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PETITIONER: HARIKISAN

       Vs.

RESPONDENT: THE STATE OF MAHARASTHTRA & OTHERS

DATE OF JUDGMENT: 31/01/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA

CITATION:  1962 AIR  911            1962 SCR  Supl. (2) 918  CITATOR INFO :  F          1969 SC  43  (5)  RF         1969 SC 323  (21)  D          1971 SC1217  (4)  RF         1981 SC 728  (20)  R          1981 SC1153  (5)  RF         1982 SC1500  (8)  R          1986 SC 687  (63)  R          1987 SC1192  (11)  RF         1990 SC 605  (5,6,11)

ACT:      Preventive  Detention-Order  and  grounds  in English- Detenue  not knowing  English-Opportunity to   make    representation,    whether    denied- Constitution of India, Art. 22(5).

HEADNOTE:      The detenue  was served  with  the  order  of detention and  the grounds  in English. He did not know English  and asked for a translation of these in Hindi.  This request was refused on the grounds that the  order and  the grounds  had been  orally translated to  him at  the time  they were  served upon him and that English still being the official language communication of the order and grounds in English was  in accordance  with the  law and  the Constitution. ^      Held, that  the provisions  of Art.  22(5) of the Constitution  were not  complied with  and the detention was illegal. Article 22(5) required that the grounds  should be communicated to the detenue as soon  as may  be and that he should be afforded the   earliest    opportunity    of    making    a representation against the order. Communication in this context  meant bringing  home to  the detenue effective knowledge  of the  facts and  grounds on which the order was based. To a person who was not conversant with  the English language, in order to

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satisfy the  requirement of  the Constitution, the detenue must  be given  the grounds  in a language which he  can understand  and in a script which he can read,  if he  is a  literate person. Mere oral translation at the time of service was not enough.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Cr.  A. No. 189 of 1961.      Appeal by special leave from the judgment and order dated  July 10  and 11,  1961, of the Bombay High Court  (Nagpur Bench) in Criminal Application No. 19 of 1961.      A. S. Bobde, B. A. Masodkar, M. L. Vaidya, M. M. Kinkhede and Ganpat Rai, for the appellant.      M. C.  Setalvad, Attorney-General  for India, B. Sen and R. H. Dhebar, for the respondents.      1962. January  31. The  Judgment of the Court was delivered by 919      SINHA, C  J.-This appeal  is directed against the Judgment  and order  dated July  11, 1961 of a Division Bench  of the  Bombay High  Court (Nagpur Bench), dismissing  the  appellant’s  application, under Art.  226 of  the Constitution, read with s. 491 of  the Code of Criminal Procedure, wherein he had prayed for a writ of Habeas Corpus against the State of  Maharashtra and  the District Magistrate of Nagpur,  directing them to produce the petition in  Court   and  to   set  him  at  liberty.  This application was  heard by  us on  January 8 and 9, 1962, and  after hearing  Shri A. S. Bobde for the appellant and the learned Attorney-General for the State  of   Maharashtra,  we   directed  that  the appellant be  released  forthwith,  and  that  the reasons for our judgment will follow later. We now proceed to  set out  our  reasons  for  the  order passed on that day.      It appears  that an Order of Detention, under s. 3(1)  (a)(ii) of  the Preventive  Detention Act (IV of  1950) hereinafter  referred to as the Act) was made  by the  District Magistrate of Nagpur on April 10, 1961. The order of Detention is in these terms:           "No.CC/X-(2)  of   1961  office  of  the      District Magistrate,  Nagpur, Dt. 10th April,      1961. ORDER OF  DETENTION UNDER SEC. 3(1)(a) (ii) OF THE PREVENTIVE DETENTION ACT, 1950.           Whereas  I   am  satisfied  that  it  is      necessary   to    prevent   Shri    Harikisan      Kishorilal Agarwal of Nagpur from acting in a      manner  prejudicial  to  the  maintenance  of      public  order   and  that  therefore,  it  is      necessary to detain him.           Now,  therefore,   in  exercise  of  the      powers conferred on me by Section 3(1)(a)(ii)      of the 920      Preventive Detention  Act, 1950,  I Dinkarrao      Hanjantrao   Deshmukh,    I.A.S.,    District      Magistrate, Nagpur  hereby  direct  that  the      said Shri  Harikisan Kishorilal Agarwal be so

