Jagat Ram Aryan vs State

(1) This is an application under S. 491 Criminal P. C. submitted by one Jaget Ram Aryan who is this time a detenu in the Central Jail Srinagar. In

his application the detenu submits that he was suffering from some lung trouble and had gone for XRay examination to Jammu where he was

advised by his Medical Adviser to go to some cooler place. In pursuance of this advice, the applicant proceeds, that he went to Ramnagar and

stayed there with his soninlaw for some days, and then came back to Udhampur en route to Kishtwar on 29th Jeth 2008. In his application he

further states that at Udhampur while he was waiting for a J.orry to carry him to Batote on 30th Jeth 2008, he was called to the office of the

District Magistrate Udhampur where he was informed by him that he was holding meetings with Singh people in Udhampur and thus making his

presence there undesirable, and he was ordered to leave Udhampur district within 24 hours. According to the detenu he was served a written

order and was made to sign it in token of his having taken notice of it. Thereupon he says that he left the District Magistrate's Court and was

proceeding towards the lorry stand when he was again called back and another order, and this time, of detention was served on him. The applicant

states further that he is politicallyminded Harijan and has been taking part in politics for the last 16 years. As a member of the Assembly the detenu

says that he was responsible for the successful passage of a number of useful pieces of legislation such as the Removal of Beggar rules,

compensation to workmen etc. He also affirms that he is a firm believer in Hindu Muslim unity and during the last disturbances he was deputed by

both Hindus and Muslims of Kishwar to carry their submissions to the Government of Kashmir regarding the posting of military in that area. In the

end he says that he was accompanied by his daughter to Udhampur but after his arrest he was not even allowed to meet her, and he knows nothing

about her whereabouts. This application is supported by an affidavit.

(2) As against this, the learned Assistant Advocate General produced before me an affidavit by Agha Nasir. Agha Nasir I hear is the District

Magistrate in Udhampur, but he has not described himselfas such in the affidavit. This affidavit I shall discuss in detail at its proper place. But

meanwhile I would like to make reference to some illconceived allegations that have been made by the applicant in his application about the District

Magistrate Udhampur, which to say the least about them, are simply wild and reckless. May be that the applicant is chafing under a supposed or

real wrong done to him. May be that these allegations are the effusions of an afflicted heart, but no amount of affliction, even genuine, can justify the

use of unseemly language. Hard words break no bones, but they certainly leave behind a very bitter taste in the mouth. Recklessness in expression,

use 1 of wild language is to my mind quite unworthy of a person who claims to be a politician. One would expect a right sort of behavior on behalf

of politically minded people. Sobriety in expression, coolness in thought and strict regard for truth must be the guiding factors in the life of

politicians particularly in these days of democracy when we find politicians charged with very great responsibilities. I have no hesitation in placing

on record that the allegations made against the person of the District Magistrate are not at all true.

(3) But much though I deprecate the attempt of the detenu at dragging the person of the Udhampur District Magistrate into the present controversy

yet I am of the opinion that this application is going to succeed. In arriving at the conclusions I have solely drawn upon the detention order and the

affidavit of the detaining authority, I have relied only on those statements of the detenu which have either been supported by Agha Nasir's affidavit

or not contradicted by it specifically. Now in the order of detention it is given that the detaining authority was satisfied through police and other

sources that there were reasonable grounds to believe that the applicant had acted and was likely to act in a manner prejudicial to public safety and

peace. It is a well settled principle of law that under S. 3 of the Public Security Act the sufficiency or insufficiency of material which might have

satisfied the detaining authority effecting the detention of a person is a matter for the decision of that authority alone which passed the detention. In

fact this is the view that has been expressed by me as early as 2005 in a similar case 'Devi Saran v. State', Criminal Misc. Appln. No. 92 of 2005.

To this view I adhere even at the present moment and I make no apology in quoting here in extenso a passage from the said judgment:

The material which is produced before such authority may not be sufficient for a Court of law for determining whether it was necessary to keep

the detenue in detention. But the Court cannot substitute its own judgment for the judgment of the authority ordering detention, nor can the Court

go into the question whether the grounds which satisfied the detaining authority were reasonable or sufficient. It is not a matter which can be

scrutinized or inquired into by a Court of law. If the authority detaining a person affirms that it was satisfied that the person was acting in a manner

prejudicial to public safety or peace and the order was drawn in strict confirmity with the terms of law, the Court cannot question the fact of his

satisfaction. The best judge to decide what is reasonable satisfaction is the person who effects the arrest. But when all this is said this Court has yet

power to see as to whether the person who effects the arrest was a matter of fact satisfied or not. If it can be established that the person was not

as a matter of fact satisfied, that there were reasonable grounds for believing that any person was acting in a manner prejudicial to the public safety

or peace then this Court has jurisdiction to interfere."" Prom the above enunciation of law it becomes clear that the High Court has power to

examine the correctness of the recital about satisfaction of the detaining authority contained in any such order and if it comes to the conclusion that

the recital is incorrect, it may declare the order to be invalid and the detention of the individual concerned to be illegal. Such being the state of law,

we shall have to see now as to whether the recital about satisfaction in the said order is correct and secondly if the order has been passed

according to law.

