Ishar Singh vs The State

Teja Singh, C.J.—This is a habeas corpus petition by Ishar Singh. His allegations are that he-was arrested by the police in connection with murder and dacoity cases and after he had been acquitted in one case and discharged in the other and while he was in judicial lock-up pending-trial of the third case, the District Magistrate made an order of his detention u/s 3, Preventive Detention Act. According to him the order was illegal inasmuch as it was made not with a view to preventing him from doing any thing prejudicial to public peace or order but for a collateral purpose. He also challenges the grounds of his detention and contends that he had done nothing wrong or unlawful.

Mr. Chetan Dass who appears on behalf of the State opposes the petition and maintains that the order of detention was made after the District Magistrate had been satisfied in the terms of Section 3 end it was not vitiated by any kind of illegality.

The first point stressed by the Petitioner''s counsel before me is that since one of the three cases started against his client was still pending against him in Court, the District Magistrate had no power to make an order for his detention. Counsel''s argument is that when a person is alleged to have committed an offence, Government must make up their mind whether he is to be prosecuted in Court or whether he is to be detained on the ground that it is necessary to prevent him from acting in a manner prejudicial to public order, and as in the present case a prosecution against the Petitioner had already been launched, Government should be taken to have exercised the option and in the circumstances they could not resort to the other alternative also. He refers me in this correction to a number of rulings. Most of these rulings were considered by me in - ''Giani Bachan Singh v. District Magistrate Sangrur'' Cril. Misc. No. 62 of 1951 (A) wherein I held that whether detention of a person and prosecution started against him can be simultaneously made does not depend on any rule of law and the question is to be approached and answered in each case on the footing whether the order of detention in view of the pending prosecution is bona fide or not. After hearing the learned Counsel I still stick to my previous opinion and over-rule this objection.

Then the counsel argues that this was a case in which the order had been made for a collateral purpose. In order to be able to appreciate this contention we must take into consideration the facts about which there is no dispute between the parties. The Petitioner alleged that he was arrested and put in jail considerable time before the order for his detention was made. According to Mr. Chetan Dass the arrest took place in April 1951 while the detention order was made on 18-9-1951. Mr. Chetan Dass also admitted that of the three offences for which the Petitioner was prosecuted separately, he was acquitted of the offence of murder on 4-8-1951 and was discharged of the offences under Sections 435 & 450, I.P.C. on 5-11-1951. The third case under Sections 396 and 397, I.P.C., is still pending.

As regards the grounds of detention, according to the copies supplied to the Petitioner, they are four in number. The first is that the Petitioner collected sums of Rs. 6,000/- & Rs. 450/- from villages Kharaksinghwala and Bannawala respectively on 7-12-1949 for the purchase of arms and ammunition to be used by communists in order to secure their objective by over-throwing the Government by violent means. The second ground was to the effect that he delivered a speech at village Khiala Kalan on 13-3-1950 inciting the people to be prepared for ''the coming fight against the Government through'' violent means and creating conditions as those that exist in Tallangana'', and the third was that he instigated tenants of village Birkund and other villages in July 1950 to take forcible possession of Biswedari lands etc. The fourth ground related to the Petitioners forming an armed gang with a number of other persons with the object of committing dacoities and other heinous crimes and creating chaotic conditions,

As regards the fourth ground it neither, mentions the date or time when the gang came into existence nor does it state whether the gang committed any dacoity or any other unlawful act. Of the three remaining acts attributed to the Petitioner which are specifically mentioned in the other grounds'', two are fairly old: one was alleged to have taken place about two years before the date of detention order Why the District Magistrate took no notice on them earlier and why he considered it necessary to make an order of detention on the basis thereof shortly after the Petitioner had been acquitted in the murder case, has not been explained, nor has it been explained why haying waited so long the District Magistrate could not wait till the conclusion of the remaining two cases which were still pending against the Petitioner. It cannot even be urged that the Petitioner indulged in any kind of activity after his arrest in April 1951 for the simple reason that he has all along been detained in jail since then So whatever he did, he must have done so be fore he was arrested and if any action under the Detention Act was justified, it should have been taken either before he was arrested or shortly after that but instead of adopting this course what the District Magistrate did was that he waited for several months and ultimate ly decided to detain him after his acquittal in the murder case.

Mr. Chetan Dass argued that in a matter of this kind the authorities must take some time to decide whether an action under the provisions of Detention Act should be taken. This may be so but if the present was a case of that kind and the District Magistrate had to spend several months in making up his mind finally; I have not, been able to understand why he could not wait some time more and defer action till the other cases against the Petitioner were decided, particularly so because if he was convicted in any of the cases and sentenced to a term of imprisonment, there would have been no necessity to detain him at least till he came out after serving the term of the imprisonment. It need not be emphasized that action u/s 3, Detention Act, is a preventive action and it can be taken only with a view to preventing the person concerned for doing something prejudicial to public order, etc., as mentioned in the Section and is not punitive in nature.

Taking into consideration all the circumstances and facts of the present case I am not, satisfied that the Petitioner was detained in accordance with the provisions of Section 3 but the likelihood is that the object was either to punish him for his previous acts or to prejudice his defence in the cases that were still pending against him. This means that the order was made for a collateral purpose and cannot, there fore, be maintained. The result is that the petition is allowed and it is ordered that the Petitioner be set at liberty forthwith.