# JAGANNA1H MISRA v. STATE OF ORISSA

- **Citation:** [1966] 3 S.C.R. 134
- **Court:** Supreme Court of India
- **Decided:** 1965-12-17
- **Case number:** Writ Petition No. 97 of 1965
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hioayatullaii, V. Ramaswami, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaganna1h-misra-v-state-of-orissa-3679
- **Pages:** 7

## Headnote

Dtftnce of India Act and
Rule.r,
1962. Ruk 30(1)(b)--Ordtr
urukr-Grounds of detention-Application of mind by detaining authoriry-Ntcessiry of-.
The petitioner was deta:ned by an order issued under r. 30(l)(b) of
the Defence of India Rules.
He
challenged the detention order in a
petition under An. 32 of the Coiutitution mainly on the ground that the
order enumerated six oMt of eight possible grounds of detention wh'ch
showed that the detaining authority had not really applied its mind to
the matter. The affidavit filed by the Home Minister staled that the detention order was made on his personal satisfaction that it was necessary
to detain the petitioner under the Rules "with a view to prevent him from
acting in a manner prejudicial ID the safety of India and maintenanee of
public order etc."
HELD: (i) The order of detention under r. 30(1) (b) of the R~
deprives a citiun of this country of his personal liberty and in view of
the mspension of some of the fundamental rights by the President on
account of the emergency,
a citizen has very limited opportunity
of
challonging an order of detention properly passed
under
!he
Rules.
Section 44 of the Defence of India Act says that there should be as little
interference with the ordinary avocations of life and the enjoyment of
propeny as may be consonant with the ensuring of the publ'c safety
and interest and the Defence of India and Civil
Defence. If in ony
case it appears that the detaining authority did not apply its mind properly before making the order of detention the order in question would
not be an order under the Rules and the per,;on detained would be entiUed to release. [137 F-138 CJ
(ii) Of the eight grounds of detention in s. 3(2) (15) of the Defence
of India Ao: one refers 10 foreigners 1.e. of being of hostile origin.
An
Indian Citizen can thus be detained on seven po;sible grounds and
the
detention order in the present case mentioned six of them. However in
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the affidavit filed by the Minister only
two of these
ground• namely
safety of India and the maintenance of publ;e order "ere mentioned. In
G
these circumstances there could be little doubt that the authority concerned did not apply its mind properly before the order in Question waa
passed in the present case. Such a discrep:!ncy
between
the grounds
mentioned in the order and the grounds staled in
the affidavit of the
authority concerned can only show an amount of ca~ualn~ in oassinsi:
the order of detention against the provisions of s. 44 of the Act. [IJB D-Hl
Casualn~ was '3.lso apparent from the conjunctive ·or' u!\ed in
the
order showin~ that it was more or less a copv of s. 3(2)(15). The u"'
of the word 'etc.' in the affidavit was another exampte of casual~. This
casualness showed that the mind of the authority concerned was really
not applied to the question of detention of the petitioner. The order of
H
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•
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.JAGANNATH v. ORISSA (Wanchoo, J.)
135
A
detention passed without application of mind was no order under
tho
Rules and the petitioners was entitled to release. [139 Cl
(iii) The fact that the order of detention
was not written by
the
'
Minister himself but by his subordinates was irrelevant. It is the duty
,
of the Minister to see that the order issued is in accordance with his
satisfaction and carries out his directions. [139 GI
•
••
B
c
ORIGINAL JURISDICTION : Writ Petition No. 97 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement ot fundamental rights.
R. K. Garg for the petitioner.
N. S. Bindra and R. N. Sachthey for the respondent.

## Text

JAGANNA1H MISRA
v.
STATE OF ORISSA
December 17, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIOAYATULLAII, V. RAMASWAMI AND
P. SATYANARAYANA RAJU, JJ.)
Dtftnce of India Act and
Rule.r,
1962. Ruk 30(1)(b)--Ordtr
urukr-Grounds of detention-Application of mind by detaining authoriry-Ntcessiry of-.
The petitioner was deta:ned by an order issued under r. 30(l)(b) of
the Defence of India Rules.
