A.K. Gopalan vs The District Magistrate and Another

Subba Rao, J.—Cr. M. P. 1309 of 1948 : This is an application u/s 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 u/s 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, u/s 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 1948- Meanwhile, the

petitioner, on 14th May 1948 itself, sent an application u/s 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 u/s 491, Criminal P, C, in regard to detenus u/s 2, Madras Act I [l] of

1947 has been curtailed. The Government have not yet passed the final Order u/s 3, Sub-section (5) of the Act. The petitioner filed the application

u/s 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.

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:

(1) The Provincial Government, II satisfied with respect to a particular person that he is acting Cr about to Act in an? manner prejudicial to the

Public safety Cr the maintenance of Public Order and with a view to preventing him, it ia necessary so to do, may make an Order:

(a) directing that he be detained....

(2) When any Order is made under Sub-section (1) by an officer or authority empowered u/s 15, that officer or authority shall forthwith report the

fact to the Provincial Government together with the grounds on which the Order has been made and such other particulars as, in the opinion of

such officer or authority, have a bearing on the necessity for or expediency of the Order....

(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.

In this case the Order u/s 3 (l) (a) of Madras Act I [1] of 1947 was passed by Sri N. 8. Arunachalam, District Magistrate, Malabar. The Order

is in the following terms:

Whereas, I, N. S. Arunaohalam, Esq, OBE, I. C. S., am satisfied that the detention of A. K. Gopalan is necessary for the maintenance of law and

Order and Publics safety.

I direct his detention u/s 2 (1) (a) cl the Madras Maintenance of Public Order Act, 1947, in the Vellore Central Jail. Given under my hand and

seal, dated 22nd April 1943.

Sd. N, S. Arunaobalam,

District Magistrate.

It is incumbent upon the District Magistrate to satisfy himself that the person to be detained is acting or is about to act in any manner pre-judicial to

Public safety or the maintenance of Public Order. The Order ex facie does not show that the District Magistrate satisfied himself that the petitioner

was acting or was about to act in a manner prejudicial to Public safety. Obviously, he could not satisfy himself on that ground as the petitioner was

in custody at the time the Order was passed. As aforesaid , he was an under-trial prisoner and his bail application was dismissed on 18th March

1948. It is impossible for the District Magistrate to predicate at that point of time whether the petitioner would be released on bail or would be

kept in remand till the criminal cases pending against him were disposed of. It was also not possible for the District Magistrate at that stage to

anticipate the result of the criminal proceedings against the petitioner. It might be that the prisoner might be acquitted or it might be that he would

be convicted in which case he would continue to be in jail till the expiry of the period for which he would be sentenced. Presumably, for the said

reasons, the District Magistrate was not in a position to satisfy himself within the meaning of the section that the petitioner was acting Cr was about

to act in any manner prejudicial to Public safety and therefore, as stated in his Order vaguely, that the Order of detention was necessary for the

maintenance of law and Order and Public safety. This Order is not in strict compliance with the provisions of Section 2 and therefore it cannot be

deemed to be an Order passed under that section.

The District Magistrate made another glaring mistake. Under sub-B. (2) of Section 2, the Magistrate shall forthwith report that fact to the

Provincial Government together with the grounds on which the Order has been made. It is admitted that it was only on 9th May 1948 that the

District Magistrate, Malabar, intimated to the Government the fact of the issue of the said Order of detention. The delay is of sixteen days. The

Word ""forthwith"" is clear and unambiguous and however it is interpreted, it would be doing violence to the language to hold that the Order

communicated after sixteen days could be said to have been communicated forthwith. The learned Public Prosecutor stated that the delay was due

to pressure of work and was not intentional. When the statute with a purpose contains a mandatory provision directing an officer that he shall

forthwith report the fact to the Government, it is not open to the officer concerned to say that he could not comply with the provisions because of

administrative convenience. Such arguments, if accepted, would be a great infringement on the liberty of a citizen and would be leaving him at the

mercy of an officer who may communicate the Order at his own leisure. The Government received the Order on 9th May 1948 and communicated

the grounds for detention on 27th May 1948 i. e., the petitioner was detained in prison for a period of five weeks without being informed why he

was detained. The non-compliance of the provisions of sub-B. (a) also must be deemed to have caused prejudice to the petitioner.

