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PETITIONER: KESHAV NILKANTH JOGLEKAR

       Vs.

RESPONDENT: THE COMMISSIONER OF POLICE, GREATERBOMBAY(and connected peti

DATE OF JUDGMENT: 17/09/1956

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P. DAS, S.K. MENON, P. GOVINDA

CITATION:  1957 AIR   28            1956 SCR  653

ACT: Preventive detention-Detention order by the  Commissioner-of Police-Duty  to  report forthwith to the  State  Government- "Forthwith",  Meaning  of-Time  taken  for  sending  report- Validity of detention-Preventive Detention Act, 1950 (IV  of 1950), ss. 3(3), 7.

HEADNOTE: Section 3(3) of the Preventive Detention Act, 1950, provides that  when  an  order of detention is  made  by  an  officer mentioned  in s. 3(2) he shall forthwith report the fact  to the State Government together with the grounds on which  the order  has  been  made..... and no  such  order......  shall remain  in force for more than twelve days after the  making thereof  unless in the meantime it has been approved by  the State Government. On  13th  January 1956 the Commissioner of  Police,  Bombay, passed orders under s. 3(2) of the Preventive Detention Act, 1950  directing  the  detention of the  petitioners  and  in pursuance  thereof’ they were arrested on 16th January  1956 The grounds on which the orders were made were furnished  to the--petitioners  on 20th January 1956 and the next day  the Commissioner reported the fact of the order and the  grounds therefor to the State Government which approved of the  same on  23rd  January  1956.   The  petitioners  contested   the validity  of  the  detention on the  ground  that  when  the Commissioner passed the orders for detention on 13th January 1956  it  was  his duty under s. 3(3) to  report  that  fact forthwith  to the State Government, and as he did not do  so until 21st January’1956 he had acted in contravention of the statute  and that the detention was therefore  illegal.   It was  found  that the delay in sending the report  could  not have been avoided by the Commissioner and that it was due to causes  to  which  the petitioners  had  very  largely  con- tributed. Held, that the word "forthwith" in s. 3(3) of the Preventive Detention Act, 1950, has not a fixed and an absolute meaning and it must be construed with reference to the object of the section  and the circumstances of the case.  It cannot  mean

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the same thing as "as soon as may be" in s. 7 of the Act and the  former  is  more  peremptory  than  the  latter.    The difference  between the two . expressions lies in this  that while  under a. 7 the time that is allowed to the  authority to  send  the  communication  to  the  detenu  is  what   is reasonably convenient, under s. 3(3) what is allowed is only the 654 period  during which he could not, without any fault of  his own, send the report. An  act which is to be done forthwith must be held  to  have been  so done when it is done with all  reasonable  despatch and without avoidable delay. The  Queen v. The Justices of Berkshire ([1878-79] 4  Q.B.D. 469), Hudson and others v. Hill and others ([1874] 43 L.  J. C.P. 273), and Beg. v. Price, (8 Moore P.C. 203), relied on.

JUDGMENT: ORIGINAL  JURISDICTION:  Petitions Nos. 102,105  to  110  of 1956. Petitions under Article 32 of the Constitution for writs  in the nature of Habeas Corpus. N.   C.  Chatterjee,  Sadhan  Chandra  Gupta  and  janardhan Sharma; for petitioners in Petitions Nos. 102, 105 to 108 of 1956. Sadhan  Chandra Gupta and Janardhan Sharma, for  petitioners in Petitions Nos. 109 and 110 of 1956. C.K.Daphtary,  SoliCitor-General for India, Porus  A.  Mehta and  R. H Dhebar, for respondents in Petitions Nos. 102  and 105 of 1956. Porus  A.  Mehta  and  R.  H.  Dhebar,  for  respondents  in Petitions Nos. 106 to 110 of 1956. 1956.   September  17.   The  Judgment  of  the  Court   was delivered by VENKATARAMA AYYAR J.-These are petitions filed under article 32 of the Constitution for the issue of writs in the  nature of  habeas corpus.  They arise on the same facts  and  raise the same questions. On  13-1-1956  the Commissioner of  Police,  Bombay,  passed orders under section 3(2) of the Preventive Detention Act IV of 1950 (hereinafter referred to as the Act), directing  the detention of the present petitioners, and pursuant  thereto, they  were actually arrested on 16-1-1956.  The  grounds  on which the orders were made were formulated on 19-1-1956, and communicated to the petitioners the next day.  On  21-1-1956 the  Commissioner  reported the fact of the  order  and  the grounds therefor to the State Govern- 655 ment, which approved of the same on 231-1956. The contention of the petitioners before us is that when the Commissioner  passed the orders for detention on  13-1-1956, it  was  his  duty under section 3(3) to  report  that  fact forthwith  to the State Government -and as be did not do  so until  21-1-1956,  he  had acted  in  contravention  of  the statute, and that the detention was therefore illegal.  That raises the question as to what "forthwith" in section 3  (3) of  the Act signifies, and whether on the facts  the  report was  made  "forthwith", within the meaning of that  word  in that sub-section. The  word "forthwith", it has been observed, is  of  elastic import.   In  its literal sense, it might  be  construed  as meaning that the act to be performed forth;with in  relation to  another  should  follow  it  automatically  without  any

