# Ramesh war Shaw v. Distrz'ct Magistrate, Burdwan & Anr

- **Citation:** [1964] 4 S.C.R. 932
- **Court:** Supreme Court of India
- **Decided:** 1963-02-09
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAo, K. N. Wanchoo, J. C. Shah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesh-war-shaw-v-distrz-ct-magistrate-burdwan-anr-3192
- **Pages:** 14

## Headnote

Defence of India Rules 1962, rr. 30(1), 30(1)(b)-Person in
iail custody-Detention order, if can be served-Validity.
On the 20th November, 1962, an order of detention was passed
against the appellant under Rule 30(1)(b) of the Defence of India
Rules, 1962. This order was served on the appellant on the 21st
November, 1962, while he was in jail custody as an under-trial
prisoner in connection with a criminal case pending against him.
He \Vas arrested on the 25th October, 1962 in connection with the
said criminal case and since then he was in jail custody.
On the
26th October, 1962,
Emergency
was
declared by the President.
Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons•interviev.·ed him between
3rd November to the 19th November, 1962. It was alleged by the
respondent that during these interviews, the appellant instigated the
persons who saw him, to commit prejudicial activities.
The a{>'
pellant moved a writ petition in the High Court against the said
detention order.
The High Court dismissed the writ petition on
the ground that the appellant had failed to make out a case that
his detention was illegal.
Held: (i) The decision in
Rameshwar Shaw's case would
be applicable to the present appeal, because the scheme of Rule
30(1) is not radically different from the scheme of s. 3(l)(a) of
the preventive Detention Act and does not affect the construction
of Rule 30(l)(b) of the Rules.
-
-
} -
-
~-.
4 S.C.R.
SUPREME COURT REPORTS
933
Rameshwar Shaw v.
District Magistrate,
Burdhwan, [1964]
~ S.C.R. 921 relied on.
(ii) It is true that the nature and scope of the orders which
can be validly passed under Rule 30(1) of the Defence of India
Rules is very n1uch wider than the order of detention which alone
can be made under s. 3( I) of the Preventive Detention Act. But
the operative portion of Rule 30(1)
is
substantially similar to
s. 3( 1) of the Act.
(iii) Rule 30(1)(b), like s. 3(1)(a), of the Act clearly postulates that an order can be; made under it only where it is shown
that but for the imposition of the said detention, the person con~
cerned would be able to carry
out a prejudicial activity of the
character specified in Rule 30(1 ). On a
plain
construction of
Rule 30(l)(b) it must be held that the order permitted by it can
be served on a person who would be free otherwise to carry out
his prejudicial activity. Such freedom cannot be predicated of the
ap~llant in the present case because he was in jail at the relevant
time.
(iv) The service of a detention order on a person who is
already in jail custody virtually seeks to effecniate what may be
called 'a double detention' and sllch double detention is not intended either bys. 3(l)(a) orbyRule30(1)(b); it is plainlyunnecessary and outside the purview of both the provisions.
( v) If the appropriate authority wants to detain a person under
Rule 30(1)(b), it must be shown that when the order of detention
is served on him, he was free to carry out his prejudicial activities
and his prejudicial activities could be prevented only by his detention.
Therefore, the service of the order of detention on the appellant whilst he was in jail custody was invalid.
Emperor v. Mool Chand, A.I.R. 1948 All 288, inapplicable.
Dayanand Modi v. State of Bihar, I.LR. 30 Pat. 630 and
Meledath Bharathan Malyali v. Commissioner of Police, I.LR. 1950
Born. 438, referred to.
(v.i~ On principle, it would be ?ifficult to state as a general
proposition that an
o~d~r ?f. detention cannot be validly made
against a person who 1s 1n 1a1l custody for the reason that investigation_ is procee~ing in ~egard to an offence alleged to have been
committed by him. Thts Court has
held in Rameshwar Shaw
that as an abstract proposition of law an order of detention can be
validl~ made. against a person in jail custody.
Whether or not
~e said mak1_ng of_ the ord~r is valid in a particular case may have
to be determined in the light of the relevant and material facts.
!n t~e prese

## Text

1963
Ramesh war
Shaw
v.
Distrz'ct
Magistrate,
Burdwan &
Anr.