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    detained.           Given this  10th day of April 1961 under      my signature and seal.      Seal of  the                          Sd/D.H. Deshmukh      D.M. Nagpur              District Magistrate, Nagpur" He also  directed that  the  appellant  should  be detained in  the District  Prison, Thana, and that for  the   purpose  of  the  Bombay  Condition  of Detention order,  1951, be  treated as  a Class II Prisoner. The  grounds of detention were served on the same day. The substance of the grounds is that since  his  release  from  previous  detention  in October, 1960,  he had been instigating persons at Nagpur to  defy and  disobey reasonable directions and lawful orders issued by competent authorities, from time  to  time,  prohibiting  and  regulating processions and  assemblies at Nagpur; that by use of  highly   provocative  words,  expressions  and slogans in  meetings and processions in Nagpur, in which he  took a prominent part, he had instigated persons on  several occasions at Nagpur to indulge in acts  of violence  and mischief  and to  create disturbance in the city of Nagpur; and that he had been  acting  since  October  1960,  in  a  manner prejudicial to the maintenance of public order, in that city. And then follow ’notable particular’ of his activities,  running into  five closely  typed pages and  contained in  many paragraphs.  In  his petition to  the High Court, the petitioner raised a number of grounds of attack against the legality of the  order of  his detention, and most of those grounds have  been reiterated in this Court. We do not think  it necessary  to go into all the points raised, on behalf of the appellant, by the learned counsel. In  our opinion, it is enough to say that we are satisfied 921 that, in  the  circumstances  of  this  case,  the provisions of  Art. 22(5) of the Constitution have not been fully complied with, and that, therefore, the  appellant   had  not   the  full  opportunity provided or contemplated by that Article of making his representation against the Order of Detention.      In this  connection, it is necessary to state the following  facts. The appellant wrote a letter to the  District Magistrate of Nagpur on April 19, 1961, to  the effect  that he had been served with an Order  of Detention  dated April  10, 1961, and that the  Order and the grounds of detention being in English,  he was unable to understand them, and therefore, asked  for a  Hindi version of the same so that  he may  be able  to follow and understand the  charges   levelled  against   him  and   take necessary steps  for his  release  from  jail.  He raised some  other questions  also in that letter, but it  is not necessary to refer to them here. To that letter the District Magistrate replied by his letter dated  April 23, 1961, the second paragraph of which,  in the  following terms,  sets out  his views of the matter:           "The order  of detention and the grounds      of detention  already communicated to you are      given  in   English  which  is  the  official

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    language in this district. It is not possible      to supply  any translation of the same for is      (sic)  it   legally   necessary   under   the      Preventive Detention Act, 1950. The order and      the grounds  of detention  served on you were      fully explained  to you by the Police Officer      in the presence of the D.S.P. Nagpur City."      The High  Court, dealing with this contention on behalf  of the  detenue, came to the conclusion that  under   the   Constitution   English   still continued to be the official language of the State of Maharashtra,  and that  service of the Order in English upon the detenue was sufficient compliance with 922 the requirements  of cl.  (5) of  Art. 22  of  the Constitution. It also held that the failure of the District Magistrate to supply the grounds in Hindi did not  have the  effect of  preventing him  from making  his  representation  to  the  authorities. Furthermore, the  High Court  pointed out that the District Magistrate  had stated in his letter that the grounds  were explained  to the  appellant  in Hindi by  the Police Officer at the time the Order and the  grounds were served upon him. In the view of the  High Court,  therefore, the explanation or translation of  the grounds  by the Police Officer at the  time he  served  those  on  the  appellant should be  deemed to  be enough  to enable  him to make  an   effective  representation  against  his detention.      Mr. Bobde,  for the appellant, has vehemently argued that  the requirements  of the Constitution had not  been complied with inasmuch as cl. (5) of Art. 22  of the  Constitution  required  that  the grounds on  which the  Order of Detention had been based had  to  be  communicated  to  the  detained person.   His    argument   further    was    that "communication" of  the grounds was not equivalent to serving  the grounds  in English  upon a person who was  not conversant with the English language, and that  oral translation  by the police officer, said to  have been  made to  the detenue,  was not sufficient compliance with the requirements of the constitutional provisions,  which  must  be  fully satisfied in  order that  the detenue  may be in a position  to   make  an  effective  representation against the  Order of Detention. He also contended that we  do not  know in  what  terms  the  police officer translated the lengthy document or whether his translation was correct.      On behalf  of the  State of  Maharashtra, the learned Attorney-General  first attempted  to show that  the   appellant  knew   English.   In   this connection he has referred to the affidavit of the District Magistrate,  the exact words of which are as follows: 923           "He (the  detenue) had  also asked me to      supply the  grounds in Hindi to enable him to      understand the  same.  I  admit  that  I  had      replied to  this letter  and had  declined to      communicate the grounds in Hindi. I deny that      this has  been done  with a  view to keep the      petitioner in  dark as  to the grounds of his