(4) Before proceeding further, I might examine one main argument which has been advanced by the learned counsel on behalf of the detenu. Much

stress has been laid upon the fact that no grounds of detention have been revealed to the detenu at the time of his arrest which according to the

learned counsel makes the detention illegal.' In support of this argument reference has been made to the Preventive Detention Act of 1950

assented to by the President of the Indian Union on 2521950. It is argued that this Preventive Detention Act of 1950 supplants the Security Act

now in force here in the State. But the learned counsel appearing on behalf of the detenu has missed the relevant passage in the Preventive

Detention Act of 1950, which would show that the Preventive Detention Act of 1950 shall not apply to the State of Jammu & Kashmir except to

the extent to which the provisions of this Act relate to preventive detention for reasons connected with defence, foreign affairs and security of India.

To meet this argument it was vehemently pressed by the learned counsel that acting against public safety and peace itself comes within the purview

of acting against the defence and security of India as occurs in Section 1 of the Preventive Detention Act of 1950. It is further argued that under

Section 7 of this Act grounds for the order of detention must be disclosed to the person affected by the order of detention. It is true that if the

detention of a person is brought about under the provisions of the Preventive Detention Act of 1950 for any reasons connected with the foreign

affairs, defence or security of India even by the Kashmir Government, the grounds of the order should be disclosed to the person detained and if

such grounds are not disclosed to him at the time of his detention or soon after, such detention would be invalid. But the learned counsel appearing

on behalf of the detenu has clean forgotten that the detention of the person (Jagat Ram Aryan) has not been brought about for any reasons which

are connected with defence, foreign affairs or security of India. The detention order against him has been passed for his acting in a manner

prejudicial to public safety and peace and not for any reasons which are connected with defence, foreign affairs or the security of India. As such

the Preventive Detention Act of 1950 cannot have any bearing with the facts of the present case. It is, therefore, obvious that the applicability of

Section 7 of this Act, so far as the disclosure of the grounds of detention is concerned, does not apply. According to the Security Act as is in force

in the State, no grounds of detention need be disclosed to the detenu. It is argued on behalf of the detenu that such an interpretation would lead to

very anomalous results. The learned counsel's argument in this behalf is. that acting prejudicially to the defence, foreign affairs or security of India is

more reprehensible act than acting against public safety and peace in a state or in a corner of a State. It is pointed out that for an act which is of a

major serious character, grounds of detention have to be disclosed to the detenu, but for a minor dereliction he can be kept in detention for an

unlimited period of time without any judicial scrutiny. To all this the learned counsel adds that under Section 9 of the Preventive Detention Act of

1950 (Union Act) any person detained under its provisions can get his case scrutinized by an Advisory Board constituted of members qualified to

be appointed as Judges of the High Court. But such a provision does not exist in the Statute as obtains in our State. All this may look or may even

be anomalous in character, but it cannot be lost sight of that the Courts of law have to administer the law as it is. If there are any anomalies or

anachronisms in law, it is for the public opinion to assert itself and make the legislature of the country to bring about amendments in law. But as

long as law is not changed, the Courts of law have to administer the law at it is. I definitely hold that for purposes other than defence, foreign affairs

and security of India, the Public Security Act is in force so far as the State of Jammu and Kashmir is concerned and detention can be ordered

under its provisions.

(5) But all this casts a greater duty on this Court to exercise its powers of scrutiny according to law with very great vigilance. It is true that

abnormal circumstances can only be met by abnormal legislation. ""In time of emergency"" it has been pointed out by Calcutta High Court (in a case

reported as Shilenath v. A. E. Porter', AIR (30) 1943 Cal 377) that

the executive have to be given extraordinary powers which may have the effect of keeping out to some extent judicial scrutiny of acts done by the

executive.

But I am in respectful agreement with their Lordship's in their view that when through some unexpected crevice in these barriers against judicial

scrutiny, a voice against an illegal act does reach the High Courts it becomes their duty to be vigilant and to see that the liberty of none of the State

subjects is touched except in strict compliance with law and neither the clouds of war nor the dust of political upheaval must be allowed to obscure

the vision of the High Courts or blur that strict scrutiny which the High Courts must always bring to bear upon any action which savours of

oppression or injustice. It can be denied by no sane person that acting like this"" is the duty for this Court.

