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PETITIONER: NIRANJAN SINGH

       Vs.

RESPONDENT: STATE OF MADHYA-PRADESH

DATE OF JUDGMENT18/07/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 2215            1973 SCR  (1) 691  1972 SCC  (2) 542  CITATOR INFO :  F          1974 SC 679  (7)  RF         1976 SC1207  (560)  RF         1980 SC1983  (4)  RF         1981 SC 728  (5,12)  R          1984 SC 444  (26)  RF         1987 SC1977  (4)  R          1989 SC1861  (15)  R          1990 SC1597  (19)

ACT: Constitution  of  India  1950 Art. 22(5)  State  Govt.  must consider detenu’s representation expeditiously-when there is inordinate delay, which is unexplained the detention must be held to be illegal. Res Judicata-Petition under Art. 226 rejected-Petition under Art. 32 whether barred by res judicata.

HEADNOTE: The  District Magistrate of Gwalior by; his order dated  May 26, 1971 under s. 2-A of the Madhya Pradesh Public  Security Act  (Amendment Act) of 1970 detained the petitioner with  a view to Preventing him from acting in any manner prejudicial to  the  maintenance  of  public  order.   The  grounds   of detention were served on the detenu.  The petitioner made  a representation  within  the prescribed period to  the  State Government  on  June  19,  1971. it  was  dismissed  by  the Governor  of  Madhya  Pradesh on August 17,  1971,  and  the Government directed that the order of detention would remain in  force till 26th May 1972.  The petitioner filed  a  writ petition under Art. 226 of the Constitution challenging  the detention  order.   The petition was rejected  by  the  High Court.  Thereupon the petitioner filed a writ petition under Art.  32 of the Constitution in this Court.   A  preliminary objection  was taken ’on behalf of the respondent  that  the writ  petition  under Art. 226 having’ been  dismissed,  the petition  under  Art.  32 was barred by  res  iudicata.   In support  of the petition it was urged that the order  c  the State  Government rejecting the petitioner’s  representation was made after undue delay and was therefore in violation of Art. 22(5). HELD:     (i) In view of the earlier decisions of this Court the plea of res judicata must be rejected. [693C-F]

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Ghulam  Sarvar v. Union of India and others [1967] 2  S.C.R. 271  and Writ Petitions Nos. 227 and 228 of 1969 decided  on September 16, 1969 relied on. (ii) The words "afford him the earliest opportunity" in Art. 22(5)  have  been interpreted by the Court in  Abul  Kasim’s cage  to  imply  that  the  State  Government  to  whom  the representation  ’is  made  should properly  consider  it  as expeditiously as possible.  In Jayanarayan Sukul’s case also this  Court  held that the detenu’s representation  must  be considered expeditiously  and before reference is made to the  Advisory Board. [694C-F] In  the present case the petitioner had  specifically  given the date of his representation and the date on which he said it was considered and rejected.  On the face of it there had been  inordinate delay which made it incumbent on the  State to  explain  it  and  satisfy  the  Court  that  there   was justification for that delay.  Since the State had not filed any  counter-affidavit explaining why the representation  of the detenu had not been expeditiously disposed of nor had it chosen to set out the various steps taken to comply with the mandatory provisions of the Act, the detention must be  held to he illegal. [696F-G] Abdul  Karim  and others v. State of West Bengal,  [1969]  3 S.C.R.  479, and Jayanarayan Sukul v. State of West  Bengal, [1970] 3 S.C.R. 225, relied on. 692 Arun Kumar Roy Katu v. State of West Bengal, (Writ  Petition No,, 52/1972) distinguished. Prof.  Khaidem lbocha Singh v. The State of Manipur,  A.I.R. 1972 S.C. 438 and Ranjit Singh v. State of West Bengal (W.P. No.  14/1972  decided  by Shelat and Khanna,  J.J.  an  24th April, 1972), referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 450 of 1971. Petition under article 32 of the Constitution for issue of a writ in the nature of habeas corpus. R.   K.Garg, for the petitioner. R.   P. Kapur and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Jaganmohan Reddy, J By this application under Art. 32 of   the   Constitution,  the  petitioner   challenges   his detention under s.   2-A   of  the  Madhya  Pradesh  Public   Security   Act (Amendment Act)  of 1970 (hereinafter called the ’Act’).  The  District Magistrate of Gwalior by his order dated May 26, 1971  under the  said Act thought it necessary to detain the  petitioner with  a  view to preventing him from acting  in  any  manner prejudicial  to  the  maintenance  of  public  order.   The, grounds  on which the detention was sought to  be  justified were  dated the same day and appear to have been  served  on the  detenu,  though it is not apparent on what  date  those grounds  were  served  on him.  As he was  informed  by  the Government  that  he has a right to  make  a  representation within  a  period of 30 days, the petitioner  says  that  he submitted his representation to the State Government on June 19,  1971 but here again there is nothing to show  from  the counter  affidavit  of  the  respondent  as  to  when   that representation   was  received  or  on  that  date  it   was considered  and rejected.  The petitioner, however,  alleges