He
challenged the detention order in a
petition under An. 32 of the Coiutitution mainly on the ground that the
order enumerated six oMt of eight possible grounds of detention wh'ch
showed that the detaining authority had not really applied its mind to
the matter. The affidavit filed by the Home Minister staled that the detention order was made on his personal satisfaction that it was necessary
to detain the petitioner under the Rules "with a view to prevent him from
acting in a manner prejudicial ID the safety of India and maintenanee of
public order etc."
HELD: (i) The order of detention under r. 30(1) (b) of the R~
deprives a citiun of this country of his personal liberty and in view of
the mspension of some of the fundamental rights by the President on
account of the emergency,
a citizen has very limited opportunity
of
challonging an order of detention properly passed
under
!he
Rules.
Section 44 of the Defence of India Act says that there should be as little
interference with the ordinary avocations of life and the enjoyment of
propeny as may be consonant with the ensuring of the publ'c safety
and interest and the Defence of India and Civil
Defence. If in ony
case it appears that the detaining authority did not apply its mind properly before making the order of detention the order in question would
not be an order under the Rules and the per,;on detained would be entiUed to release. [137 F-138 CJ
(ii) Of the eight grounds of detention in s. 3(2) (15) of the Defence
of India Ao: one refers 10 foreigners 1.e. of being of hostile origin.
An
Indian Citizen can thus be detained on seven po;sible grounds and
the
detention order in the present case mentioned six of them. However in
B
c
D
the affidavit filed by the Minister only
two of these
ground• namely
safety of India and the maintenance of publ;e order "ere mentioned. In
G
these circumstances there could be little doubt that the authority concerned did not apply its mind properly before the order in Question waa
passed in the present case. Such a discrep:!ncy
between
the grounds
mentioned in the order and the grounds staled in
the affidavit of the
authority concerned can only show an amount of ca~ualn~ in oassinsi:
the order of detention against the provisions of s. 44 of the Act. [IJB D-Hl
Casualn~ was '3.lso apparent from the conjunctive ·or' u!\ed in
the
order showin~ that it was more or less a copv of s. 3(2)(15). The u"'
of the word 'etc.' in the affidavit was another exampte of casual~. This
casualness showed that the mind of the authority concerned was really
not applied to the question of detention of the petitioner. The order of
H
•
•
•
•
• •
.JAGANNATH v. ORISSA (Wanchoo, J.)
135
A
detention passed without application of mind was no order under
tho
Rules and the petitioners was entitled to release. [139 Cl
(iii) The fact that the order of detention
was not written by
the
'
Minister himself but by his subordinates was irrelevant. It is the duty
,
of the Minister to see that the order issued is in accordance with his
satisfaction and carries out his directions. [139 GI
•
••
B
c
ORIGINAL JURISDICTION : Writ Petition No. 97 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement ot fundamental rights.
R. K. Garg for the petitioner.
N. S. Bindra and R. N. Sachthey for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This petition for a writ of habeas corpus under
Art. 32 of the Constitution was heard by us on December 7,
D
1965. We then directed the release of the petitioner and indicated that reasons wlll follow later. We proceed to do so now.
The petitioner was detained by an order issued under r. 30·
( 1) (b) of the Defence of India Rules (hereinafter referred to.
as the Rules) by the Government of Orissa on December 29,
E
1964.
He raised a number of grounds challenging his detention.
It is unnecessary to refer to all the grounds raised by the petitioner.
It is enough to say that one of the grounds raised by him was
that the order of detention passed by the State Government was
not based upon the satisfaction of the Government.
The order
"
was in these terms :-
F
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"Order No.
8583/C, Bhubaneswar, the 29th
December, 1964.
"WHEREAS the State Government
is
satisfied
that with a view to preventing Shri Jagannath Misra,
son of Biswanath Misra, viii. Bhandarisahi, P. S. Parlakemedi, District Ganjam, from acting in any manner
prejudicial to the defence of India and civil defence,
the public safety, the maintenance of public order,
India's relations with foreign powers, the maintenance
of peaceful conditions in any part of India or the
efficient conduct of military operations, it is necessary
so to do, the Governor of Orissa in exercise of the
powers conferred by rule 30(1) (b) of the Defence of
India Rules, 1962, is pleased to direct that the said
136
SUPllEMB COUllT REPORTS
(1966) 3 S.C.R.
Shri Jagannath Misra shall be detain.ed until further
orders.
By order of the Governor,
Sd. Secretary to Government."
