A.K.GOPALAN Vs. STATE

JUDGEMENT

(1.) ON the 22nd February 1951, this Court directed that the petitioner should be set at liberty forthwith and at that time the petitioner was present in court. We reserved judgment in Crl. M. P. No. 153 of 1951 in which that order was made on 19th February 1951. According to a note made by the Bench Clerk, the delivery of our judgment was completed on the 22nd February 1951 at 11 -40 a.m. The petitioner then asked us whether he was free to go as the police officers were present in court. We then told him that he was at liberty to go wherever he pleased as he became a free citizen. The petitioner has filed an affidavit in support of this petition, which is also supported to some extent by the affidavit filed by Mr. V.G. Row, an advocate of this court, who was advising the petitioner in several proceedings before this court and was present in court when Crl. M. P. No. 153 of 1951 was argued and when we pronounced judgment on the 22nd February 1951. The events that transpired subsequently have been narrated in these two affidavits and the facts are not seriously controverter by the respondents. Immediately after our order was pronounced, the petitioner, along with his advocate, Mr. Row, went out of the court hall with the intention of proceeding to the office of the advocate in the Andhra Insurance Buildings in Thambu Chetti Street, Madras. After they proceeded about ten yards from the gate of the High Court two C. I. D. officers who followed them from the High Court told the petitioner that he was under arrest as there was an order of detention against him. This happened within five minutes after our judgment was pronounced. At the time of the arrest, the petitioner was not shown the order of detention but was taken in a car to the office of the Commissioner of Police, Egmore, Madras. In the car the order was shown to the petitioner. He was taken to the office of the Commissioner of Police and the order of detention was served on him at the office of the Commissioner at about 12 -30 p.m. He was thereafter taken to the Penitentiary where on the same day he swore to an affidavit before an Honorary Presidency Magistrate, Madras, setting out these facts and contending that his arrest and detention were clearly intended to flout the order of this court and that it was illegal. He filed this petition on 22 -2 -1951 under Article 226 of the Constitution of India and Section 491 Crl. P. C. to order his production before this Honourable Court and to set him at liberty by issuing a writ of habeas corpus. He was taken to the Cuddalore Jail on the morning of 23 -2 -1951, in a Police Van.

(2.) THE petition and affidavit were placed before us on the 23rd for orders by the direction of the Honourable the Chief Justice, The matter was posted to 26th February 1951 as the petitioner wanted permission to argue the petition for the purpose of issuing a rule nisi and it was taken up for consideration on that day. We admitted the petition after hearing arguments and issued a rule nisi. As the learned Advocate General was present in court at that time, in consultation with him, the petition was posted for final disposal on 5th March 1951.

(3.) AFTER we reserved judgment in this case, in view of certain events which happened in court, it became necessary to direct the Deputy Secretary to give particulars in an affidavit on two questions: '1. Who the legal advisers were that were consulted and were referred to in paragraph (2) of the counter affidavit; 2. the reason why the fact that an order of detention which was made before we pronounced the judgment was not communicated to the legal adviser, i.e., the learned Advocate General who was present in court when we pronounced our judgment.' These particulars have been given by the Deputy Secretary and he states in the affidavit now filed as follows: '1. In connection with the reference to 'Consultation with the Legal Advisers of the Government' in paragraph 2 of my original affidavit, the legal Advisers referred to, and, who were consulted, were the learned Advocate General, the learned Public Prosecutor, and the Secretary to the Government of Madras in the Legal Department.' 2. On 22nd February 1951, the order of detention was passed at 10 -30 a.m. and it did not at all occur to Government then that it was necessary to communicate the fact of making the order to the learned Advocate General or the Public Prosecutor.'