Gajendragadkar /.
1963
October 11
932
SUPREME COURT REPORTS
[1964]
The result is, i:he petition succeeds and the order of
detention passed against the petitioner by the District Magistrate, Burdwan, on the 9th February, 1963, is set aside.
We direct that the petitioner should be released forthwith.
Petition aUowed.
MAKHAN SINGH TARSIKKA
••
THE STATE OF PUNJAB
(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHOO,
J. C. SHAH AND RAGHUBAR DAYAL JJ.)
Defence of India Rules 1962, rr. 30(1), 30(1)(b)-Person in
iail custody-Detention order, if can be served-Validity.
On the 20th November, 1962, an order of detention was passed
against the appellant under Rule 30(1)(b) of the Defence of India
Rules, 1962. This order was served on the appellant on the 21st
November, 1962, while he was in jail custody as an under-trial
prisoner in connection with a criminal case pending against him.
He \Vas arrested on the 25th October, 1962 in connection with the
said criminal case and since then he was in jail custody.
On the
26th October, 1962,
Emergency
was
declared by the President.
Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons•interviev.·ed him between
3rd November to the 19th November, 1962. It was alleged by the
respondent that during these interviews, the appellant instigated the
persons who saw him, to commit prejudicial activities.
The a{>'
pellant moved a writ petition in the High Court against the said
detention order.
The High Court dismissed the writ petition on
the ground that the appellant had failed to make out a case that
his detention was illegal.
Held: (i) The decision in
Rameshwar Shaw's case would
be applicable to the present appeal, because the scheme of Rule
30(1) is not radically different from the scheme of s. 3(l)(a) of
the preventive Detention Act and does not affect the construction
of Rule 30(l)(b) of the Rules.
-
-
} -
-
~-.
4 S.C.R.
SUPREME COURT REPORTS
933
Rameshwar Shaw v.
District Magistrate,
Burdhwan, [1964]
~ S.C.R. 921 relied on.
(ii) It is true that the nature and scope of the orders which
can be validly passed under Rule 30(1) of the Defence of India
Rules is very n1uch wider than the order of detention which alone
can be made under s. 3( I) of the Preventive Detention Act. But
the operative portion of Rule 30(1)
is
substantially similar to
s. 3( 1) of the Act.
(iii) Rule 30(1)(b), like s. 3(1)(a), of the Act clearly postulates that an order can be; made under it only where it is shown
that but for the imposition of the said detention, the person con~
cerned would be able to carry
out a prejudicial activity of the
character specified in Rule 30(1 ). On a
plain
construction of
Rule 30(l)(b) it must be held that the order permitted by it can
be served on a person who would be free otherwise to carry out
his prejudicial activity. Such freedom cannot be predicated of the
ap~llant in the present case because he was in jail at the relevant
time.
(iv) The service of a detention order on a person who is
already in jail custody virtually seeks to effecniate what may be
called 'a double detention' and sllch double detention is not intended either bys. 3(l)(a) orbyRule30(1)(b); it is plainlyunnecessary and outside the purview of both the provisions.
( v) If the appropriate authority wants to detain a person under
Rule 30(1)(b), it must be shown that when the order of detention
is served on him, he was free to carry out his prejudicial activities
and his prejudicial activities could be prevented only by his detention.
Therefore, the service of the order of detention on the appellant whilst he was in jail custody was invalid.
Emperor v. Mool Chand, A.I.R. 1948 All 288, inapplicable.
Dayanand Modi v. State of Bihar, I.LR. 30 Pat. 630 and
Meledath Bharathan Malyali v. Commissioner of Police, I.LR. 1950
Born. 438, referred to.
(v.i~ On principle, it would be ?ifficult to state as a general
proposition that an
o~d~r ?f. detention cannot be validly made
against a person who 1s 1n 1a1l custody for the reason that investigation_ is procee~ing in ~egard to an offence alleged to have been
committed by him. Thts Court has
held in Rameshwar Shaw
that as an abstract proposition of law an order of detention can be
validl~ made. against a person in jail custody.
Whether or not
~e said mak1_ng of_ the ord~r is valid in a particular case may have
to be determined in the light of the relevant and material facts.
