GYANENDRA KUMAR JAIN Vs. CROWN

JUDGEMENT

(1.) THIS is a petition Under Section 491, Criminal P. C,, filed by Gyanendra Kumar Jain on behalf of Bhag Chand Jain who is at present in detention under the provision of Section 3, East Punjab Safety Act, 1949. Generally, the facts are not in dispute, and are as follows. Bhag chand Jain was arrested on 25th March 1949) under B. 21, Punjab Public Safety Act of 1947 at Bhiwani, A case under this section had been registered at the police station at Bhiwani on the day before the arrest, the allegations being that Bbag Ghand Jain was the organizer of Communist workers in the Textile Mills, and for the purpose of creating disorder and fomenting unwarranted strikes, Bhag Chand Jain had been disseminating objectionable literature among the mill hands on 11th March. He was produced before a Magistrate on 26th March and remanded to police custody for one week. On 2nd April a bail application was filed on his behalf but this bad not been disposed of when a further remand was obtained on 9th April. Bhag Chand Jain was taken to Hissar and another bail application was filed on his behalf in the Court of the Additional District Magistrate. With this bail application still pend. ing, on 12th April, the prosecution withdrew the case Under Section 21, Punjab Public Safety Act of 1947, which in the meantime had been superseded by the East Punjab Public Safety Act of 1949. This Act came into force on 29th March 1949, and in it Section 24 was the equivalent of Section 21 in the previous Act. An order for the discharge of Bhag Chand Jain was accordingly passed, but on the game day he was arrested under the orders of the Superintendent of Police, Pandit Janak Eaj, Under Section 3 of the Act, The copies filed on behalf of the Crown show that the Superintendent of Police had passed an order on 11th April, i. e. the day before the order of discharge, that it was necessary that Bhag Chand Jain should be arrested and detained in order to prevent him from acting in a manner prejudicial to tbe public safety and the maintenance of the public order and therefore his arrest and production under 5. 8 (1) of the Act were ordered. There is also an order of the Superintendent of Police dated the 12th April to the effect that Bhag Oband Jain bad been arrested and that he should be committed to the custody of the S. H, 0. of the City Police Station at Bhiwani until llth May 1949. Next comes an order of the Superin. tendent of Police dated the 3 ad May transferring the detenu from the custody of the S. H. 0. Bhiwani City, to the custody of the Inapeotor General of Prisons. Finally, there is an order dated 4th May 1949, of the East Punjab Government through the Home Secretary Under Section 3, Sub-section (4) and (6) of the Aot for the detention of Bhag Chand Jain for an indefinite period, the words used being "until further orders". The objections taken to the detention of Bhag Chand Jain are three-fold : (1) that the order of detention was mala fide and that his detention waa only ordered because the polioe had realised that the case Under Section 21 in which he was originally arrested could not succeed against him, and there was no material for ordering his detention under the provisions Section 3 (1); (2) that of Section 3 (6) of the Act of 1949 have not been complied with} and (3) that the provisions of Section 3 (4) of the Act bad not been complied with and in faot the East Punjab Government had not even set up the Advisory Tribunal which under this Sub-section was required to do so.

(2.) AS regards the question of mala fides, two affidavits of Pandit Janak Raj, Superintendent of Police, have been filed. The first of these is dated the 22nd July and is more or less in the standard form of such affidavits which are based generally on the words of the section itself, being to the effect that the Superintendent of Police having satisfied himself that it was necessary to prevent Bhag Chand Jain from acting in a manner prejudicial to the public safety and that it was necessary to order his arrest and detention he passed orders for his arrest and detention Under Section 3 (1) of the Act of 1949. The other affidavit dated the 14tb August, is a more detailed reply to the allegations contained in the petu tion. The facts alleged in the petition regarding the arrest and detention of Bhag Cband Jain were admitted, except that it was stated that his bail application which must have been his original application, had been rejected by the Resident Magistrate at Bhiwani on the 12th April, i. e. on the day on which Bhag Chand Jain was discharged by the Additional District Magistrate at Hissar, and so could not be aware what orders were being passed at Bhiwani, and para. 6 of the affidavit repeats the substance of the earlier affidavit. However, in a case where a-man is arrested and ordered to be detained Under Section 3 of the Act after having been originally arrested on a specific charge which has either collapsed or been withdrawn, as in the present case, there must always remain a strong suspicion that his detention has been ordered on the very facts which formed the basis of the specific charge against him, and which could not be substantiated in a Court of law, since after the date of his first arrest his conduct could not have furnished any fresh material against him. To this extent the bona fides of the order of detention become doubtful, but I would not go so far as to hold that in every such case the detention becomes illegal.

(3.) THE third of the points listed above on which the legality of the detention of Bhag Chand Jain was challenged was the non-compliance of the Provincial Government with the provisions of Sub-section (4) of Section 3 which reads : No person shall, unless the Provincial Government by special order otherwise directs, be detained in custody or a period exceeding one month. The Provincial Government shall anda soon as may be and ordinarily Dot more than two months after the date when be has been taken into custody refer the case of such person to an Adivsory Tribunal to be constituted by it,