The learned Public Prosecutor relied on a decision of the Federal Court in AIR 1945 18 (Privy Council) The detenu in that case was arrested

on 27th March 1942 under an Order dated 19th March 1942 purporting to be made by the Governor of Bihar in exercise of the powers

conferred by E. 26, Defence of India Rules. Though the application was Sled on 28th April 1943, it was not disposed of till February 1944 and

meanwhile Ordinance in [3] of 1944 was promulgated on 15th January 1944. On 3rd July 1944 the Governor of Bihar passed two Orders one

cancelling the Order of detention of 19 th March 1943 and the second directing the detention of the appellant on the ground that it was necessary

so to do

with a view to preventing him from Acting in a manner prejudicial to the maintenance of Public Order and efficient prosecution of the war.

The learned Chief Justice held that when the earlier Order of detention was held detective merely on formal grounds, there was nothing to preclude

a proper Order of detention being based on the pre-existing grounds themselves and that there was no force also in the contention that no Order of

detention could be passed against a person who was already under detention. The only point that was raised and decided in that case was that the

detention though illegal under the previous Order, was legal under the subsequent Order passed by the Government and the fact that the Order

was passed when the petitioner was under detention pursuant to an illegal Order did not preclude the Government'' from passing a legal Order

detaining the petitioner. The judgment is of no help in deciding the present case as the provisions which were under consideration in that decision

are in no way analogous to the provisions of Section 2 which I have got to construe in this case. Another decision relied on by the respondent is

that of Wanchoo J. in Moolchand v. Rex 1918 A. L J. 81 : AIR 1918 ALL. 281 : (1918) Cr. L. J. 352, That case arose under U. P. Maintenance

of Public Order (Temporary) Act (IV [4] of 1947). The provisions of that Order (Act ?) are not pari pass with the provisions of Madras Act I [l]

of 1917. The only question raised and decided in that case wag whether the action was mala fide. It was argued in that case that the executive

authorities acted mala fide in detaining the petitioners under that Act when they found that there was no case against them under certain specific

provisions of the penal law. The learned Judge after considering the various circumstances, negatived the contention that there was any mala fides

on the part of the Government. That case also has no bearing on the question to be decided in this case. Hirji Shivram Vyas Vs. The

Commissioner of Police, has been cited before me. That case arose under. Bombay Public Security Measures Act. The only question decided in

that case was whether the Government acted mala fide in detaining the petitioner. On a consideration of the various circumstances, the learned

Judge came to the conclusion that the Government''s Order was bad for want of bona fides. The observations of the Chief Justice in regard to the

construction of the words ""is acting"" do not in any way support the respondent''s contention.

The learned Counsel for the petitioners raised two more contentions (l) that the Government in this particular case Acted mala fide and (2) that

the Order of the Government communicating the reasons u/s 3 (l) of the Act, was not issued by Cr under the name of His Excellency the

Governor, It is unnecessary to give any final decision on these two points as I have held that the Order in question did not comply with the

requirements of Section 2 (l) which was the necessary foundation for its validity.

In the result and for the reasons stated above, I hold that the Order of detention was bad and therefore I direct that the detenu A. E. Gopalan

be set at liberty forthwith.

Cri. M, p. No. 1911 of 1948 For the reasons mentioned in my judgment in cri. M. P. No, 1309 of 1948, I allow this application.

Mack, J.

Cri. M. P. Nos. 1309 and 1911 of 1948 I have had the advantage of perusing my learned brother''s judgment with which I am, with great

regret, constrained to disagree, as the question involved is the liberty of a subject. The petitioner A. E. Gopalan, in the applications u/s 491,

Criminal P, C, was arrested under the Ordinary law on 17th December 1947 in connection with a Public speech he made at Caliout on 5th

December 1947 containing, it is alleged, incitement to murder, He was charged u/s 802, Penal Code read with Section 117, Penal Code and is

under trial for this serious offence. He was directed to ba released on bail by the High Court in Cri. M, P. No. 193 of 1918 on 11 th February on

substantial security on conditions that except on the days when he was being actually tried he should not be in Malabar district, and that if on other

days he was found within this district he would forthwith be arrested. He was duly released but was re-arrested on 6th March for alleged breach of

this condition. He then filed Cri. M, p. No. 460 of 1948 in the High Court again asking for bail. It was dismissed by the same learned Judge who

dealt with the first bail application on representation by the Public Prosecutor that the petitioner came to Calicut in breach of his bond, was found

giving instructions to his confederates when he was arrested and that he escaped from custody and had to be again arrested at the railway station.

It was while he was on remand in the Cannanore Sub-jail that the District Magistrate, Sri N. S. Arunachalam, on 22nd April 1948 issued an Order

for his detention under B. 2 (1), Madras Maintenance of Public Order Act basing it on the ground that he was ""satisfied that the detention of A, E.