!n t~e present case, the making of the order of detention wa~ not
1nvahd.
In Rameshwar Shaw the petitioner was ordered to be
r~leased .on the ground that he was served with the order of detention whilst he was in jail and not on the ground that th
aki
of the order was invalid.
e m
ng
1963
Makhan Singh
Tarsikka
v.
The State of
Punjab
•
1963
Makhan Singh
Tarsikk•
v.
The State of
Puniab
•
Gaiendragadkar /.
934
SU:PREME COURT REPORTS
[1964]
(vii) The plea of malafides cannot be permitted to be raised
for the first time in the petition for special leave for the reason
that a plea of malafides must always be made by proper pleadings at
the trial stage, so that the respondent has an opportunity to meet
the said proceedings.
(viii) The order of detention passed against the appellant is
set aside on the ground that the service of the order is invalid
and is outside the scope of the Rules.
CRIMINAL APPELLATE JurusmcTION : Criminal Appeal
No. 80 of 1963 .
Appeal by special leave from the judgment and order
dated Maich 26, 1963, of the Punjab High Court in Criminal Misc. No. 186 of 1963.
R. K. Garg, S. C. Agarwal, M. K. Ramamurthi and
D. P. Singh, for the appeallant.
L. K. Kaushal, Senior Deputy Advocate-General for
the State of Punjab and R R. G. K. Achar, for the
respondent.
October 11, 1963. The Judgment of the Court was
delivered by
GA JENDRAGADKAR, J .-The detenu
Makhan
Singh
Tarsikka whose Habeas Corpus petition has been dismissed
by the Punjab High Court, has brought this appeal before
us by special leave. It appears that on the 22nd October,
1962, F.I.R., was filed at the Police Station, Jandiala, alleging that offences under sections 307, 324, 364 and 367 I.P.C.
had been committed by certain persons including the appellant. In pursuance of the investigation which commenced
on receipt of the said F.I.R., the appellant was arrested
on the 25th October, 1962.
On the 26th October, 1962,
Emergency was declared by the President.
On the lst
November, 1962, the appellant was transferred to judicial
custody of the Sub-Divisional Magistrate, Amritsar. Whilst
the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him
between 3rd November to the 19th November, 1962. On
the 20th November, 1962, an order of detention was passed
against the appellant under Rule 30(1) (b) of the Defence
of India Rules, 1962 (hereinafter called the 'Rules') .. This
-
-
-
...
4 S.C.R.
SUPREME COURT REPORTS
935
order was served on the :\l)pdlant on the 21st November,
1962 and it appears he was removed to the jail at Hissar.
On the 30th January, 1%3, he was brought back to
Amritsar, and on the 9th February 1963 he filed the present
writ petition.
In his petition which was filed by the appellant, the
main allegation which he made in challenging the validity
of his detention was that the grounds set up in the order
of detention were "very vague, concocted and totally false".
The detention order had stated that the appellant was
detained because he was found to be "indulging in activities prejudicial to the Defence of India and Civil
Defence by making propaganda against joining the armed
and civil defence forces and by urging people not to contribute to the National Defence Fund." The order added
that having regard to his activities, it was thought necessary
to detain him in order to prevent him from carrying on
the said prejudicial activities.
On the 4th March, )963, the appell<li\t made
an
additional affidavit in which he urged that the fact that
the deponent was in confinement before the declaration
of emergency on the 26th October, 1962 and the Chinese
invasion, clearlv showed that the allegations against the
deponent were false and concocted. By this supplementary
aflirbvit, the appellant furnished an additional ground in
support of his ori~inal plea that the grounds on whicl1
his dctc:nion had been ordered were false and concocted.
On the 6th March, 1963, the appellant filed a third
affidavit in which he stated that his political activities as
a member of the Legislative Assembly were disliked "by
the High-ups". He referred to several Starred Questions
of which he had given notice in the Punjab Legislative
Assembly to show that the ruling high-ups were angry
with
him.
These
Questions, the
appellant alleged,
"revealed the naked corruption of the ruling high-ups".
