A.P. Das, J. -
(1.)This is a fresh application made by the detenu Madhusudan Goswami under Sec. 491 of the Code of Criminal Procedure challenging the validity of his detention order dated August 12, 1971, passed by the District Magistrate, Birbhum, in exercise of the powers conferred by Sub -section (1) read with Sub -section (2) of Sec. 3 of the Maintenance of Internal Security Act, 1971, referred to hereafter as the Act. It is recited in the detention order as well as in the grounds of detention that with a view to preventing the datenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary to detain him. It appears that the Petitioner made an earlier application under Sec. 491 of the Code of Criminal Procedure praying for a writ in the nature of habeas corpus challenging the validity of the same detention order. Upon the first application a Rule was issued on January 3, 1972 and the said Rule was heard and disposed of by a Division Bench presided over by me and S.K. Bhattacharyya J. on May 2, 1972. The Rule was discharged and the contentions raised on behalf of the Petitioner in the previous Rule were negatived. It appears that in the previous Rule it was contended that the detenu made a representation which was not considered by the State Government or by the Advisory Board, that the detention order and the grounds of detention, which were in English language, were not read over nor explained to the detenu by the serving officer in spite of repeated requests made by him and the detenu, as such, was prevented from making an effective representation against the order of his detention and that the ground No. 2 was totally false and baseless and non -existent so far as the detenu was concerned.
(2.)In the present Rule, the validity of the order of detention is challenged by the Petitioner on the ground that the District Magistrate, Birbhum who passed the order, could not come to any definite satisfaction as to the necessity of detaining the Petitioner with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. Mr. Palit appearing for the Respondents contends that this fresh application for a writ of habeas corpus does not lie because successive application for writ of habeas corpus are not maintainable. In this connection we may refer to die Full Bench decision of the Allahabad High Court in the case of Satish Gopal Gurha and Anr. v/s. Rex , A.I.R. 1949 All. 147 (F.B.). In that case it has been held that in the case of all applications under Sec. 491 of the Code of Criminal Procedure the Court has to determine whether the detention order is legal and once the Court has pronounced on the legality of the detention order, Sec. 369 of the Code of Criminal Procedure bars reconsideration of the same matter and it is not open to detenu to move an application which would amount to an application for review of the previous order on the ground that the Court had wrongfully decided that the order of detention was valid, when on that date on grounds that were not, but could have been brought to the notice of the Court, the order of detention was really invalid. In that case it has been further held that a dismissal of an application under Sec. 491 of the Code will not bar a second application where the further detention of a person has become illegal by something that transpired after the first application was disposed of. The similar view was also taken by the Full Bench of the Punjab High Court in the case of Ram Kumar Pearay Lal v/s. The District Magistrate, Delhi : A.I.R. 1966 P&H 51 (F.B.), where it has been held that no second petition for a writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court. It has, however, been observed in that case that a second such petition will lie when a fresh and new ground of attack against the legality of detention or custody has arisen after the decision on the first petition and also where for some exceptional reason a ground has been omitted in an earlier petition in appropriate circumstances, the High Court will hear the second petition on such a ground for the ends of justice. Now, turning to the present case it appears that at the time of hearing of the previous application the learned Advocate appearing for the Petitioner did not raise any contention that the detention order was bad as it was based on alternative satisfaction of the detaining authority. Therefore, the ground on which the validity of the detention order is now challenged in the present application was not taken in the previous application. The Petitioner now seeks to assail the detention order on a new ground, namely, that the detention order is illegal having been based on alternative satisfaction of the detaining authority. The Petitioner does not want to reagitate the points which were raised and decided against him in the previous Rule. It is true that this ground could have been taken at the time of hearing of the previous Rule. But, it seems that at that time the Petitioner's Advocate out of a sense of diffidence refrained from urging that ground in the absence of any direct decision of the Supreme Court or of this Court on the point whether or not a detention order passed under the Maintenance of Internal Security Act, 1971, is bad on the ground of alternative satisfaction of the detaining authority. It was only after the disposal of the previous Rule that the Supreme Court held by its judgment pronounced on May 4, 1972, in the case of Kishori Mohan Bera v/s. The State of West Bengal S.C. Notes, July 15, 1972 p. 196, that in case of detention under the Maintenance of Internal Security Act, 1971, the use of the disjunctive word 'or' in the detention order makes the detention order invalid as the detaining authority was not certain whether it had reached its subjective satisfaction as to the necessity of exercising its power of detention on the ground of danger to the public order or danger to the security of the State. In the present case also the District Magistrate used the disjunctive word 'or' in the detention order and also in the grounds of detention stating that with a view to preventing the Petitioner from acting in any manner prejudicial either to the security of the State or the maintenance of public order, it is necessary to detain him. This shows that the District Magistrate, Birbhum, was not sure as to whether the activities mentioned in the grounds of detention are prejudicial to the security of the State or to the maintenance of public order. It thus appears to us that the detention order in the instant case having been based on such alternative and uncertain satisfaction of the detaining authority is not valid order of detention. This also shows that the District Magistrate -passed the -order casually, without applying his mind to the grounds.
(3.)Since the above Supreme Court decision was made after the disposal of the previous Rule, we think that this furnishes a new circumstance justifying a fresh application for writ of habeas corpus, on this ground. Moreover, the ends of justice also require that the present application should be entertained, because it appears that while disposing of the previous Rule it escaped the notice of the Court that the detention order was passed on the alternative satisfaction of the detaining authority. In this connection, we would also like to refer to the unreported Division Bench decision of this Court (A.P. Das and S.K. Bhattacharyya JJ.) in the case of Ratan Chandra Dey on behalf of Ajay @ Jaya Dey (detenu) v/s. D.M., Hooghly and 3 Ors. Unreported, Cr. Misc. Case No. 438 of 1072 decided on June 5, 1972, by A.P. Das and S.K. Bhattacharyya JJ. In that case, the second application for a writ of habeas corpus was entertained on the ground that in the earlier case the Petitioner's Advocate was misled by an incorrect statement in the affidavit -in -oposition of the detaining authority saying that the representation made by the detenu had been duly considered and rejected by the State Government while as a matter of fact the representation had not at all been considered by the State Government. In view of such peculiar circumstances of the case the second application was held to be entertainable and the Petitioner was allowed to agitate the point that the detenu's representation was not considered by the appropriate Government, although this ground was available to the Petitioner at the time of hearing of the earlier application. In our view, if for any exceptional reason a ground of attack is omitted or not urged in the earlier application under Sec. 491 of the Code of Criminal Procedure, then the High Court can in appropriate circumstances hear the second application on such ground for the end of justice. In the instant case, we have already indicated the circumstances, under which the ground now urged, could not be taken in the previous application.