M. R. Venkataraman vs The Commissioner of Police and Another

Subba Rao, J.—This is an application u/s 491, Criminal Procedure Code. The petitioner is an advocate of this Court. On the 1st April,

1948, the Commissioner of Police passed an order of detention u/s 2(1)(a) of the Madras Maintenance of Public Order Act (Act I of 1947). He

was duly authorised by the Provincial Government to exercise its powers u/s 2(1) of the said Act. In the detention order it is stated that the

petitioner is acting in a manner prejudicial to the maintenance of public order and that with a view to preventing him from so doing, it is necessary

to detain him. The Commissioner of Police communicated the said order to the Government u/s 2(2) on the 9th June, 1948. On the 11th

September, 1948, the Government served the grounds of detention on the petitioner. Though the order of detention was passed on 1st April,

1948, the petitioner was arrested only on 17th August, 1948, as presumably his whereabouts were not known till that date.

Mr. A. K. Pillai, learned Counsel for the petitioner, raised before us the following four points: (1) that the order of the Commissioner dated 1st

April, 1948, was Invalid; (2) that though the order was valid when passed, it became invalid In view of the non-compliance with some of the

mandatory provisions of the statute; (3) that though the detention in its origin was valid the detention of the petitioner subsequent to the

contravention of the mandatory provisions of the statute was Illegal; and (4) that the Government in detaining the petitioner was actuated by mala

fides.

There is no force in the learned Counsel''s first argument. Section 2(1) reads as follows:

The Provincial Government, if satisfied with respect to any 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 so to do, may make an order:

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

As aforesaid this power of the Government was delegated to the Commissioner u/s 15 of the Act. The Commissioner states in the detention order

in clear terms that the petitioner is acting in a manner prejudicial to the maintenance of public order and that with a view to preventing him from so

doing it is necessary to detain him. The order is in strict compliance with the provisions of Section 2(1) and is therefore clearly valid.

There are no merits in the second point either. If the order was valid at its inception, we cannot see how it would become invalid by the

subsequent non-compliance with the other provisions of the Act. The argument was that the order passed u/s 2(1) was not complete till it was

communicated to the Government in strict, compliance with the provisions of Section 2(2). By Sub-section (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. Though the order of detention was passed on 1st April, 1948, the Commissioner

communicated the same to the Government on 9th June, 1948, i.e., after ten weeks. In Crl. M. P. No. 1309 of 1948 Since reported in A.K.

Gopalan Vs. The District Magistrate and Another, we differed on the interpretation of the word '' forthwith'' in the said section. Assuming that in

view of this enormous delay, it must be held that the provisions of the section have not been strictly complied with, would it have the effect of

invalidating an order that had been validly passed. We think not. Once an order had been passed in strict compliance with the provisions of

Section 2(1), it was validly passed. Sections 2(2) and 3(1) were designed to provide a machinery for the person against whom the order has been

passed to seek redress as early as possible. If a statutory authority did not comply with the provisions of Section 2 or Section 3, there may be

other remedies open to the aggrieved party. But in our view, the non-compliance with the provisions prescribing a procedure to get redress by the

aggrieved party against whom an order has been passed u/s 2(1) cannot in law invalidate an order validly passed u/s 2(1). In support of his

argument, Mr. Pillai cited the decisions in Ramdhir Rai v. Emperor 21 Ind.Cas. 162 and Abdul Jabbar Sarkar Vs. Emperor, . In our view those

decisions have no bearing on the question to be decided in. this case.

We do not also agree with the third contention of the learned Counsel for the petitioner. The argument of Mr. Pillai was that assuming the order

passed u/s 2(1) was valid at its inception and continued to be so, the further detention after the violation of the provisions of Section 2(2) was

illegal. This argument ignores the distinction between the order of detention and the procedure prescribed for enabling the aggrieved party to seek

redress. The petitioner, as we found, was legally detained u/s 2(1) of Madras Act I of 1947. u/s 4 of the Act this order of detention shall be in

force for six months from the date on which it is confirmed or modified under Sub-section (5) of Section 3. If the authority concerned did not carry

out his statutory duties, the petitioner could have taken the appropriate remedy to compel him to perform his duty. He may have other remedies if

he was prejudiced by the breach of a statutory, duty by the authority concerned. But in our view the non-compliance with the provisions of Sub-

section (2) to Section 2 could not make the detention illegal. In any view as the order was communicated to the Government and the grounds for

detention were duly served on the petitioner, it would be impossible to hold that the detention of the petitioner at present is invalid.

We cannot also accept the learned Counsel''s last argument. Paragraph 16 of the petition puts the petitioner''s case briefly:

I submit that my detention is mala fide actuated, by feelings of political animosity and made solely with the political intent of stifling the voice of all

democratic opposition. I am kept in detention only because I fearlessly campaign for the common people. This is not liked by the vested interests

and the Ministry which is theirs.

This idea is elaborated in greater detail in the other paragraphs of the petition. The learned Counsel argued that we should infer mala fides from the

long delay in communicating the order of detention to the Government. Mala fides is a state of mind. If a person is detained and with a view to

prevent him from taking steps to get redress from the Government, if the appropriate authority intentionally delays the communication of the said

order to the Government, it is possible to infer or attribute mala fides to the authority concerned. But in this case there is one important fact which

negatives any such intention on the part of the Commissioner. The order of detention was passed on 1st April, 1948, and it was communicated on

9th June, 1948. But the petitioner was arrested on 17th August, 1948. On these facts it is impossible to attribute mala fides to the Commissioner

as his order was communicated long before the petitioner was arrested.