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interval  of  time, or, -as held in some  of  the  American. authorities, should be performed at one and the same time as the  other.   But  even in  America,  the  preponderance  of judicial  opinion  does not favour  this  construction.   In Corpus  Juris,  Volume  26, page 998 the  position  is  thus stated: "Although  the  term  has received  a  strict  conStruction, ordinarily  it is not to be strictly construed,  but  should receive a liberal or reasonable construction-.  Some  regard must  be  had  to  the nature of the  act  or  thing  to  be performed and the circumstances of the case". In England, there is a long catena of decisions interpreting the  word  "forthwith"  occurring  in  statutes,  rules  and contracts,   and  their  trend  has  been  to  construe   it liberally.  As early as 1767, discussing the meaning of  the word  ’immediately’--and the word "forthwith" his been  held to have the same significance-Lord Hardwicke observed in Rex v. Francis "But then the word immediately, is strongly insisted on, as, a  word  which  excludes  all  mesne  acts  and  time;   and therefore,-that this taking away the money must  necessarily be ’in the presence of Cox. (1)  Cun. 165; 94 E.R. 1129, 1183. 656 But all the nine Judges held this word immediately, to be of so loose a signification, and not to imply necessarily, that the  money was taken away in Cox’s presence.  For this  word does  neither  in  its  use  and  application,  nor  in  its grammatical construction, exclude all mesne acts or time But it  is more necessary and proper in this case,  to  consider the signification of this word in the legal, way.  And it is plain,  that  in this acceptation, it is not  understood  to exclude  mesne acts or time And on the Statute Hue and  Cry, 27  Eliz.  c.  13,  s. 11, where’ the  words  with  as  much convenient  speed  as  may  be, are made  use  of,  all  the precedents   have  expressed  these  words,  by   the   word immediate, as may be seen in the books.  The last case which I  shall  mention  on this point, is that  of  the  writs-of habeas  corpus,  issuing out of this Court, which  are  most frequently made returnable immediately; and in this case the word  is  never understood either to exclude mesne  acts  or time, but only means, with convenient speed In Beg. v. The Justices of Worcester(1), where the  question was as to the meaning of the word "forthwith" in section  50 of 6 Will.  IV, Coleridge, J. observed: "I  agree  that this word ’forthwith’ is not  to  receive  a strict  construction like the word ’immediately’,,  so  that whatever follows, must be done immediately after that  which has been done before.  By referring to section 50, it  seems that  whatever  is  to be done under it, ought  to  be  done without  any  unreasonable  delay.  I think  that  the  word ’forthwith’  there used, must be considered as  having  that meaning’ The   meaning  of  the  word  "immediately"  came   up   for consideration in Thompson v. Gibson(2).  Holding that it was not to be construed literally, Lord Abinger C.    B. observed: "If   they"  (acts  of  Parliament)  "could   be   construed literally,  consistently  with  common  sense  and  justice, undoubtedly they ought; and if I could see, (1)  [1889] 7 Dowl.  Pr.  Cas. 789-791: 54 R.R. 902 (903). (2)  (1841] 8 M. & NV. 282 151 E.R. 1045,1047. 657 upon  this act of, Parliament, that it was the intention  of the  legislature that not a single moment’s interval  should

