PRAMILA CHAKRABORTY Vs. SUPERINTENDENT, HOOGLY JAIL
HIGH COURT OF CALCUTTA
Superintendent, Hoogly Jail
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ANIL KUMAR SEN, J. -
(1.)THESE three Rules issued on three applications under Section 491 of the Code of Criminal Procedure have been heard together as they involve common questions of law and fact. The subject -matter of challenge in the three Rules is the detention of three persons Rabindra Chakravarty alias Gora, Sujit Kumar Mukherjee alias Tapan and Ajit Kumar Mukherjee alias Naru, Rabindra Chakravarty has been put to detention under an order dated July 6. 1971 passed by the District Magistrate. Hooghly in exercise of his powers under Section 3(1) read with Section 3(3) of the West Bengal Prevention of Violent Activities Act, 1970 The object of detention being to prevent the detenu from acting in any manner prejudicial to the securitv of the State or the maintenance of public order. Suiit Kumar Mukherjee and Ajit Kumar Mukherjee have been out to detention under similar orders re -selectively dated July 9, 1971 and July 24, 1971. Ajit and Sujit are the two brothers. The grounds for detention in respect of all the three detenus as aforesaid are the same and are two in number as set out hereunder:
(1) On 13.12.71 at about 16 -30 hrs. you along with your associates forming an unlawful assemble, armed with daggers and other deadlv weapons assaulted Tusher Bhattachariee and Asis Bhattacharjee both of Bowbazar Sitalatola on the public Road at Bamunpara. Khalisani. P. S. Bhadreswar. dragged them in a field near the river 'Saraswati' at Subhas Pallv and plunged them into the water of the said river with a view to put an end of their lives, vou and vour associates also threatened to kill the local people with pipe -guns who objected to vour such illegal acts on the public Road. (2) On the night of 12.5.71 at about 23 -15 hrs. vou along with vour associates all armed with daggers assaulted one Barun Kumar Chatteriee causing stab injuries on his person on Khalisani Road near the junction of old Post Office Lane under P. S. Bhadreswar. When one Deb Kumar alias Aloke Mozumdar came to his rescue, vou and vour associates also stabbed him on the same Public Road. Barun Chatteriep succumbed to his injuries on wav to Hospital while Deb Kumar alias Aloke Mozumdar expired at Chandernagore Hospital due to the injuries sustained by him.' The validity of these orders and the consequent detention has been challenged on various grounds to be referred to hereinafter.
(2.)EACH of these Rules is being contested by the respondents and Mr. S.M. Sanyal along with Mr. Bhaskar Sen is appearing on behalf of the State. Constitutional validity of the Act having been challenged by the petitioners, a notice was issued by this Court on the learned Advocate General. Mr. S.C. Bose is appearing on behalf of the Advocate General.
Mr. Sadhan Gupta appearing on behalf of the petitioners in these three Rules has challenged the detention on three -fold around. In the first place, he has contended that the material provisions of the West Bengal Prevention of Violent Activities Act. 1970 (hereinafter referred to as the said Act) being void and unconstitutional, detention thereunder should be set aside. Secondlv he has contended that detention in each of these cases is mala fide. Lastlv he has contended that the impugned detention in each of these cases is not in accordance with law as it does not rest on appropriate grounds: according to Mr. Gupta the grounds are too remote and irrelevant and the grounds are materially vague.
(3.)MR . Gupta's challenge to the constitutional validity of the said Act is based on Article 13 and Article 19 of the Constitution. Notwithstanding the decision of the Supreme Court in the case of A.K. Gopalan v. State of Madras 1950 SCR 88 : (1950) 51 Cri LJ 1383. Mr. Gupta has contended that the provisions of the said Act are insticiable under Article 19 of the Constitution and as these Provisions infringe fundamental rights of the citizen guaranteed under Article 19(1) of the Constitution but beyond the sanction of the other Sub -articles thereto, they must be held to be void. To be more precise the substance of Mr. Gupta's contention is that the restrictions imposed by the provisions of the said Act on the fundamental rights are unreasonable and as such must be struck down as unconstitutional. No doubt Mr. Gupta draws inspiration for such a contention from some of the observations made by the Supreme Court in the Bank Nationalization case of R.C Cooper v. Union of India : 3SCR530 . It was so long a settled law that deprivation of personal liberty of a person under a law of preventive detention comes exclusively under Articles 21 and 22 and that the reasonableness of such law, cannot be questioned under the different clauses of Article 19. Reference may be made to 1950 SCR 88 : (1950) 51 Cri LJ 1383 (supra). Ram Singh v. State of Delhi. 1951 SCR 451 : (1951) 52 Cri LJ 804 (SC) and Kochuni v. State of Madras. : 3SCR887 . A controversy had. arisen over the extension of a similar Principle in case of deprivation of property coming under Article 31 of the Constitution and in some cases following the principles laid down in Gopalan's case (1950) 51 Cri LJ 1383 it was held by the Supreme Court that in cases of law providing for acquisition of property for public purposes within the meaning of Article 31 of the Constitution, such law will not be justifiable under Article 19. This latter view has since been revised by the Full Bench of the Supreme Court by its majority judgment in the Bank Nationalization case of R.C. Cooper AIR 1970 SC 564 (supra). Though no specific issue as to whether a law providing for preventive detention would be justiciable under Article 19 or not arose directly for consideration in the Bank Nationalization case before the Supreme Court some of the observations made therein have been strongly relied on by Mr. Gupta to support his submission that the earlier decision beginning from Gopalan's case (1950) 51 Cri LJ 1383 stands overruled by the majority judgment. Particular reliance has been placed on the following observations in Paragraph 64 of the judgment 'We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which justifies this apparently inconsistent development of the law. In our judgment the assumption in A.K. Gopalan's case (1950) 51 Cri LJ 1383 that certain Articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of individual guaranteed rights, the object and the form of the State action alone need be considered, and effect of laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. We hold that the validity of law which authorizes deprivation of property and a law which authorizes compulsory acquisition of property for a public purpose must be adjudged by the application of the same test.' It is. however, a. matter of controversy at the bar whether the majority judgment in the Bank Nationalizations case had really overruled the earlier views consistently maintained by the Supreme Court that Article 22 is exhaustive on the subject of preventive detention and Article 19 can have no application to such a law. On the other hand. Mr. Bose has contended that the Bank Nationalization tari Maki chute case was strictly confined only to the right of property and that the right to personal freedom was not directly involved. It appears that a similar contention was raised by the learned Attorney General before the Supreme Court itself in the case of State of West Bengal v. Asoke Dey. : 1972CriLJ1010 but the Supreme Court had not expressed itself in either wav. In our view it is not necessary to enter into this controversial issue inasmuch as even assuming that the present statute now under consideration is justifiable under Article 19 of the Constitution, we do not consider the restrictions imposed by it to be unreasonable and as such void.
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