PETITIONER: SADHU ROY Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT22/01/1975 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH CITATION: 1975 AIR 919 1975 SCR (3) 291 1975 SCC (1) 660 CITATOR INFO : RF 1975 SC1165 (5) ACT: Maintenance of Internal Security Act (26 of 1971) S. 3.--Preventive detention after discharge by Criminal Court for offences which are grounds of detention--When valid. HEADNOTE: The petitioner was detained under s. 3 of the Maintenance of Internal Security Act, 1971. The grounds of detention were that twice on the same day he and his associates, armed with dangerous weapons, committed thefts of overhead copper wire, the first time in broad day light and then at about mid night. On both occasions they were challenged by public servants, members of the para police force, attached to the railway administration but the petitioner and his associates escaped after attacking the members of the Railway Police Force. The petitioner was arrested in connection with the two incidents. His name was not in the F.I.R. but was gathered in the course of investigation. The police, how- ever reported that the petitioner being a dangerous person, witnesses were afraid to depose against him in open court and so he was discharged. He was, however, taken into custody the same day of discharge pursuant to the detention order. Allowing the petition challenging the detention. HELD : 1(a) The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security' purposes. But if such discharge or acquittal proceeds on the footing that the charge is baseless or false, preventive detention on the same condemned facts may be vulnerable on the ground that the power of detention has been exercised in a mala fide or colorable manner. (b) The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency of the material. But the executive conclusion regarding futuristic prejudicial activities of the detenu and its nexus with his past conduct though acceptable is not invulnerable. (c) The satisfaction though attenuated by 'subjectivity' must be real and rational, must flow from an advertence to relevant factors, and not be a mockery or mechanical chant of statutorily sanctified phrases. The subjective satisfaction must be actual satisfaction. (d) One test to check upon the colorable nature or mindless mood of the alleged satisfaction of the authority,is to see if the articulated 'grounds' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality. (e) If witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society. (f) But if on a rational or fair consideration of the police version or probative circumstances he should have rejected it the routinisation of the satisfaction, couched in correct diction. cannot carry conviction about its reality and on a charge of mala fides or misuse of power being made, the court can examine the circumstances. [297 D- 298 C] (2) Merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses are members of the Railway Protection Force and the offenses against public property were of grave character. [299 B-C] 292 (3)In a case like the present, where the circumstances Of the non-prosecution strongly militate against the reality of the petitioner's involvement in the occurrence, the subjective satisfaction of the District Magistrate must be spoken to by him. While the detainer's on oath is not always insisted on as the price for sustaining the order, subjective satisfaction, being a mental fact or state is best established by the author's affidavit and not that of a stranger in the secretariat familiar with the papers. But in the present case, the District Magistrate's affidavit is not available and the reason given for his not filing his affidavit is not convincing. If the District Magistrate had sworn an affidavit that the identity of the petitioner as participant in the two incidents was not known to the Railway Protection Force and that other villagers made them out as the gang was decamping with the booty, the detention might have been upheld. But there is no such averment and the bare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable even for subjective satisfaction. [298 E-F; 299 A-B, C-E] [Were a grievous crime against the community has been committed the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should. Detention is a softer treatment. Further, if the is innocent the process of the law should give him a fair chance and that should not be scuttled by indiscriminate to easy but unreal orders of detention un- bound by precise time.]. [300 C-E] Srilal Shaw v. The State of West Bengal Writ Petition No. 453 of 1974. decided on 4-12-74 and Jaganath's case [1966] 3 S.C.R. 134 and 138, followed. Rameshwar Shaw [1964] 4 S.C.R. 921 926. Hoorchand's cast A.I.R. 1974 S.C. 2120; Golam Hussain v. Commissioner of Police [1974] 4 S.C.C. 530, 534 and Dulal Roy v. The District Magistrate, Burdwan [1975] 3 S.C.R. 186 referred to. JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 429 of 1974. Under
Art. 32 of the Constitution of India.
Shiv Pujan Singh, for the petitioner.
G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-Shri S. P. Singh, appearing as amicus
curiae has urged a few points in support of his submission
that the petitioner detenu, very poor and not fallen into
criminal company, is entitled to be set free, the order
being illegal.
The obnoxious acts, with futuristic import, relating to the
detention, have been set out in the grounds annexed to the
order and are repeated in the affidavit of the Deputy
Secretary, Home (Special) Department, Government of West
Bengal, based on the records available in the Secretariat.