Gopalan, is necessary for the maintenance of law and Order and Public safety."" In pursuance of this Order the petitioner was removed to the

Central Jail, Vellore, as detenu No. 803. Unfortunately the District Magistrate did not despatch a copy of his detention Order to the Government

till 9th May, though Section 2 (2) requires him to do so forthwith. On 3lth May 1948 Cri. M. P. No. 1309 was filed in this Court u/s 491, Criminal

P. C, for his release supported by an affidavit from the petitioner in which he alleged that he handed over to the Superintendent of the Vellore Jail

an affidavit on 1st May 1948 and a letter containing instructions to file a petition in the High Court for his release, but that the Jail Superintendent

sent his letter to the Government of Madras. However this may be, an application for bail, Cri. M. P, No. 1014 of 1918, was filed in the High

Court on 6th May 1948 during the vacation, and his release on bail was directed on 11th May 1918 with a slight relaxation of the conditions

imposed Originally that he should not be in Malabar district except in connection with his trial and on the day prior to it and subsequent to it only, i.

e., for an aggregate period of three days in all, and that he would be liable to be remanded if he contravened this direction on any occasion. There

is nothing on record to show in Cri. M, p. No. 1014 of 1918 which we have called for and perused along with the bail applications presented to

this Court that the learned Judge was aware that a detention Order had been passed by the District Magistrate against the petitioner u/s 2 (l), on

22nd Apiil 1917. Such an Order can oi course be legitimately passed on material available to the Provincial Government Cr the District Magistrate

outside the narrow scope of the information Cr material laid before a criminal Court relevant only to a specific offence alleged to have been

committed on which it can within the exercise of a rather limited discretion direct the release of an accused person on bail. There is nothing

therefore inconsistent Cr in conflict between the bail Order of the High Court directing the release of the petitioner on bail, and the Order of

detention issued by the District Magistrate which however so long aa it is in force renders the bail Order inoperative.

The petitioner has filed a second petition, Cri. M. P. No. 1911 of 1948 from the Coimbatore jail to which he has since been removed,

accompanied by another affidavit asking for his release. I have considered both his affidavits in arriving at my decision. In his second affidavit he

complains, inter alia, that as far as letters, interviews, and legal facilities are concerned they are more limited than that of an Ordinary prisoner, and

that a detenu is not allowed to correspond with his friends.

Mr. Pillai has sought to bring the case of the petitioner within categories 3 and 4 of the Full Bench decision. It will be remembered that the

Madras Maintenance of Public Order Act, 1947 was held by the Full Bench of our Court to be intra vires, despite 8. 16 which laid down that,

No Order made in exercise of any power conferred by Cr under this Act...shall be called in question in any Court."" Section 16A, a subsequent

amendment, which sought to oust even the powers of this Court altogether under Habeas Corpus applications u/s 491, Criminal P. C. was held to

be superfluous and has, subsequent to the Full Bench decision, been repealed. The Full Bench has held following the most recent English case law

on the interpretation of a similar Public Safety and Order Act that the High Court has a residuum of power and jurisdiction to interfere and set at

liberty a person detained u/s 2, if his case can be brought within one of four categories only:

(1) When the Order is not duly authenticated, as for example, when it is passed by an officer or authority not empowered u/s 15 of the Act;

(2) When the person detained in pursuance of the Order is not the person intended to be detained, that is to say, when there is a mistake of

identity;

(3) When there is a lack of bona fides; and

(4) When it is established that the essential requirement of Section 2, namely, the satisfaction of the Provincial Government or an officer oi other

authority empowered u/s 15 with respect to the particular person that he ia acting Cr about to act in any manner prejudicial to the Public safety Cr

the maintenance of Public Order and with a view to preventing him it is necessary to direct him to be detained or otherwise dealt with u/s 2 (1) of

the Act, is not present. If it is established that neither the Provincial Government nor the officer or other authority empowered u/s 15 has exercised

its or his mind on the material placed before it or him, then an Order of detention, though purporting to be passed u/s 2(2)3 must be deemed to be

not an Order u/s 2.

It appears to be clear to me that, on the basis of this decision, by which I am bound, a mere breach of a directive provision, even a mandatory

provision, will not per se be a valid ground for setting aside a detention Order, though such a breach, if proved, will of course be perfectly relevant

as helping to show that the Order of detention lacked bona fides under the third category.

