ARBIND PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) As the main point of importance was common to all these four cases, they were heard together and are being disposed of by this judgment. After discussing the said point at the outset, I shall proceed to deal with the facts of each case and the special points, if any.

(2.) The petitioners in all these cases are non-gazetted employees serving in the various departments of the State of Bihar. In August 1965, by orders of the State Government made under Rule 30 (1) (b) of the Defence of India Rules, 1962, hereinafter called the Rules, they were arrested and detained in prison. The common ground on which they are challenging the orders of detention is that of mala fide. The petitioners plead that they are office-bearers. and members of the Bihar State Non-gazetted Employees Federation and the Patna Secretariat Ministerial Officers Association, and they have been taking active part in the various activities of the said Organisations for ventilating and redress of the grievances of the non-gazetted employees. During the course of the lawful and peaceful agitations which they have thus carried on, they have incurred the displeasure of Shri K.B. Sahay, the Chief Minister of Bihar, and other officers of the Government. The Chief Minister who also holds the portfolio of the Political (Special) Department in the Government of Bihar, has been responsible for making the impugned orders and in exercising the powers of the State Government maliciously in bad faith and with ulterior motives, because of his personal animosity, anger and grudge which he bears against the petitioners for their activities aforesaid. Their case, inter alia, is that the orders so made in purported exercise of the power in bad faith are ultra vires and without jurisdiction and the detention of the petitioners was illegal. It may be stated here that all the petitioners were ranted interim bail in the last week of Novemer or the first week of December 1965, by a Bench of this Court consisting of Narasimham, C. J., and S.N.P. Singh, J. The State of Bihar filed Criminal Appeal 200 of 1965 in the Supreme Court against the order granting bail in Cr. W. J. C. 126 of 1965. By a judgment delivered on January 17, 1966, the Supreme Court has held that when the High Court is satisfied that prima facie there is something patently illegal in the order of detention, an order for bail would be passed, but the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu is circumscribed in a case of detention under Rule 30 of the Rules by inexorable considerations which are relevant to the proceedings of this character. All the four petitioners thus having been enlarged on bail are outside jail for more than two months. In these circumstances, in the event of dismissal of their petitions, it will be a matter for consideration of the State Government whether the petitioners should be detained and sent back to jail in pursuance of the impugned orders of detention passed long ago without considering their eases afresh or without making fresh orders of detention, if necessary.

(3.) On September 8, 1962, the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of this country. On October 26, 1962, the President issued a proclamation under Article 352 of the Constitution declaring that a grave emergency existed whereby the security or India was threatened by external aggression. An Ordinance which has been eventually substituted by the Defence of India Act, 1962 (No. 51 of 1962) hereinafter called the Act, was promulgated on October 26 and was amended by Ordinance No. 6 of 1962 on November 3, 1962. On this day, the President issued the Order under Article 359 (1) suspending the rights of citizens to move any Court for enforcement of the rights conferred by Articles 21 and 22 of the Constitution for the period during which the promulgation of emergency issued on October 26 would be in force, This Order was amended on November 11, 1962 and Article 14 was also included within its field, thus suspending the rights of citizens to move any Court for the enforcement of rights conferred by Articles 14, 21 and 22 of the Constitution. On November 6, 1962, the Rules framed by the Central Government were published. Prior to corning into force of the Rules, the law of preventive detention was engrafted in Preventive Detention Act, 1950 (No. 4 of 1950). Section 7 of the Act provides--