Decided on June 16,1950

Indra Prakash Kahol Appellant
THE STATE Respondents


Falshaw, J. - (1.) THIS is a petition under Article 226 of the Constitution of India and Section 491, Code of Criminal Procedure filed by Indra Prakash Kahol on behalf of his brother, Om Parkash Kahol who was arrested on 16 -5 -1950, under Section 3, Preventive Detention Act (IV [4] of 1950) under the orders of the District Magistrate, Ambala, and ordered to be detained for two months. The detenu is a M.Sc., and B.T., and at the time of his arrest occupied the post of a Professor in the Sanatan Dharam College, Ambala Cantonment. The copy of the grounds of his detention which was supplied to him a few days after his arrest under Section 7 of the Act reads: In pursuance of the provisions of Section 7, Preventive Detention Act of 1950 you, Shri Om Parkash Kahol, son of L. Sunder Lall Brahmin, of S.D. College, Ambala Cantonment, are hereby informed that the grounds of your detention are as follows: 'You have been acting in a manner prejudicial to the public safety and the maintenance of law and order. You have been stating that for every Hindu killed many more Muslims should be killed. In the district there is a large Muslim population and your acts and speeches are accordingly likely to cause serious unrest and encourage lawlessness.' Your detention has therefore been ordered to ensure the security of the State or maintenance of Public Order.... You are further informed that you have a right to make a representation in writing against the order under which you are detained. If you wish to make such a representation you should address it to the State Government through the Superintendent of your jail as soon as possible. The grounds on which the validity of the detention order is challenged are as follows : (l) that it offends against the fundamental rights guaranteed in Articles 19, 21 and 22 of the Constitution; (2) that the grounds stated in the communication of the District Magistrate to the detenu are vague and indefinite; (3) that the grounds in any case do not justify the order of detention; (4) that the provisions of Section 3(1)(a)(ii), Preventive Detention Act of 1950 in so far as they provide for the detention of citizens for the maintenance of public order are repugnant to the rights conferred under the Constitution; (5) that on the facts alleged the detenu ought to have been prosecuted under the ordinary Criminal law and that the Preventive Detention Act was not intended to suspend the ordinary criminal Tribunals. It was further alleged that the order of detention was mala fide and was passed at the instance of certain local Congressmen with a view to prevent the detenu from taking an active part in the Ambala Cantonment Board elections which were about to take place, and in which a keen struggle was anticipated between the Congress and the Hindu Mahasabha, of which the detenu is the President of the Ambala Branch, as well as being a member of the Working Committee of the All India Hindu Mahasabha. It may be said at once that the first and fourth of the above grounds, which practically amount to the same thing have no force in view of the recent decision of the Supreme Court upholding the validity of the Preventive Detention Act of 1950 with the exception of Section 14. On the latter point any objection which might be raised has been met by the furnishing of the grounds of detention, on behalf of the State the grounds in any case having been set out in the petition.
(2.) THE principal ground on which the validity of the order of detention has been challenged before me is the second, namely, that the grounds of detention supplied to the detenu in compliance with the provisions of Section 7(1) of the Act are vague and indefinite, inasmuch as they are too general and do not specify the acts and particular speeches complained of, nor do they indicate when and where, whether privately or on public platform, the detenu had stated that for every Hindu killed many more Muslims should be killed. There is no doubt that vagueness and indefiniteness in the grounds of detention communicated to the detenu for the purpose of, enabling him to make a representation to the State is a ground, for holding the detention to be invalid and ordering his release. In a recent order of the Supreme Court the release of two detenus from the State of the Punjab was ordered simply and solely on account of the fact that the grounds of detention supplied to them under Section 7 were vague and indefinite. The order in question is a very brief one and does not contain any detailed discussion of the point, but there is a reference in it to authorities, and presumably the cases cited before me are among the authorities referred to. The first of these cases is reported as Inder Prakash v. Emperor, A.I.R. (36) 1949 ALL. 37 :, 50 Cr.L.J. 34 -in which the release of a number of detenus was ordered by Raghubar Dayal J., on the ground that the grounds supplied to the detenus under the provisions of Section 5, U.P. Maintenance of Public Order Act were vague and did not comply with the provisions of the section. A similar course was also followed by a Full Bench of the Allahabad High Court consisting of Malik C.J., Raghubar Dayal and, Wanchoo JJ. in the case reported, as Durga Das v. Rex, A.I.R. (36) 1949 ALL. 148 :, 50 Cr.L.J. 214 F.B. The provisions of Section 5 of the U.P. Act in question are : As soon as may be after an order in respect of any person is made under Clause (a) of Sub -section (1) of Section 3, the officer or authority making the order shall communicate to the person affected thereby the grounds on which the order against him has been made and such other particulars as may in the opinion of such officer or authority be sufficient to enable him to make representation against the order and such person may at any time thereafter make a representation in writing to such officer or authority against the order. It shall be the duty of such officer or authority to inform such person of his right of making such representation and to afford him the earliest practicable opportunity of doing so. The provisions of Section 7, Preventive Detention Act of 1950 are not quite so comprehensive. The section reads: (1) When a person is detained in pursuance of a ion order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order, in a case where such order has been made by the Central Government to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government. (2) Nothing in Sub -section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. In spite of the more detailed nature of the requirements in Section 5 of the U.P. Act the fact that the Supreme Court has ordered the release of detenus simply on account of the fact that the grounds supplied to them under Section 7, Preventive Detention Act, were vague and indefinite appears to be a clear indication that the view of the Supreme Court is that in effect the requirements of Section 7 of the Act of 1950 are practically the same as those of Section 5 of the U.P. Act. In other words, the grounds supplied to a detenu under Section 7 must be clear and precise, and