The most important contention of Mr. Pillai, which my learned brother has allowed, is that the District Magistrate''s Order of detention is not in

strict compliance with Section 2 (1), that it cannot be deemed to be an Order passed under that section and presumably that the petitioner''s case

will therefore fall under the fourth category. u/s 2 (l), the Provincial Government Cr the District Magistrate on whom the powers of detention have

been conferred u/s 15 has to be satisfied that the person in question ""is acting Cr about to act in a manner prejudicial to the Public safety or the

maintenance of Public Order"" and ""with a view to preventing him may Order his detention."" The contention is that aa the petitioner was in a

custody in a jail on the date of the detention Order, 22nd April 1948, and had been there for some weeks, the District Magistrate could not have

been in a position to satisfy himself that he was acting Cr about to act in a prejudicial manner, The argument boils down to this that u/s 2 a

detention Order cannot legally be issued against a person if he is already in jail, whether on remand on a specific offence with which he is charged

Cr while remanded to custody under S. Ifil, Criminal P. C. In Cr. M. P. Nos. 1090 and 1091 of 1948, a Bench consisting of Govinda Menon J,

and myself dismissed two similar petitions by two persons, Somasekharachari and E. Pornachandra Rao, against whom detention Orders were

passed after their arrest under the Ordinary law. In their cases charge-sheets were laid u/s 110 (e) and (f), and the Sub-Divisional Magistrate had

no option but to direct their release on bail if sureties were forthcoming. Those cases were sought to be brought by the learned advocate only

under the third category on the ground that the detention Orders were vitiated by a lack of bona fides. The position that the Orders were not in

compliance with Section 2 (l) and therefore fell into the fourth category was not pressed and argued before that Bench. It would however follow

that if I accept the present contention and agree with my learned brother, then those detentions which we held to be legal would also fall into the

fourth category .

The important portion of the fourth category in the Full Bench decision is, as it appears to me, its am plication in the second pArticle viz:

If it is established that neither the Provincial Government nor the officer Cr other authority empowered under S. IS has exercised its or bia mind on

the material placed before it Cr him. ...

I do not think a technical violation of Section 2 (l) in not reproducing its exact words in the detention Order will by itself bring this case into this

exceptional category . The substance not the form of Section 2 (1) has, I think, to be shown to be violated. It is quite clear in my opinion that the

mind of the District Magistrate primarily responsible for law and Order within his district was very greatly exercised over the activities of the

petitioner and particularly of the possibility of his being released on bail, and that he issued the detention Order as a precautionary measure to

ensure detention which as he said-in his Order he considered necessary for the maintenance of law and Order and Public safety."" This is

substantially tantamount to satisfaction that he will act in a manner prejudicial to the Public safety if released. The Wording of Section 2 (1) is

unhappy and in a sense difficult to apply literally to a person actually in jail at the time the Order of detention is passed. But there may be cases in

which although in an Ordinary jail, a person may be actually acting Cr about to act in a manner prejudicial to Public safety apprehensions of which

may fully justify his removal as a detenu to another jail there to be more closely watched. Technicality may be met by technicality by an argument

that even the attempt by the petitioner to obtain his release on bail, which he was of course entitled to strive for, may itself in special circumstances

on information at the disposal of the detaining authority be itself regarded as an act though per se lawful none-the prejudicial to Public safety, if they

are satisfied that he will misuse his liberty by inciting people to acts of violence. Section 2 does not stipulate that the act prejudicial to Public

safety"" should itself be unlawful.

A serious obstacle to my mind to the acceptance of the contention that an Order u/s 2 cannot be legally issued against a person while he is

actually in jail is that, if upheld, it will place a person who has given cause for his arrest by alleged acts in breach of existing ordinary law in a far

more favourable position in the matter of detention Orders under this Act than the person who has given no such cause for arrest, his own

misdeeds as it were protecting him from a detention Order under the Act. I do not think this is what the Legislature intended when it enacted

Section 2. I am unable to see that the issue of a detention Order against a person already in jail in some other connection is per se illegal according

to the Wording of Section 2 (l) as it stands.

Let me now examine the grounds on which the petitioner''s detention was Ordered. They are contained in a Government of Madras Public

Memo dated 25th May signed by the Chief Secretary. According to it, the petitioner became the president of the Kerala Congress Committee in

1935, resigned later and concentrated on the labour movement and began to propogate communism in several districts, He was bound over u/s

109, Criminal P. C, and was in prison for nine months. He was in 1940 sentenced to a term of imprisonment in absentia by the High Court for

failure to appear in Court in connection with another criminal charge. He was arrested on 28th February 1941 but escaped from the Vellore

Central Jail on 24th September 1941, Appearing at a Public meeting in connection with a rally day of the communist party on 11th November