(6) Now let us go to the merits of the case. As has already been pointed out, the detaining authority in his order states that he was satisfied through

police reports and other sources about the sections of the detenu which were prejudicial to public safety and peace. In Para. No. 6 of his affidavit,

the detaining authority writes that the reports about the prejudicial activities of the detenu were oral. Reading the affidavit along with the order, the

meaning of the detaining authority becomes obvious: that the police came to him and told him by words of mouth that the detenu was acting

prejudicially to public safety or peace. The detention order if read without the help of the affidavit, would lead one to the inference that the reports

which were sumbitted to him by the police were in writing. But as no written reports were made to him by the police, the detaining authority came

forward with the statement that the reports were made orally. Since no written reports were made to the detaining authority, it would simply show

that there was no record with the police existing against the detenu, I presume that the police send their diaries regularly about the undesirable

activities of the people to the Magisterial head of the District. Since the detaining authority says that the reports submitted to him by the police were

oral, it further shows that the detenu was not even mentioned in the diaries. This by itself would show that the detention of the man was brought

about not as a result of mental satisfaction of the detaining authority about the prejudicial activities of the detenu. This, at any rate, makes it at least

questionable as to whether the detaining authority was a matter of fact convinced of the necessity of the action taken by him.

(7) But the matter does not stop here. In para. No. 4 of his application the detenu has stated that the first order which was passed against him was

that he should leave the limits of Udhampur district within 24 hours. It may be stated here that the detenu does not belong to Udhampur district but

belongs to Kishtwar which is in Doda district. He further states in his application that even the SubInspector of Police, ""Udhampur while coming

out ? of the Court of the District Magistrate publicly .declared before Jagan Nath Vakil and others that an externment order was passed against the

detenu. This allegation of the detenu has not been denied by the detaining authority in his affidavit which is fairly detailed document. Therefore for

the purpose of this case I must treat this allegation as correct. If there was no substance in this allegation of the detenu, there was nothing to

prevent the detaining authority from challenging it in his affidavit because the allegation is sucn as has a very important bearing upon the decision of

this case. It now becomes ciear that at the time the detaining authority made the externment order, he did not it necessary to pass a detention

order. This shows that in the first instance when the internment order was made, the detaining authority was not satisfied about the necessity of the

action taken later on. Rather it goes to show that the mind of the detaining authority was wavering till then. A wavering mind can never be treated

as ""a mind satisfied"" which is prerequisite for passing an order under Section 3 of the Public Security Act. As such I am definitely of the opinion

that the order of detention cannot be brought strictly within the purview of Section 3 of the Public Security Act.

(8) There is yet one more point which is indeed very important in the whole case and would show the slipshod manner in which action is taken by

responsible officers when even the liberty of a citizen is being dealt with. The order of detention passed by the detaining authority has been signed

by him as SubDivisional Magistrate. Now it may be stated here that Udhampur had ceased to be a subdivision from 5th Jeth or at the most from

25th Jeth 2008 and had become a fullfledged district. The Wazir Wazarat, thenceforth came to be called as Deputy Commissioner with enhanced

powers. All Deputy Commissioners were appointed exofficio as District Magistrate in each district. This order of the Government has been

published in the Government Gazette of 25th Jeth 2008. The order of detention has been made on 12th June 1951 corresponding to 30th Jeth

2008. Prom this it becomes clear that there existed no subdivisions on that day and no SubDivisional Magistrates, and if an order is made by a

person in exercise of powers of an officer who does not exist, and whose territorial jurisdiction also does not exist, such an order cannot stand

even for a minute.

(9) In 'Ganesh Prasad v. Makhna', AIR (35) 1948 All 414 it has been held that

whenever powers of this kind or indeed other special statutory powers are conferred they must be exercised by the authority in the manner

specified in the Statutes in strict conformity with the provisions thereof and the Court can see whether this is done.

(10) Now in this case we find that the SubDivisional Magistrates having ceased to exist, and their territorial jurisdiction also having ceased to exist,

no order could be passed by a person who was once a SubDivisional Magistrate but had ceased to exist as such. Under these circumstances I

hold that the order passed by Agha Nasir in his capacity as SubDivisional Magistrate is an order passed by an unauthorised person and as such it

cannot be sustained. Taking all this into consideration, I hold that the detention of Jagat Ram Aryan of Kishtwar is improper and that he be

released from custody forthwith.