The appellant further alleged that the Jandiala Police were
enraged by the fact that at his instance the Punjab High
Court had appointed the Sessions Judge at Amritsar to
hold an inquiry in village Ramana Chak affairs. According to him, the S.S.P., Amritsar who was a near relative
of the ruling Chief, was also hostile to him. It is on these
additional grounds also that the appellant purported to
1963
M•khan Singh
Tarsikk_a
v.
The State of
J'unjab
Gajendragadkar /.
1963
Makhan Singh
Tam'kka
v.
The State of
Punja[,
Gajendragadkar J.
936
SUPREME COURT REPORTS
[1964]
challenge the validity of his detention before the Punjab
High Court.
These three affidavits were duly challenged by counteraffidavits made on behalf
of the
respondent, State of
Punjab.
It was in one of these affidavits that the respondent brought out the fact that the appellant had nine
interviews in jail between the 3rd November to
19th
November, 1962 and. the
information received by
the
respondent was that during these interviews, the appellant
instigated the persons who saw him, to commit prejudicial
activities. The affidavits filed
by
the respondent also
disputed the other allegations made by the appellant in the
thre,e affidavits to which we have already referred.
It appears that before the High Court it was urged
by the appellant that the order of his detention had been
passed malafide and his contention was . sought to be
supported on the ground that he had been arrested on the
25th October, 1962, and so, it would not
be rationally
possible to allege against him that he had indulged in the
prejudicial activities mentioned in the said order.
It was
also argued before the High Court on his behalf that since
a criminal case under s. 307 I.P.C. was pending against him
at the relevant time, it was not open to the detaining
authority to detain him under Rule 30(1) (b) of the Rules.
The learned Judge who heard the habeas corpus petition
filed by the appellant, rejected both these contentions.
In
the result, he held that the appellant had failed to make
out a case that his detention was illegal, and so, the writ
petition was dismissed.
On behalf of the appellant, Mr. Garg has urged that
the service of the order of detention which was effected on
the 21st November, 1962 is illegal and in support of his
argument he has relied on a recent decision of this Court
in Rameshwar Shaw v. The District Magistrate, Burd wan
& Another('). Mr. Garg points out that the material words
used in section 3(1) of the Preventive Detention Act, 1960
(No. 4 of 1%0) (hereinafter called 'the Act') which were
construed by this Court in the case of Rameshwar Shaw(')
are substantially the same as in Rule 30(1) of the
rules with which the present appeal is concerned, and he
contends that the said decision fully justifies .his argument
.
( 1 )
[ 1964] 4 S.C.R. 918.
-
-
4 S.C.R.
SUPREME COURT REPORTS
937
that the service of the impugned order of detention on the
appellant when he was already in jail custody is outside the
purview of Rule 30(1). In our opinion, this argument is
well-founded and must be accepted.
In the case of Rameshwar Shaw(') this Court
construed s. 3 ( 1) of the Act and held that the said provision necessarily postulates that a person sought to be
detained would be free to act in a prejudicial manner
if he is not detained.
In other words, the freedom of
action to the person sought to be detained at the relevant
time must be shown before an order of detention can be
valid! y served on him under the said section. If a person
is already in jail custody, it was observed in the said judgment, how can it rationally be postulated that if he is not
detained he would act in a prejudicial manner?, and so,
the effect of the said decision is that an order of detention
cannot be validly served on person who is already in
jail custody and in respect of whom it is rationally not
possible to predicate that if the said order is not served
on him, he would be able to indulge in any prejudicial
activity.
In the case of Rame1hwar Shaw(') this Court also
considered the question as to whether an order of detention can be made against a person who is in jail custody,
and it was held that as an abstract proposition of law,
there may not be any doubt that s. 3(1) (a) of the Act
does not preclude the authority from passing an order of
detention against a person whilst he is in detention or
in jail. But this Court also added that the relevant facts
in connection with the making of the order may differ
and that may make a difference in the application of the
principle that a detention order can be passed against a
person in jail.
Dealing with this aspect of the matter,
this Court emphasised the relevance of the considerations
of proximity of time and concluded that whether an order
of detention can be passed against a person who is in
detention or in jail, will always have to be determined in
the circumstances of each case.
It would thus be seen
that in the case of Rameshwar Shaw (' ), his application
was allowed and he was ordered to be set at liberty on the
ground that the service of the order detaining him was
-(lf[1964J 4 s.c.R.-918.