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take place before the granting of the certificate, I  should think myself bound to defer to that declared intention.  But it  is admitted that this cannot be its  interpretation;  we are therefore to see how, consistently with common sense and the   principles   of  justice,   the   words   ’immediately afterwards’  are to be construed.  If they do not mean  that it  is to be done the very instant afterwards,do  they  mean within ten minutes, or a quarter of an hour, afterwards?   I think we should interpret them to mean, within such  reason- able  time as will exclude the danger of  intervening  facts operating  upon the mind of the Judge, so as to disturb  the impression made upon it by the evidence in the cause". In  agreeing  with  this  opinion,  Alderson,  B.  expressly approved  of  the  decision  of Lord  Hardwicke  in  Rex  v. Francis(1).  This construction of the word ’immediately’ was adopted in Page v. Pearce(), Lord Abinger C. B. observing: "It  has already been decided, and necessarily so, that  the words  ’immediately  afterwards’in the  statute,  cannot  be construed   literally;  and  if  you  abandon  the   literal construction  of  the  words, what can  you  substitute  but ’within a reasonable time?’...." In  The  Queen v. The Justice-3 of Berkshire(3),  where  the point was as to the meaning of "forthwith" in section 52  of 35 & 36 Vict., Chapter 94, Cockburn C. J. observed: "The   question  is  substantially  one  of  fact.   It   is impossible to lay down any bard and fast rule as to what  is the  meaning of the word ’immediately’, in all  cases.   The words  ’forthwith’ and ’immediately’ have the same  meaning. They  are stronger than the expression within  a  reasonable time’, and imply prompt, vigorous action, without any delay, and  whether  there has been such action is  a  question  of fact,  having regard to the circumstances of the  particular case". (1)  dun. 165: 94 E.R. 1129, 1188. (2)  [1841] 8 M. & W. 677 (678): 161 E.R. 1211 (1212). (3)  [1878-79] 4 Q.B.D. 469 (471). 658 The  same construction. has been put on the word  "forthwith " occurring in contracts.  In Hudson and others v. Hill  and others(1) which was a case of charterparty, it was  observed at page 280: " Forthwith’   means   without   unreasonable   delay.    The difference  between undertaking to do something  ’forthwith’ and  kithin  a  specified  time  is  familiar  to   everyone conversant with law.  To do a thing ’forthwith’ is to do  it as soon as is reasonably convenient". In  Reg. v. Price(2), it was held by the Privy Council  that the  word  "forthwith"  in  a  bail  bond  meant  within   a reasonable  time  from  the service  of  notice.   On  these authorities,  it  may be taken, an act which is to  be  done forthwith must be held to have been so done, when it is done with all reasonable despatch and without avoidable delay. But it is argued by Mr. N. C. Chatterjee that the view taken in  the  above  decisions  as to the  meaning  of  the  word "forthwith"  has been abandoned in the later decisions,  and that  under  the  law as it stands, when an act  has  to  be performed  forthwith in relation to another, what has to  be decided is not whether it was done within a reasonable time, but whether it was done so closely upon the other as to form together  one continuous act.  He relied in support of  this opinion on the decision in Be Muscovitch(3), affirming  that in Re Muscovitch(1).  That was a decision on rule 132 of the Bankruptcy  Rules  which  provided that  "Upon  entering  an appeal,  a copy of the notice of appeal shall  forthwith  be

