Murat Patwa vs Province of Bihar

The questions raised in this reference areas to the construction and effect of Section 4, Bihar Maintenance of Public Order Act, 1947, which we shall hereinafter refer to as "the Act".

The reference to this Full Bench arises out of an application u/s 491, Criminal P.C., by one Murat Patwa, who claims that he is being illegally and improperly detained in the Bihar subjail.

The applicant was originally arrested by the Sub-Inspector of Police, Bihar P.S. on 5th March 1947, but it appears that no authority for this arrest came into existence until 12th March 1947, when the District Magistrate, Patna, purporting to act in pursuance of the powers conferred upon him by Sub-section (2) of Section 2 of the Act passed an order directing that he be detained for fifteen days. On the day after the expiration of that order, namely, 28th March, the applicant moved this Court u/s 491, Criminal P.C., and a rule was issued which was made returnable on 3rd April 1947. On the latter date, a Division Bench of this Court made this rule absolute and, inter alia, passed the following order:

An order shall issue at once, that if the petitioner has not been released, he must be released without further delay....

It appears, however, that the petitioner was not released until 10th April 1947, and then only upon his furnishing bail to an amount of Rs. 1000 with two sureties of like amount to come up and appear in respect of charges that were said to be pending against him in the Court of the Subdivisional Magistrate, Bihar, in Criminal Case No. 40(2) of 1947. On 16th April 1947, the Provincial Government passed an order u/s 2(1) of the Act for the detention of the applicant until further orders. The applicant appeared before the Subdivisional Magistrate, Bihar, in Criminal case No. 40 (2) of 1947, on 9th May 1947, and he was then arrested and detained in pursuance of the order of 16th April 1947. The application now before us was filed on 3rd June 1947 and came before a Division Bench of this Court on 5th June 1947. On 10th June 1947 an order which is dated 16th April 1947, was served upon the applicant which purported in pursuance of Section 4 of the Act to communicate to the applicant the grounds for his detention and which is in the following form:

Government of Bihar, Political Department, Special Section.

Order No. 1560C. Patna, the 16th April, 1947.

In pursuance of Section 4 of the Bihar Maintenance of Public Order Act, 1947 (Bihar Act V of 1947) Murat Patwa son of Tulsi Ram of Mahalla Alinagar, P.S. Bihar, Patna is informed that the grounds for his detention are

that he was acting in a manner calculated to inflame communal passions which act is prejudicial to the public safety and the maintenance of the public order.

Murat Patwa is informed that he has a right to make a representation in writing against the order under which he is detained. If he wishes to make such representation he should address it to the undersigned and forward it through the Superintendent of the Jail as soon as possible.

Sd. Illegible. Joint Secretary to Government.

The matter next came before the vacation Bench on 18th June 1947, when on the application of Counsel for the applicant it was adjourned until 16th July 1947. On 21st July 1947, the application came before a Division Bench of this Court consisting of Bennett and Ramaswami JJ. and it being disputed whether the grounds for the applicant''s detention had been communicated to him and there being no evidence thereon before the Court, the hearing was adjourned till 28th July 1947, to enable the Crown by a further affidavit to show that the grounds had been communicated to the applicant and, if so, the date of such communication to the applicant and to produce a copy thereof. At the further hearing on 28th July 1947, an affidavit was filed on behalf of the Crown purporting to have been sworn by the sub-jail clerk of Bihar. In regard to this affidavit, we agree with the comments made by Bennett J. in the following extract from his order making this reference:

From the contents of this affidavit it might be imagined that this sub-jail clerk was a Secretary to Government. In para 1 of the affidavit he states that he is acquainted with the facts of the case. In paras. 2 and 4 thereof he relates the reasons for arrest and detention of the applicant. In para 3 he swears to a report made by the Sub-Inspector of Bihar to the Sub-divisional Magistrate, Bihar. In para. 5 he sets out in detail the report dated 7th March 1947, made by the Deputy Superintendent of Police, Bihar to the Sub-divisional Magistrate, Bihar. In para. 6 he states:

