Wanchoo, C. J. - (1.) THIS is an application by Hanwantsingh alias Chhai-singh for a writ of Habeas Corpus under Art. 226 of the Constitution.
(2.) THE case of the applicant is that he was arrested on the 2nd of February, 1952, at Dhankoli, in connection with a case of alleged abduction of one Satyanarain, son of Hanuman Bux Somani of Dhankoli, by some dacoits, and his subsequent release by them after getting a heavy ransom from his parents. We are told that the applicant applied for bail about the end of February, 1952; but that application was rejected. THE police submitted a charge-sheet against the applicant and others on the 10th of March, 1952, before the First Class Magistrate of Didwana. THE applicant regained in custody in Didwana upto the 19th March, 1952 when he was transferred to the jail at Jodhpur. On the 18th March, 1952 when he was in jail at Didwana, which is in the district of Nagaur, the District Magistrate of Nagaur passed an order under sec. 7 (1) of the Preventive Detention Act (No. IV) of 1950, as amended by the Preventive Detention (Amendment) Act (No. IV) of 1951. THE grounds of detention were also supplied to the applicant soon after while he was in the Central Jail at Jodhpur. Later, the applicant was transferred from Jodhpur to the Central Jail at Jaipur, and thereafter made the present application on the 1st of August, 1952. It may be mentioned that his case has been considered by the Advisory Committee under the Preventive Detention Act, and the order of the District Magistrate of Nagaur has been confirmed. It is not necessary for present purposes to set out the other details in the application, as learned counsel for the applicant has confined his arguments only to one specific point before us. His contention is that as the applicant was already under detention in connection with a charge of a criminal offence which was pending against him in the court of the Magistrate at Didwana, it was illegal, or, at any rate, improper for the District Magistrate of Nagaur to order his detention under the Preventive Detention Act. It is urged that though the application is not under sec. 491 Cr. P. C, the provisions of that section apply to a writ of Habeas, and the court should hold, in view of sec. 491 (1) (b), that the applicant is illegally or improperly detained in custody, We agree that this application under Art. 226 of the Constitution for a writ of Habeas Corpus has to be disposed of keeping in view the provisions of sec. 491 Code of Criminal Procedure. The relevant portion of that section for our purposes is sub-sec. (1) (b) which is as follows: - "any High Court, whenever it thinks fit, direct. . . . . . . . . . . . . (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty. " We cannot, however, accept the contention that the mere fact that the applicant was in jail would make an order under the Preventive Detention Act illegal. Learned counsel relied on sec. 3 of the Preventive Detention Act which, inter alia, says that the Central Government, or the State Government may, if satisfied with respect to any person that, with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. The argument is that such an order detaining a person can only be passed against one who is not already in detention, and that where a person is already under detention, the passing of an order under sec. 3 is not contemplated and is therefore illegal. We are of opinion that the words of sec. 3 do not justify an inference that an order of detention cannot be passed against a person who may be already in detention in some, other connection. Nor is there anything in any part of the Preventive Detention Act to lead to the conclusion that an order of detention passed under sec. 3 would be illegal simply because the person to be detained was already in custody in some other connection. One can think of instances where such an order may be very necessary, and unless there is anything express in the law which prohibits the passing of such an order, it cannot be held that an order passed under sec. 3 is illegal merely because the person against whom it is passed happens to be in detention in some other connection at the time the order is passed. Suppose a person is arrested in connection with a criminal charge, and the investigation shows that there is no sufficient evidence for conviction in a court of law. At the same time, the State Government is satisfied that it is necessary to detain the person to prevent him from acting in any manner prejudicial to the maintenance of public order. There is no reason why the State Government should not pass an order under sec. 3 when they have decided that it is not possible to prosecute him in a criminal court for want of evidence. An instance of this kind is the case of Moolchand vs. Emperor (1) (A. I. R. 1948 Allahabad, 281.) Again suppose that a person has been convicted and sentenced to a term of imprisonment which has to come to an end after a short time. The State Government, however, think that it is necessary to detain the person further in the interest of the security of the State or the maintenance of public order. Here again, we do not think that the mere fact that the person is in detention in another connection (and is liable to be released soon) would make the order under sec. 3 illegal. We do not, of course, say anything about the bona fides of the order passed in these two cases, because that is a separate matter depending upon the facts of each case. But so far as the legality is concerned, there can be no doubt that the order under sec. 3 passed