DAYARAM Vs. THE STATE

JUDGEMENT

(1.) THIS is a petition for the issue of a writ of 'habeas Corpus' under Art. 228 of the Constitution of India. The petitioner alleged in his petition 'inter alia' that the grounds of detention are false, vague, and 'mala fide'. Para 5 of the petition specifically states that the ground No. 5 of the grounds of detention being the subject matter of a criminal prosecution, cannot be made a ground of detention. Para 6 of the petition avers -hat although the petitioner has been acquitted of the charge of harbouring offenders as is clear Tom the decision in File No. 1 of 1953 of the Court of the Special Magistrate, District Bhind & Morena, & Pile No. 155 of 1952 of the court of the Sub -Divisional Magistrate. Morena, he is still being harassed by the non -petitioners. The petitioner, therefore, prays for the issue of a writ of 'habeas corpus' directing the release of the petitioner torn illegal custody.

(2.) MR . Dey who appears for the petitioner has pressed before us three grounds. His first contention is that although the petitioner has been acquitted of the charge of harbouring offenders, he has been detained on the same ground. It is clear from a perusal of the return that the prosecution mentioned in paragraph 6 of the petition, namely, File No, 1 of 1953 of the court of the Special Magistrate, District Bhind and Morena, and File 155 of 1952 of the court of Sub -divisional Magistrate, Morena, refers to the petitioner's activities prior to the year 1953. These activities have not been considered by the detaining authority for the passing of the detention order. Consequently this contention has no force. The second contention put forward by Mr. Dey is that ground No. 5 being the subject matter of criminal prosecution, cannot be made a ground of detention. In support of this Mr. Dey referred us to 'Labaram Deka v. The State',, AIR 1951 Ass 43 (A). In that case it was held that when what is alleged against the accused in the grounds of detention is the subject of a pending prosecution, the order of detention is improper. As the matter is still to be proved by the prosecution in the pending case, the decision of the court cannot be anticipated. But this case has been distinguished in 'Krishna Kanta v. The State', AIR 1953 Ass 63 (B). It was held in this case that as the order did not rest on this ground (the ground which is sub -judice) alone, the detention could not be held to be illegal, even if there was any case pending against the person arising out of any one transaction.

(3.) THE third contention raised by the learned counsel for the petitioner is that the action of the detaining authority is 'mala fide'. In support of this contention the learned counsel has put forward two grounds. One is that with regards to the grounds Nos. 2, 3 and 4 of the grounds of detention security proceedings were taken. But for want of evidence the petitioner was discharged. Discharge of the petitioner does not lead to the irresistible conclusion that the action of the detaining authority is 'mala fide'. It is well known that unless satisfactory evidence is produced, the court will not hold the charge proved.