JAWRILAL Vs. STATE

JUDGEMENT

(1.) THESE are four applications for a Writ of Habeas Corpus under Article 220 of the Constitution, and arise in the following circumstances.

(2.) THE four applicants were detained by an order of the District Magistrate, Pali, on 4-8-1954. They were supplied with detailed grounds running into three typed pages in support of the order of detention. The matter was placed before the Advi- sory Board in due course, and the Advisory Board advised continued detention of the applicants and, thereafter, the order of detention for a period of one year was confirmed by the Government. The present applications were made almost three months later, and the main ground that has been urged in support of them is that the applicants had requested the Advisory Board to allow them or their counsel to appear before the Board and be heard and that the Board neither heard the applicants' counsel nor the applicants themselves. Reliance in this connection was placed on a decision of this Court in writ cases Nos. 114 and 115 decided on 6-12-1954, where it was held that if a detenu prays that he may be heard by an Advisory Board and the Advisory Board does not give him an opportunity f being heard, his further detention is illegal.

(3.) IN the petitions it was said that the applicants wanted to be heard themselves or through counsel but the applications made by the applicants to the Advisory Board are before in and we find that the only prayer in these applications was that the applicants had engaged certain counsel and wanted those counsel to be heard. Shri Murli Manohar appearing for the applicants urges that though the applicants' prayer in these applications was only that their counsel be heard, that amounted to a desire on the part of the detenus to be heard personally within the meaning of Section 10 (1), Preventive Detention Act, 1950 (4 of 1950), and, therefore, these cases are covered by the earlier decision mentioned above as the Advisory Board did not give the applicants any hearing. We may in this connection refer to Section 10 (1) as it now stands after the amendment of 1952. The Advisory Board advises the Government after considering the materials placed before it and after hearing the detenu in person, if in any particular case it considers it essential so to do or if the person concerned desires to be heard, then Sub-section (3) provides that the detenu is not entitled to be heard through a legal practitioner. The contention of Shri Murli Manohar is that Section 10 (1) lays down two conditions under which the Board is b und to hear the detenu, namely, (1) if the Board itself considers it essential so to do and (2) if the person concerned desires to be heard. So far as the first condition is concerned, there would never be any trouble, and it is the second condition which calls for consideration before us. It is contended that the [words "if the person concerned desires to be hoard" are very general, and if the detenu expresses a desire [to be heard even through counsel and has never expressed a desire to be heard personally, the prayer that his counsel be heard must amount to a, desire on the part of the detenu to be heard and, therefore, the Board must give him a hearing. It is true that the word "personally" does not appear after the words "if the person concerned desires to be heard" in Sub-section (1); but we have to see what meaning we have to give to Sub-section (1) in the context of entire Section 10. We know that in Sub-section (3) of Section 10, the detenu is not entitled to be heard through counsel. Therefore when Sub-section (1) was providing forif the detenu desired to be heard the Board was bound to give him a hearingthe intention of the Legislature, by providing in Sub-section (3) that the detenu was not entitled to be heard through counsel, could only be that if the detenu desired to be heard personally, the Board was bound to hear him. To say that these words mean a desire to be heard either in person or through counsel would be to overlook to Sub-section (3) on account of which a detenu can never claim to be heard through counsel. We see no reason why the Advisory Board in a case like the present where the prayer was only that counsel be heard should presume that the detenus desired to be heard themselves and [should be sent for. Reading sub-ss. (1) and (3) 'together there is no doubt, in our mind, that the intention behind the use of the words appearing in Sub-section (1) was that the detenu, if so desired to be heard personally, would be entitled to be heard by, the Hoard. That seems to be the reason why in1 para. 6 of the applications, all the applicants say they prayed to be heard either personally or through counsel. We now find, however, that their prayer only was that their counsel be heard, and in the circumstances if the Board rejected the prayer, it cannot be said that it failed in carrying out its statutory duty of hearing the detenus in person on their part.