JUDGMENT
Jagannadha Das, J.
1. Cri Misc. No. 107 of 1949: The petitioner in this case has applied to this Court under Section 491, Criminal P. C., questioning the validity of an order of detention dated 20th April 1949, passed against him, by the Government of Orissa, under Section 2, Orisaa Maintenance of Public Order Act, The petition is dated 4th June 1949, and has been forwarded to this Court through the Superintendent of Cuttack Jail where he was under detention. It bas been stated to us by the Advocate-General on behalf of the Government that this petitioner has since absconded and has gone underground. When this petition came up for hearing before us on 17th and 18th of August, we intimated to the counsel appearing for the petitioner that we would not be prepared to consider the application unless the petitioner presented himself in Court and made himself available receiving the orders of the Court. The petition was adjourned for consideration to 22nd; but the petitioner has not turned up.
2. The relief under Section 491, Criminal P. C., is one available to a person under alleged illegal custody. The Court on an application by such a person is called upon to examine the legality of his custody or detention and if satisfied Chat it is illegal, will direct him to be set at liberty. The Court cannot be called upon merely to examine the legality of an order of detention and set aside the order of detention on the ground of its illegality. This Court is not a Court of appeal or a Court of revision against the detaining authority and can only examine the legality of the order of detention as incidental to the jurisdiction vested in it under Section 491 to examine the legality of the custody. If the petitioner is not in custody and is not available, the Court cannot stultify itself by passing an order directing the petitioner to be set at liberty. This petition therefore cannot be considered on its merits and must be rejected.
3. Cri. Misc. No. 113/49 ; It has been stated by the Advocate-General on behalf of the Government when this petition came up for hearing on 22nd instant, that the petitioner has since been released The petition has accordingly become infructuous and is therefore dismissed.
4. Cri. Misc. Nos. 126 and 137 of 1949: These two are petitions by Manmohan Misra and Nisamony Tripathy respectively complaining against the legality of the orders of detention passed against them by the Government of Orissa under Section 2, Orissa Maintenance of Public Order Act. 1943, in respect of the detention under the very same orders. The petitioner had previously filed two other petitions Cr. Misc. 52 and 63 of 1949, They were considered on their merits and disposed of by this Court by its order dated 38th April 1949 dismissing their applications. The present petitions are for reconsideration of the legality of the same detentions. We have gone through the petitions and we ace satisfied that there are no fresh grounds on which the legality of the detention is challenged. All that the petitioners say is that subsequent to the disposal of the prior petitions, this Court has in other cases taken a different view in similar circumstances. This is certainly not a ground for reconsideration. The petitions are accordingly dismissed. We are cannot to be understood as deciding by implication
that such a petition for review or reconsideration lies at all, in cases of this kind. The petitions are under Section 491, Criminal P. C. As pointed out by their Lordship of the Privy Council in C. P. Matthen Dist. Magistrate Trivendrum, A. I. R. (26) 1939. P. C. 213 : (I. L. . (1939) Mad. 744) the power to issue a prerogative writ of habeas corpus, in matters covered by Section 491, Criminal P. C., has been taken away. It is therefore doubtful whether the common law rule that successive applications for a writ of habeas corpus can be maintained before different Judges of the High Court on the same grounds, applies to proceedings under 8. 491, Criminal P. C.
5. Criminal Miso. Nos 119/49, 120/49, and 128/49. These three petitions raise the common question of whether an order of detention under Section 2, Orissa Maintenance of Public Order Act, passed against a person who has been already in detention by virtue of a prior order and without any fresh material disclosed for passing of the fresh order, is legal,
6. In Cri. Misc. No. 119 of 1949, the first order was passed on 28th October 1948, and was due to expire on 28th April 1949. The fresh order of detention was passed on 28th April 1949, while the petitioner was still in jail by virtue of the previous order and appears actually to have, been served on him after the expiry of the first order.
7. In this case the ground of the present detention furnished to the petitioner set out a number of details, which it is not disputed, are the very grounds for the prior order of detention and there is the further addition as follows:
“There is every reason to believe that after your release you will go underground and resort to sabotage. With a view to preventing you from acting in the manner above mentioned and from indulging in subversive activities, it was considered necessary that you should be detained.”