That the case of Murat Patwa was through proper channel placed before the Government and on 16-4-1947 the order of detention was passed and on the same date notice u/s 4, Bihar Maintenance of Public Order Act(5 [V] of 1947) was directed to be served." In Para 9th states: ''that subsequently the Government issued another notice on 17-7-1947, on Murat Patwa giving more details as to the cause of his detention and has been sent to the Sub-divisional Officer for service; and finally in Para. 10 he states that all these facts are true to his knowledge. It was no doubt very candid of the Crown to endeavour to put the Court in possession of these facts, but the advisers of the Crown incur a grave responsibility when they allow a subordinate official to swear to the truth to his knowledge of facts the truth or otherwise of which he obviously can know only by hearsay. The Courts can not treat lightly the fact that, albeit in good faith, an affidavit has been put before it in which a person swears to his knowledge of the truth of facts of which he obviously has no personal knowledge. The only facts in his affidavit which the deponent prima facie could properly swear to were those set out in paras. 7 and 8 thereof, namely, that the order dated 16-4-1947, above set out was served by the deponent upon the applicant on 10-6-1947.

At the hearing on 28-7-1947, the learned Government Advocate produced an order dated 17-7-1947, which on the face of it is acknowledged by the applicant as having been served upon him on 24-7-1947. This order is in the following terms.

Government of Bihar, Political Department (Special Section). Ranchi, 17-7-1947.

Order No. 5222C. In pursuance of Section 4, Bihar Maintenance of Public Order Act, 1947, Murat Patwa, son of Tulsi Bam of Mohalla Alinagar, Bihar P.S Patna, is informed that the grounds for his detention are that There are reasons to believe that he took part in the last communal disturbances in Mohalla Alinagar of Bihar town and removed door frames, door shutters etc. of the evacuated houses of Muslims. In the circumstances the Provincial Government are satisfied that if allowed to remain at large, he should indulge in communal activities to the prejudice of public safety and the maintenance of the public order.

Murat Patwa is informed that he has a right to make a representation against the order under which he is detained. If he wishes, to make such a representation he should address it to the undersigned and forward it through the Superintendent of Jail as soon as possible.

Government Order No. 15600, dated 16-4-1947 is cancelled.

Sd. Illegible Joint Secretary to Government.

The material provisions of the Act for the purposes of this reference are the preamble and Sections 1(3), 2(1)(a), 2(2), 2(5), 3 and 4. The relevant portion of the preamble reads as follows:

Whereas it is expedient to provide for preventive detention, imposition of collective fines, control of meetings and processions, imposition of censorship, requisitioning of property and prevention of unlawful drilling and the wearing of unofficial uniforms in connection with the public safety and maintenance of order in the Province of Bihar.

And it is, therefore, clear that the Provincial Legislature in passing the Act were purporting to exercise the powers conferred upon them by Section 100(2) and, Item 1 of list 11 in Schedule 7, Government of India Act, 1935.

Section 1(3) provides:

This Act...shall remain in force for a period of one year from the date of its commencement.

And this Sub-section read with the Preamble shows that the Act is in the nature of emergency legislation.

Sections 2(1)(a), 2(2), 2(5), 3 and 4 provide:

(1)(a) The Provincial Government if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety and the maintenance of public order it is necessary so to do, may make an order directing that he be detained.

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(2), A District Magistrate may exercise the power conferred by Clause (a) of Sub-section (1) and an order so made by him shall be valid for a period not exceeding fifteen days.

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(5). So long as there is in force in respect of any person such an order as aforesaid directing that he be detained he shall be liable to be removed to and detained in such place and under such conditions, including conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Provincial Government may from time to time by general or special order specify.

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An order made u/s 2 shall be 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.

Provided that any such revocation shall not prevent the making u/s 2 of a fresh order to the same effect as the order revoked.

Where an order is made in respect of any person under Clause (a) of Sub-section (1) of Section 2, as soon as may be after the order is made, the authority making the order shall communicate to the person affected thereby so far as such communication can be made without disclosing facts which the said authority considers it would be against the public interest to disclose the grounds on which the order has been made against him and such other particulars as are in the opinion of such authority sufficient to enable him to make if he wishes a representation against the order and such person may at any time thereafter make a representation in writing to such authority against the order and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest practical opportunity of doing so.

