# MAKHAN SINGH TARSIKKA v. THE STATE OF PUNJAB

- **Citation:** [1952] 1 S.C.R. 368
- **Court:** Supreme Court of India
- **Decided:** 1950-03-01
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/makhan-singh-tarsikka-v-the-state-of-punjab-18
- **Pages:** 4

## Headnote

1952
Dec. 10.
368
SUPREME COURT REPORTS
[1952]
MAKHAN SINGH TARSIKKA
v.
THE STATE OF PUNJAB
(PATANJALI
SAS TRI
c.
J .,
MEHR
CHAND
MAHAJAN,
'
MUKERJEA,
DAs
and
Cl:IANDRASEKHARA
AIYAR JJ.]
Preventive Detention Act (IV of 1950 as amended in 1951),
ss. 3(i), 9, 11, 12-0rder of detention fixing period of detention in
initia~ or~er itself before .refe1·ence to (1.dvisory Board-Legalt:tyDeprtvat1on of personal liberty-Duty to follo1v procedure stnctly.
Whatever n1ight be the position under the Preventive Detention Act of 19j0 before it \Vas amended i11 1951, under the Act
as :unended in 1951, the
Govern1nent should determine what the
period of
detention should be only after the Advisory
Board to
which the case is
referred reports that the detention
is justified.
Fixing of the period of detention in the initial order itself is
contrary to the schen1e of the Act and cannot be supported. It
cannot be
treated as
::i mere surplusage as it
would tend to
prejudice a fair consideration of the dctenu's case by the Advisory Board, though he would have to be
released
forthwith if
the Advisory Board reports that there is
no sufficient cause for
detention.
'
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,
ORIGINAL Juruso1c1'10N.
Petition
No. 308 of 1951.
Application
under
article 32
of the
C':onstitution for
a writ in the nature of habeas corpus praying for the
release of the petitioner from detention.
H. J. Umrigar (amicus curiae), for the petitioner.
S. M. Sikri, Advocate-General of the Punjab,
(findra
Lal, with him) for the respondent.
1951.
December 10.
The Judgment of the
Court
•- •
was delivered by
PATANJALI
SASTRI c. J.-This is
a petition under
article 32 of the Constitution praying for the release
of the petitioner from his alleged unlawful detention.
We accepted the petition and, at the conclusion of the
hearing, ordered the petitioner to be released. We
now proceed to give the reasons for our order.
S.C.R.
SUPREME COURT REPORTS
369
The petitioner was arrested
and detained under an
order dated
1st March,
1950, made by the
District
Magistrate, Amritsar, under section 3(1) of the Preventive Detention Act, 1950 (hereinafter referred to as
"the Act") and the grounds of detention were communicated to the petitioner as required
by section 7
()f the
Act
on 15th March, 1950. The petitioner
challenged the validity of the order on various grounds,
but, while the petition was pending
after this
Court
issued a rule nisi to the respondent, the petitioner was
served on 6th August with
another detention order
<lated 30th July, 1951, purporting to be made by the
Governor of Punjab under sub-section (1) of section 3
and section 4 of the Act as amended by the Preventive
Detention (Amendment) Act, 1951, and he was scrvt:d with fresh grounds 0£ detention on 16th August, 1951.
:Thereupon the petitioner filed a supplementary petition
:impugning the validity of the said order on the ground,
inter alia,
that it directed
the
detention of the
petitioner up to 31st March, 1952, the date on which
1:he Act itself was to expire and that this was contrary
to the provisions of the Act as amended.
On behalf
of
the
respondent, the Advocate-General of Punjab
urged that the said order was not intended to be a
fresh order of detention but was passed only with a
view to limiting the period of detention till 31st March,
1952, as it had been held in some cases that an order
of detention for an indefinite period was bad.
The
-0rder runs as follows:-
WHEREAS the Governor of Punjab is statisfied with
respect to the person known as Ma~han Singh Tarsikka,
son of Gujjar Singh, Jat, of Tarsikka, Police Station
Jandiala, Amritsar District, that with a view to preventing him from acting in a manner prejudicial to
the security of the State, it is necessarry to make the
following order :
Now,
THEREFORE,
m
exercise
of
the
powers
conferred by sub-section