•
It will be noticed that the order mentions six grounds on the
.basis of which the petitioner was ordered to be detained, namely,
. acting in any manner prejudicial to (i) the defence of India and
.civil defence, (ii) the public safety, (iii) the maintenance of
public order, (iv) India's relations with foreign powers, (v) the
.maintenance of peaceful conditions in any part of India, and (vi)
the efficient conduct of military operations.
As the petitioner
C
had raised the contention that the order had not been passed on
the satisfaction of the State Government we ordered the Minister
.concerned to file an affidavit in this behalf.
Consequently, the
Home Minister of the Government of Orissa who deals with
matters of detention, has filed an affidavit to show that the order
in question was passed .ifter the State Government wa~ satisfied
. of the necessity thereof.
It is stated in this affidavit that the petitioner was ordered to
be detained on December 29, 1964, by the order in question and
D
was actually detained on December 30, 1964. The
affidavit
B
then goes on to say that after the outbreak of hostilities between
·China and India and the declaration of emergency by the President a close watch was set on the movements and activities of
persons who either individually or as a part of an organisation
were acting or were likely to act in a manner prejudicial to the
safety of India and maintenance of public order, and in this conJ
nection particular attention was paid to the activities of the
members of that section of the Communist Party which came to
be known as the pro-Peking faction of the Party.
The petitioner
was a member of the pro-Peking faction and was under close and
constant watch.
From the reports received regarding the activities of the petitioner the Home Minister stated iii the affidav:t
G
that he was personally satisfied that it was necessary to detain the
petitioner under the Rules "with a view to prevent him from
acting in a manner prejudicial to the safety of India and maintenance of public order, etc." The affidavit goes on to say that
the decision to detain the petitioner was made on the personal
satisfaction of the Minister and that the satisfaction was based
B
on several reports placed before the Minister with respect to the
activities of the petitioner.
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JAGANNATH v. ORISSA (Wanchoo, J.)
131
The principal contention on behalf of the petitioner in relation
to and against the affidavit of the Home Minister is that it is
clear from a perusal of the affidavit that the Minister did not
apply his mind in the matter of the detention of the petitioner.
It is urged that the order in question contains six grounds of
detention.
These six grounds practicaJ.ly cover all the ground&
specified ins. 3(2) (15) of the Defence of India Act (hereinafter
referred to as the Act) except two, namely-(i) the security of
the State and (ii) of being of a hostile origin. It is therefore
urged that the order was made copying out practically all the
grounds specified ins. 3(2)(15) of the Act without the application of the mind of the Minister whether those grounds were made
out in this case.
Reliance in this connection is placed on the
affidavit of the Home Minister where he has stated that he was
personally satisfied that it was necessary to detain the petitioner
in order to prevent him from acting in a manner prejudicial to
the safety of India and maintenance of public order, etc.
It is
urged that the affidavit shows that the Minister did not really apply y
his mind to the question of the detention of the petitioner and
the grounds for doing so and acted in a casual manner in approving the detention of the petitioner. It is urged that while the
grounds specified in the order are six in number, the Minister
when speaking of his satisfaction has mentioned only two, namely,
E safety of India (which may be assumed to be the same as thepublic safety) and maintenance of public sector.
There is in our opinion force in this contention on behalf of
the petitioner.
The order of detention under r. 30(l)(b) of the
Rules deprives a citizen of this country of hfa personal liberty
F
and in view of the suspension of some of the fundamental rights
by the President on account of the emergency, a citizen has very
limited opportunity of challenging an order of detention properly
passed under the Rules.
It seems to us
therefore necessarywhere detention is made under the Rules that the authority ordering detention should act with a full sense of responsibility keeping
G in mind on the one hand the interests of the country in the prerent
emergency and on the other hand the importance of the liberty of
the citizen in a democratic society.
That this is so is also emphasised by s. 44 of the Act which Jays down that "any authority or
person acting in pursuance of this Act shall interfere with the
ordinary avocations of life and the enjoyment of property as little
H
as may be consonant with the purpose of ensuring the public safety
and interest and the defence of India and civil defence." In _
view of this specific provision in the Act it is incumbent upon:
L9Sup. CI/66-10
SUPREMI! COURT
REPORTS
[1966) 3 S.C.R.
the auchorily which is passing an order under r. 30 (I ) ( b) of the
Rules taking away the liberty of a citizen of this country that it
should act with due care and caution and sec that the person
detained is ,,o detained on grounds which justify the detention in
the interest of the country.