Bennett and Ramaswami JJ., were of opinion that it was conclusively established that the authority making the order had failed to comply with the provisions of Section 4 of the Act, that these provisions were mandatory and that therefore non-compliance therewith rendered illegal the continued detention of the applicant. In view, however, of two recent decisions of a Division Bench of this Court in Criminal Miscellaneous cases Nos. 128 and 125 of 1947 to the contrary effect they referred tie points of law to a Full Bench

In criminal Miscellaneous case No. 123 of 1947 the material part of the judgment of Bay J. with whom Reuben J. concurred, reads as follows:

The last contention of the learned Counsel is based upon Section 4 of the Ordinance. In this connection his submission is that the order of detention is invalid inasmuch as the requirements of Section 4, in the Provincial Government failing to reach the detenu the grounds of his detention, have not been complied with. This contention is wholly fallacious. The very text of the section indicates that the grounds are to be intimated to a detenu after the order is passed and the object of furnishing of such grounds is to enable him to make a representation in writing to the authorities against the order. Therefore, there is no room for doubt that the order is neither invalid nor invalidated on account of non-compliance of the provisions of Section 4; but at the same time it is not ignorable in this particular case that the executive authorities have not paid sufficient attention to the provisions of Section 4. Section very clearly requires that the authority making the order shall communicate to the person affected thereby so far as such communication can be made, without disclosing facts which the said authority considers it would be against the public interest to disclose the grounds on which the order has been made against him, and such other particulars as are in the opinion of such authority sufficient to enable him to make, if he wishes a representation against the order. Bearing in mind that legislation of the kind which we are dealing with in this case is an inroad upon the liberty of a subject the section aims at giving the person ordered to be detained an opportunity to clarify the charges against him with the hope that he may disabuse the appropriate authority of the prejudicial opinion against him. Suppose, in any particular case a detenue is able to satisfy the authority concerned that at all relevant times he was far away from the particular locality in relation to which his activities have been considered objectionable and are sought to be restrained. Under such circumstances the authority will, in all likelihood, be glad to release him. Under the circumstances it is never the intention of the Legislature in enacting the section that communication of the order of detention and the ground and such other particulars as are sufficient to enable him to make a representation should be withheld from him for any length of time. It may not be practicable in every case to communicate the grounds and the particulars along with the order of detention but that does not mean that it can be deferred for any length of time. The grounds should be ordinarily communicated along with the order of detention and despite any special circumstances pointing to the contrary, they must be communicated within a reasonable time. If it is unnecessarily delayed and is ultimately found that his detention was completely unjustified, the delay amounts to playing with the liberty of a subject for no fault of his. Besides, the Provincial Government should not labour under a conception that such orders are completely immune from interference and free of the jurisdiction of the Court. As laid down in Kamla Kant Azad Vs. Emperor, under particular circumstances, it is quite open to the Court to take a view that the order was not bona fide order. The order has in its favour a very strong presumption of validity which carries along with it presumption that the Provincial Government was reasonably satisfied and that there were valid and sufficient, materials for being so satisfied but this presumption is a rebuttable one and after the order is made, the onus is on the subject,, the detenu to satisfy that the order was not a bona fide one. By way of illustration, I may invite attention to the case of Jugeswar that was dealt with by his Lordship Shearer J. No doubt this presumption is very much weakened in circumstances where the Provincial Government unduly and without any rhyme or reason defers communicating to the detenu the grounds and other particulars which he is entitled to get notice within a reasonable time of his detention. Contumacious disregard of the provisions of Section 4 of the Ordinance cannot be deemed to have no adverse effect; it may, rather should, in the context of particular circumstances deprive the order of its due presumption of bona fide character and lay it open to the charge of it being a mere pretence for unlawful detention of a citizen. Under the circumstances this Court would strongly recommend to the Provincial Government to comply with the provisions of Section 4 and further to say that in case of continued disregard, orders of detention run the risk of being considered as sham orders and this Court will then have no other alternative but to direct restoration of the subject''s liberty.

In Criminal Miscellaneous Case No. 125 which was also heard and decided by Reuben and Ray JJ., the material part of the judgment of Ray, J. was as follows:

I have said in Criminal Miscellaneous Case No. 123 of 1947, disposed of on 2-5-1947, that non-compliance with the provisions of Section 4 of the Ordinance is a subsequent occurrence and it necessarily does not go to the root of the validity of the order. The order when passed was valid, and there is nothing to show in the Ordinance that the order becomes invalid or the detenu''s detention under that order becomes illegal or improper on account of the unusual delay in compliance with or on account of noncompliance with the requirements of Section 4 of the Ordinance.