It was further contended by Mr. Pillai that the grounds served upon his client could not sustain an order u/s 2(1) and therefore we must attribute

mala fides to the Government. He argued that except the last ground all the other previous grounds related to his client''s antecedents which are not

permissible grounds for passing an order u/s 2(1) of the Act. The last ground according to him does not support the statement made by the

Commissioner that the petitioner is acting in a manner prejudicial to the maintenance of public order. If we accept this argument we would in effect

be ignoring the recent Full Bench decision Since reported in M. Kallianikutti Amma on behalf of herself and all other creditors of P.K. Manavedan

alias Anujan Raja Avl. Vs. Puthiya Veettil Kunhilakshmi Amma and P.K. Thekkekettu Tavazhiyil Manavedan alias Anujan Raja Avl., . The

Commissioner on the material before him was satisfied that the petitioner was acting in a manner prejudicial to public safety. Under Sub-section (2)

to Section 2 he reported to the Provincial Government the said order with the grounds on which it has been made and other particulars. Under

Sub-section (3) the Government communicated the grounds to the petitioner. It will be seen that u/s 3, the Government is not bound to disclose to

the petitioner all the material that was placed before them. It is therefore not possible for the Court to see the entire material on which the

Commissioner was satisfied that the petitioner was acting in a manner prejudicial to public safety. Even the grounds communicated to the petitioner

disclose material on which the Commissioner could reasonably satisfy himself that a case was made out for detention. It is not permissible for the

Court to go into the correctness or otherwise of the facts or canvass the grounds for detention. The antecedent and the present activities of the

petitioner were given in the grounds. They afford sufficient material for a competent authority to come to a conclusion one way or the other. Mr.

Pillai argued that the last ground does not say that the petitioner Is acting, but only says that the communist party is indulging in violent subversive

activities and it is likely that he will also indulge in violent subversive activities. But the Commissioner certainly was entitled to infer from the said

fact that the petitioner who is the present secretary of the Tamil Nadu Provincial Committee of the Communist party was also acting in a manner

prejudicial to public safety. But as we have already stated this is only one of the grounds. There might have been other material which was not

disclosed to the petitioner.

We cannot also accept the argument of the petitioner that in no circumstances the antecedent conduct of a detenu could be taken note of by the

concerned authority to satisfy himself whether he is acting or is about to act in a manner prejudicial to public safety. It is no doubt true that u/s 2(1)

of the Act, the Government or the delegated authority must be satisfied that a person is acting or is about to act in a manner prejudicial to public

safety. But the antecedent conduct would certainly afford data or furnish reasonable grounds in, finding out the present attitude of the person

concerned. Learned Counsel for the petitioner relied on a decision in Om Prakash Mehta v. King-Emperor ILR (1947) Nag. 579 That was a

decision under the Central Provinces and Berar Maintenance of Public Order Act, 1946. The operative portion of Section 2(1) of the said Act

reads as follows:

The Provincial Government if satisfied that any person is acting in a manner prejudicial to the public safety, order or tranquillity, or is fomenting or

inciting strikes with intent to cause or prolong unrest among any group or groups of employees may if it considers such order necessary make an

order (a) directing that he be detained.

There is a material difference between the provisions of that section and Section 2(1) of Madras Act I of 1947. In the latter section the Provincial

Government can detain a person not only when he is acting but also when he is about to act in a manner prejudicial to public safety. The learned

Judges in construing that section held that detention could not be ordered on the basis of past actions. But they observed at page 597 as follows:

The bulk of the acts which are said to constitute the "" acting "" consist of past acts, but in each case there is included some overt act done after the

21st of November, 1946, on which date the Act came into force. The series of acts so set forth convey the sense of continuity which the Act

requires and the inclusion of an overt act done after the 21st of November, 1946, imports that the said acting was continued after the datum line.

These statements, combined with the reference in the order to Section 2(1)(a) of the Act, are sufficient to show that the'' satisfaction '' relates to a

continuous course of conduct which was persisted in after the coining into force of the Act.

The grounds here also disclose that the petitioner continued to indulge in subversive activities even after the Act came into force. He is a prominent

member of the Communist party. He took part in various communist activities and had even gone underground. He was detained on the previous

occasions. He was charged with responsibility for many violent acts including murder, looting, arson and other grave offences which have taken

place in Madura in 1947. He had participated in secret meetings held on 6th December, 1947, and 7th January, 1948 and drew up the

programme of the party. The Communist party to which he belongs, according to the last ground, is now indulging in violence and subversive

activities and most of the members of the party have gone underground and front there, they are guiding various crimes such as arson, loot, murder,

etc. On these facts and presumably some others which are not disclosed, the Commissioner was satisfied that the petitioner was acting in a manner

prejudicial to public interests. We cannot say on the said material that no reasonable man could be satisfied that the petitioner was acting in a

manner prejudicial to the maintenance of public order.

After judgment was reserved, Mr. Pillai requested us to allow him to cite some cases in support of his contention that the order passed u/s 2(1)

of the Act was invalid as it was not forthwith communicated to the Government u/s 2(2). We allowed him to do so. In addition to the cases cited

by him, he wanted to raise a new plea for the first time, viz., that the Commissioner of Police had no authority to pass an order of detention u/s

2(1) as the order of the Provincial Government empowering him to exercise the powers u/s 2(1) had expired by the time he issued the order under

the said section. This objection was not taken in the petition nor was it addressed to us before judgment was reserved. As the validity of this

objection would depend upon certain facts and as it was not raised before judgment was reserved, we did not allow the advocate to raise this

plea.

This application is therefore liable to be dismissed and it is accordingly dismissed.