The District Magistrate of Purulia, nearly three long years
ago, passed the order of detention against the petitioner on
February 2, 1972 on receipt of materials regarding the pre-
judicial activities of the detenu and on being subjectively
satisfied of the need for the detention under s.3 of the
Maintenance of internal Security Act, 1971 (Act of 1971)
(her r called the MISA, for short).
293
The two criminal adventuress of the petitioner which
persuaded the District Magistrate to prognosticate about his
prejudicial activities were allegedly indulged in on
September 3, 1971. The grounds of detention are that on
that date, in two separate dramatic sallies, the detenu and
his associates went armed with hacksaws, lathis etc., and
what not, committed theft of overhead copper catenary wires
and certain other items from a place between Anaka and
Bagalia railway stations. On the first occasion, which was
during broad daylight, the miscreants were challenged ‘by
the R. S. Members’ but were scared away by the petitioner
and his gang repeated the theft of traction wire etc., at
stone throw. On the second occasion, which was at about
mid-night about the same spot ‘When resisted by the duty RPF
Rakshaks with the help Of villagers, ballasts were pelted at
them by the violent in uders who made good their escape with
the gains of robbery. on these two frightful episodes, the
detaining authority came to the requisite conclusion about
danger to the community, which is recited in the order.
The question is whether, in the facts and circumstances of
the case, the order can be impugned as colorable or exercise
of power based on illusory or extraneous circumstances and
therefore void. An examination of the surrounding set of
facts, serving as backdrop or basis, becomes necessary to
appreciate the argument that the subjective satisfaction of
the authority did not stem from any real application of his
mind but as a ritualistic recital in a routine manner. It
is admitted in paragraph 6 of the counter affidavit that the
two incidents were investigated as GRPS Case No. 1 and
No .2. The petitioner was arrested in connection with the
said cases on September 9. 1971 and the police submitted a
final report in both the cases on January 6, 1972 and
February 9, 1972 respectively, ‘not because there was no
evidence against the petitioner but because the detenu-
petitioner being a dangerous person, witnesses were afraid
to depose against him in open Court’. It may be mentioned
here that the petitioners name was not in the FIR but is
alleged to have been gathered in the, course of the
investigation. However, be was discharged from the two
cases on February 9, 1972 but was taken into custody the
same day pursuant to the detention order. Thereafter the
prescribed formalities were followed and there is no quarrel
about non-compliance in this statutory sequence.
The crucial submission that deserves close study turns on
the colorable nature or mindless manner of the impugned
order. What are the facts germane to this issue? It is
seen that the petitioner’s name is not in the first
information statements. Had a court occasion to adjudge the
guilt of an accused person charged with serious crime
committed in the presence of quasi-police officers and his
name is not seen in the earliest report, to the police, that
would have received adverse notice unless explained.
Likewise, the circumstance that the final report to the
Court terminated the criminal proceedings may, unless other
reasons are given, militate against the implication of the
petitioner since s. 169 Cr.P.C. refers to two situations one
of which at least nullifies possible inference of
incrimination i.e., that
294
there is no ‘reasonable ground of suspicion to justify the
forwarding of the accused to a magistrate’. It behoves the
detaining authority to tell this Court how he reached his
mental result in the face of a ‘release report’ by the
police. For, the legal label that the satisfaction of the
executive authority about potential prejudicial activity is
‘subjective’ does not mean that it can be irrational to the
point of unreality. Subjective satisfaction is actual
satisfaction, nevertheless. The objective standards which
courts apply may not be applied, the subject being more
sensitive; but a sham satisfaction is no satisfaction and
will fail in court when challenged under Art. 32 of the
Constitution. If material factors are slurred over, the
formula of ‘subjective, satisfaction’ cannot salvage the
deprivatory order. Statutory immunology hardly saves such
invalidity. After all, the jurisprudence of ‘detention
without trial is not the vanishing point of judicial review.
The area and depth of the probe, of course, is conditioned
by the particular law, its purpose and language. But our
freedoms axe not wholly free unless the judiciary have a
minimal look at their executive deprivation, even though
under exceptional situations.
We may here refer to what a bench of five Judges of this
Court observed in the vintage ruling Rameshwar Shaw(1) :
“It is however necessary to emphasise in this
connection that though the satisfaction of the
detaining authority contemplated by S. 3 (1)
(a) is the subjective satisfaction of the said
authority, cases may arise where the detenu
may challenge the validity of his detention on
the ground of mala fides and in support of the
said plea urge that along with other which
show, mala fides, the Court may also consider
his grievance that the grounds served on him
cannot possibly or rationally support the
conclusion drawn against him by the detaining
authority. It is only in this incidental
manner and in ‘ support of the plea of
malafides that this question can become
justiciable; otherwise the reasonableness or
propriety of the said satisfaction
contemplated by S. 3 (1) (a) cannot be
questioned before the Courts.”