The contention before their Lordships seems to have been that non-compliance with the provisions of Section 4 invalidates the detention order abinitio. Their Lordships do not appear to have considered the possibility that a failure to supply the grounds as required by that section, while not affecting the initial validity of the order, may yet render further detention under the order illegal, and this is the point to which we propose to address ourselves.

In dealing with the question of construction referred to us, it will be convenient first to consider the actual meaning and effect of the words used by the Legislature in Section 4 of the Act and to determine in relation thereto whether or not the provisions of that section have been complied with in this case; next, to review the scope and purpose of the Act in the light of the legislative power which the Provincial Legislature in passing the Act were purporting to exercise, and finally to consider and determine whether the provisions of the section are mandatory and, if so, the effect of non-compliance therewith or whether they are merely directory with no invalidating effect.

For the immediate purpose the material words in Section 4 of the Act are:

As soon as may be after the order is made, the authority making the order shall communicate to the person affected thereby the grounds...to enable him to make...representation against the order...and it shall be the duty of the authority...to afford him the earliest practical opportunity of making such representation.

What in this context is the effect of the words "as soon as may be"? We may ask ourselves-as soon as may be--what? In this respect, the Legislature, in providing that once the grounds have been served, the person affected shall be afforded, the earliest practical opportunity of making a representation, has provided an express indication of its intention because it cannot have intended that there should be any greater degree of delay in communicating the grounds to the person affected than in affording him an opportunity of making his representation. Any contrary inference would lead to an absurdity. On this basis, the grounds must be communicated as early as practicable, which is the Same thing as saying as early as reasonable in the particular circumstances of the ease. If authority be needed for this latter proposition we would refer, firstly, to the following note in Mr. P. Ramnatha Aiyar''s Law Lexicon of British India under the head "practicable":

Where something is required to be done at the earliest ''practicable'' moment, the doing of the act is not required to be done at the very earliest moment; the adjective ''practicable'' importing a difference according to circumstances and meaning, ordinarily, that the thing must be done as soon as reasonably can be expected.

Secondly, to the judgment of their Lordships of the Privy Council in The Queen v. William Nicholas Price (1853) 8 Moo. P.C. 203 in which it is stated, inter alia:

The word ''forthwith'' when used in an Act of Parliament, has been construed to mean ''in a reasonable time'', as soon as the party who is to perform the act can reasonably perform it.

and thirdly, to the decision of the Supreme Court of the United States of America in John B. Stevens & Co. v. Ins. Co. 207 Fed. 757 where it was held that when a notice is to be given ''immediately'' under an employer''s liability policy, it means reasonable notice. There are many similar decisions: Spenceley v. Robinson (1825) 3 B.C. 658, Thompson v. Gibson (1841) 10 Cri L.J. 241, Christie v. Richardson (1842) 10 M.W. 688 and Tennant v. Bell (1846) 9 Q.B. 684. 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 tone 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 bettor 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 quite unreasonable in another In this case, the order u/s 2(1)(a) of the Act was issued on 16th April 1947, the applicant was arrested there under on 9th May 1947, but the grounds of his detention were not communicated to him until 24th July 1947, and, in our opinion, it is abundantly clear that the authority concerned did not comply with the provisions of Section 4 of the Act. Indeed, the learned Government Advocate did not seriously argue the contrary.

The Provincial Legislature are not a sovereign but a subordinate legislative authority and cannot go outside the powers of legislation conferred upon them by or in pursuance of the Government of India Act, 1935. The legislative power which the Provincial Legislature in passing the Act were purporting to exercise was, as we have already seen, the power to legislate for preventive detention in connection with the maintenance of public order which is conferred by Section 100(2) and Item 1 of List 2 in Schedule 7, Government of India Act, 1935. In our opinion, the phrase "preventive detention" means detention, not, as in the case of ordinary imprisonment, in respect of the actual commission of an illegal act, but detention in reasonable anticipation that some illegal act or acts may otherwise be committed and in the context of item 1 of List 2, in Schedule 7, Government of India Act, the illegal act must be one connected With the maintenance of public order. A further limitation upon the nature of the illegal act or acts in question is provided by Section 2(1) of the Act which requires that they must be such as are not only prejudicial to the maintenance of public order but prejudicial also to the public safety.