in these circumstances would be legal, as there is nothing in the Preventive Detention Act or any other law, which makes such an order illegal. The mere fact therefore that a person is under custody in some other connection would not, in our opinion make the order of detention under sec. 3 illegal. We now turn to the alternative argument, namely that, in any case, an order of detention passed in circumstances like the present is improper, and as such the High Court should exercise its power under sec. 491 (l) (b), and order the release of the applicant. Whether the order is improper and therefore the High Court should release the person detained is, in our opinion a matter depending upon the facts of each case. We have therefore to see whether, on the facts of this case, it can be said that the order under sec. 3 was improper. These facts are that the applicant was in jail and being prosecuted, we are told, under sec. 365 I. P. C. His bail application had been rejected, and the case against him was pending in the court of the First Class Magistrate at Didwana. An offence under sec. 365 is not bailable and is triable by a Court of Session, or a Magistrate of the First Class, and the offender can be sentenced to imprisonment up to seven years. The contention on behalf of the applicant is that where a person is being dealt with under the ordinary criminal law for a serious and non-bailable offence, and his bail has been rejected and the case against him is proceeding in a Magistrate's Court, and he is likely to remain in jail in that connection for an indefinite period, it is highly improper that an order under sec. 3 should be passed against him. Reliance is placed in this connection on the observations of Shearer, J. in Kamla Kant Azad vs. Emperor (1) (A. I. R. 1944 Patna, 354. ). The judgment in that case was common to a large number of cases, and one of the persons concerned was Jogeshwar Singh. This man was arrested on 16. 9. 42 on suspicion in connection with extensive looting which had occurred at a railway station. He was put up for trial; but in the meantime an order for his detention was passed on 27. 10. 42. Judicial enquiry against him was contemplated on 15. 11. 42, and he was convicted by the Special Judge thereafter; but was acquitted on 20. 4. 43 by the Appellate Court. Thereafter, he continued to be detained under the order of the 27th of October, 1942. The following observations of Shearer, J. appear at page 364 - "when a man is arrested and brought up before a Court on some definite and specific charge, it seems to me very undesirable and indeed quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence finally determined. If he is convicted and sentenced, the necessity for any order of detention ceases to exist at least until he has served out his sentence, by which time conditions may have entirely altered. If, on the other hand, he is acquitted, and an order of detention is sought against him, surely, the official, on whom the responsibility of making such an order rests, should obtain and study a copy of the judgment. I do not say that, in no case, where a man has been acquitted, should or can order of detention be made. Prosecutions may break dawn, acts of the person against whom an order is sought, other than the act or acts which led to his being prosecuted, may, quite properly, have to be taken into consideration. " The next case which has been relied upon is Labaram Deka Barua vs. The State (2) (A. I. R. 1951 Assam, 43.), There also a person, who was already in detention on account of being accused of a non-bailable offence, was further ordered to be detained under sec. 3. Ram Labhaya, J. seems to have taken the view which has been urged on behalf of the applicant, namely that such an order was utterly illegal as the detaining authority could not feel satisfied that an order of detention was necessary in the case of such a man. But Thadani, C. J. , who agreed with the order for the release of the detenu rested his judgment - "on the sole ground that it is not desirable that the detention of a person under a Detention Act should run concurrently with his detention in pursuance of his being accused of a non-bailable offence. " We are of opinion that where a person is under detention for a non-bailable offence, and is being prosecuted on a criminal charge in a court of law, and his period of detention in that connection is of indeterminate lengtn, it is improper that the executive authorities should intervene with an order of detention under sec. 3 pending the decision of the criminal case. The man to be detained is already under detention under the criminal law, and there is, in the first place, no. necessity of his being put under another detention under the Preventive Detention Act, which detection would run concurrency with his detention under the criminal law. In the second place, it does not seem desirable that a detention order should be passed while the man is in jail for an indefinite period awaiting trial under the criminal law, as it would be more proper that the executive authorities should wait till the result of the trial, and if the trial results in conviction, it may not be necessary to pass the order of detention at all. On the other hand, if the trial results in an acquittal, it is best that the detaining authority should take into account the judgment before making up its mind whether the person concerned should be detained or not. In the present case, the applicant is in jail awaiting trial of a criminal offence which is non-bailable, and the period