1941 he was again arrested. After his release he is said to have started a campaign of villification of the authorities and incitation of the masses to

violence. An interim bond u/s 112, Civil P. C, was taken from him when he contested an election on the communist ticket for the Calicut General

Constituency. Later he was proceeded against under B. 107, Criminal P. C., and Section 506, Penal Code, though the grounds do not say

whether successfully Cr not. He is said to have visited Ceylon and collected Rs. 8000 for communist party funds. He was arrested on 28rd

January 1947 under the Public Safety Ordinance but released on 2nd October 1947. In his second affidavit in support of criminal M. P. No. 1911

of 1948 which he filed from the Central Jail, Coimbatore, he complains that though the Government first mentioned his name in the list of persons

to be released in the general amnesty of Independence Day he was not released, and after some vain representations to the Government he went

on hunger strike for 11 days and was then released conditionally on 1st October 1947. The grounds then detail his activities after his release, many

of which appear to be perfectly legitimate criticism of Government policy, of high placed Ministers of the Government of India, denunciation of

black-marketing and so on. But mingled with all this and what constitutes the real gravamen of the indictment is his alleged continuous incitation of

the masses to violence which led to his arrest on a charge of incitement to murder. In his affidavits in which there is in favour of the petitioner no

attempt to conceal incidents in his record he says also that two farther charges -under Section 606, Penal Code, are pending against him, A most

serious allegation in the grounds is that the communist party which he leads in Malabar district is now indulging in violence and subversive activities,

that most of the important members of the party have gone underground with every prospect of the petitioner doing likewise and from there were

guiding various grave crimes such as arson, looting and murder, being committed by communists. I can only consider these serious indictments at

their face value on the presumption that they are made with a sense of responsibility by those on whom there rests the heavy burden of maintaining

law and Order in these difficult times.

There is another important fact or for which a Court has to allow under this statute held to be intra vires, that the Government i3 entitled u/s 3

(l) to withhold grounds with-in their exclusive knowledge which they consider it would be against the Public interest to disclose. Apprehensions that

the petitioner was preparing to go underground and direct subversive activities on adequate grounds, apart from anything else, justify a detention

Order u/s 2, although the petitioner was in jail when the Order was passed.

In view of the petitioner''s past history and his activities set out in the grounds and in his own affidavits, it is not possible for me to hold that the

District Magistrate did not exercise his mind on the material placed before him when as a precautionary measure he issued the detention Order on

the lines he did. As I said before and for these further additional reasons I am unable to find that merely because the District Magistrate''s Order

did not reproduce the exact words of Section 3 his detention Order is liable to be set aside as being no Order at all under this section and as

coming within the fourth category of the Full Bench decision.

The second ground which weighed with my learned brother is the failure of the District Magistrate to send a copy of the detention Order dated

22nd April 1948, forthwith to the Government as required by Section 2 (2) of the Act. Ha despatched the Order on 9th May 1943, after 17 days,

the delay being explained by the learned Public Prosecutor as due to administrative strain consequent on Communist disturbances. The main

reason for this direction to District Magistrates in the statute is that a person arrested on a detention Order should be given as early an opportunity

as practicable of making his representations against the Order. As the petitioner was in jail throughout this period and was not arrest 60 Cri. L. J.

107 ed on the bads of the detention Order the delay has not prejudiced the petitioner very much There are several mandatory directions in the Act.

A breach of any of them per se cannot come within any of the four categories and make a detention Order liable to be set aside. Such breaches

can however in my view be used as relevant material to establish lack of bona fides and bring a case under the third category . The delay may

indeed reflect and be due to the great string imposed on the Collector and his district administration, and the Word ""forthwith"" can reasonably

mean nothing more than ""as soon as possible"" taking administrative exigencies into consideration.

As regards lack of bona fides alleged I am unable to find any material to show that there was any political animosity underlying the Order, on

the part of the Government in power against a prominent member of an opposing party. There ia on the other hand, cogent material and every

indication that it was passed perfectly bona fide by the District Magistrate in discharge of his onerous responsibilities of maintaining law and Order

and of protecting the freedom and liberty of the inhabitants of his district which in his considered opinion had become gravely endangered by

subversive activities which were taking a very violent turn. I entirely agree with my learned brother that a statute like this depriving a subject of his

liberty should be strictly construed. But as I read the grounds of detention a wider liberty and a wider freedom are likely to be gravely threatened if

liberty is accorded to an individual likely to abuse it by inciting people to violence by arson, loot and murder. In such a case I think there should be

a more liberal construction of the statute in favour of the wider freedom likely to be imperilled, that under which we, Judges, administer justice

without any interference what'', so ever from executive authority, under which Mr. Pillai is entitled and enabled to argue before us for hours if not

days together with leisurely and seductive ability on the liberty of the subject and under which we, Judges, are entitled to a free expression of our

opinion in a case before us even in disagreement with each other, one of the great privileges of a free democracy. I am not therefore inclined in this

case to place too strict a construction in favour of the individual, when these liberties come into conflict.

