KISHORI MOHAN PAL Vs. D M BIRBHUM

JUDGEMENT

(1.) THE subject- matter of challenge in this Rule by the detenu Kishori Mohan Pal is his detention pursuant to an order No. 589 dated 13th February, 1974 passed by Sri a, K. Majumdar District Magistrate, birbhum, in exercise of his powers conferred by sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act, 1971 the object of detention was to prevent the detenu from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The ground of detention which. was communicated to the detenu by an. order No. 591c dated 13. 2. 74 reads as: follows : -

(2.) MR. P. C. Ghose, learned Advocate appearing on behalf of the detenu petitioner, has submitted that on the same facts alleged against the detenu in the ground of detention a specific criminal case was started against him in the Court of the Sub-divisionni Judicial magistrate, Suri, being G. R. Case no. 100 of 1974 under sections 1 (1) (a) (ii) of the Essential Commodities act, 1955 and under section 8 of the West Bengal Maintenance of Public order Act, 1970 and the said criminal case is still pending. Mr. Ghose submits that in view of the fact that the impugned order of detention was passed during the pendency of the criminal case the detenu has been prevented from making an effective representation, because in order to make a representation he would have to disclose the defence which he would have taken in the criminal case. In support: of his argument Mr. Ghose has drawn our attention to a decision of the Supreme court being Writ Petition No. 23 of 1974 and criminal Appeal Mo. 281 of 1973 (Biram Chand v. State of Uttar pradesh and Ors. the judgment of which was delivered on March 28, 1974.

(3.) TILL the decision of the Supreme court in the case of Birain Chand so the State of Uttar Pradesh and Ors. the position of law as to the existence of parallel proceedings was the passing of an order of detention on a person during the pendency of a criminal proceeding on the same allegations would not per se make the order of detention incompetent nor could it be inferred that the order of detention was without any basis or was passed for mala Me reasons. The Supreme court for the first time in the said case considered the question as to the effect of the detenu's right of making an effective representation when a criminal case was pending against him on the same facts as alleged against him in the ground of detention served upon him. The Supreme Court has also in the said case observed that there was, no direct authority of the Court on that point.