60-2 S C lndia/64
1963
Makhan Singh
Tarsikka
v.
The. State of
Punjab
Gajendragadkar /.
1963
Mak_han Singh
Tarsikk_a
v.
The State of
Puniab
Gaiendra.
gadft.ar /.
938
SUPREME COURT REPORTS
[1964]
effected when he was in jail. Mr. Garg naturally relies
on this authority in support of his
first contention that
the service of the detention order against the appellant
whilst he was in jail is similarly invalid.
The learned Dy. Advocate-General who appears for the
respondent attempted to argue that the decision in Rameshwar Shaw's case (') would not be applicable to the
present appeal, because the scheme of Rule 30( 1) is radically different from the scheme of s. 3(1) of the Act. He
concedes that the operative portion of Rule 30(1) is subs-.
tantially similar to section 3(1). Rule 30(1) provides:-
"The Central Government or the State Government, if it is satisfied with respect to any particular
person that with a view to preventing
him from
acting in any manner prejudicial to the defence of
India and civil defence, the. Pl!blic safety, the maintenance of public order, India's relations with foreign
powers, the maintenance of peaceful conditions in any
part of India, the efficient conduct of military opera,
tions or the maintenance of supplies and services
essential to the life of the community, it is necessary
so to do, may make an order. .. "
Then
follow eight clauses which authorise the specified categories of orders which may be passed under Rule
30(1). Clause (b) relates to detention and it is with this
clause that we are concerned in the present appeal. The
argument is that the eight clauses indicate that it is not only
the detention which can be ordered by the appropriate
authority, but there are several other kinds of orders which
can be passed ; under clause (a), for instance, the person
can be directed to remove himself from India in such
manner, by such time and by such route as may be specified in the order, and be prohibited from
returning to
India.
Clause ( c) authorises the appropriate authority to
impose limitations against a person prohibiting him from
going into any such area or place as may be specified in
the order. Clause ( d) contemplates a kind of internment
of the person within the area specified in the order. Under
clause ( e) the movements of the person can be regulated by
asking him to report himself or to notify his movements or
both in the marmer indicated in that clause. Clause ( f)
( 1) (1964] 4 S.C.R. 918.
4 S.C.R.
SUPREME COURT REPORTS
939
permits imposition of restrictions in respect of the employment or business carried on by the person, while under
clause (g), restrictions may be imposed on the possession
or use by the person of any article.s mentioned in the order.
Clause (h) is general in terms and it provides that the
appropriate authority may make an order otherwise regulating the conduct of the person in any such particular
as may be specified in the order.
It is _thus clear that the nature and the scope of the
orders which can be validly passed under Rule 30(1) is
very much wider than the order of detention which alone
can be made under s. 3(1) of the Act. But the question
which we have to consider is : does this fact make any
difference to the interpretation of the operative provisions
of Rule 30(1) in relation to detention? In our opinion,
the answer to this question must be in the negative. Rule
30(l)(b), like s. 3(l)(a), clearly postulates that an order
can be made under it only where it is shown that but for
the imposition of the said detention, the person concerned
would be able to carry out a prejudicial activity of the
character specified in Rule 30(1). In other words, one of
the conditions precedent to the service of the order permitted under Rule 30( l) (b) is that if the said order is not
served on the person, he would be free and able to carry
out his prejudicial activity in question. The fact that
other kinds of orders can be passed against a person under
Rule 30(1) does not alter the essential condition of a valid
service of the order contemplated by Rule 30(1) (b) that
if the said order is not served, the prejudicial activity may
follow. Therefore, we are satisfied that on a plain construction of Rule 30(1) (b) it must be held that the order
permitted by it can be served on a person who would be
free otherwise to carry out his prejudicial activity. Such
a freedom cannot be predicated of the appellant in the
present case because he was in jail at the relevant time.
Therefore, we do not think that the distinction which
the Dy. Advocate-General seeks to make between the provisions of Rule 30(l)(b) and section 3(l)(a) makes any
difference to the construction of the Rule. The service
of a detention order on a person who is already in jail
custody virtually seeks to effectuate what may be called
'.a double detention' and such double detention is not
1963
Makhan Singh
Tarsikka
v.