A technical point has been raised by Mr. Pillai, viz., that the Government Memorandum containing the grounds of detention should have been

signed by the Government and not by the Chief Secretary. Mr, Pillai raised the same point in Cri, m. P. Ho, 103 of 1948 before a Bench con.

sisting of Goyinda Menon J, and myself. As Mr, Pillai seeks an independent finding here, I shall merely incorporate the relevant portion of the

judgment delivered by Govinda Menon J. in that petition.

According to Section 59 (1), Constitution Act, all executive Actions of the Government of the Province shall be expressed to be taken in the name

of His Excellency the Governor and ainoe on the face of the Order of the Government it does not appear that the action was taken in the name of

His Excellency the Governor, learned Counsel strenuously contends that the Order of detention does not conform to the Act. Kven if this is a

defect, we are of opinion that it is only one of form and not of substance. In Qas Plant Manufacturing Oo. Ltd. v. Emperor 1947 M. W. N. 85 :

AIR 1947 S C. 38 : 1947 Cri. L. J. 886 the Federal Court has decided that where instead of the words ""Governor-General in Council"" a

particular Order referred to the Central Government, the contention that the Order was invalid has to be rejected. The learned Public Prosecutor

invited oar attention to sub-a. (2) of 8. 59, Constitution Act which states that Orders and other Instruments made and executed in the name of the

Governor shall be authenticated in such manner as may be specified in the rules to he made by the Governor and the validity of an Order Cr

instrument which is be authenticated shall not be called into question on the ground that it is not an Order Cr instrument made Cr executed by the

Governor. Ha also Informs us that there are rules made under this sub-section empowering the Chief Secretary to issue the Order on behalf of the

Governor. We are not inclined to accept the contention of the learned Counsel for the petitioner that the Government Order dated 8th April 1948,

was not issued by Order of His Excellency the Governor uncontemplated in Section 59(l), Constitution Act. This contention has therefore no force.

For these reasons I find that the petitioner''s case cannot be brought within either category No. 3 or category No. 4 of the Full Bench decision

and that these petitions should be dismissed.

Subba Rao, J.

As my learned brother differed from me this matter will be placed before the Chief Justice for Orders as to posting before a third Judge.

(On a difference of opinion between Subba Rao and Mack JJ. the case was posted before Satyanarayana Rao J. who delivered the following

opinion):

Satyanarayana Rao, J.

These applications have been placed before me by an Order of the Chief Justice as there was a difference of opinion between Subba Rao J.

and Mack J. when they were heard by them in the first instance. At the outset it is to be observed that the learned Judges who differed in their

opinion should have stated the point upon which they differed as the proceedings u/s 491, Criminal P. C, are governed when there is a difference

of opinion by Clause 86 of the Letters Patent and not by Section 429, Criminal P. C. The jurisdiction exercised by the High Court u/s 491,

Criminal P. C. is not an appellate jurisdiction and therefore Section 429 of the Code does not apply. The proceedings are analogous to the

proceedings u/s 195 of the Code before it-was amended in 1923. A Full Bench of our Court decided that the power conferred upon the-High

Court by Section 195 (6), Criminal P. C. before the amendment in 1923 is not a part of appellate--Cr revisional jurisdiction of this Court

conferred by chaps. 31 and 32, Criminal P. C.

It is a appeal power conferred by Section 195 (6), It follows therefore that when the Judges are equally divided, the case ia governed by Clause

36 of the Letters Patent and not by Section 429 Cr Section 439, Criminal P. C.

The learned Judges therefore ought to have formulated the point on which they differed. The learned Counsel appearing for the petitioner and; the

learned Advocate-General appearing for the respondent have, however, agreed that the, question dealt with is the judgment of Subba.. Rao J. may

be taken as the point on which the learned Judges differed. In Order to obviate the necessity of a further reference back I have accepted this

suggestion.