must be sufficient to enable him to make an effective representation to the State against the order for his detention. Indeed to hold otherwise would amount to holding that Section 7 is a nullity and a mere sop to public opinion which was not really intended to afford any substantial protection to the rights of the person against whom an order of detention had been passed, which could not have been the intention of Parliament. To turn to the grounds supplied to the detenu, in the present case I find it impossible to acquit them of the charge of vagueness and indefiniteness. The first sentence, "You have been acting in a manner prejudicial to the public safety and the maintenance of law and order," is merely the usual formula and is obviously only intended to be followed by more precise and detailed charges. The next sentence appears to me to be, as was contended by the learned Counsel for the Petitioner, a masterpiece of vagueness. It reads, "You have been stating that for every Hindu filled many more Muslims should be killed." It appears to imply that a statement of this kind had been made by the detenu on a number of occasions, but in what circumstances, whether in public or in private, or to his students in Class, there is no indication at all, and as far as the charge itself goes, it might even have been when the detenu was talking in his sleep. The last sentence also suffers from vagueness, It reads: In the district there is a large Muslim population and your acts and speeches are accordingly likely to cause serious unrest and encourage lawlessness. The first part of the sentence is an unexceptionable statement of fact, but the rest of the sentence leaves it in doubt as to whether the acts and speeches referred to are past acts and speeches, or act's and speeches which were anticipated in the future. It is pointed out on behalf of the detenu that these grounds are quite insufficient to enable him to make an effective representation to the State. His position is one of denial of the allegations in general, but it is contended that in order to make an effective representation it would be necessary for him to deny having made speeches of the kind alleged on particular occasions and it more particulars were given of the occasions on which he is alleged to have used such words he might well be able to support any denials made in his representation with affidavits from other persons who were present on the occasions in question. The learned Advocate -General chiefly relied on an affidavit now filed by the learned District Magistrate of Ambala who ordered the detention of the detenu and who presumably drew up the grounds which were supplied to him. In para 6 of this affidavit he has given details of some of the speeches alleged to have been made by the detenu. It is said that one 7 -2 -1950, at a public meeting in Ambala Cantonment the detenu, in the course of a speech criticising the Government for appeasing Muslims, stated that he would be pleased if for every Hindu killed by the Muslims four Muslims were killed, and he also aroused communal passions by dilating on the cruelties perpetrated by Muslims on Hindus in East Bengal. At a large meeting on the 26th of February he incited Hindus against Muslims by saying that there were a large number of Hindu abducted girls in Pakistan who were not allowed to come to India and criticised the Government for not attacking Pakistan. At another meeting on the 5th of March he put forward the thesis that two courses were open to the Government, one being to attack Pakistan and the other to remove Hindus from Pakistan territories. On the 27th of March at a public meeting he advocated the expulsion of Muslims from India. Finally at a meeting on the 16th of April he criticised the Nehru -Liaquat Pact and compared the present Government of India with that of Aurangzeb for helping Muslims at the cost of Hindus. The learned Advocate -General did not seriously attempt to repel the contention that the grounds as originally supplied to the detenu were rather vague and indefinite, but lie adopted the novel position of contending that in the light of the facts stated in the affidavit of the learned District Magistrate this Court should not order the release of the detenu, but instead should direct the State Government or the learned District Magistrate to supply the detenu with fresh grounds of detention containing fuller particulars which would enable him to submit an effective representation to the Government. The learned Advocate -General admitted that so far he was aware there was no case in which any High Court or the Supreme Court had adopted this course instead of ordering the release of the detenu, but he argued that there was no reason why such a course should not be adopted or why I should not create a precedent by adopting it. His argument was that it was not for this Court to go into the correctness or otherwise of the allegations made against the detenu, and that once the more detailed particulars of the reasons for the detention order had been supplied, even if it was neither at the proper time nor in the proper form required by Section 7 of the Act, and these detailed particulars if assumed to be true, justified the detention of the detenu, the proper course for the Court to adopt was to order the particulars to he supplied to the detenu as the grounds for his detention. It seems to me, however, that to adopt his course would involve a danger to the liberty of the subject. In the present case, for instance, as matters now stand, the detention of Om Parkash Kahol is only ordered up to the 15th of July, or in other words he has already completed one month out of the two months for which he was ordered to be detained. By the time he could be supplied with fresh particulars of the grounds for his detention and could compile an effective representation to the Government and then the Government could have time to consider his representation, he would already be due for release. In fact it seems to me that to adopt this course might serve as an encouragement to the authorities to supply only vague grounds of detention in the first instance, and then to go on grudgingly Supplying further detailed particulars as required by the Court, with the result that a detenu would be kept in detention, whether law fully or unlawfully, for quite a long period before the validity of the order for his detention would be decided, though obviously a question of this kind ought to be decided as speedily as possible, I do not wish to suggest that in the present case vague grounds were supplied deliberately, or that such a device would be generally adopted by local authorities, but the danger nevertheless exists and is real. In the circumstances I do not see fit to adopt the course suggested by the learned Advocate -General and holding that the grounds supplied to the detenu in the present case are too vague and indefinite to enable him to make ah effective representation to the State Government and therefore the order for his detention is invalid, I order his immediate release.;

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