Back to the facts. Of course, the mere circumstance that
the aim of the petitioner was gathered in the course of the
investigation is neither here nor there and cannot help him
in the tall contention that for that reason the order of
detention is a make-believe. The conspectus of
circumstances placed before the authority and his rational
response, having regard to the duty to immobilise dangerous
delinquents from molesting the community-these are pertinent
factors to decode the responsible reality of the
satisfaction, although not the plenary rightness of the
detention order.
There are a few vital facts which loom large in this
context. One is that court discharged the accused, the
reason alleged in the counter being that
[1964] 4 S.C.R. 921, 926.
295
“The police submitted final report in those
cases on 6-1-72 and 9-2-72 respectively not
because there was no facts which show
malafides, the Court may also consider his
evidence against the petitioner but because
the detenu petitioner being a dangerous person
witnesses were afraid to depose against him in
open court.”
What is the impact of a discharge of the accused by the
criminal court based on police reports on the validity of
the detention order against the same person based on the
same charge in the context of a contention of a non-
application of the authority’s mind ? The two jurisdictions
are different, the two jurisprudential principles diverge,
the objects of enquiry and nature of mental search and
satisfaction in the two processes vary. The argument that
detention without trial, for long spells as in this
instance, is undemocratic has its limitations in modern
times when criminal individuals hold the community to ran-
som, although vigilant check of executive abuse becomes a
paramount judicial necessity. We, as judges and citizens,
must remember that, in law as in life, the dogmas of the
quiet past are not adequate to the demands of the stormy
present and the philosophy and strategy of preventive
detention has come to stay. We may merely observe that we
are not legally impressed with counsel’s persistent point
that solely or mainly because the petitioner has been
discharged in the two criminal cases he is entitled to be
enlarged from preventive captivity.
Even so, it does not follow that the extreme view propounded
by the counsel for the State that the termination of the
proceedings in a criminal case on identical facts is of no
consequence is sound. In this connection, we may draw
attention to a few decisions of this Court cited at the bar.
Chandrachud J., speaking for the Court, recently observed in
Srilal Shaw v. The State of West Bengal(1), dealing with a
situation somewhat like the one in this case, thus):
“This strikes us as a typical case in which
for no apparent reason a person who could
easily be prosecuted under the punitive laws
is being preventively detained. The Railway
Property (Unlawful Possession) Act, 29 of
1966, confers extensive powers to bring to
book persons who are found in unlawful
possession of railway property. The first
offence is punishable with a sentence of five
years and in the absence of special and
adequate reasons to be mentioned in the
judgment the imprisonment shall not be less
than one year. When a person is arrested for
an offence punishable under that Act, officers
of the Railway Protection Force have the power
to investigate into the alleged offence and
the statements recorded by them during the
course of investigation do not attract the
provisions of section 162, Criminal Procedure
Code. (See Criminal Appeal No. 156 of 1972
decided on 23-8-1974). If the facts stated in
the ground are true, this was an easy case to
take to a successful termination. We find it
impossible of accept that the prosecution
could not be proceeded with as the witnesses
(1) Writ Petition No. 453 of 1974, decided
on 4-12-74.
296
were afraid to depose, in the public against
the petitioner. The Sub-inspector of Police
who made the Panchnavna, we hope, could
certainly not be afraid of giving evidence
against the petitioner. He had made the
Panchnama of seizure openly and to the
knowledge of the petitioner. Besides, if the
petitioner’s statement was recorded during the
course of investigation under the Act of 1966,
that itself could be relied upon by the
prosecution in order to establish the charge
that the petitioner was in unlawful possession
of Rail-, way property.” (emphasis ours)
Again, in Noorchand’s case(1) Gupta J.,
delivering judgment for Court, held:
“We do not think it can be said that the fact
that the petitioner was discharged from the
criminal cases is entirely irrelevant and of
no significance; it is a circumstance which
the detaining authority cannot altogether
disregard. In the case of Bhut Nath Mate v.
State of West Bengal (AIR 1974 SC 806) this
Court observed:
“. detention power cannot be quietly used to
subvert, supplant or to substitute the
punitive law of the Penal Code. The immune
expedient of throwing into a prison cell one
whom the ordinary law would take care of,
merely because it is irksome to undertake the
inconvenience of proving guilt in court is
unfair abuse.”