What distinguishes preventive from arbitrary detention, an entirely different subject-matter of legislation, is the existence of the reasonable anticipation that some illegal act or acts may otherwise be committed. It is obvious, therefore, that anything that weakens the fair and proper determination of the existence of such reasonable anticipation automatically tends to convert what would otherwise be preventive detention into a purely arbitrary detention, and at some point in that weakening process the question will arise whether an Act which purports to deal with preventive detention does in pith and in substance in fact so deal, or whether it has not overstepped the bounds and become ultra vires the Provincial Legislature in that it constitutes in effect an Act conferring upon the executive a power of arbitrary detention. No point on this aspect of the Act was taken before us, but this picture of the general background to the Act illustrates the importance that may properly be attributed to the provisions of Section 4 of the Act. Indeed, in the course of his order referring the point of law here in question for decision by a Full Bench, Bennett, J. stated, inter alia, his opinion that utres magis valeat quam pereat, the provisions of Section 4 of the Act must be construed as mandatory because otherwise the Act would in effect be an Act conferring an arbitrary power of detention upon the executive and would for that reason be ultra vires the legislative powers of the Provincial Legislature. It is not necessary, however, for the purpose of this application, for us to express any final decision upon this point because for the reasons which follow we are of opinion that even if the Provincial Legislature had in this respect an unfettered power of legislation, the provisions of Section 4 of the Act would nevertheless fall to be construed as mandatory.

We are of opinion that the mere fact that one of the formalities attendant upon the exercise of a statutory power is directed to be carried out after the exercise of such power has already commenced does not of itself preclude an intention on the part of the Legislature that non-compliance therewith shall lave an invalidating effect Upon the thing done or upon the continued doing of that thing.

Whether a formality attending the performance of a statutory power is, or is not essential to the validity of the thing done under such power depends upon the intention of the Legislature which is to be gathered from the actual words used in the stating of that formality when considered in the light of the scope and purpose of the enactment as a whole.

No doubt where the formality prescribed as attendant upon the exercise of a statutory power is directed to be carried out before the commencement of such exercise, it will ordinarily be easier to infer the mandatory intention of the Legislature than where the prescribed formality is directed to be carried out subsequent to the commencement of such exercise. Indeed, the fact that the Legislature has authorised the exercise of the power at all before the prescribed formality is to be carried out will, where the circumstances are such that the Legislature could in practice have directed the formality to be carried before the Commencement of the exercise of the power, itself give rise to an inference that the Legislature regarded its direction as to the carrying out of such formality as merely directory. But that is not the case in regard to the formalities prescribed by Section 4 of the Act. The Act is an emergency one and action there under is obviously not to be delayed. When the authority concerned signs the order, it may well be that the grounds are not formulated in a manner which would permit of their immediate communication to the detenu.

Moreover, the Legislature expressly contemplates that upon grounds of public policy it may not be possible to communicate to a detenu all or perhaps any of the grounds upon which the Provincial Government were satisfied as to the necessity for his detention. In the nature of things, therefore, it would not have been practical for the Legislature to have, prescribed as a mandatory and invalidating provision that the formality of communication of the grounds of detention should be carried out either prior to or at the time of arrest and detention. There is, therefore, no inference here that because the Legislature have authorised the exercise of the power of detention to commence prior to the carrying out of the prescribed formality as to the communication of the grounds of detention that it did not intend that the failure to carry out that formality should have any invalidating effect. Nor, in our opinion, does any such inference arise in such circumstances from the mere fact that the Legislature has not declared what shall be the consequence of non-compliance with the prescribed formality. We are not aware of any general rule that in an enabling Act a direction that some formality attendant upon the exercise of the power thereby conferred shall be carried out at some time subsequent to the commencement of the exercise of such power must be considered as purely directory unless the Legislature has expressly stated some invalidating effect.

In the realm of contract it is well settled that the breach of a condition subsequent may have as great an invalidating effect as the breach of a condition precedent although there may be no express statement to that effect. It is always a matter of interpretation as to the intention of the parties and there would not appear to be any reason why there should be any different rule of construction in relation to a statute. The learned Government Advocate relied upon the following statement made by Lord Blackburn in the course of his judgment in Justices of the Peace for Middlesex v. The Queen (1884) 9 A.C. 757, as supporting the view that a provision in an Act of Parliament constituting a condition subsequent to the doing of the thing authorised by the Act is always directory:

There are many cases. I was not aware that this point was to be raised, and I have not looked into them and I cannot refer to them, but there is a numerous Class of cases in which it has been held that certain provisions in Acts of Parliament are directory in the sense that they were not meant to be a condition precedent to grant or whatever it may be, but a condition subsequent; a condition as to which the responsible persons may be blameable and punishable if they do not act upon it, but their not acting upon it shall not invalidate what they have done, third persons having nothing to do with that.

