A.K. Gopalan vs The District Magistrate and Another

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 Procedure Code, are governed when there is a

difference of opinion by Clause 36 of the Letters Patent and not by Section 429, Criminal Procedure Code. The jurisdiction exercised by the High

Court u/s 491, Criminal Procedure Code, 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) of the Criminal Procedure Code before the amendment in 1923 is not a part of appellate or

revisional jurisdiction of this Court conferred by Chapters 31 and 32 of the Code of Criminal Procedure.

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

36 of the Letters Patent and not by Section 429 or Section 439 of the Code of Criminal Procedure.

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 in 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 judgment of Subba Rao, J. It is therefore unnecessary for me to repeat the facts in extenso in

this judgment. In 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 the 22nd April, 1948, directing the detention of the applicant u/s 2(1)(a) of the Madras Maintenance of Public Order Act, 1947

(Madras Act I of 1947) The order was served on the petitioner on the 23rd of April, 1948. At the time of the passing of the order, the petitioner

was in jail as an under-trial prisoner He was in jail from 17th of December, 1947, as an under-trial prisoner till now except for a break between

the nth of February, 1948 and the 6th of March, 1048 when he was released on bail. On 6th May, 1948, this Court in Crl. 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(1)(a).

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

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

petition 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 ''II of 1948 amending the Act promulgated by the Government of Madras and laid down the limits of the jurisdiction of this

Court to interfere and set at liberty u/s 491 of the Criminal Procedure Code 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 or more of the categories. in the judgment of the Full

Bench and his attempt is to bring it under categories-(c) and (d)

The order of the District Magistrate, Malabar, dated 22nd April, 1948, is as follows:

Whereas I, N.S. Arunachalam, Esq., O.B.E., I.G.S., am satisfied that the detention of A. K... Gopalan is necessary for the maintenance of the 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 under my hand and seal, dated 22nd 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 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(a) must be deemed to be not

an order u/s 2.

As laid down by the Full Bench G. Narayanaswami Naidu and Others Vs. The Inspector of Police, 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(1)(a) of the Act

is the '''' satisfaction '''' of the detaining authority that the person concerned is acting or is about to act in a manner prejudicial to public safety or 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 his detention. This is treated by the Full Bench, as is clear from the passage already quoted, as an essential requirement of Section 2. If this

requirement is lacking, the order of detention is without jurisdiction and the detention is illegal. The order of the District Magistrate does not

disclose that he had 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 which according to the

section he 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 or 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 for 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 prejudicial to publicsafety and the maintenance of public order and that

they should be curbed and the person prevented from continuing or 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 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

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(i)(a) of the Act. It is not the entire field of his activities that is open for consideration u/s 2(i). The language used is acting or

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 as 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 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 order u/s

2(1) 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 seventeen 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 of 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 these reasons. It is a kind of guarantee that the authority had all the material before him

when massing 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 had 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(1). 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 or about to act in any manner prejudicial to the public safety or 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.

When the petitions came on for final orders u/s 378 of the Code of Criminal Procedure before the Bench, the judgment of the Court was

delivered by

Subba Rao, J.

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