PETITIONER:
NARANJAN SIGH NATHAWAN
Vs.
RESPONDENT:
THE STATE OF PUNJAB(and 13 other petitions).
DATE OF JUDGMENT:
25/01/1952
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 106 1952 SCR 395
CITATOR INFO :
R 1966 SC1404 (8)
D 1967 SC1797 (4)
E 1969 SC 43 (9,10)
R 1971 SC2197 (7)
R 1974 SC 510 (3)
R 1990 SC1480 (99)
ACT:
Preventive Detention--Order of detention challenged as
illegal-Fresh order superseding previous
order--Validity--Question of bad faith--Habeas corpus pro-
ceeding--Legality of detention must be determined as at date
of return.
HEADNOTE:
In the absence of bad faith the detaining authority can
supersede an earlier order of detention which has been
challenged as defective on merely formal grounds and make a
fresh order wherever possible which is free from defects and
duly complies with the requirements of the law in that
behalf. The question of bad faith, if raised, must be
decided with reference to the circumstances of each case.
In habeas corpus proceedings the Court is to have
regard to the legality or otherwise of the detention at the
time of the return and not with reference to the date of the
institution of the proceedings.
396
Basanta Chandra Ghose v. King Emperor ([1945] F.C.R.
81) followed. Naranjan Singh v. The State of Punjab
unreported) explained. Makhan Singh Tarsikka v. The State of
Punjab ([1952] S.C.R. 368) referred to.
JUDGMENT:
CRIMINAL JURISDICTION: Petitions (Nos. 513, 566, 568,
570, 591,595, 596, 601, 616, 617, 623, 625, 631 and 632 of
1951) under article 32 of the Constitution for writs in the
nature of habeas corpus. The facts are stated in the judg-
ment.
Raghbir Singh (amicus curiae) for the petitioners in
Petitions Nos. 513, 566, 568, 570. 595, 596, 609, 616, 617,
623,625 and 631.
A.S.R. Chari (amicus curiae) for the petitioner in
Petition No. 591.
Shiv Charan Singh (amicus curiae) for the petitioner in
Petition No. 632.
S. M Sikri, Advocate-General of the Punjab (Jindra Lal,
with him) for the State of the Punjab.
1952. January 25. The Judgment of the Court was deliv-
ered by
PATANJALI SASTRI C.J.–This is a petition under
article 32 of the Constitution submitted through the Super-
intendent, Central Jail, Ambala, for the issue of a writ of
habeas corpus for the release of the petitioner from custo-
dy.
On 5th July, 1950, the petitioner was arrested and
detained under an order of the District Magistrate of Amrit-
sar in exercise of the powers conferred on him under section
3 of the Preventive Detention Act, 1950, and the grounds of
his detention were served on him as required by section 7
of the Act on 10th July, 1950. The Act having been amended
by the Preventive Detention (Amendment) Act, 1951, with
effect from 22nd February, 1951, a fresh order No. 7853-
ADSB, dated 17th May, 1951, was issued in the following
terms :-
“Whereas the Governor of Punjab is satisfied with re-
spect to the person known as Naranjan Singh Nathawan, s/o
Lehna Singh of village Chak Sikandar,
397
P.S. Ramdas, Amritsar District, that with a view to prevent-
ing him from acting in a manner prejudicial to the security
of the State, it is necessary to make the following order:
Now, therefore. in exercise of the powers conferred by
sub-section (1) of section 3 and section 4 of the Preven-
tive Detention Act, 1950, as amended by the Preventive
Detention (Amendment) Act, 1951, the Governor of Punjab
hereby directs that the said Naranjan Singh Nathawan be
committed to the custody of the Inspector-General of Pris-
ons, Punjab, and detained in any jail of the State till 31st
March, 1952, subject to such conditions as to maintenance,
discipline and punishment for breaches of discipline as have
been specified by general order or as contained in the
Punjab Detenu Rules, 1950.”
This order was served on the petitioner on 23rd May,
1951, but no grounds in support of this order were served on
him.