He would be a bold lawyer who differed from any statement of legal principle made by that very eminent Judge, but when Lord Blackburn''s statement is looked at in relation to the context in which it was made, we do not think that it can fairly be said that he intended thereby to lay down any general rule that a provision in an Act of Parliament which constituted a condition subsequent to the doing of the thing authorised by the Act was always to be construed as being merely directory. Rather, we think that his Lordship had in mind the very inference, to which we have already drawn attention, which arises where the Legislature have expressed as a condition subsequent to the doing of the thing authorised by the Act a matter which it was open to the Legislature to have expressed as a condition precedent. The question for decision by the House of Lords in that case was the construction of Section 4, Superannuation Act, 1859 which provides that the Commissioners of the Treasury may in certain circumstances order the addition of a certain number of years for the purpose of computing the amount of the superannuation allowance to be paid to persons retired from the public service. At the end of that section there is the following proviso:

Provided always, that every order or warrant made under this enactment shall be laid before Parliament.

It was argued that this proviso constituted a condition precedent to the order to be made u/s 4 and that non-compliance therewith invalidated the grant of the superannuation allowance in question. It was held that the proviso was directory only and it was in coming to this conclusion that Lord Blackburn expressed himself as above set out. It will be seen at once that the Proviso might have been read as constituting either a condition precedent or a condition subsequent to the order to be made under the section and that if it were construed as a condition subsequent, then, since it was clearly open to and practicable for Parliament to have stated it as a condition precedent, the inference was that it was intended to be directory only. Neither the Lord Chancellor, the Earl of Selborne, nor Lord Watson in the course of their judgments in that case mentioned the phrase ''condition subsequent''. The ratio decidendi of the judgment of the Lord Chancellor was a follows:

With those preliminary considerations, we have to approach the words which relate to this special minute, ''if the compensation shall exceed'' a certain amount (and for the present purpose I need not enter into the detail of that) such allowance shall be granted by special minute stating the special grounds for granting such allowance, which minute shall be laid before Parliament.'' It seems to me, that the object of that is to account for the excess, and to account for it by reasons, to be communicated to Parliament, and that in the nature of the case it is not intended to effect the validity of the grant, at all events so far as relates to that which is not in excess, and which if granted alone would not require any special minute at all. But I do not shrink from going further than that, and saying that if that which is granted might properly be granted, and if the grant or the award is made, as far as the officer is concerned, in the usual manner, I do not think that the neglect of the Treasury or of their proper officer to record in their proper books a special minute, or their neglect to lay that special minute before Parliament, need be construes as nullifying what otherwise would be a valid grant and award of a pension made and announced to the pensioner in a form which is sufficient in all other cases. Therefore I think that your Lordships, without doing any real violence either to the spirit or to the language of the Act of Parliament, may dispose of that argument, in a manner which certainly will avoid consequences in the last degree inconvenient, and I may add unjust, which otherwise might possibly result.

and that of Lord Watson:

The enactments with regard to a special minute appear to me to be plainly directory. I do not think it was intended that it should be a condition precedent of an arrangement made by the Treasury with respect to the retirement of a prison officer or any other civil servant whose case falls within the 7th section of the statute, that it should have the implied assent of Parliament, from the presentation of such a minute, and its lying unchallenged on the tables of either House for a certain period. That was not the intention of the provision. It was not intended to take away from the Commissioners of the Treasury the power of making these arrangements. The object of the provision is that, for the information of Parliament, a minute containing the special reasons for granting a large allowance to a civil servant in such circumstances shall be laid upon the table, it being of course within the power of one of the Houses of Parliament to deal as they choose in Committee of Supply with the allowances that are made by the Treasury.

