MAHABIR PARSHAD Vs. V K DUGGAL

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India. Mahabir Parshad, the petitioner, challenges the validity of his detention in the Central Jail, New Delhi, under the provisions of the Maintenance of Internal Security Act, 1971, hereinafter referred to as the Act. We have already allowed the petition and now record our reasons.

(2.) According to the petitioner he is a citizen of India and is a Central Government employee. At the time of his arrest on January 27. 1977 he was working "in the office of the Minister of External Affairs, New Delhi, as Additional Private Secretary to the then Minister of External Affairs." On January 26, 1977 a First Information Report bearing No. 26 was lodged in Police Station, Srinivaspuri, against the petitioner for alleged offences under Sections 3, 4, 5, 6, 9 and 10 of the Official Secrets Act read with Section 120-B. Indian Penal Code. On January 27, 1977 the petitioner's house was searched but it is said nothing incriminating was found. He was, however, arrested in connection with the aforesaid F.I.R. and was arraigned as an accused along with some other persons. On February 3, 1977 the petitioner was produced before a Metropolitan Magistrate and was remanded to judicial custody. It is alleged by him that in the meantime he was mercilessly beaten and was "constantly pestered" to make a confessional statement about his complicity in the perpetration of the alleged crime. Ultimately, the petitioner contends, he was coerced and induced to make a confessional statement which he did on February 8, 1977 before Shri Kuldip Singh, Metropolitan Magistrate, New Delhi. It is contended that this confessional statement was not even validly recorded inasmuch as the police gave a typed statement which was got signed by the petitioner. He was not asked whether he would like to make any statement nor was he administered any warning, as required by law. Thereafter the petitioner was remanded to judicial custody till February 22, 1977. Immediately after his having made the confessional statement on February 8, 1977 the petitioner was served with an order passed by the first respondent, Shri V. K. Duggal, Additional District Magistrate, New Delhi, to the effect that as the said Shri Duggal was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing that the petitioner, be detained in the Central Jail, Tihar, New Delhi. This order was made by Shri Duggal in exercise of the powers conferred on him by sub-clause (ii) of Clause (a) of subsection (1) of Section 3 of the Act. On the same day Shri Duggal also made a declaration under Section 16A of the Act to the effect that it was necessary to detain the petitioner for effectively dealing with the emergency. In consequence, no grounds of detention were required to be given to the petitioner nor was he required to be given any opportunity of making a representation against his detention. On March 5, 1977 an order was passed by Shri K. P. Balakrishna, Deputy Secretary to the Government of India in the Ministry of External Affairs regarding that as the case against the petitioner in respect of a criminal offence was under investigation and as the petitioner was detained in custody on January 27, 1977 for a period exceeding 48 hours, therefore he would be deemed to have been suspended with effect from the date of detention, i.e. 27th January, 1977; in terms of sub-rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and shall remain under suspension until further orders. It is common ground that the said case is still under investigation and no prosecution has yet been commenced in any court nor has any chargesheet been filed. The detention order dated February 8, 1977 was revoked by Shri Duggal on March 21, 1977. He also revoked the declaration that he had made under Section 16A of the Act. On the same date, however, Shri Duggal made another order in exercise of the powers conferred by sub-clause (ii) of clause (a) of sub-section (1) of Section 3 of the Act directing that the petitioner be detained with a view "to preventing him from acting in any manner prejudicial to the security of the State." This detention order was served on the petitioner on the same date in jail along with the order dated March 21, 1977 revoking the order of detention dated February 8, 1977. By this time the emergency declared by the President had been revoked and so, Section 16A of the Act had ceased to have any effect or operation. Consequently, it was incumbent on the detaming authority to furnish the grounds of detention to the petitioner, as postulated by Section 8 of the Act. The grounds for making the detention order dated March 21, 1977 though dated March 21, 1977, were actually served on the petitioner on March 28, 1977. On March 29, 1977 the period of sixty days since the petitioner was arrested in connection with the aforesaid F.I.R. 26 of 1977 was completed. On April 6, 1977 the order of detention dated March 21, 1977 was again revoked by Shri Duggal. On April 6, 1977 Shri Duggal passed yet another order of detention in exercise of the powers conferred by sub-clause (i) of clause (a) of sub-section (1) of Section 3 of the Act directing that the petitioner be detained "with a view to preventing him from acting in any manner prejudicial to the security of the State" and the grounds of detention dated April 6, 1977 along with the detention order were served on the petitioner in jail along with the revocation order adverted to earlier on April 7, 1977. In the meantime an application for grant of bail by invoking the provisions of Section 167 of the Code of Criminal Procedure, 1973 was moved on behalf of the petitioner in the court of a Metropolitan Magistrate, New Delhi. On this application Shri P. K. Dham, Metropolitan Magistrate, New. Delhi, passed the following order :-

(3.) The petitioner contended that his arrest and detention was illegal, arbitrary and a capricious exercise of power. He also submitted that his continued detention was mala fide and violative of his fundamental right guaranteed by Article 21 of the Constitution of India and denial of the statutory right of the proviso to Section 167(2) of the Code of Criminal Procedure. He, therefore, prayed that the impugned order of detention dated April 18, 1977 be quashed, a writ of habeas corpus be issued to the respondents and he be ordered to be set at liberty.