8. In cri. Misc. No. 120 of 1949, the petitioner appears to have been under detention by a prior order which expired on 17th March 1949, and thereafter, he was continued to be kept in detention and the High Court on an application in Cri. Misc. 26 of 1949, made by the petitioner in respect of euch continuance of custody, directed his release on 14th April 1949, on the ground that the continued detention was not supported by the Government by production of any fresh order of detention after 17th March 1949. Thereupon the Government passed a fresh order of detention on 23rd April 1949, the legality of which is the subject-matter of this petition.
9. In this application, the grounds of detention furnished to the petitioner are set out as follows;
“You are under detention for your communistic activities for a period of six mouths. You are a desperate
character and there is every reason to believe that after your release you will go under-ground in order to resort to sabotage and other forms of lawlessness. You have not changed your creed which contemplates chaos and confusion in the country by violent means and by commission of wide-spread sabotage of vulnerable points and dislocation of essential public services. That your being at large constitutes an imminent danger to peace and maintenance of public order. It was therefore considered necessary that with a view to preventing you from acting in the manner mentioned above which is prejudicial to public safety and maintenance of public order, you should be detained.”
10. IN Cri. Misc. No. 128 of 1949, the petitioner was detained by a prior order of detention dated 2nd September 1948, which was to expire on 2nd March 1949. The present order of detention against the petitioner was passed on 25th February 1949, while he was still under detention, to take effect from 2nd March 1949.
11. In this case, the grounds of detention furnished to the petitioner for the present detention are set out as follows:
“That you are detained for your communistic activities for a period of six months and there is every reason to believe that after your release you will go underground and resort to sabotage and other forms of lawlessness. That yon have not changed your political creed which contemplates the creation of chaos and confusion in the country by violent means and by commission of wide-spread disturbances, sabotage of vulnerable points and dislocation of essential public services. That your being at large constitutes an imminent danger to public peace and maintenance of public order. It was therefore considered necessary that with a view to preventing you acting in the manner mentioned above which is prejudicial to the public safety and maintenance of public order, you should be detained.”
12. It would appear therefore that in all these three cases, the fresh order of detention was prima facie for the same reasons as the previous order of detention and accordingly as stated at the commencement of this judgment, the question arises as to the legality of such orders.
13. This question was considered by me at length in my judgment in Cri. Misc. cases NOS. 61, 70, 71, 73, 74, 76, 82, 89, 98, 99 and 102 of ’49 dated 8th June 1949, When the present applications came up for disposal originally in the vacation, it was represented by the learned Advocate-General on behalf of the Government that he desires the correctness of that judgment to be reconsidered. These applications have accordingly been directed to be posted before a Special Bench and have now been re-heard on the question of law involved.
14. After hearing the matter fully re-argued, I can see no reason to change the view that I have previously expressed. The main argument that has been advanced by the Advocate-General on behalf of the Government is that my judgment proceeded on the view that the Act is to be interpreted against the Government and in
favour of the liberty of the subject, unless the powers of the Government can be supported by express terms of the Act. He urges that the correct approach is to see whether there is anything in the Act which cuts down the powers of the Government and that a construction which advances the purpose of the Act as appears from the preamble thereof, namely, “to provide for the preventive detention in connection with the public safety and maintenance of public order” is to be adopted. He therefore argues that the provision in Section 3, that an order is to remain in force for a period not exceeding six months is to be treated as a subsidiary provision and should not be construed as cutting down the power under Section 2. He has cited Craies on Statute Law, pp. 454, 456 and 468 in support of the view that the supposed distinction between the strict and liberal construction of the penal Statute has been, in modem times, almost discarded. In my judgment, however, I have made it clear that the determination’ of the question of law involved, is to be based “as far as possible on the wording of the Statute and not on mere extraneous general considerations.” Even in the view of the approach suggested by the learned Advocate-General, that’ question remains whether the Government have under the Statutes, powers to pass fresh orders of detention which in effect and in substance amount to mere extension of the period of the prior order of detention. If the Government have no power to extend the period of detention, it cannot be disputed that an order which is inform a fresh order, but in substance is an extension, would amount to abuse of powers vested in the Government and would on that ground be invalid. It is from this point of view that the question has been elaborately considered in my previous judgment and it is unnecessary that the same should be repeated here. I adopt for the purpose of this judgment generally what I have stated in my previous judgment. It has been pointed out in course of the argument that Section 14, Orissa General Clauses Act, 1937, supports the power to issue fresh orders of the kind now in question. That section says as follows:
“Where an Orissa Act confers a power or imposes a duty, then the power may be exercised and the duty shall be performed from time to time as occasion requires.”