The object of the section there under consideration was, therefore, considered by their Lordships to be a matter which had no possible relevance to the validity of the order made u/s 4, and it was upon that ground that their Lordships based their decision that the terms of the Proviso were directory only. In coming to this conclusion, their Lordships clearly thought it necessary to discuss and consider the words of the Proviso in relation to the whole scope and purpose of the Act. It would have been quite unnecessary for them to do so if in fact there existed any general rule of law that in a statute a condition subsequent to the doing of the thing authorised thereby is always to be construed as directory only. It may be instructive to note how different was the effect of the Proviso as construed by their Lordships from the provisions of Section 4 of the Act here in question. There the Proviso was not directed to any review of the order itself, here the express purpose of Section 4 of the Act is to secure such a review.

There is no general rule as to when an enactment is absolute with the consequence that the neglect of the requirements of the Act as to the formalities attendant upon something to be done thereunder will invalidate the thing being done or is merely directory when the neglect of such requirements has no invalidating effect, As Lord Campbell stated in Liverpool Borough Bank v. Turner (1861) Cri LJ 379:

No universal rule can be laid down as to whether mandatory enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Court of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute, to be construed.

The whole scope and purpose of the statute under consideration must be regarded: Salford Guardians v. Dewhurst 1926 A.C. 619.

Counsel for the appellant called bur attention and relied upon the following dictum of Brett L.J. (as he then was) in R.W. Enraght''s case (1881) 6 Q.B.D. 376:

It is a general rule, which has always been acted upon by the Courts of England, that if any person, procures the imprisonment of another ha must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue.

The facts of that case are not without relevance to the question here under consideration because they show the importance attached by the Court of England to the smallest statutory safeguard contained in an enactment affecting the liberty of the subject. In that case a writ decontumace capiendo, a writ used for the purpose of enforcing obedience to the decree of an ecclesiastical Court, under the provisions of 53 Geo. III, C. 127, was issued from the Petty Bag Office, the Office belonging to the common law side of the Court of Chancery, out of which writs issued in matters wherein the Crown was mediately or immediately concerned; so called because the writs were kept originally in a little sack or bag, and it was recorded in the Queen''s Bench on the following day. The Court being not then sitting it was delivered to Sheriff. Under this writ the incumbent was arrested and lodged in prison. It was held by the Court of Appeal on appeal from, the Queen''s Bench Division that the writ de conitumace capiendo when brought into the Court of Queen''s Bench, should there, in the presence of the justices, be opened and delivered of record to the Sheriff and that the failure to comply with that formality, which they held to be one of substance, invalidated the writ. Brett L.J. (as he then was) added:

Although in this case I consider that irregularity a matter of substance, I should be of the same opinion if it were only a matter of form, because, as I said before, I take it to be a general rule that the Courts at Westminster will a not allow any individual in this kingdom to procure the imprisonment of another, unless he takes care to follow with extreme precision every form and every step m the process which is to procure that imprisonment. I consider this to be a wholesome and good rule, and to be in accordance with the great desire which English Courts have always had to protect the liberty of every one of Her Majesty''s subjects.

It was suggested by the learned Government Advocate on behalf of the respondents that having regard to the decision in Kamla Kant Azad Vs. Emperor, the Ordinary powers of the High Court u/s 491, Criminal Procedure Code, constitute a sufficient protection to any person detained under an order issued u/s 2(1)(a) of the Act and that it is therefore unnecessary to construe the provisions of Section 4 thereof as mandatory and absolute. In our opinion, this argument is incorrect and fallacious. Whilst it may be open to the Court to infer mala fides from unreasonable delay, the Court cannot be astute to label mere, negligence with the badge of fraud and, in relation to an Act the effect of an order under which is limited to six months, it is obvious that the point at which delay can properly give rise to an inference of fraud will itself be so delayed as to exclude the possibility of any effective protection to a detenu from such inference. For instance, in this very case, the grounds for his detention were not served upon the detenu until well over three months after the date of the order u/s 2(1)(a) Of the Act, but, in our opinion, Bennett and Ramaswami JJ. rightly rejected any inference that the Provincial Government were acting mala fide.