The State of
Puniab
Gajendragadkar /.
1963
Mak han Singh
Tarsikka
v.
The State of
Punjab
Gajendragadkar /.
940
SUPREME COURT REPORTS
[1964]
intended either bys. 3(1)(a) ot by Rule 30(1)(b); it is
plainly unnecessary and outside the purview of both the
provisions.
It was also argued by the learned Dy. AdvocateGeneral that in the case of an under-trial prisoner who is
entitled to interview his friends or relatives under rules
framed in that behal( it would be possible.for him to send
out messages and thereby carry on his prejudicial activities
in an indirect way, and that could be stopped only if he
is detained under Rule 30(l)(b). We are not impressed
by this argument. It appears that Rule 13 of the Punjab
Detenus Rules, 1950, allows a detenu to interview a near
relative in accordance with these rules and Rule 19 reqt1ires
that all interviews shall take place unless otherwise directed
by the Dy. Inspector-General, Criminal
Investigation
Department, in the presence of an officer deputed for the
purpose by the Superintendent of Police of the district,
and it provides that such officer may stop the interview
if the conversation turns on any undesirable subject. The
contention is that whereas an ordinary under-trial prisoner
is not required to interview his friends and relatives in the
presence of the Police Officer, that is a condition imposed'
by Rule 19, and so, in order to prevent the appellant from
carrying out his prejudicial activities by means of interviews
even whilst he is in jail custody it was necessary to make
the order of detention and serve it on him though he was
in jail. That, it is suggested, is a distinctive feature of
the scheme contemplated by Rule 30( 1) of the Rules. The
obvious answer to this argument, however, is that if the
restriction contemplated by Rule 19 of the Punjab Detenus
Rules was intended to be imposed against the appellant,
under Rule 30(1) it could easily have been done by regulating his conduct whilst he was an under-trial prisoner in
jail. We have already seen that Rule 30(1)(h) authorises
the appropriate authority to regulate the conduct of a
person in any such particular as may be specified in the
order, and there can be no difficulty in holding that if the
respondent took the view that from jail, the appellant was
carrying out prejudicial activities, an appropriate order
could have been passed against him under R. 30(1)(h).
That being so, we do not think that the argument thatthe
scheme' of R. 30(1) is radically different from the scheme
4 S.C.R.
SUPREME COURT REPORTS
941
of s. 3(1)(a) of the Act and affects the construction of
the operative portion of Rule 30(l)(b), can be sustained.
If the appropriate authority wants to detain a person under
Rule 30(1)(b), it must be shown that when the order
of detention is served on him, he was free to carry out his
prejudicial activities and his prejudicial activities could be
prevented only by his detention. Therefore, we must hold
that the service of the order of detention on the appellant
whilst he was in jail custody is invalid. ·
In this connection, our attention has been drawn to
two decisions to which reference may be made. In Emperor v. Moo! Chand & Ors.('), the Allahabad High
. Court has held that the detention of persons who have already been arrested cannot be said to be mala fide merely for the reason that the order of detention was passed against them when they had already been arrested.
The mere fact, says the judgment, that persons were
first arrested under some provisions of the ordinary law
and were later ordered to be detained under the U.P.
Maintenance of Public Order (Temporary Act) is not
in itself, proof of mala fides and that it is for the party
setting up mala fides to
prove
circumstances from
which mala fides could be reasonably inferred. It would
thus be seen that the point argued before the Court and
which has been decided by the judgment, is that a detenu
cannot succeed in proving that the order of his detention has been passed mala fide solely for the reason
that prior to the date of the order, he had been
arrested. In other words, in order to prove mala fides
in passing the detention order, adequate evidence must
be led and the mere allegation that the order followed the
arrest of the detenu under the Cr. Procedure Code, for
·an offence will not sustain his plea of mala fides. We do
not see how this judgment can assist the respondent in the
present appeal.
In Dayanand Modi v. The State of Bihar(2), the
~uestion raised was whether detention and
prosecution
of the same person can be simultaneously made. In other
words, the point urged was whether a person who
.is being prosecuted under the ordinary criminal law can
(') I.L.R. 1948 All 288.
(2) I.L.R. 30 Patna 630.
1%3
Makhan Singh
Tarsikka
v.