## Text

1952
Dec. 10.
368
SUPREME COURT REPORTS
[1952]
MAKHAN SINGH TARSIKKA
v.
THE STATE OF PUNJAB
(PATANJALI
SAS TRI
c.
J .,
MEHR
CHAND
MAHAJAN,
'
MUKERJEA,
DAs
and
Cl:IANDRASEKHARA
AIYAR JJ.]
Preventive Detention Act (IV of 1950 as amended in 1951),
ss. 3(i), 9, 11, 12-0rder of detention fixing period of detention in
initia~ or~er itself before .refe1·ence to (1.dvisory Board-Legalt:tyDeprtvat1on of personal liberty-Duty to follo1v procedure stnctly.
Whatever n1ight be the position under the Preventive Detention Act of 19j0 before it \Vas amended i11 1951, under the Act
as :unended in 1951, the
Govern1nent should determine what the
period of
detention should be only after the Advisory
Board to
which the case is
referred reports that the detention
is justified.
Fixing of the period of detention in the initial order itself is
contrary to the schen1e of the Act and cannot be supported. It
cannot be
treated as
::i mere surplusage as it
would tend to
prejudice a fair consideration of the dctenu's case by the Advisory Board, though he would have to be
released
forthwith if
the Advisory Board reports that there is
no sufficient cause for
detention.
'
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,
ORIGINAL Juruso1c1'10N.
Petition
No. 308 of 1951.
Application
under
article 32
of the
C':onstitution for
a writ in the nature of habeas corpus praying for the
release of the petitioner from detention.
H. J. Umrigar (amicus curiae), for the petitioner.
S. M. Sikri, Advocate-General of the Punjab,
(findra
Lal, with him) for the respondent.
1951.
December 10.
The Judgment of the
Court
•- •
was delivered by
PATANJALI
SASTRI c. J.-This is
a petition under
article 32 of the Constitution praying for the release
of the petitioner from his alleged unlawful detention.
We accepted the petition and, at the conclusion of the
hearing, ordered the petitioner to be released. We
now proceed to give the reasons for our order.
S.C.R.
SUPREME COURT REPORTS
369
The petitioner was arrested
and detained under an
order dated
1st March,
1950, made by the
District
Magistrate, Amritsar, under section 3(1) of the Preventive Detention Act, 1950 (hereinafter referred to as
"the Act") and the grounds of detention were communicated to the petitioner as required
by section 7
()f the
Act
on 15th March, 1950. The petitioner
challenged the validity of the order on various grounds,
but, while the petition was pending
after this
Court
issued a rule nisi to the respondent, the petitioner was
served on 6th August with
another detention order
<lated 30th July, 1951, purporting to be made by the
Governor of Punjab under sub-section (1) of section 3
and section 4 of the Act as amended by the Preventive
Detention (Amendment) Act, 1951, and he was scrvt:d with fresh grounds 0£ detention on 16th August, 1951.
:Thereupon the petitioner filed a supplementary petition
:impugning the validity of the said order on the ground,
inter alia,
that it directed
the
detention of the
petitioner up to 31st March, 1952, the date on which
1:he Act itself was to expire and that this was contrary
to the provisions of the Act as amended.
On behalf
of
the
respondent, the Advocate-General of Punjab
urged that the said order was not intended to be a
fresh order of detention but was passed only with a
view to limiting the period of detention till 31st March,
1952, as it had been held in some cases that an order
of detention for an indefinite period was bad.
The
-0rder runs as follows:-
WHEREAS the Governor of Punjab is statisfied with
respect to the person known as Ma~han Singh Tarsikka,
son of Gujjar Singh, Jat, of Tarsikka, Police Station
Jandiala, Amritsar District, that with a view to preventing him from acting in a manner prejudicial to
the security of the State, it is necessarry to make the
following order :
Now,
THEREFORE,
m
exercise
of
the
powers
conferred by sub-section (1) of section 3 and section -4
of the Preventive Detention Act, 1950 (Act IV of
1950),
as
amended
by
the Preventive
Detention