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that his representation was dismissed on August 17, 1971  by the Governor of Madhya Pradesh relying on the recommendation of the Advisory Board.  In other words, it is his contention that  his representation was not considered tiff  after  the Advisory Board had given its opinion to the State Government and  only then it was rejected.  Whether this is so or  not, we  are  in no position to ascertain.  It is true  that  the Advisory  Board, as appears from the order of the  Governor, was of the opinion that there exists sufficient grounds  for the detention of the petitioner and consequently the Govern- ment acting on that opinion confirmed the order of detention passed against the petitioner and directed that the order of detention  shall remain in force till 26th May,  1972.   The detenu  filed  a Writ Petition in the High Court  of  Madhya Pradesh  under Art. 226 of the Constitution challenging  the detention  order on the ground that his previous  conviction in 1964 could not form the  693 basis for detention and that the other grounds mentioned  in the grounds served on him were all vague and non-existent as on the date the detention order was passed, Jagmohan was  no more.   Even the ground that in May-June, 1969, four  rifles of  303 bore were given to Sobran Singh for Rs. 4,000/-  was also.  vague.   This petition was, however,  rejected  by  a Division  Bench  of  the High Court by  its  judgment  dated September 18, 1971. The  learned advocate on behalf of the State of Madhya  Pra- desh,  at the outset, raised a preliminary objection to  the maintainability  of this petition because according  to  him the  dismissal  of the petition of the detenu  by  the  High Court  under  Art.  226  operates  as  yes  judicata.   This contention  is opposed to the view taken by this Court.   In Ghulam Sarvar v. Union of India and others(1) a Constitution Bench held that the order of the High Court does not operate as  res  judicata.   We  are not  here  concerned  with  the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri,  and  Shelat, JJ. and the other by Bachawat,  J.  for arriving  at  this  conclusion  except  to  state  that  the majority  was  of the view that it does not operate  as  res judicata  as  it  is not a judgment  and  also  because  the principle  is inapplicable to a fundamentally lawless  order which  this  Court has to decide on  merits.   Bachawat,  J. while substantially agreeing with this view thought that the order  of the High Court is not a judgment and the  previous dismissal  of such a petition by the High Court is only  one of the matters taken into consideration under O.35 rr. 3 and 4  of  the Supreme Court Rules before issuing a  rule  nisi. The petitioner, however, would not have a right to move this Court  under Art. 32 more than once on the same  facts.   In Writ Petitions Nos. 227 and 228 of 1969 decided on September 16,  1969, a similar view as that expressed by the  majority was expressed, viz., that there is no bar of res judicata to a  petition under Art. 32 in a case where earlier  the  High Court had dismissed the petition under Art. 226.  In view of this legal position, we. reject the preliminary objection. The learned advocate for the petitioner contends inter  alia that since the State has not in its counter affidavit denied the  allegation made in the petition nor has it stated  when it  is  that  the  representation  of  the  petitioner   was considered and dismissed, the detention is illegal  inasmuch as the right to make a representation as well as to have  it considered  and determined is a valuable right  implicit  in clause  (5) of Art. 22.  As the law relating  to  preventive detention,  which  has to conform to the limits  imposed  in Art.  22, is a restriction on the fundamental right  of  the

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freedom of a citizen, it has necessarily to be construed  in a (1)  [1967] 2. S.C.R. 271. 694 manner  which  will not restrict that right  to  any  extent greater  than is necessary to effectuate the object of  that provision.  Clause (5)  of Art. 22 prescribes that "When  any person is detained in pursuance of an order  made under  any  law  providing  for  preventive  detention,  the authority  making  the  order  shall, as  soon  as  may  be, communicate  to such person the grounds on which  the  order has been made and shall afford him the earliest  opportunity of making representation against the order." The  words  "afford  him the earlier  opportunity"  in  this clause  have been interpreted by this Court in  Abdul  Karim and others v.  State  of  West Bengal(1) to imply  that  the State Government to whom  the representation is made  should properly consider it as  expeditiously as possible.  Nor  is the constitution of an Advisory Board under s. 8 of the  Act relieves  the State Government from the legal obligation  to consider  the representation of the detenu as soon as it  is received   by  it,  and  take  appropriate  action   thereon including the revocation of the Order which it is  empowered to  make under s. 13 of the Act.  It was further  emphasised that  the right under Art. 22(5) to, make  a  representation has  been guaranteed and is independent of the  duration  of the  period  of detention irrespective of the  existence  or non-existence  of the Advisory Board.  Even if  a  reference has to be made to the Advisory Board under s. 9 of the  Act, the  appropriate Government is under a legal  obligation  to consider  the  representation of the detenu  before  such  a reference  is made.  This matter was again considered  by  a Constitution  Bench of this Court in Jayanarayan  Sukul  v., State of West Bengal(1) which held that broadly stated, four principles   are   to   be  followed  in   regard   to   the representation of detenu.  These have been summarised in the head note thus:-- "Firstly,  the  appropriate authority is bound  to  give  an opportunity  to the detenu to make a representation  and  to consider the representation as early as possible. Secondly,  the  consideration of the representation  of  the detenu by the appropriate authority is entirely  independent of   any  action  by  the  Advisory  Board   including   the consideration  of  the representation of the detenu  by  the Advisory Board. Thirdly, there should not be any delay in the matter of con- sideration.   Though no hard and fast rule can be laid  down as to (1) [1969] 3 S.C.R. 479. (2) [1970] 3 S.C.R. 225.  695 the  measure of time taken by the appropriate authority  for consideration,  it has to be remembered that the  Government has  to be vigilant in the governance of the citizens.   The fundamental  right of the detenu to have his  representation considered  by the appropriate Government would be  rendered meaningless if the Government does not deal with the  matter expeditiously but at its own sweet will and convenience. Fourthly,  the  appropriate Government is  to  exercise  its opinion  and judgment on, the representation before  sending the  case  along  with the detenu’s  representation  to  the Advisory Board.  If the appropriate Government will  release the  detenu the Government will not send the matter  to  the Advisory Board.  If however the Government will not  release