The State of
Puniab
Gaientiragatfk.ar f.
1963
Makhan Singh
Tarsikka
v.
The State of
Punjab
Gajendragadkar /.
942
SUPREME COURT REPOR.'TS
[19641
be detained whilst the prosecution is still pending against
him.
This decision has no bearing on the'. question
as to the construction of Rule 30(1)(b) and the effect of the service of an order of detention on a person who is already in jail custody. All that the Patna
High Court did in that case was that it rejected the ex-
' treme proposition urged for the detenu that when an
offence is alleged to have been committed, the State Government has no authority to detain, but must launch a
prosecution and wait for the decision of the Court, or
that the withdrawal of a pending prosecution will in
certain cases amount to an acquittal and, therefore, deprive the State Government of any legaf · authority
to
make an order of detention on the same facts.
As we
will presently indicate, the problem which
the
Patna
High Court has considered ih that case was sought to
be raised before us by Mr. Garg, but since we have come
to the conclusion that ·the service of the order of detention ·on the appellant whilst he was iri jail custody
•is invalid, we do not propose to deal with that qUes-
· tion.
We may, however, indicate the nature of tlie point
which Mr. Garg sought to raise before us.
Basing him-
, self on: the decision of the Full Bench of the Bombay
High Court in Maledath Bharat/km Malyali v. The Commissioner of Police('), Mt. Garg contended that it was
'not open to the respondent to take simultaneously two
actions against the appellant-one under
the
ordinary
Cr. Procedure Code and the other under Rule30(l)(b).
The Bombay High Court appears to have held that the
State cannot pursue both the rights at the same time if on
the facts of a particular case it is apparent that these
two rights are inconsistent and cannot be exercised
at the sanie time, the two rights in question being the
right to investigate and prosecute a person under the
ordinary criminal law and tl1e right to detain him under
the Preventive Detention Act.
As we have just mentioned, we do not propose to deal with this point in
the present appeal.
Mr. Garg also contended that the making of the
( 1) l.L.R. 1950 Born. 438.
!4 S.C.R.
SUPREME COURT REPORTS
943
order of detention itself is invalid, because at the time
when the order was 'made the appropriate authority
knew that the appellant was in jail, and so, the order passed was not justified and is, therefore, invalid under Rule
30(1).
In support of this argument Mr. Garg has
relied upon the observations made by this Court in the
case of Rameshwar Shaw('). It would be recalled that
in that case also, Rameshwar Shaw was ordered to
be
released on the ground that he was served with the order
of detention whilst he was in jail and not on the
ground that the making of the order was invalid. In
foct, this Court made, no finding on that question and
based its decision on·' the narrow ground that the servi~
of the order was invali<); We propose to adopt the same
course in the present• appeal. In dealing with the que~
tion about the vali'dity , of the making of the order, it
would be necessary to astevtain some more relevant and
material facts.
Even though the appellant was in jail
custody, it is not unlikely that he could have applied for
bail and niight have •obtained an order of bail, and
bearing that contigency in ·mind, the appropriate authO!-
rity• would be justified iin making an order of detention
against the appellant, provided of course, the authoritY
waited for the service : of ·the order after the
appellant
was released on bail ; so that, on principle, it would be
difficult to state as a ·g~rieral proposition that an order of
detention cannot be v'alidly made against a person who is in
jail custody for the reason that investigation is proceed~
ing in regard to an offen~e ·alleged to have been committed by him. In fact, ~ we have already pointed out
in the case of Ramesh war Shaw('), as an abstract pr°'
position of law, this Court has held that an otdet
~f. detention can be validly. made against a person in
Jatl custody. Whether or not the said making of
th~
order is valid in a particular case may have to be detet-'
mined in the light of the relevant and material facts.
In the abs.ence of any· such facts in _the present case, we
do n?t thmk we would be justified in dealing with Mr.
!Jarg. s argument that the making of the order was
mvahd.
In fact, we were told that after the criminal
case pending agains~ the· appellant was transferred from
( 1\ (1964] 4 S.C.R. 918:
1963
Mdkhan
Si~gh
Tarsikka
v.
The State of
Puniab
G~jendra
gadkar /.
' 1963
· Makhan Singh
Tarsikka
v.