Further the proceedings in the matter
of detention and the order of detention should show that it had
acted with all due care and caution and with the seme of responsibility necessary when a citi7.en is deprived of his liberty without
trial.
We have therefore co see whether in the present case the
authority concerned has acted in this manner or noc.
If ic has
not so acted and if it appears that it did not apply its mind properly
before making the order of detention the order in question would
not be an order under the Rules and the person detained would
be entitled to release.
Now we have pointed out that the order of detention in chis
case refers to six out of eight possible grounds on which a person
,can be detained under s. 3(2) ( 15).
Of these
eight
grounds
\mder s. 3 (2) ( 15) one refers to foreigners i.e., of being of hostile
origin.
Therefore in the present case the order really mentions
six out of seven possible grounds which can apply to an Indian
whose detention is ordered under s. 3 ( 2) ( 15).
We do not "'Y
that it is not possible to detain a citizen on six out of seven possible grounds under s. 3 (2) (15); but if that is done it is necessary
that the
authority detaining a citizen should be satisfied about
each one of the grounds that the detention is necessary thereon.
But if it appears that though the order of detention mentions a
large number of grounds the authority concerned did not apply
its mind to all those grounds before passing the order, there can in
our opinion be no doubt in such a case that the order was passed
without applying the mind of the authority concerned to the real
necessity of detention.
In the present case as we have already
pointed out six grounds out of possible seven grounds on which a
citizen can be detaineu have been memioned in the order; hue
in the aflidavit of the Minister we find mention of only two of
those grounds, namely, safety of India (which may be a<;Sumed
to be the same as public safety) and the maintenance of public
order.
In these circumstances there can be little doubt that the
authority concerned did not apply its mind properly before the
order in question was passed in the present case.
Such a discrepancy between the grounds mentioned in the order and the
grounds stated in the affidavit of the authority concerned can
only show an amount of casualness in passing the. order of detention against the provisions of s. 44 of the Act.
This casualness
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JAGANNATH v. ORISSA (Wanchoo, J.)
139
also shows that the mind of the authority concerned was really
not applied to the question of detention of the petitioner in the
present case.
In this view of the matter we are of opinion that
the petitioner is entitled to release as the order by which he was
detained is no order under the Rules for i_t was passed without the
application of the mind of the authority concerned.
There is another aspect of the order which leads to the same
conclusion and unmistakably shows casualness in the making of
the order.
Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by
the conjunctive "and" and the use of the disjunctive "or"' in such
a case makes no sense.
In the present order however we find
that the disjunctive "or" has been used, showing that the order
is more or less a copy of s. 3 (2) ( 15) without any application of
the mind of the authority concerned to the grounds which apply
in the present case.
Learned counsel for the State however relies on the word
"etc." appearing in the affidavit.
His contention is that as the
order of detention had already been mentioned in an earlier part
of the affidavit of the Home Minister, the word "etc." used in
the later part of the affidavit means that though the affidavit was
only mentioning two grounds, namely, the safety of India and the
maintenance of public order, it really referred to all the grounds
mentioned in the order.
We are not prepared to accept this.
If anything, the use of the words "etc." in the affidavit is another
example of casualness.
It was also urged on behalf of the State that the order in
question was not actually written out by the Minister and that after
the satisfaction of the Minister such orders are prepared by his
subordinates in the Secretariat and that therefore the Minister
was not responsible for the discrepancy between the order and
the affidavit.
We are not prepared to accept this explanation, for
it is the duty of the Minister to see that the order is issued in
accordance with his satisfaction and carries out his directions.
Though the Minister may not write out the order himself he is as
much responsible for it as if he had done so himself, for no order
of detention can be passed without the satisfaction of the authority empowered under the Act and the Rules.
The authority
cannot take refuge in saying that it was really satisfied about, say,
«me ground but the person who later on wrote out the order of
detention added many more grounds which the authority never
had in mind.
It is the duty of the authority to see that the order
140
SUPREME
COURT
REPORTS
[1966] 3 S.C.R.
of detention is in accordance with what the authority was satisfied
A
about. If it is not so, the inference of casualness is strengthened
and the Court would be justified in coming to the conclusion
that the order was passed without the application of the mind of
the authority concerned.
Petirion allowed.
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