(Amendment) Aot, 1951 (Act IV of 1951), the Governor
1951
Mak_han Singh
Tarsik.k.a
v.
The State of
Punjab.
Patanjali
S11stri C. f.
1951
Makhan Singh
Tarsikk•
v.
The State of
Punjali.
Patanjali
Sastri C. /.
370
SUPREME COURT REPORTS
(1952J
of Punjab hereby directs that the said Makhan Singh
Tarsikka be committed to the custody of the InspectorGeneral of Prisons, Punjab, and detained in any jail
of . the . State till
31st March,
1952, subject to such
conditions as to maintenance,
discipline and
punish~
ment fpr breaches of discipline as have been specified
by
a general order or as contained in the
Punjab
Communist Detenu Rules, 1950.
It will be seen that the terms of the order make it
clear thaf is was intended to operate as a fresh order
for the detention of the petitioner and this view is
strengthened by the fact that the order was followed
by the service of a fresh set of· grounds on the petitione'r
:is required by section 7 of the Act; a proceeding
which would be wholly unnecessary if no fresh order
of detention
was intended.
Indeed, it was suggested
on behalf of the petitioner that the said order follow~cl ·
by"service of fresh grounds only four days before 'the
date fixed for the hearing of the petition by this Court
was a deliberate move by the respondent to circumvent
the objections raised by the petitioner to the validity
of the earlier order of 1st March, 1950, and thus render
the proceeding ii1fructuous.
However that may be,
we ' are · clearly of opinion that the order dated 30th
July, 1951, must be regarded as a fresh order made for
the petitioner's detention in supersession of · the earlier
order and the question is whether it was illegal in that
it straightaway directed
that the petitioner
be detained till 31st March,
1952,
which was the date of the
expiry of the Act.
...
Whatever might . be the position under the Act be.-
fore its amendment in February, 1951, it is clear that
the Act as amended
requires that every case of deter!-
,_
tion should· be placed before an
AdviSory
Boaril:
eonstituted under the Act
(section 9) and provides
that if the Board reports that there is sufficient cause
for
the detention "the appropriate Government may·
confirm ·tile ' detention order and continue the
deten~
tion of . the person concerned for such period . as it
thinks fit" (section 11). ·It is, therefore, plain that. It
is only after the Advisory
Board, tt> which the cas'e
-
-
. .,.,
-
-
4
,:~.--
S.C.R,
SUPREME COURT REPORTS
371
has been referred, reports that the detention is justified; the Government should determine what the period
of detention should be and not before. The fixing of
the period of detention in the initial order itself in the
present case
was,
therefore,
contrary to the scheme
of the Act and cannot
be supported.
The learned
Advoc:ite-General, however, urged that in view of the
provU.ion in section 11(2) that if the Advisory Board
repoi:ts that there is no sufficient cause for the detention, the person concerned would be released forthwith,
the direction in the order dated 30th July, 1951, that
the petitioner should be detained till 31st March, 1952,
could be· ignored
as
mere
surplusage.
We cannot
accept that view.
It is obvious that such a direction
would ·tend to prejudice a fair
consideration of the
petitioner's case when it is placed before the Advisol}'
Board~ It cannot be too often 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.
" '
Petition allowed.
Agent for the respondent: P. A. Mehta.
BHAGAT SINGH
v.
THE STATE
GURDEV SINGH-Caveator.
-~SAYYED FAzL Au, MEHR
CHAND
MAHAJAN and
.
CHANDRASEKHARA
1\-IYAR JJ.]
Criminal Procedure Code (Tl of 1898), s. 234(1 )-Misioinder of
charges-Firing single shot at ttl!o persons to kill them-Whether one
off-tmce ok two offences.
- The appellant was tried in respect of the following c)larg6:
(i) causing the death of A and thereby committing an offenec
punishable under s. 302, Penal Code, (ii) firing a short at B and
1951
Makhan Singh
Tarsikka
v.
The State of
Punjab.
Pataniali
Sastri C. /.
1951
Dec. 19.