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Judgment
Subba Rao, J.—This is an application u/s 491, Criminal P. O. The petitioner is an advocate of this Court. On 1st April 1948 the Com-
missioner of Police passed an Order of detention under 8. 2 (l) (a), Madras Maintenance of Public Order Act (Act i [l] of 1947), He was duly
authorised by the Provincial Government to exercise its powers u/s 2 (l) 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 under B. S (2) on 9th June 1948. On 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 peti tioner
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 U) that the Government in detaining the petitioner was Act by mala fides.
There is no force in the learned Counsel''s first argument. Section Q (l) reads as follows:
The Provincial Government, if satisfied with respect to any particular person that be is acting Cr about to act in an; manner prejudicial to the Public
safety Cr 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 be 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 (l) 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 under 8. 2 (l) 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 Cr authority empowered u/s 15. that officer Cr authority shall forthwith report the fact to the Provincial
Govern, ment together with the grounds on which the Order has been made and such other particulars as, in the opinion of such officer Cr
authority, have a bearing on the necessity for Cr 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 Cri. M. p. so. 1809 of 1948 we differed on
the interpretation of the word ""forthwith"" in the said section. Assuming that in view of this enormous delay 1 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 bad 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 8 (l) 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 Cr 8. 8, 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 bas been passed u/s 2 (l) cannot in law
invalidate an Order validly passed u/s 2 (l). In support of his argument, Mr. Pillai cited the decisions in Ramdhir Bai v. Emperor 211. C. 162 : 14
Cri, L. J. B62 ALL. 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 (l) was valid at its-inception and continued to be so, the further detention after the violation of the provisions of B. 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 under 8. 2 (l) of Madras Act I [1] 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 Cr modified under Sub-section (5) of 8. 8. 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 detection 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 Baid
Order to the Government, it is possible to infer Cr 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 lat 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 (l) 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 under 8. 2 (l) 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 Pull Bench decision. The Commissioner on the material before him was satisfied that the petitioner was acting in a manner
prejudicial to Public safety. Under sub. b. (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 Been 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 Cr otherwise of the facts Cr canvass the grounds for detention. The
antecedents 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 Cr 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 in- dulging 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 Tamilnad Provincial Committee
of the communist party was also Acting in a manner pro-judicial 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 Cr is about to Act in a manner prejudicial to Public safety. It is no doubt true that under
2 (l) of the Act, the Government Cr the delegated authority must be satisfied that a person is acting Cr is about to act in a manner prejudicial to
Public safety. But the antecedent conduct would certainly afford data Cr furnish reasonable grounds in finding out the present attitude of the person
concerned. learned Counsel for the petitioner relied on a decision in AIR 1948 199 (Nagpur) That was a decision under the Central Provinces and
Berar Maintenance of Public Order Act, 1946. The operative portion of Section 2 (l) 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, Cr tranquillity, Cr is fomenting
Cr inciting strikes with intent to cause Cr prolong unrest among group Cr 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 (l) of Madras Act I [l] 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 p. 697 as
follows:
The bulk of the acts which are said to constitute the ""Acting"" consist of pant Acts, but in each case there is included some over act done after 21st
November 1946 on which date the Act came into force. The series of acts eo set forth convey the sense of continuity which the Act requires and
the inclusion of an overt Act done after 21st 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 (I) (a) of the Act, are sufficient to show that the ""satisfaction"" relates to a continuous course
conduct which, was persisted in after the coming 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 from 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 some cases in support of his contention that the Order passed u/s 2 (l) 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 (l)
as the Order of the Provincial Government empowering him to exercise the powers u/s 2 (l) 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.