STATE Vs. SOMNATH MAHPATRA

JUDGEMENT

(1.) THIS is a proceeding in contempt against Sri Somanath. Mohapatra, I.A.S., Secretary to the Government of Orissa, Home Department. The circumstances under which this proceeding was initiated have been started in our judgment in - - 'Shyamaghana Ray v. State', Cr. Misc. Nos. 195, 196, 200, 202, 204, and 207 of 1951, dated 26th February 1952, and need not be recapitulated in detail. Briefly stated, they are as follows : One Govind Pradhan was under detention by an order of the local Government the validity of which was challenged before this court. This Court by its order dated 26th November 1951, directed his release. On the 27th November 1951, another order of detention enuring for three months, that is till the 27th February 1952, was passed by the District Magistrate, Ganjam. Having been re -arrested thereunder, he applied to this Court again challenging the validity of the fresh order of detention. That application which was Cr. Misc. Petn. No. 189/51, was heard by this Court on 5 -12 -51, and judgment was reserved on that date. It was delivered on 13 -12 -51 at about 10 -30 a.m. when the Court commenced its sittings for the day. At the time when that judgment was delivered, a press report of a decision given by the Supreme Court which was said to have a bearing on the validity of the order of detention, with reference to a formal defect therein, not argued before us at the hearing of the application, was brought to our notice. Consequently, while dismissing the application, we reserved liberty to the applicant to come up with another application on that ground, if he considered it necessary on getting an authorised copy of the judgment of the Supreme Court. It happened, however, that the Court itself received a certified copy of the said judgment of the Supreme Court in - - 'Makhan Singh Tarsikka v. State of Punjab', (AIR 1952 S C 27) in the course of that very day. The Court accordingly sent for the advocates on both sides at about 2 p.m. when it reassembled after the midday interval, and passed on the judgment to them for their perusal. Thereupon, a fresh application was made on behalf of the detenu challenging the legality of the detention order of the District Magistrate dated 27th November 1951, on account of the formal defect therein, viz., that the initial order of detention itself fixed the period of detention as three months, before the sufficiency of the cause for detention was referred to the Advisory Board and their report thereon was received, a procedure which has been held to be illegal and to be by itself sufficient to invalidate the legality of the detention, by the Supreme Court in its latest judgment whose certified copy was just then received. This application was moved before us on that very date, that is, on 13 -12 -51, at about 4 p.m. when the court was about to rise for the day. The application was numbered as Cr. Misc. Petn. No. 195/51 and the Court thereupon passed the following order dated 13 -12 -51: 'Presented in Court. This petition will be taken as admitted, and will come up for final hearing tomorrow. The Government Advocate has received notice in Court.' It was brought to the notice of the Court during the further stages of the hearing of this fresh application that on that very date, that is, on 13 -12 -51, the prior order of detention dated 27 -11 -51 was revoked and that a fresh or'der of detention dated 13 -12 -51 was passed. The detenu when he came to know about it, filed another application dated 17 -12 -51 challenging the validity of this fresh order, as having been made mala fide. This fresh application was numbered as Cr. Misc. Petn. 202/ 51. Both the applications, viz., Cr. Misc. No. 195 and 202 of 1951, were taken up together and were adjourned from time to time. They came up for final hearing only in February 1952, and we passed an order dated 26th February 1952, holding that the fresh order of detention passed on 13th December 1951, was illegal and invalid. The mala fides of both the prior orders of detention dated 26 -11 -51 and 13 -12 -51 was alleged on the ground that the detention of the applicant therein, viz., Sri Govind Pradhan who was a validly nominated candidate for elections to the State Legislative Assembly then in progress, was motivated by the ulterior purpose of depriving him of the facilities for work connected, lest he should become a powerful rival for the candidate set up for the same constituency by the party -in -power. It may be mentioned that during the pendency of the hearing of those applications, the detenu was released by this Court on bail and that he has in fact been returned to the State Legislative Assembly defeating his rivals. The State Government however denied that the orders of detention were made for any such ulterior purpose. So far as the order of detention of the District Magistrate, Ganjam, dated 26 -11 -51 is concerned, we held by our judgment in Cr. Misc. petn. 189/51 delivered on 13 -12 -52 that the detenu had not discharged the burden which lies on. him of making out the alleged ulterior motive. During the course of the hearing of the Cr. Misc. petitions Nos. 195 and 202, however another very important fact came to light, viz., that the Chief Minister, who was ordinarily charged with the function and responsibility of dealing with the cases relating to detention was, not in fact present at Cuttack, on the 13th of December 1951, and that the order of detention of that date whose validity was challenged in Cr. Misc. Petition No. 202/51, was passed not by the Chief Minister, but by the Home Secretary, Sri Somanath Mohapatra. At the hearing of the above applications, it was strenuously contended before us that the Secretary had the power to pass the order, but we overruled that contention and held that the order was patently illegal. The Court accordingly initiated the present proceeding in contempt against the Home Secretary (who, hereinafter will be referred to as the opposite party) & issued a notice against him to show cause. On receipt of the said? notice, appearance was entered for him, and there was a preliminary hearing at which we directed a rule nisi to issue on 3 -3 -52. The opposite party filed thereafter his answer thereto by means of an affidavit dated 29 -3 -52 in which he stated as follows :

