Badri Prasad and Others vs The King

Imam, J.—The District Magistrate of Monghyr has forwarded eleven applications by eleven persons described as Habeaus Corpus applications to this Court for consideration. A rule was issued by this Court on the District Magistrate on 23rd March 1948. In the letter which the District Magistrate wrote to the Registrar of this Court forwarding the eleven applications, he indicated that out of the eleven applicants, applicant No. 3, Chandar Sahu, son of Dashu Sahu of Asarganj, police station Tarapur, and applicant No. 4, Fekan Sahu, son of Dasu Sahu of Asarganj, police station Tarapur, had been released after the expiry of fourteen days under his order. Further, the letter shows that applicant No. 11, Krishnadeo Murarka, son of Ranglal Murarka of Lalbagh, police station Sheikhpura, had been released under the orders of the Government revoking their order of detention. The rule issued by this Court has now been heard, and the letter, showing cause, of the District Magistrate to this Court through the Registrar shows that out of eleven persons, nine have been released in various circumstances. Two of the applicants, namely No. 6, Rarn Ratan Gupta, son of Ramjiwan Lal of Sadar Bazar, Jamalpur, and No. 9, Bajolal Sharma, son of Kokai Sharma of Walipur, police station Jamalpur, continue to be detained under the orders of the Provincial Government. It follows, therefore, that we are largely concerned with considering the cases of these two persons, who are still in detention, and not the cases of the other applicants since they have been released.

It is necessary, however, to mention the case of Chander Sahu, son of Dasu Sahu of Asarganj, police station Tarapur. There can be no doubt that he was released by the District Magistrate on the expiry of 14 days of the order passed by him u/s 2(2), Bihar Maintenance of Public Order Act 1947 (Bihar Act 5 [v] of 1947), hereinafter referred to as the Act. The papers placed before us by the Government Advocate, however, show that against this individual the Provincial Government has passed an order, order No. 91170 dated 17th March 1948, for his detention u/s 2(1)(a) of the Act. In this connection, the Government Advocate has also placed before us a letter received from the Secretary to Government in which it is stated that Chander Sahu was automatically released on the expiry of the District Magistrate''s detention order. Subsequently, Government ordered his detention on 7th March 1948 and the Government have no information yet whether Chander Sahu has been arrested. It seems to me that the application of Chander Sahu was not with reference to this detention order as his application is dated 19th February 1948.

It remains to consider the cases of Ramratan Gupta and Bajo Lal Sharma. The former was arrested on 5th February 1948, under the provisions of Section 151, Criminal P.C. He was detained in the Monghyr jail by the orders of the District Magistrate passed u/s 2(2) of the Act, which order was served upon him on 18th February 1948. The Provincial Government by order No. 1772C dated 17th February 1948, passed u/s 2(1)(a) of the Act, directed his further detention. This order was served upon Ramratan Gupta on 16th March 1948, and the grounds on which the Government detained this petitioner were disclosed under order No. 8748C dated 11th March 1948, which was served upon the detenu on 13th March 1948. The question is whether his present detention is illegal. The decision of the Full Bench of this Court in Murat Patwa Vs. Province of Bihar, is the guiding authority for this Court in such matters. Mr. Rajkishore Prasad has argued that the grounds which were disclosed by Government order No. 87480 dated llth March 1948, were served upon the petitioner on 13th March 1948, considerably more than a month after the date of his arrest, and therefore, according to the Full Bench decision of this Court, this service could not be said to be within reasonable time from the date of his arrest. The Full Bench, however, has not laid down, as it could not lay ''down any specific period within which the grounds for detention have to be communicated to a detenu u/s 4 of the Act. The following passage from the Full Bench decision may be quoted:

We should arrive at exactly the same meaning by applying the ordinary rule of construction that where no time is mentioned for the doing of a thing a reasonable time is intended. We have no doubt, therefore, that the phrase ''as soon as may be as used in Section 4 of the Act means as early as is reasonable in the circumstances of the particular case. Beyond saying that it should ordinarily be possible to communicate the grounds to, a detenu within a comparatively short period of time and that after the lapse of such a period the onus will Shift to the authority in question to show that the grounds were served as soon as was reasonable, we think it better not to indicate any particular period as being sufficient to shift the onus of proof. The circumstances will obviously differ to a substantial extent. What is reasonable in one set of circumstances may be quiet unreasonable in another.

In the Full Bench case it appears that against the applicant Murat Patwa, the order u/s 2(1)(a) of the Act was issued on 16-4-1947, and the applicant was arrested on 9-5-1947, but the grounds for his detention were not communicated to him until 24-7-1947. In the opinion of this Court, it was abundantly clear in the circumstances that the authority concerned did not comply with the provisions of Section 4 of the Act. It will be noticed that in the Full Bench case the order passed u/s 2(1)(a) was on 16-4-1947, and the grounds u/s 4 were hot communicated to the applicant until 24-7-1947, that is to say, something like more than three months afterwards. u/s 3 of the Act; an order passed by the Provincial Government remains in force for a period not exceeding six months from the date on which it is made unless earlier revoked by the authority making the order. It is unnecessary to refer to the proviso to this section. Now, it seems to me that where an order u/s 2(1)(a) of the Act can be valid only for six months, it would be ridiculous to allow the authority concerned to serve upon the detenu the grounds for his detention more than three months after the date of the order. That would not be complying with Section 4 of the Act which says

as soon as may be after the order is made, the authority making the order shall communicate to the person affected thereby...the grounds on which the order has been made against him.

In the present case, the date of the Provincial Government''s order u/s 2(1)(a) of the Act is 17-2-1948, and the grounds for the applicant''s detention were served on him on 13-3-1948, that is to say within a month from the date of the order. Although I am not prepared to lay down any hard and fast rule, I do not think that in the circumstances of this case, the period between the date of the Government order u/s 2(1)(a) of the Act and the date on which the grounds for that order were served on 18-3-1948, is a period which can be described as unreasonable within which to have complied with the provisions of Section 4 Of the Act.

So far as the latter petitioner, Bajo Lal Sharma, is concerned, he was arrested on 5-2-1948, u/s 151, Criminal P.C. He was detained in the Monghyr Jail u/s 2(2) of the Act, the order of the District Magistrate being served on him on 13-2-1948. The Provincial Government''s order u/s 2(1)(a) of the Act is numbered 17700 dated 17-2-1948. This was served upon the applicant on 16-8-1948, and the grounds for his detention as per order No. 8748C dated 11-3-1948, was served upon him on 13-3-1948. His case appears to be exactly on the same footing as the case of Ramratan Gupta and must suffer the same fate as the application of that person.

In my opinion, the circumstances do not justify the conclusion that there has been a breach of the provisions of the Act which would justify this Court in holding that these two applicants are under illegal detention.

The application of all the eleven petitioners is, therefore, dismissed, in the case of Ramratan Gupta and Bajo Lal Sharma on merits, and in the case of the other petitioners on the ground that so far as is Known they are no longer under detention.

Narayan J.

I agree.