The facts of the case have been fully set. out in the judgments of Subba Rao J. and Mack J. It is therefore unnecessary for me to repeat the

facts in extenso in this judgment. Irt both the applications the petitioner is the same and the relief sought is also the same. The District Magistrate of

Malabar passed an Order dated; 22nd April 1948 directing the detention of the applicant u/s 2 (l) (a), Madras Maintenance of Public Order Act,

1947 (Madras Act,,. 1 [l] of 1947). The Order was served on the; petitioner on 23rd April 1948. At the time of the passing of the Order, the

petitioner was in jail? as an undertrial prisoner. He was in -jail from-17th December 1947 as an under-trial prisoner till now except for a break

between 11th February 1948 and 6th March 1948 when he was released on bail. On 6th May 1948, this Court cri M. P. No. 1014 of 1948

directed the release of the petitioner on bail and when that Order was passed this Court was not aware of the fact that there was a detention Order

already passed. by the District Magistrate under the Madras-Maintenance of Public Order Act, Section 2 (l) (a).

These petitions were filed by the detent, questioning the legality of the Order of the District Magistrate on various grounds. Subba. Rao J. was

of opinion that the Order of detention was ex facie bad and that the petitioner should be released forthwith. Mack J. was of opinion that the

petitions should be [dismissed as in the learned Judge''s opinion the Order of detention was legal.

A Full Bench of this Court recently examined the provisions of the Madras Maintenance of Public Order Act and the provisions of the

subsequent Ordinance (2 [II] of 1948)-amending the Act and promulgated by the Gov- ernment of Madras, and laid down the limits of the

jurisdiction of this Court to interfere and Bet at liberty u/s 491, Criminal P. C., a person detained u/s 2 of the Act. The residuum of power and

jurisdiction of this Court to interfere is classified under four categories by the learned Chief Justice, These have been set out also in the judgment of

Mack J. The petitioner therefore must bring the Order of the District Magistrate within one Cr more of the categories in the judgment of the Pull

Bench and his attempt is to bring it under categories (o) and (d).

The Order of the District Magistrate, Malabar, dated 32nd April 1948 is as follows;

Whereas, I, N. S. Arunachalsm Esq. O. B. E. I. C. S., am satisfied that the detention of A. K. Gopalan ie necessary for the maintenance of law

and Order and Public safety.

I direct his detention u/s 2 (1) (a) of the Madras Maintenance of Public Order Act, 1947, In the Vellore Central Jail.

Given udder my hand and seal, dated ''22ml April 1948.

Sd. N. S, Arunachalam,

District Magistrate.

In my opinion this Order is bad on its face and falls within the fourth category which reads as follows:

(d) When it is established that the essential requirement of Section 2, namely, the satisfaction of the Provincial Government or an officer or other

authority empowered u/s 15 with respect to the particular person that he is acting or about to act in any manner prejudicial to the Public safety or

the maintenance of Public Order and with a view to preventing him it is necessary to direct him to be detained or otherwise dealt with u/s 2 (1) of

the Act, is not present. If it la established that neither the Provincial Government nor the officer or other authority empowered u/s 15 has exercised

its or his mind on the material placed before it or him, this an Order of detention, though purporting to be passed u/s 2 (2) must be deemed to be

not an Order u/s 2.

As laid down by the Full Bench it is not open to this Court to consider the reasonableness of the material on which an Order of detention was

made, nor canvass the grounds of the Order when they are given, and see whether the grounds so given in the opinion of this Court justify the

Order. The very foundation of the exercise of jurisdiction u/s 2 (l) (a) of the Act is the ""satisfaction"" of the detaining authority that the person

concerned is acting Cr is about to act in a manner prejudicial to Public safety Cr the maintenance of Public Order and if there is such satisfaction

the authority concerned with the object of preventing the person from so acting could direct hi detention. This is treated by the Full Bench, as is

clear from the passage already quoted, as an essential requirement of S. S. If this requirement is lacking, the Order of detention is without

jurisdiction and the detention is illegal. The Order of the District Magis- trate does not disclose that he bad addressed himself to the only question

on which he should '' be satisfied, because his Order merely states that he was satisfied that ""the detention was necessary for the maintenance of

law and Order and Public safety."" That is not the question on whicb according to the section be should be satisfied, A man''s detention may be

necessary for various reasons either because of his past conduct or because he is a man of bad character, but the Act does not justify the detention

of the person and deprivation of his liberty under such circumstances. The only ground on which a detention can be justified u/s 2 is that the

detaining authority is satisfied that the person is acting Cr is about to act in a manner prejudicial to Public safety, etc. This narrows down the scope

of the material which can properly be considered as justifying an Order under the section. It is not a mere technicality as Mack J,, has thought, but

it is an essential requirement of the section. The authority according to the section and according to the interpretation placed upon it is not bound to

give the reasons foe his ""satisfaction"" in the Order of detention, nor is he bound to disclose the material on which his ""satisfaction"" is based. The

satisfaction"" is a subjective state of mind and can be known only by what is recited in the Order. The essence of the matter is that by reason of the

person''s present activities and by reason of the threatened acts there is justification for depriving him of his liberty as the activities are such as are

pre. judicial to Public safety and the maintenance of Public Order and that they should be curbed and the person prevented from continuing Cr

launching on such activities. As the Order does not disclose on the face of it that the District Magistrate, the detaining authority, had addressed

himself to the only question to which he should have confined his attention, the Order is illegal.