(2.) THE assumptions on which the proceedings for contempt were started against the opposite party, as appears from the notice to show cause (as amended) is that when the validity of an order of detention is pending consideration by the High Court, a fresh but illegal order of detention on revocation of the prior order, would amount to contempt of Court and that this would be equally so, if that fresh order was passed, not during the actual pendency of an application questioning the prior detention, but in anticipation of such an application being made by the detenu. At the hearing before us, the correctness of these assumptions has been challenged on various grounds, viz., (1) Our previous order in Cr. Misc. Cases Nos. 195 and 202 of 1951, pronouncing the order of detention passed by the opposite party on 13 -12 -51 as illegal, is erroneous: (2) The passing of a fresh order of detention during the pendency of an application questioning the prior order of detention cannot constitute contempt of Court, even though it happened to be an illegal order: (3) As a fact, the order of detention passed by the opposite party on 13 -12 -51, was not passed during any such pendency, or with the knowledge of the imminence of another application to be made questioning the validity thereof : (4) The said order of the opposite party was entirely bona fide.

(3.) WE may as well notice at this stage that the 1st affidavit filed by the opposite party on 29 -3 -52 was extremely vague and did not furnish any factual details which would have enabled the Court to judge the circumstances under which the order of detention dated 13 -12 -51 came to be passed or to come to an independent conclusion whether that order was passed bona fide. The bona fides of -the said order were under question even during the pendency of Cr. Misc. Petn. No. 202 of 1951, but the affidavit filed by the Under Secretary of the Home Department on 17 -12 -51 relating to circumstances under which the order of detention dated 13 -12 -51 was passed, was equally vague. Indeed, we cannot help noticing that even the information that it was the opposite party and not the Chief Minister that passed the order of detention under question was furnished to the Court, only after the Court felt constrained to pass a peremptory order on 18 -2 -52, calling for correct information as to who exactly passed the order, before it could entertain any hypothetical legal argument as to the validity of the said order. We must also remark that even in the second affidavit filed now by the opposite party before us, some further information which would have been helpful to the Court in coming to a definite conclusion as to the circumstances under which the impugned order came to be passed, has not been disclosed, viz., as to when exactly on 13 -12 -51 the opposite party got intimation of our prior order in Cr. Misc. Petn. No. 189/51 dismissing the same and whether or not he had any intimation on 13 -12 -51 of the fact that at about 2 p. m. of that day, there was information given to both sides as to the receipt of the certified copy of the judgment of the Supreme Court or of the further fact that at about 4 p. m. that day, a fresh application questioning the validity of the prior detention on behalf of the detenu was filed. In spite, however, of the absence of frankness to the Court, that has been the marked feature of the authorities concerned during the pendency of the Cr. Misc. Petitions Nos. 195 & 202 of 1951, as also during the pendency of the present proceedings, until after the 1st day of the final hearing, we recognize that the 2nd affidavit filed on 21 -8 -52 is a great improvement and as already stated that affidavit places the whole matter on a different footing.