It may be noticed that this section is in terms the same as Section 14, Central General Clauses Act,. 1897, as it stood prior to its amendment in 1919. The only difference that the amendment makes is the addition of the phrase “unless a different intention appears.”
15. It is argued that the fresh orders of detention under question are a fresh exercise of the power vested in the Government under Section 2,
Orissa Maintenance of Public Order Act, which is authorised by Section 14, Orissa General Clauses Act. It is said therefore that they cannot be said to be a contravention of Section 3, Orisaa Main, tenance of Public Order Act which merely provides that any particular order cannot be in force for a period exceeding six months. There can be no doubt that the Government have the power to pass any number of successive orders against the same person as occasion may require, but it must be shown that each fresh order is required by the then occasion. If it is not shown that the occasion–which I suppose means the totality of the objective circumstances at the time requires it and if it appears that the fresh order is nothing more in substance than an extension of the previous order, that would amount to an evasion of the imperative provision of Section 3 which in categorical terms says that an order should remain in force for a period “not exceeding six mouths.”
16. Section 14, Orissa General Clauses Act does not in any way support the exercise of a power which on the facts of a particular case, the Court is able to pronounce as being an abuse of power. It may be noticed that even when the Section 14, Central General Clauses Act, 1897, stood before its amendment in 1919, a large number of orders under Section 144 were pronounced to he invalid as amounting to abuse of power. I have referred to those cases in my previous judgment.
17. The question therefore in each one of these oases is whether the fresh orders are in effect orders of extension and amount to abuse of powers. The learned Advocate-General claimed that the affidavits filed in these applications
on behalf of the Government by the Additional Home Secretary show that the orders do not amount to abuse of powers. It was pointed out
to him, however, that a perusal of those affidavits which are all in the same routine form, only
discloses that the Hon’ble Minister in Charge “after due consideration of the reports and information placed before him was fully satisfied that the petitioner acted in a manner prejudicial to the public safety and maintenance of public order.”
It was pointed out to the Advocate-General that this could obviously refer only to reports and information prior to the earlier detention in respect of those detenues who were actually in detention by the date of the fresh orders, because they refer to the petitioner hewing acted in a prejudicial manner and there is no indication and it is unlikely that they have acted so while in jail custody.
18. So far as Misc. Appln. No. 180 of 1949 is concerned, the fresh order was one passed after the prior release and same consideration may not apply. Bat since the Additional Home Secretary’s affidavit in this case also is in the same routine form, we were not satisfied that any fresh consideration was given to the matter and we could not take it as establishing anything different from what could be said to have been the case in the other two petitions. We were, however, prepared to consider in all the three cases that the Government would have been fully justified in passing fresh orders of detention, though on the same previous grounds if it appeared that there was fresh material giving rise to fresh occasion for passing the fresh order of detention. We accordingly adjourned the hearing of the applications from 18th to 22nd to enable the Advocate. General to file fresh affidavits to elucidate the exact position in respect of these applicants. On the 22nd fresh affidavits, sworn by the Additional Home Secretary, were filed which state as follows :
“From the confidential reports and records in regard to the activities of the detenue which were placed by me before the Hon’ble Minister in Charge, he was fully satisfied that the petitioner will go underground after his release and will resort to sabotage and will engage himself in various other subversive and dangerous activities which will be prejudicial to the public safety and maintenance of public order.”
19. We have considered these affidavits fully and carefully, but they are still very vague and we are unable to accept the same as showing that there was any fresh material to give rise to a fresh occasion for passing the order even though on the same previous grounds. The allegations in these new affidavits are too vague to satisfy even that limited teat which has been suggested above as the one we were prepared to accept. The learned Advocate-General again applied for further time to elucidate the matter by more detailed affidavits. The heating of these matters having been specifically adjourned for filing of these fresh affidavits, we could not possibly accede to this dilatory request of the Advocate-General for fresh time. In the circumstances since in our view the fresh orders that are in issue in these three oases amount in law to abuse of the powers vested in them under the Act, though they may have been in fact perfectly honest and bona fide. We have no option, there, fore, but to hold that the orders are illegal. The detention of these petitioners is accordingly invalid and they have been directed to be set at liberty forthwith, by our order dated 22nd August 1949 wherein we intimated that the reasons for the same will be pronounced later.
Narasimham, J.
I agree.
Ray, C.J.
I agree.