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the detenu the Government will send the case along with  the detenu’s   representation   to  the  Advisory   Board.    If thereafter  the  Advisory Board will express an  opinion  in favour of release of the detenu the Government will  release the detenu.  If the Advisory Board, will express any opinion against  the release of the detenu the Government may  still exercise the power to release the detenu.  These  principles are  now  well  established  in  their  application  to  the detention  of  a  citizen  under any  law_made  by  a  State legislature or by the Central Parliament. The next question is, whether it is incumbent upon the State in  a  habeas  corpus petition where a rule  nisi  has  been issued  to  satisfy  the Court that  the  detention  of  the petitioner  was  legal and in conformity not only  with  the mandatory provisions of the Act, but- is also in accord with the  requirements  implicit  in cl. (5) of Art.  22  of  the Constitution.   It is contended by the learned advocate  for the  petitioner that in a habeas corpus petition under  Art. 32 when a return is made by the State, it should set out the facts  relied  upon  as constituting  valid  and  sufficient grounds  of  detention  of persons  alleged  to  be  legally detained.   The  return  must set  forth  clearly  and  with sufficient  particularity,  the facts upon which  the  State relies.   He  further contends that the  consequence  of  an insufficiency of return would entitle this Court to  declare the  detention as illegal.  In view of this  implication,  a duty  is  imposed upon the State to  justify  the  detention where it is challenged before a court empowered to determine the  legality or otherwise of that detention.   The  learned advocate on behalf of the State, however, by a reference  to a decision of this Court in Arun Kumar Roy Katu v. State  of West  Bengal (Writ Petition No. 52/1972 to which both of  us were  parties)  contends that Mitter, J.  speaking  for  the Court had observed that where a detenu has not alleged  that the  representation  has  not been considered  or  has  been considered  but  not  expeditiously dealt with,  it  is  not incumbent upon the Government to explain the reasons 696 for  any  delay or for not disposing it of at  the  earliest possible  time.   True  it  is that  in  that  case  certain observations  have  been  made to the  effect  that  before, requiring  the  State to explain any delay the  detenu  must allege   that  his  representation  was  not   expeditiously considered  and  disposed of.  In that case,  the  represen- tation  of  the detenu was received on a day before  the  30 days from the date of detention of the petitioner was due to expire and as such the State had no option but to refer  the case  to  the  Advisory  Board  forthwith  and  subsequently consider  that  representation.   In view of  the  delay  in making  the  representation,  the Government  could  not  be blamed  in  not considering it expeditiously  and  once  the matter  was  before the Board, it had no papers with  it  to consider  that  representation  and  arrive  at  a  decision thereon.   It  was  only subsequently that they  were  in  a position  to  consider.   It is in  this  context  that  the observations  must  be understood.  In  several  cases,  the delay has been explained-see Prof.  Khaidem Ibocha Singh  v. The  State  of Manipur(1) and Ranjit Dam v.  State  of  West Bengal  (W.P. No. 14/1972 decided by Shelat and Khanna,  JJ. on  24th  April, 1972).  It is contended that as  the  State Government  does not communicate to the detenu its  decision on  his representation, he cannot be expected to  raise  any question  of delay by the State Government to  consider  his representation, nor is there anything to show on the face of an  order  so made, the reason or the basis  on  which  that

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representation  was  rejected.   Merely to say  that  it  is rejected does not indicate what is it that weighed with  the State   Government  and  what  materials  were  taken   into consideration   in  arriving  at  that   conclusion.    This objection   suggests   that   the   order   rejecting    the representation should be a speaking   order. In our view it is not necessary in this case to refer to  or deal  with any of these aspects because the  petitioner  has specifically  given the date of his representation  and  the date on which he said it was considered and rejected,  which on  the face of it shows that there has been  an  inordinate delay  which makes it incumbent on the State to  explain  it and satisfy the Court that there was justification for  that delay.  Since the State has not filed any, counter affidavit explaining why the representation of the detenu has not been expeditiously  disposed of nor has it chosen to set out  the various steps taken to comply with the mandatory  provisions of  the Act, the detention must be held to be  illegal.   We had after the hearing itself, directed the detenu to be  set free.  We accordingly allow the petition. G.C.                                                Petition allowed. (1)  A.I.R. 1972 S.C. 438. 697