Mack J. observes in justification of the Order of the District Magistrate:

It is quite clear, in my opinion, that the mind of the learned District Magistrate primarily responsible for law and Order within his district was very

greatly exercised over the activities of the petitioner and particularly at the possibility of his being released on bail, and that he issued the detention

Order as a precautionary measure to ensure his detention which as he said in his Order he considered ''necessary for the maintenance of law and

Order and Public safety''.

With respect to the learned Judge I am of opinion that these considerations are entirely foreign and should not enter into consideration when

passing an Order u/s 2 (l) (a) of the Act. It is not the entire field of his activities that is open for consideration u/s 2 (l). The language used is ""acting

Cr about to act."" To what extent it is permissible in view of this language to take into consideration the past activities of the person concerned is a

question difficult to decide, but it does not arise for consideration in the present case. It would seem however that a limit should be drawn and that

all the past activities of the person should not be taken into consideration in making the Order. The detaining authority is not entitled, in my opinion,

to go beyond the proximate past as the reason for the Order of detention is that the present activities of the person are such aa to endanger Public

safety and should be immediately prevented. The object of the section is prevention and not punishment. The fact that a man who is already in jail

is about to be released may not by itself be a proper ground for making the Order as it would savour of lack of bona fides on the part of the

authority concerned. The complaint of the petitioner is not that the District Magistrate did not reproduce the exact words of Section 2 in his Order,

but that the District Magistrate failed to consider the only question which is relevant for making an Order of detention under the section. The

section requires that the authority concerned should exercise its reasoning powers on the material placed before it in Order to reach a satisfaction

on the question whether the activities of the person concerned are such that his liberty should be restrained in the interests of Public safety. The r

u/s 2 (l) should be the result of the exercise of the reasoning faculties of the authority and not merely of the mechanical reproduction of the words in

the section.

Subba Rao J., was of opinion that as the District Magistrate did not report the fact of detention to the Provincial Government together with the

grounds on which the Order was made till after IT days and not immediately as required by Section 2 (2), the petitioner was also prejudiced. It

may be so, but I doubt very much whether if the Original Order of detention is valid, the fact of detention along with the grounds was not

communicated to the Provincial Government immediately would by itself make the Original Order of detention, illegal. It is however unnecessary

for me to consider this aspect, as I am satisfied that the Order of detention is on the face of it illegal. I may, however, observe that the Word

forthwith"" means immediately"" and ""without delay"" and not ""as soon as possible"", as Mack J., held. The reason why the fact oi detention along

with the grounds should be communicated forthwith, it seems to me, is to ensure that the authority before making the Order had material before

him, considered the pros and cons of the question and made up his mind to pass an Order of detention. If the reasoning should precede the Order

of detention there is no necessity for delaying the recording of those reasons. It is a kind of guarantee that the authority had all the material before

him when passing the Order and not that he made the Order first and was trying to justify his Order by material and reasons discovered later. It

may be a question for consideration in cases where the fact of detention along with the grounds were not communicated immediately whether really

the detaining authority bad the material before it at the time the Order was made. If a person was in jail for a long time as in this case and thus was

prevented from indulging in activities of any kind, it may be a matter for consideration whether there could be any material to justify an action u/s 2

(l). Both the learned Judges have considered this question also and differed in their opinion. In the view I have taken it is not necessary for me to

go into these questions in the present case.

I am satisfied that the Order of detention in the present case is bad on the face of it and that as the essential requirement of Section 2, namely,

the satisfaction of the Magistrate that the petitioner is acting Cr about to act in any manner prejudicial to the Public safety Cr the maintenance of

Public Order is lacking in the present case, the Order of detention is illegal, and I agree with Subba Rao J. that the petitions should be allowed and

that the detenu, A. K. Gopalan, should be set at liberty forthwith.

Subba Rao, J.

Pursuant to the opinion expressed by Satyanarayana Rao J. we direct that the detenu A. E. Gopalan be set at liberty forthwith.