If as the petitioner has asserted, he was
discharged because t ‘here was no material
against him and not because witnesses were
afraid to give evidence against him, there
would be apparently no rational basis for the
subjective satisfaction of the detaining
authority. It is for the detaining authority
to say that in spite of the discharge he was
satisfied, on some valid material, about the
petitioner’s complicity in the criminal acts
which constitute the basis of the detention
order. But, as stated already, the District
Magistrate Malda, who passed the order in this
case, has not affirmed the affidavit that has
been filed on behalf of the State.”
There was reference at the bar to the ruling reported as
Golam Husvain v. Commissioner of Police(2) where the Court
clarified that there was no bar to a detention order being
made after the order of discharge by the criminal court, but
emphasized the need to scan the ,order to prevent executive
abuse in the following words:
“Of course, we can visualise extreme cases
where a Court has held a criminal case to be
false and a detaining authority with that
judicial pronouncement before him may not
reasonably claim to be satisfied about
prospective prejudicial activities based on
what a Court has found to be baseless.”
(1) A.I.R. 1974 S.C. 2120.
(2) [1974]4 S.C.C. 530.
297
Maybe, we may as well refer to the, vintage ruling in
Jagannath’s care(1) where Wanchoo J., (as he thn was) spoke
for a unanimous Court :
order of detention should show that it had
acted with all due care and caution and with
the sense of responsibility necessary when a
citizen is deprived his liberty without trial.
We have therefore to see whether in the
present case the authority concerned has acted
in this manner or not. If it has not so acted
and if it appears that it did not apply its
mind properly before making the order of
detention the order in question would not be
an order under die Rules and the person
detained would be entitled to release.”
The precedential backdrop help crystallize the jurisprudence
of, preventive detention, an odd but inevitable juridical
phenomenon, in a suicide manner and to the extent relevant
to the case. Although. the circumstances of each case will
ultimately demarcate the callous, or colorable exercise of
power from the activist or alert application of the
executive’s mind in making the impugned order, some clear.
guidelines, though overlapping, help application of the law:
(1) The discharge or acquittal by a criminal
court is not necessarily a bar to preventive
detention on the same facts for ‘security’
purposes. But if such discharge or acquittal
proceeds on the footing that the charge is
false or baseless, preventive detention on the
same condemned facts may be vulnerable on the
ground that the power under the MISA has been
exercised in a malafide or colorable manner.
(2) The executive may act on subjective
satisfaction and is immunised from judicial
dissection of the sufficiency of the material.
(3) The satisfaction, though attenuated by
‘subjectivity’ must be real and rational, not
random divination, must flow from an
advertence to relevant factors, not be a mock
recital or mechanical chant of statutorily
sanctified phrases.
(4) The executive conclusion regarding
futuristic prejudicial activities of the
detenu and its nexus with his past conduct is
acceptable but not invulnerable. The court
can lift the verbal veil to discover the true
face.
(5) One test to check upon the recolourable
nature or mindless mood of the alleged
satisfaction of the authority is to see if the
articulate ‘grounds’ are too groundless to
induce credence in any reasonable man or to
frivolous to be brushed aside as fictitious by
a
(1) [1966] 3 S.C.R. 134,138.
298
responsible instrumentality. The court must
see through mere sleights of mind played by
the detaining authority. ‘
(6) More concretaly, if witnesses are
frightened off by a desperate criminal, the
court may discharge for deficient evidence but
on being convinced (on police or other
materials coming within his ken) that
witnesses had been scared of testifying, the
District Magistrate may still invoke his
preventive power to protect society.
(7) But if on a rational or fair
consideration of the police version or
probative circumstances he would or should
necessarily have rejected it, the
routinisation of the satisfaction, couched in
correct diction, cannot carry conviction about
its reality or fidelity, as against factitious
terminological conformity. And on a
charge of malafides or misuse of power being
made, the court can go behind the facade and
reach at the factum.
So viewed, how does the petitioner’s case
stand?
The petitioner’s identity and involvement must, in some
manner, brought home, sufficient for the subjective
satisfaction of a responsible officer not merely for his
hunch or intuition. Let us assume in favour of the officer
that such material was present before him when he passed the
order of detention. This should be revealed to the court
hearing the habeas corpus motion, in a proper return in the
shape of an affidavit. While we agree that the detainer’s
own oath is not always insisted on as the price for
sustaining the order, subjective satisfaction, being a
mental fact or state is best established by the author’s
affidavit, not a stranger in the Secretariat familiar with
papers, but the mind of the man who realised the
imperativeness of the detention. This is not a formality
when the subject-matter is personal liberty and the more
‘subjective’ the executive’s operation the more sensitive is
procedural insistence. Here the District Magistrate’s
affidavit is unavailable.
