KHACHERU RAM Vs. DISTRIC MAGISTRATE

JUDGEMENT

(1.) The petitioner Khacheru R am is being detained in the Central Jail, Tehar (New Delhi) in the custody of respondent No. 2, the Superintendent of that under the orders of the District Magistrate, Delhi (respondent No. 1) purporting to have been made under rule 30 of the Defence of India Rules, 1962, on 23rd September, 1964. He has now approched this Court under Article 226 of the Constitution and section 491 of the Criminal Procedure Code seeking a writ in the nature of habeas corpus on the plea that the order of his) detention is illegal and mala fide. In support of the latter contention it is asserted that no activity of the petitioner attracts applicability of rule 30 of the Defence of India Rules, 1962, and the order of his detention was passed by the District Magistrate on extraneous consideration arising from the fact that the petitioner had the misfortune of having been previously pros cuted for several criminal offences, in most of which he was acquitted by the Courts concerned.

(2.) The order of the petitioner's detention is in the usual cyclosty- led form in which the District Magistrate has stated from the information received he is satisfied that it is necessary to detain the petitioner Khacheru Ram "with a view to preventing him from acting in any manner prejudicial to the maintenance of Public order." In this order there is no reference to the petitioner's activities on the basis of which the District Magistrate had come to the conclusion that it was necessary to detain him, but in the affidavit filed by him by way of return in these proceedings it is brought out that since the year 1946 the petitioner had been leading a life of crime and was prosecuted in Do less than 24 cases for various offences; including those under sections 308, 397, 302, 457 of the Indian Penal Code, and proceeded against under section 107 of the Criminal Procedure Code. Though in his original affidavit furnished by the District Magistrate on 6th Feburary, 1965, he had not indicated the result of the various cases in which the petitioner was prosecued, the further affidavits filed on 15th February and 18th February 1 65, make it clear that the petitioner was acquitted or discharged in 19c ses, and his conviction was recorded only in five cases. His earliest co'vi tion was on 15th July 1946 under section 308 of the Indian Penal aCode when he was sentenced to three months' rigorous imprisonment. Tnhere- after he was convicted in two cases under the Arms Act in the year 1950 and 1953, and the year 1954 he was further colivicted under section 394 of the Indian Penal Code. On 13th November, 1961, be was convicted along with some others onder sections 147, 148/149 of the Indian Penal Code, and his last conviction was recorded on 18th December, 1960, under the Madras Habitual Offenders Act. 1948, when he was sentenced to three months' rigorous imprisonment by the Sub- Divisional Magistrate, Delhi, Thereafter be was bound down on 31st January, 1963, under section 110 of the Criminal Procedure Code."

(3.) It is on the basis of this history of the petitioner's criminal prosecutions that the District Magistrate Claims to have been satisfied that it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to maintenance of Public order, and he has attempted to defend the impugned order with the following assertion in para No. 12 of his affidavit, dated 4th March, J 965 :- "The petitioner, as is clear, is dangerous and desperate character, and although he has been convicted in a number of cases, his being at large is hazardous to community, and his criminal activities are prejudicial to the maintenance of law and order." Shri Sher Narain, appearing for the petitioner, besides complaining that the impugned order of detention was made by the District Magis- trate with the ulterior object of punishing him for the offences of which (he petitioner had been previously acquitted after due trial by different Courts of law, has urged :- (1) That cases in which the petitioner was acquitted could not be considered as furnishing any basis for an order of detention under rule 30 of the Defence of India Rules as the presumption of innocence, which attaches to every individual unless he is proved to be guilty, stood reinforced by his acquittal after due trial, and (2) That none of the offices for which the petitioner was convicted in the five cases referred to above has any rational connection with the objects of rule 30 of the Defence of India Rules and his past activities having reference to those offences could thus furnish no ground for an order of his detention under the said rule. Accordingly he argues the District Magistrate having acted beyond the ambit of the provisions of the said rule, his order was mala fide in law even if he was not actuated by malice against the petitioner in making that order.