The ·state of
Punjab
Gajendragadkar /.
SUPREME COURT REPORTS
[1964]
·Amritsar to a court of competent jurisdiction in U.P.
the said court has allowed the appellant's application for
bail, subject, of course, to his detention
under
the
impugned order of detention ; · and so, the possibility
that the appropriate authority might have apprehended
that the appellant would move for bail and might succeed in that behalf, cannot be ruled out in dealing with
the question about the validity of the making of the
order.
Besides, when a person is in jail custody and
criminal proceedings are pending against him, the ap-
. propriate authority may, in a given case, take the view
that the criminal proceedings may end very soon and may
terminate in his acquittal. In such a case, it would be
open to the appropriate authority to make an order of
detention, if the requisite conditions of the Rule or the
section are satisfied, and serve it on the person concerned
if and after he is acquitted in the said criminal proceedings.
That leaves the question about mala fides to which
Mr. Garg referred in the course of his arguments. We
do not think Mr. Garg can be ·permitted to raise that
point in the present appeal, because we find that adequate
material has not been produced by the appellant in
support of his plea in the present proceedings. In fact,
the allegations of mala fides which were introduced by
the appellant for the first time in the affidavit filed by
him on the 6th March, 1%3 are far from satisfactory:
The case which Mr. Garg wanted to make under the
head of mala fides is directed against the Chief Minister
of Punjab, and it is plain that even the third affidavit
filed by the appellant does not disclose any allegations
which can justify the said plea being raised: Therefore,
we do not think it would be possible
to entertain
the said plea in the present case. A plea of mala fides
must always 'be made by proper pleadings at the trial
stage, so that the respondent has an opportunity to meet
the said pleadings.
Mr. Garg no. doubt attempted to
refer us to certain averments made by ·the appellant in
his petition for special leave, but we do not think we can
permit Mr. Garg to make out a case of mala fides on the
averments made for the first time·· in the application for
4S.C.R.
SUPREME COURT REPORTS
945
special leave. That is why we propose to express no opinion on the merits of the plea of mala fides which the
appellant wanted to raise before us.
The result is, the. appeal is allowed and the order of
detention passed against the appellant is set aside
on
the ground that the service of the order is invalid and
is outside the scope of Rule 30( 1) (b) of the. Rules. We
accordingly direct that the appellant should be released
forthwith.
Appeal allowed.
STATE OF ANDHRA PRADESH
v.
GUNDUGOLA VENKATA SURYANARAYANA GARU
(A. K. SARKAR, J. c. SHAH AND RAGHUBAR DAYAL, JJ.)
Civil Procedure Code, S. 80, 0. I. r. 8.-Notice under 80,
Civil Procedure Code by two persons but suit filed by one-Validity
of suit-Representative suit-Requirements of-Meaning of 'Estate'
-Madras Estates
Land Act, 1908, S. 3(2)(d)-Madras Estates
Rent Reduction Act, 1947.
·
The Government of Madras applied the provisions of the
Madras Estates Rent Reduction Act, 194 7 to the lands in the
village Mallinadhapuram on the ground that the grant was of the
whole village and hence an estate within the meaning of S. 3(2)(d)
pf the Madras Estates Land Act, 1908.
The respondent and
another person served a notice under S. 80 of the Code of Civil
Procedure upon the Government of the State of Madras in which
they challenged the above mentioned notification and asked the
Government not· to act upon it. Out of the two persons who
gave the notice, the respondent alone filed the suit.
The trial
court held that the original grant was not of the entire village
1963
M4han Singh
Tarsikka
v.
The State of
Punjab
Gajendragadkar f.
1963
September 12
afld was not so confirmed or recognised by the Government of the
. \ :
Province of Madras and therefore as it was not on
11estate" within
the meaning of S. 3(2)(d) of the Madras Estates Land Act the
Madras Rent Reduction Act, 1947 did not apply to it. But the
Suit was dismissed on the ground that although two persons had
given the notice under S. 80 of the Code of Civil Procedure, only
one person had filed the suit. The High Court agreed with the
~al court that the grant was not of an entire- village but it also
held that the notice was not defective and the suit was maintainable as it was a representative suit and the: pemiissiori of the