Another obstacle in the way of the State, which has to be
surmounted, consists in the circumstances that both the
criminal occurrences took place in the presence of public
servants, members of the para-police forces attached to the
railway administration. Indeed, the case is that some of
these officials were terrorized and over-awed before the
stolen articles were removed. Naturally, one would expect a
serious crime like railway property being removed by show of
violence being the subject-matter of the prosecution. In
the present case. the District Magistrate does not swear an
affidavit himself and what is stated is that he is now
posted in Sikkim and is not ‘presently available for
affirming the affidavit’. In a case where a personal expla-
nation is necessary, Sikkim is not too distant and so we
have to see Whether the District Magistrate has, in the
instant case, to show why,
299
when the cases were discharged by the trying magistrate, he
thought there was enough material for preventive detention.
True, the Home Department official, informed by the records,
has sworn that the police report for non-prosecution was
‘not because there was no offence against the petitioner but
because the detenu petitioner being a Jangerous person
witnesses were afraid to depose against him in open court’.
Maybe this is true, but the subjective satisfaction of the
District Magistrate must be spoken to by him, particularly
in a situation where the circumstances of the non-
prosecution strongly militate against the reality of the
petitioner’s involvement in the occurrence. After all,
merely to allege that witnesses were panicked away from
Testifying to truth cannot be swallowed gullibly when the
witnesses Themselves are members of a railway protection
force and the offenses against public property are of a
grave, character. The observations of Chandrachud J. in
Srilal Shaw, quoted earlier, are in point.
In the case of non-officials, maybe they are afraid to give
evidence against dangerous characters for fear of their life
but such an excuse or alibi is ordinarily unavailable where
the witnesses are para-police public servants. If the
District Magistrate had sworn an affidavit that he identity
of the petitioner, as participant in the crime, was not
known of the railway protection force and that other
villagers made them out is the gang was decamping with the
booty, something may be said for he plea. There is no such
averment in the counter-affidavit and the pare ipse dixit of
the Deputy Secretary in the Home Department that witnesses
were afraid to depose is too implausible and tenuous to be
acceptable even for subjective satisfaction. After all,
freedom is not bubble to be blown away by executive whif or
whim. For, as pointed put by Gajendragadkar J. (as he then
was) in Rameshwar Shaw (supra) it p. 930 :
“At the point of time when an order of
detention is going to be served on a person,
it must be patent that the said person would
act prejudicially if he is not detained and
that is a consideration which would be absent
when the authority is dealing with a person
already in detention.”
Had the statement been of the detaining authority, had the
deponent furnished some fact which would or could make any
reasonable man believe that the witnesses were likely to shy
away from the court for far of the petitioner, bad the
affidavit thrown some light on the dark lint behind the non-
prosecution in court due to non-disclosure of evidence or to
indicate that the final report of investigation was not on
account of the absence of any reasonable suspicion but
because of the deficiency of evidence (S. 169 Cr.P.C.
contemplates both types of situations and the copy of the
report was easy to produce), we might have upheld the
detention. In Dulat Roy v. The District Magistrate
Burdwan(1) this question has been dealt with in some detail.
The flaw in the order flows from non-explanation of how the
District Magistrate has made his inference in the
circumstances indicated.
(1) [1975] 3 S.C.R. 186.
300
Without more, we are inclined to the view that the
observations of Wanchoo J. (as he than was) in Jagannath
(supra), at p. 138, applies
“This casualness also shows that the mind of
the authority concerned was really not applied
to the question of detention of the petitioner
in the present case. In this view of the
matter we are of opinion that the petitioner
is entitled to release as the order by which
he was detained is no order under the Rules
for it was passed without the application of
the mind of the authority con
In the present case, on account of the special reasons set
out above, who are far from satisfied that the detention
order is not a cloak to avoid the irksome procedure of a
trial in Court.
There are two social implications of dropping prosecutions
and resorting to substitutive detentions which deserve to be
remembered. Where a grievous crime against the community
has been committed, the culprit must be subjected to condign
punishment so that the penal law may strike a stem blow
where it should. Detention is a softer treatment than
stringent sentence and there is no reason why a dangeral
should get away with it by enjoying an unfree but unpaid
holiday. Secondly, if the man is innocent, the process of
the law should give him a fair chance and that should not be
scuttled by indiscriminate resort to easy but unreal orders
of detention unbound by precise time. That is a negation of
the correctional humanism of our system and breeds
bitterness, alienation and hostility within the cage.
We accordingly allow me writ petition, make the rule
absolute and’ direct that the petitioner set free.
V.P.S.
Petition allowed.
301