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sent by the appellant to the registrar of the court appealed from".  The facts were that the appeal was lodged in time on 25-10-1938  but the notice was served on 28-10-1938, and  it was  found  that  there was "no satisfactory  reason  or  no reason  at all, why there was any delay in the  matter"  (Re Muscovitch(4)).   On that, it was held that the  requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an Act  is done  after an interval of time and there is no  explanation forthcoming for (1)  [1874] 43 L.J. C.P. 273 (280). (2)  8 Moore P.C. 208: 14 E.R. 78. (3)  [1939] 1 A.E.R. 135. (4)  [1988] 4 A.E.R. 570, 659 the delay, it cannot be held to have been done  "forthwith". That  is  made  clear by Sir Wilfrid Greene  M.  R.  in  the following passage in Re Muscovitch(1) at page 139: "Having  regard to the construction which was put  upon  the word  ’forthwith’  which is peremptory, and.  admits  of  no interval  of  time between the entry of the appeal  and  the sending  of  the  notice  save such as  may  be  imposed  by circumstances, which cannot be avoided, I find it impossible in  the  present  case  to say  that  the  notice  was  sent forthwith within the meaning of the rule". Reliance is also placed for the petitioners on the  decision in Ex parte Lamb: In re Southam(2), which was followed in Re Muscovitch(1).   There, construing the word  "forthwith"  in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule  132,  which was the subject of  interpretation  in  Re Muscovitch(1), Jessel M. R. observed at page 173: "Ithink   that  the  word  ’forthwith’  must  be   construed according to the circumstances in which it is used     Where, as  in  Hyde v. Watt8(3), there is- a covenant to  insure  a man’s  life, there must of necessity be some delay, for  the act  could not be done in a moment.  But where an act  which is  required  to  be done ’forthwith’ can  be  done  without delay, it ought to be so done". In  that case also, the learned Judges found that the  delay was not explained.  And the observation of Lush L. J. in the same  case was that "the word ’forthwith’ has not  -a  fixed and an absolute meaning; it must be construed with reference to  the  objects of the rule and the  circumstances  of  the case".    There   is  nothing  in  the   decisions   in   Re Muscovitch(1) and Ex parte Lamb: In re Southam(2) which  can be  considered as marking a departure from the  construction put on the word "forthwith" in the earlier authorities  that it  meant  only  that  the  act  should  be  performed  with reasonable  speed and expedition, and that any delay in  the matter should be satisfactorily explained. (1) [1939] 1 A.E.R. 185     (2) [1881-82] 19 Ch.  D. 169. (3)  12 M & W. 254. 660 It  is  argued  for the petitioners that even  if  the  con. struction put on the word "forthwith" in the above decisions is accepted as correct, it must, in any event, yield to  any contrary  intention expressed in the statute, and  that  the provisions  of the Act afforded clear indication of such  an intention.   It  is co intended that the  legislature  while providing   in  section  7  that  the  grounds   should   be communicated  to the detenu "as soon as may be" has  enacted that  the report under section 3(3) should be  sent  "forth- with", that the use of two different expressions in the  two sections  is  a clear indication that they do not  mean  the same  thing,  that as the words "as soon as may  be"  import

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that  the act might be performed in a reasonable  time,  the word "forthwith" which is more peremptory must be  construed as excluding it.  The decisions in Emperor v. Phuchai(1) and in  K. U. Kulkarni v. Ganpat Teli(2) were quoted in  support of the position that when two different expressions are used in  different  parts  of the same clause  or  section,  they should be construed as used in different senses. We  agree that "forthwith" in section 3(3) cannot  mean  the same thing as "as soon as may be" in section 7, and that the former  is more peremptory than the latter.  The  difference between  the two expressions lies, in our opinion,  in  this that  while under section 7 the time that is allowed to  the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the period during which he could not, without any fault of  his own, send the report.  Under section 7 the  question is  whether the time taken for communicating the grounds  is reasonably requisite.  Under section 3(3) it is whether  the report has been sent at the earliest point of time possible, and  when there is an inter-val of time between the date  of the  order and the date of the report, what has to  be  con- sidered  is  whether the delay in sending the  report  could have been avoided. (1)  I.L.R. 50 All. 909: A.I.R. 1929 All. 38. (2)  I.L.R. [1942] Bom. 287: A.I.R. 1942 Bom. 191. 661 It  was  contended  that  as section  7  required  that  the communication should be made not later than 5 days from  the date  of the order, and as section 3(3) was more  peremptory than section 7 in that it required that the report should be made  forthwith,  the period allowable  under  section  3(3) could  not  exceed 5 days, and that as in  these  cases  the reports  were sent 8 days later, they could not be  held  to have  been  sent  forthwith.  This  argument  mixes  up  two different  matters contained in section 7. The period  of  5 days provided therein-is an absolute one and is  independent of the period which is permissible under the expression  "as soon  as  may  be",  which must,  by  its  very  nature,  be indefinite  depending on the facts and circumstances of  the case.   It  will  be as erroneous to read 5  days  into  the period allowable under the expression "as soon as may be" as to  read the 12 days within which the State has  to  approve the  order  under  section 3(3) into  the  period  which  is allowable under the expression "forthwith".  The result then is that the report sent by the Commissioner to the State  on 21-1-1956  could  be held to have been sent  "forthwith"  as required  by  section  3(3), only  if  the  authority  could satisfy us that, in spite of all diligence, it was not in  a position  to send the report during the period from 13th  to 21st January 1956. We  must  now examine the facts from the  above  standpoint. The Commissioner of Police has filed an affidavit explaining why  the  reports  were not sent till  21,st  January  1956, though the orders themselves had been made as early as  13th January 1956.  Ever since the publication of the proposal to form  a  State of Maharashtra without the  city  of  Bombay, there ,had been considerable agitation for the establishment of a Samyuktha Maharashtra with the city of Bombay  included in  it.  An action committee had been set up  on  15-11-1955 for  the  purpose,  and there had been  hartal  and  morchas resulting  in outbursts of lawlessness and violence  and  in the  burning of a police chowki.  The final decision on  the question  was  expected  to be taken and  announced  in  the middle  of January 1956, and the atmosphere was highly  sur- charged.  It was in this situation that the Commis-

