A K GOPALAN Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) CR. M. P. 1309 of 1948 : This is an application under Section 491, Criminal P. C. The petitioner is A. K. Gopalan. He was the President of the Kerala Provincial Congress Committee in the year 1985. Later on, he became a communist and took a prominent part in the communist Organisation. On 17th December 1947 he was arrested by the Tanarabseri police and was charged under Section 117, Penal Code, by the Stationary Sub-Magistrate, Caunanore, in p. R, C. No. 10 of 1947. It also appears that there were two other prosecutions pending against him in the Court of the Sub-Divisional Magistrate, Tellicherry, under Section 506, Penal Code. On llth February 1948 he was released on bail by the High Court subject to certain conditions. On 18th March 1948, the conditions not having been com-plied with, the application for bail was dismissed. On 23rd April 1948 he was detained by an Order of the District Magistrate, Malabar, purport-ing to be under 8. 2 (l) (a), Madras Maintenance of Public Order Act, 1947 (Madras Act I [l] of 1917) in the Vellore Central Jail, That Order was dated 22nd April 1948 On llth May 1948 on an application by the petitioner, the High Court enlarged him on bail. Though the Public Prosecutor appeared, it was not brought to the notice of the Court that the petitioner was detained under Madras Act, I till of 1947. Presumably, for the same reason the Grown might not have taken interest in opposing that application and did not even communicate that fact to the Public Prosecutor. Though the Order of detention was passed on 22nd April 1948, the District Magistrate of Malabar intimated to the Government the said fact only on 9th May 1948 and the Government despatched the grounds for detention for service on the petitioner on 27th May 1948 which were received on the next day, 28th May 1948meanwhile, the petitioner, on 14th May 1948 itself, sent an application under Section 491, Criminal P. C, to his advocates for presenting the same in Court. That petition was received by the Government and was sent down to the advocates after 26th May 1948. The Ordinance to amend the Madras Act I [l] of 1947 was issued on 26th May 1948 where-under the power of the High Court under Section 491, Criminal P, C, in regard to detenus under Section 2, Madras Act I [l] of 1947 has been curtailed. The Government have not yet passed the final Order under Section 3, Sub-section (5) of the Act. The petitioner filed the application under Section 491, Criminal P. C, for releasing him from the Vellore Central Jail and setting him at liberty on the ground that the Order under which he was detained is illegal.

(2.) THE law on the subject is very well settled; but in view of the general importance of the right which the section is intended to protect, it is as well that I state it briefly. Habeas corpus is a high prerogative right and it is a great constitutional remedy for all manner of illegal confinement. In England, it has been described as the Magna Carta of British liberty. The liberty of the subject has always been considered a question of gravest importance in England and no person can be kept in illegal custody for a single minute. In India, especially after the attainment of Independence, one cannot overstate its importance. Now that we have attained freedom, it is the sacred duty of this Court to see that no citizen of this province, whether he is rich or poor, whether he belongs to this Cr that political persuasion, is illegally detained for one minute, Of course, this is subject to the restrictions imposed on the personal liberty of the subject by the Legislature in its supreme wisdom having regard to emergent situations. But the executive should not be allowed to overstep the boundaries fixed by the Legislature and must prove that the action is strictly within the spirit and the letter of the law. No provision of the statute restricting the liberty of the citizen can be overlooked and no breach of any provision thereof can be condoned on the ground of administrative convenience Cr pressure of work. Madras Act 1 [1] of 1947 is one of such Acts which admittedly restricts the individual liberty of the citizen in the interests of Public welfare. The relevant sections of the Act read as follows:

(3.) (1) Where an Order in respect of any person ia made by the Provincial Government under subs. (1) of Section 2 or where any such Order is made by any officer or authority subordinate to them, after receipt of the report specified in Sub-section (2) of that section, the Provincial Government shall communicate to the person affected by the Order, so far as such communication can be made without disclosing the facts which they consider it would be against the Public interest to disclose, the grounds on which the Order has been made against him and such other particulars as in their opinion sufficient to enable him to make, if he wishes, fit representation against the Order; and such person may, within such time as may be specified by the Provincial Government, make a representation in writing to them against the Order and it shall be the duty of the Provincial Government to inform such person of his right of making such representation and to afford him opportunity of doing so. The other sub-section to" Section 8 empowers the constitution of Advisory Councils for scrutinising and reporting on the propriety of the detention in individual cases. It will therefore be seen that the Act itself provides safeguards against abuse of such unlimited power and also gives an opportunity to the detenu to make adequate and proper representations in time to prevent grave and unintended injustice to a particular individual.