It was next urged on behalf of the respondent that Section 4 of the Act could not have been regarded by the Legislature as affording any substantial protection to the detenu because it leaves it open to the authority concerned to take no action upon the representations made to it, or alternatively to plead that it would be against the public interest to furnish the grounds of detention. We cannot accept this contention. We do not think that it can be suggested that the Legislature would not properly contemplate that due and proper consideration would be given to the representations made by the detenu and that the authority concerned would examine bona fide and fairly the privilege granted on the grounds of public interest. The benefit and safeguard to the detenu of the communication to him of the grounds for his detention cannot, except possibly in relation to the provisions of Section 2(5) of the Act, be restricted to the mere possibility of representations by him to the authority concerned. Once the grounds are communicated, the authority is committed thereto, and if they be incorrect or insufficient the detenu will ordinarily be in a position to secure action on his behalf by his friends and relations and by his member in the Legislative Assembly. Section 4 of the Act merely applies to the grounds of detention the ordinary rule as to the privilege from production of a State document on the ground of public interest, and the Court, if it thinks fit, can compel the objection to be taken personally before it and on oath by the authority concerned. This can hardly, therefore, be termed an empty provision.

It was also suggested that if the provisions of Section 4 of the Act are mandatory, a subordinate official by his negligence or deliberately might defeat the object of the Act. It may well be that in relation to one or more individual detenues that is so, but such a contingency is inherent in every mandatory formality attached to the doing of a thing under an enabling Act and is certainly no reason for holding that the performance of the formality is merely permissive.

We therefore agree with the opinion expressed by Bennett, J., in the course of the order under reference as to the proper construction to be placed upon Section 4 of the Act, namely:

Freedom from arbitrary arrest and detention and protection therefrom under the rule of law is the very foundation-stone of the individual liberty and the rights of the subject, When to meet an emergency affecting the maintenance of public order powers are granted by the Legislature to the executive which constitute an inroad upon such freedom and protection, it would, in my opinion, require a clear provision to that effect or some provision providing some adequate and alternative protection, before it could be assumed that the Legislature intended to go beyond what was reasonably necessary for the maintenance of public order by providing that the safeguards which it had enacted against an abusive exercise of such powers should be interpreted as being merely directory. There is no such clear provision in the Bihar Maintenance of Public Order Act, 1947, and there is no protection at all against the abuse of the powers granted by Section 2(1)(a) of the Act other than the provisions of Section 4 thereof. I find myself quite unable to come to the conclusion that for the maintenance of public order the Legislature intended to create a position where every subject at the sole discretion of the Provincial Executive should be liable to preventive detention for six months, without being informed as soon as reasonably possible of the grounds far his detention and that when it enacted in positive and mandatory terms; that ''the authority making the order shall communicate the grounds'' it was merely expressing a pious hope which, the Executive might disregard without affecting the validity of the continued detention of the detenu.

There remains the question as to the effect of non-compliance with the mandatory provisions of Section 4 of the Act. In this respect we do not think that we should look too narrowly at the order made u/s 2(1)(a) and consider its initial or continued validity. The Act is not primarily concerned with orders but with the preventive detenion of persons whose detention the Provincial Government is satisfied is necessary with a view to prevent them from acting in any manner prejudicial to the public safety and maintenance of public order. The order made u/s 2(1)(a) is mere machinery through which the object of the Act, namely, the detention of the person concerned is carried out and, in our opinion, it is that detention which becomes illegal if the grounds for his detention are not communicated to the detenu within a reasonable time. It is unnecessary to infer any intention on the part of the Legislature that the order issued u/s 2(1)(a) should be avoided ab initio. In our opinion, therefore, the applicant was being illegally detained and, as we were of that opinion but desired, in view of the importance of the matter, to consider our judgment we have already ordered his immediate release.

We desire to call the attention of the authorities concerned to the fact that Section 4 of the Act directs that the detenu shall be furnished with such particulars of the grounds of detention as will enable him if he wishes to make a representation against the order u/s 2(1)(a). The first grounds which were communicated to the applicant on 10-6-1947, clearly contain no such particulars. Those grounds were cancelled by the fuller grounds dated 17-7-1947, which were communicated to him on 24-7-1947, but even those grounds are stated in very general terms and it would seem that it should have been possible to give more precise and detailed particulars of the acts of which he was suspected.

We would also draw the attention of the authorities concerned to the fact that a large number of similar cases have come before the High Court and that it has become abundantly apparent that the importance of a prompt communication of the grounds of detention to every person detained under an order passed u/s 2(1)(a) of the Act has not been appreciated. We have at present no reason to doubt that the omissions were due to inadvertence, but it is in the highest degree important that all servants of the Executive should realize, that every formality relating or attached to the deprivation of the liberty of any individual must be scrupulously carried out.

Finally, we would order that a copy of this judgment be sent to the Provincial Government immediately.