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662 sioner decided to take action under section 3(2) of the  Act against the leading spirits of -the movement, and passed the present  orders  for detention against  the  petitioners  on 13-1-1956.  In his affidavit the Commissioner states that he decided first "to locate the persons against whom orders  of detention were made by me on the 13th January 1956 and after having done so, to arrest all of them simultaneously so that none  of  them  may  go  underground  or  abscond  or  evade execution of the detention orders".  Then the affidavit goes on to state: "It  was not possible for me to send the report  earlier  as the  situation  in  the City of Greater  Bombay  was  tense, pregnant with danger on the 13th January 1956, and continued to be so till 16th January 1956, and actual rioting occurred during  that  night  and those  riots  continued  till  22nd January  1956.  I and my staff were kept extremely busy  all throughout  in maintaining law and order and  simultaneously taking  steps to round up miscreants.  In this  unusual  and tense  situation,  it  was not possible  to  make  a  report earlier than the day on which it was made". - We  see no reason for not accepting these statements.   What happened on the 16th and the following days are now  matters of  history.   The  great city of bombay  was  convulsed  in disorders,  which are among the worst that this country  has witnessed.   The Bombay police had a most difficult task  to perform  in securing life and property, and the  authorities must  have been working at high pressure in maintaining  law and  order.   It is obvious that the  Commissioner  was  not sleeping  over  the orders which he had passed  or  lounging supinely over them.  The delay such as it is due, to  causes not of his making, but to causes to which the activities  of the  petitioners  very  largely  contributed.   We  have  no hesitation in accepting the affidavit, and we bold that  the delay  in sending the report could not have been avoided  by the  Commissioner and that when they were sent by him,  they were sent "forthwith" within the meaning of section 3(3)  of the Act. 663 Mr.  S.  C. Gupta put forward some  special  contentions  on behalf  of  the petitioners in C.M.Ps. Nos. 109 and  110  of 1956. He contended that as the order originally made against the petitioner in C.M.P. No. 109 of 1956 was that he  should be  detained  in Arthur Road Prison, Bombay  the  subsequent order of the Commissioner by which he was detained in  Nasik Prison  was  without  jurisdiction.  It is  clear  from  the affidavit  of the Commissioner that the petitioner  was  not ordered  to be detained in Arthur Road Prison but  in  Nasik Road  Central  Prison, and that he was kept  temporarily  in Arthur Road Prison, pending arrangements to transport him to Nasik.   It was next contended that the materials  on  which the  orders  of  detention- were made and  set  out  in  the communications  addressed to the petitioners all related  to their  past activities, and that they could  not  constitute grounds for detention in future.  This contention is clearly unsound.   What a person is likely to do in future can  only be a matter of inference from various circumstances, and his past record will be valuable, and often the only, record  on which it could be made.  It was finally contended that  what was  alleged  against  the petitioners was  only  that  they advocated  hartal, and that was not a ground for  making  an order of detention.  But the charge in these cases was  that the petitioners instigated hartal bringing about a  complete stoppage  of  work, business and transport with  a  view  to promote  lawlessness and disorder, and that is a  ground  on

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which an order could be made under section 3(2). All the contentions urged by the petitioners therefore fail, and these petitions must be dismissed. 664