CHANDRA SHEIKHAR PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application was made by the petitioner on 27-2-1930, under Section 491, Criminal P. C. and Article 226 of the Constitution of India. At that time the petitioner was being detained under the Bihar Ordinance II [2] of 1950, the detention order under that Ordinance having been served on him on 17-2-1950. It appears, however, that after the Preventive Detention Act, 1950 (iv [4] of 1950) came into force, an order of detention was passed against the petitioner on 27-2-1950. This order was served upon him on 28-2-1950 and the grounds of detention were communicated to him on 17-3-1950. As this application was made before the present Act IV [4] of 1950 came into force, no specific grounds" relating to this Act were mentioned in the petition. Mr. B.C. Ghose, the learned counsel for the petitioner, has, however, made submissions as if the application was made after the order of detention against the petitioner was passed under the Preventive Detention Act of 1950, and no objection having been raised by the State, the Court has heard Mr. Ghose's arguments as if objection was taken to the detention of the petitioner under the present Act. Mr. Ghose has submitted that the petitioner has been in detention since 1-8-1949, under one or other of the Bihar Acts or Ordinances.

(2.) The following points have been taken in support of the application: (1) that the order of detention is illegal, because it does not prescribe the period of detention; (2) that the grounds of detention communicated to the petitioner do not relate to public order; (3) that the date of detention must be counted from the date of detention under previous orders; (4) that the grounds of detention were not communicated to the petitioner as soon as possible; and (5) that all the grounds on which the order of detention has been made have not been communicated to him. I would like to consider the points in the order in which they have been mentioned. To understand the argument, it is necessary to mention some of the relevant; provisions of the Preventive Detention Act (Act IV [4] of 1950):

(3.) Now I take up the arguments of Mr. Ghose. 'He says that the order of detention is bad because no period of detention has been mentioned in the order. From the provisions of the sections which I have mentioned above--and there is no other section in the Act bearing on the point--it is apparent that the detaining authority is not required, under the Act, to mention the period for which the detaining authority intends the detenu to be detained. If there is no provision for mentioning the period, the detaining authority is not bound or obliged to mention the period. The learned counsel, has, however, relied upon an unreported judgment of the Allahabad High Court in M.M. Bashir v. State, Cri. Misc. No. 1127 and 4128 of 1950 : (A.I.R. (38) 1951 ALL. 357 : 52 Cr. L. J. 115) delivered by Bhargava J. in support of his contention. I have perused the judgment with care and attention and with great respect to the learned Judge, I do not subscribe to his view or to the reason he has given for holding that the order of detention must contain the period of detention. One reason which appears to have appealed to his Lordship is that, because in punitive detentions, that is to say, in punishments for some offences under the Criminal law, a period is prescribed for the imprisonment of the accused, so also, he says, in a case of preventive detention the period must be mentioned. I think, the analogy is not correct. In the first place, in the case of punitive detentions, the Court which passes a sentence of imprisonment has to determine, with reference to the gravity of the offence proved, as to for how long a period the man should be put in prison. The facts are before it and it is in a position to know exactly what the offence is and, having regard to the nature of the offence, it has to decide as to how long the accused should be imprisoned. This is not the case in regard to preventive detentions. By the very nature of it, the detaining authority has to proceed, more or less upon suspicion based upon confidential reports against the person to be detained. He is not in a position to judge at the time he passes the order as to the exact nature of the act or acts which the person to be detained was going to commit or for how long it will be necessary to detain him. This will depend upon circumstances which may be obtaining in future. He only knows at the time that upon the reports which he has received if the man is allowed to remain at large, his so remaining at large will be prejudicial to public safety or public order. It is not, therefore, possible for the detaining authority, at the time of his making the order, to exactly know the nature of the act the detenu was going to commit or the circumstances prevailing in future and, therefore, in my opinion, he is not in a position to fix any definite period for which the person has to be detained. Mr. Ghose, by way of analogy, has placed before us Section 107 and other sections occurring in chap. VIII, Part V, Criminal P. C. headed 'Prevention of Offences' and has argued that as under Section 112 so also under the Preventive Detention Act (IV [4] of 1950) the period for which the order is to remain in force has to be mentioned. The analogy does not hold good. It is sufficient to dispose of this part of the argument to say that the Court under Section 112, Criminal P. C. is required under law to mention the period and, therefore, it is a statutory obligation whereas there is no such obligation under the provisions of the Preventive Detention Act. In my view, therefore, no period of detention need be mentioned and the order of detention cannot be held to be illegal because it mentions no period of detention.