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    detention.   The   petitioner   as   per   my      information,  is  an  educated  man  and  can      understand English.  The  question  that  the      petitioner did  not understand  the  grounds,      therefore, does  not arise.  I deny  that the      petitioner is entitled to receive the grounds      in Hindi.  The grounds  were supplied  to the      petitioner in  the court  language  and  also      they were  explained to  him  by  the  Police      Inspector Shri W.B. Bobde who had served them      on the petitioner........" That  statement  of  the  District  Magistrate  is apparently based  on the  following statement,  in the affidavit  of  Shri  W.B.  Bobde,  the  Police Inspector:           "The Order  of Detention  as well as the      grounds of  detention were  translated by  me      orally  in   Hindi  and   explained  to  Shri      Harikisan Kishorilal Agrawal, in the presence      of the  District  Superintendent  of  Police,      Nagpur City."      It has  not been found by the High Court that the appellant  knew enough  English to  understand the grounds  of his  detention. The High Court has only stated  that "he  has studied  upto 7th Hindi Standard,  which  is  equivalent  to  3rd  English Standard". The High Court negatived the contention raised on  behalf of  the  appellant  not  on  the ground that  the appellant knew enough English, to understand  the  case  against  him,  but  on  the ground, as  already indicated,  that  the  service upon him  of the Order and grounds of detention in English was  enough communication to him to enable him to 924 make  his   representation.  We  must,  therefore, proceed on  the assumption  that the appellant did not know enough English to understand the grounds, contained in  many paragraphs, as indicated above, in order  to  be  able  effectively  to  make  his representation against the Order of Detention. The learned Attorney-General  has tried to answer this contention in several ways. He has first contended that when the Constitution speaks of communicating the grounds  of detention to the detenue, it means communication  in  the  official  language,  which continues   to    be   English;    secondly    the communication need  not  be  in  writing  and  the translation and  explanation in  Hindi offered  by the Inspector  of Police,  while serving the Order of Detention  and the  grounds,  would  be  enough compliance with  the requirements,  of the law and the Constitution;  and thirdly,  that it  was  not necessary in  the circumstances  of  the  case  to supply the  grounds in Hindi, in our opinion, this was not  sufficient compliance  in this  case with the requirements of the Constitution, as laid down in cl.  (5) of  Art. 22.  To a  person, who is not conversant with  the English  language, service of the Order and the grounds of detention in English, with their  oral translation or explanation by the police officer  serving them  does not  fulfil the requirements of  the law. As has been explained by this Court  in the  case of The State of Bombay v. Atma Ram  Sridhar Vidya,  (1) cl.  (5) of  Art. 22

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requires that  the grounds of his detention should be made  available to  the detenue  as soon as may be, and  that the earliest opportunity of making a representation against  the Order  should also  be afforded to  him. In order that the detenue should have that  opportunity, it  is not sufficient that he has  been physically  delivered  the  means  of knowledge with  which to  make his representation. In order  that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of 925 detention, which  are in  the nature of the charge against him  setting out  the kinds of prejudicial acts  which  the  authorities  attribute  to  him. Communication, in  this context,  must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based.  In this  case the  grounds are several, and are  based on  numerous speeches  said to have been made  by the  appellant himself  on different occasions   and    different   dates.   Naturally, therefore, any  oral  translation  or  explanation given by  the police  officer serving those on the detenue would not amount to communication, in this context, must  mean bringing  home to  the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.      We do  not agree  with the  High Court in its conclusion that in every case communication of the grounds of  detention in  English, so  long as  it continues to  be  the  official  language  of  the State, is  enough compliance with the requirements of the  Constitution. If  the detained  person  is conversant with  the  English  language,  he  will naturally be  in  a  position  to  understand  the gravamen of  the charge  against him and the facts and circumstances  on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenue must be given  the grounds  in a  language which he can understand. and  in a script which he can read, if he is a literate person.      The Constitution  has guaranteed  freedom  of movement throughout the territory of India and has laid  down   detailed  rules   as  to  arrest  and detention. It has also, by way of limitations upon the freedom  of personal  liberty, recognised  the right of  the State  to legislate  for  preventive detention, subject to certain safeguards in favour of the detained 926 person, as laid down in cls. (4) & (5) of Art. 22. One of  those  safeguards  is  that  the  detained person  has  the  right  to  be  communicated  the grounds on  which the  order of detention has been made against  him, in order that he may be able to make  his  representation  against  the  order  of dentention. In  our opinion,  in the circumstances of this  case, it  has not  been  shown  that  the appellant  had  the  opportunity,  which  the  law contemplates in  his favour,  making an  effective representation  against  his  detention.  On  this ground alone we declare his detention illegal, and

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set aside  the Order  of the  High Court  and  the Order of Detention passed against him.                                    Appeal allowed.