The petitioner thereupon presented this petition for his
release contending that the aforesaid order was illegal
inasmuch as (1) the grounds of detention communicated to him
on 10th July, 1950, were “quite vague, false and imaginary”
and (2) he was not furnished with the grounds on which the
order dated 17th May, 1951, was based. The petition was
heard ex-parte on 12th November, 1951, when this Court
issued a rule nisi calling upon the respondent to show cause
why the petitioner should not be released, and it was posted
for final hearing on 23rd November, 1951. Meanwhile, the
State Government issued an order on 18th November, 1951.
revoking the order of detention dated 17th May, 1951, and on
the same date the District Magistrate, Amritsar, issued yet
another order for the detention of the petitioner under
sections a and 4 of the amended Act; this last order along
with the grounds on which it was based was served on the
petitioner on 19th November, 1951.
Thereupon the petitioner submitted a supplemental peti-
tion to this Court on 28th November, 1951, challenging the
validity of the last order on the ground
398
that “it was only a device to defeat the habeas corpus
petition of the petitioner in which a rule had already been
issued , and he put forward an additional ground of attack
on the legality of the earlier order dated 17th may, 1951,
namely, that it fixed the term of detention till 31st March,
1952, before obtaining the opinion of the Advisory Board as
required by section 11 of the amended Act. This ground was
evidently based on the view expressed by this Court that the
specification of the period of detention in the initial
order of detention under section 3 of the amended Act before
obtaining the opinion of the Advisory Board rendered the
order illegal.
In the return to the rule showing cause filed on behalf
of the respondent, the Under Secretary (Home) to the Govern-
ment explained the circumstances which led to the issue of
the fresh order of detention dated 18th November, 1951.
After stating that the petitioner’s case was referred to and
considered by the Advisory Board constituted under section 8
of the amended Act and that the Board reported on 30th May,
1951, that there was sufficient cause for the detention of
the petitioner, the affidavit proceeded as follows:
“That the Government was advised that the orders made
under section 11 of the Preventive Detention Act’, 1950, as
amended by the Preventive Detention (Amendment) Act, 1951,
but carried out in the form of orders under section 3 of the
said Act, should be followed by grounds of detention and, as
this had not been done in most cases, the detentions were
likely to be called in question. The Government was further
advised there were other technical defects which might
render the detention of various detenus untenable. In view
of this, the Government decided that the cases of all dete-
nus should be reviewed by the District Magistrates con-
cerned. Accordingly, the Punjab Government instructed the
District Magistrates to review the cases and apply their
minds afresh and emphasised that there must exist rational
grounds with the detaining authority to justify the deten-
tion of a person and they were asked to report clearly in
each case if the District
399
Magistrate concerned wanted the detenus to be detained. The
Punjab Government also reviewed some cases. Accordingly all
cases including the case of the petitioner were reviewed
and in this case the District Magistrate was again satisfied
that it was necessary that the detenu be detained with a
view to prevent him from acting in a manner prejudicial to
the security of the State and the maintenance of public
order.” And it concluded by stating “that the petitioner is
detained now under the orders of the District Magistrate,
Amritsar.”
The original and supplementary petitions came on in
due course for hearing before Fazl Ali and Vivian Bose JJ.
on 17th December, 1951, when reliance was placed on behalf
of t he petitioner on certain observations in an unreported
decision of this Court in Petition No. 334 of 1951 (Naranjan
Singh v. The State of Punjab) and it was claimed that in
view of those observations and of the provisions of Part III
of the Constitution, the decision in Basant Chandra Ghose v.
King Emperor(1), on which the respondent relied. was no
longer good law. The learned Judges thought that the matter
should be considered by a Constitution bench and the case
was accordingly placed before us.
It will be seen from the affidavit filed on behalf of
the respondent that the case of the petitioner, along with
his representation against the detention order of 17th May,
1951, was placed before the Advisory Board for its consider-
ation, and the Board reported on 30th May, 1951, that in its
opinion there was sufficient cause for the detention of the
petitioner. It is said that, on the basis of that report,
the Government decided that the petitioner should be de-
tained till 31st March, 1952, but while a properly framed
order under section 11 should “confirm” the detention order
and “continue” the detention for a specified period, the
order of 17th May, 1951, was issued under a misapprehension
in the form of an initial order under section 3 of the
amended Act. on the same grounds as before without any fresh
communication thereof to the petitioner. To
(1) [1945] F.C.R. 31.