during which he will remain in jail is indefinite depending upon the length of the trial. His bail application has already been rejected. On the facts of this case, it is, in our opinion, improper that the detention order should have been passed against him under sec. 3 while he was awaiting his trial. Learned Government Advocate has drawn our attention to a number of authorities and contends that if the detaining authority does not pass an order of detention till it has been decided to drop the criminal proceedings, or till about the time when the man is about to be acquitted or discharged the order passed at such a stage may be open to the attack that it was not a bona fide order. He, therefore, contends that in order to avoid that charge being made against the detaining authority, we should not hold that it is improper for it to pass the detention order at an earlier stage. . It is true that there is likelyhood of a charge of mala fide where a detention order is passed about the time of discharge of acquittal of an accused, or at a time when he is about to be released from jail. But that circumstance alone has not been held, in any case, to be sufficient to hold that the order of detention is mala fide, and bona fides of such an order have to be judged on the evidence of each case. But even if there is this difficulty in the way of the detaining authority, that is, in our opinion, no reason why we should overlook the clear impropriety of an order of detention passed in circumstances like the present. As to the cases that have been cited by the Government Advocate, it is enough to say that none of them is exactly in point. In Dayanand Modi vs. The State of Bihar (1) (A. I. R. 1951 Patna, 47.) the person concerned was not in jail at the time when the order of detention was passed, though a criminal case was pending against him. It was therefore held that the question whether detention and prosecution could be simultaneously made depended on the facts of each case, and the answer had to be made on the finding whether the order of detention in view of the pending prosecution was bona fide or not. The main question thus raised in that case was different from the question before us, which is whether it is proper that a person, who is being prosecuted on a criminal charge and is in jail in that connection for an indefinite period, should be detained under sec. 3. In Subodh Kumar Singh vs. The State (2) (A. I R. 1951 Patna, 68.), a question similar to Dayanand Modi's case arose. Here also the person detained was not in jail when the order of detention was passed. The main point in this case was whether the State had to make a choice between prosecution and detention, and it was held that there was no rule of law that, unless the choice was made at the earliest moment, the order of detention became invalid. It was pointed out that the proper approach was to consider the facts of each case, and then consider whether the order of detention was mala fide or not. Here also however the person concerned was not in custody when the order of detention was made, and the precise point with which we are dealing did not arise. In Raman Lal Rathi vs. Commissioner of Police, Calcutta (1) (A. I. R. 1252 Calcutta, 26.), the order of detention was passed after the acquittal and discharge of person detained in some criminal cases. It is not clear whether the person detained was in custody at the time when the order of detention was passed; but it is likely that he was not. That this case mainly decides is that the mere fact that a person is detained after he has been acquitted or discharged in the courts will not make the order of detention either illegal or mala fide, and that each case will have to be considered on its own merits. Thus the precise point with which we are dealing did not arise in this case either. In Jagannath Prasad vs. The State of Bihar (2) (A. I. R. 1952 Patna, 185 (F. B.)), it does not appear that the person detained was in jail at the time when the detention order was passed though a criminal case was pending against him. The main point decided in this case was the same as in the case of Subodh Kumar Singh (5), namely whether a choice has to be made between prosecution and detention at the earlier moment, and that if this is not done, the detention must be held to be invalid. None of these cases, therefore, deals with the precise point before us. Under these circumstances we are of opinion, if we may say with respect, that the observations of Shearer, J. in Kamla Kant Azaa's (3) (A. I. R. 1944 Pat. 354.) case, and of Thadani, C. J. in Labaram Deka Baruas (4) (A. I. R. 1951 Assam 43.) case, lay down the correct law, and that in circumstances like those of the present case, the applicant must be held to be improperly detained within the meaning of sec. 491 (lxb) Cr. P. C.
(3.) THE next question is as to what is the proper order to be passed in the present case. We have already mentioned that the applicant was originally put in jail in connection with his prosecution on a criminal charge. We cannot, therefore, order his release unconditionally. THE proper order therefore is to set aside the order of detention and direct the release of the applicant, unless he has to remain in custody in view of the criminal charge that is pending against him. We therefore, allow the application, set aside the order of detention, and direct that the applicant shall be set at liberty unless he is to remain in custody in view of the criminal prosecution pending against him in the court of the Magistrate at Didwana. .;