while proceeding with the same in respect of the others. The contention raised is that a detention order passed under these circumstances is an interference with the normal course of justice and is 'ipso facto mala fide' and has got to be quashed on this very ground. Observations of this Court and of some of the High Courts in similar cases have been brought to my notice which suggest that where the grounds on which a detention order is based are also the subject matter of a criminal prosecution, the order of detention may amount to abuse of the statutory powers. But no case has laid down, so far, that such an order is necessarily. 'mala fide'. Courts have treated such a circumstance as calling for scrutiny as to the 'bona fides' of the detention order but have held that the question of mala fides' has got to be decided as one of fact with reference to all the circumstances of an individual case. It is unnecessary, however, in these cases to base the decision on any such view. In a proper case that question may have to be dealt with fully by this Court. But here as has been pointed out in the judgment of the High Court and in the counter - affidavit filed on behalf of the State, the grounds of detention are not wholly the same as the facts in respect of which the prosecution was launched and the proceeding under S. 107 of the Criminal P. C. was initiated. There are at least four items in the grounds of detention which are not the subject-matter of the prosecution, for instance grounds Nos. 4, 5, 11 and 17. In these circumstances the contention that the detentions are in respect of the very same matters for which the prosecutions were launched and that the detention orders are in the nature of interference with the course of justice and therefore 'mala fide' is not sustainable.

(3.) The next argument that has been urged before me is that ground No. 17 which is as follows is on the face of it unsupportable.