52
400
avoid arguments based on possible defects of a technical and
formal character, the said order was revoked under section
13, and on a review of the case by the District Magistrate,
a fresh order of detention was issued under section 3 on
18th November, 1951, and this was followed by a formal
communication of the same grounds as before as there could
be no fresh grounds, the petitioner having throughout been
under detention.
It is contended by the Advocate-General of the Punjab
that the decision reported in [1945] F.C.R. 81 is clear
authority in support of the validity of the aforesaid order.
On essentially similar facts the court laid down two propo-
sitions both of which have application here. (1) Where an
earlier order of detention is defective merely on formal
grounds, there is nothing to preclude a proper order of
detention being based on the pre-existing grounds them-
selves, especially in cases in which the sufficiency of the
grounds is not examinable by the courts, and (2) if at any
time before the court directs the release of the detenu, a
valid order directing his detention is produced, the court
cannot direct his release merely on the ground that at some
prior stage there was no valid cause for detention. The
question is not whether the later order validates the earli-
er detention but whether in the face of the later valid
order the court can direct the release of the petitioner.
The learned Judges point out that the analogy of civil
proceedings in which the rights of parties have ordinarily
to be ascertained as on the date of the institution of the
proceedings has no application to proceedings in the nature
of habeas corpus where the court is concerned solely with
the question whether the applicant is being lawfully de-
tained or not.
The petitioner’s learned counsel conceded that he could
not challenge the correctness of the second proposition, but
took exception to the first as being no longer tenable after
the Indian Constitution came into force. It was urged that
article 22 lays down the procedure to be followed in cases
of preventive detention and the said procedure must be
strictly observed
401
as the only prospect of release by a court must be on the
basis of technical or formal defects, a long line of deci-
sions having held that the scope of judicial review in
matters of preventive detention is practically limited to an
enquiry as to whether there has been strict compliance with
the requirements of the law. This is undoubtedly true and
this Court had occasion in the recent case of Makhan Singh
Tarsikka v. The State of Punjab (Petition No. 308 of
1951)(1) to observe “it cannot too often be emphasised that
before a person is deprived of his personal liberty the
procedure established by law must be strictly followed and
must not be departed from to the disadvantage of the person
affected”. This proposition, however, applied with equal
force to cases of preventive detention before the commence-
ment of the Constitution, and it is difficult to see what
difference the Constitution makes in regard to the position.
Indeed, the position is now made more clear by the express
provisions of section 13 of the Act which provides that a
detention order may at any time be revoked or modified and
that such revocation shall not bar the making of a fresh
detention order under section 3 against the same person.
Once it is conceded that in habeas corpus proceedings the
court is to have regard to the legality or otherwise of the
detention at the time of the return and not with reference
to the date of the institution of the proceeding, it is
difficult to hold, in the absence of proof of bad faith,
that the detaining authority cannot supersede an earlier
order of detention challenged as illegal and make a fresh
order wherever possible which is free from defects and duly
complies with the requirements of the law in that behalf.
As regards the observations in Naranjan Singh’s case, we
do not understand them as laying down any general proposi-
tion to the effect that no fresh order of detention could be
made when once a petition challenging the validity of an
earlier order has been filed in court. The learned Judges
appear to have inferred from the facts of that case that the
later order was
(1) Since reported as [1952] S.C.R. 368.
402
not made bona fide on being satisfied that the petitioner’s
detention was still necessary but it was “obviously to
defeat the present petition”. The question of bad faith, if
raised would certainly have to be decided with reference to
the circumstances of each case, but the observations in one
case cannot be regarded as a precedent in dealing with other
cases.
We accordingly remit the case for further hearing. This
order will govern the other petitions where the same ques-
tion was raised.
Petitions remitted.
Agent for the respondent: P.A. Mehta.