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SUPREME COURT OF INDIA
17 September 1956
S.R. DAS, C.J.I., VENKATARAMA AYYAR, B.P. SINHA, S.K. DAS AND GOVINDA MENON, JJ.
Keshav Nilkanth Joglekar, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents
Keshav Laxman Desai, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Krishna Gangaram Desai, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Nana Ramjee Patil, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Gangaram Laxman Reddy, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Gulab Rao Bhanrao Gangacharya, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Prahlad Krishna Kurane, Petitioner
Versus
The Commissioner of Police, Greater Bombay and others, Respondents.
Petns. Nos 102, 105 to 110, of 1956:
Petn. No. 102 of 1956.
Petn.. No.105 of 1956.
Petn. No. 106 of 1956.
Petn. No. 107 of 1956.
Petn. No. 108 of 1956
Petn. No. 109 of 1956
Petn. No. 110 of 1956
Advocates Appeared
Mr. N.C. Chatterjee, Sr. Advocate., (Mr. Sadhan Chandra Gupta and Mr. Janardhan Sharma, Advo., with him), for Petitioner in Petns. Nos,.102, 105 to 108 of 1956 Mr. Sadhan Chandra Gupta and Mr. Janardhan Sharma, Advo., for Petitioners in Petns Nos. 109 and 110 of 1956. Mr. C. K. Daphtary, Solicitor General of India, (Mr. Porus A. Mehta and R. H. Dhebar, Advocates with him), for Respondents in Petns. Nos.102 and 105 of 1956 Mr Porus A. Mehta and Mr. R.H. Dhebar. Advocates, for Respondents in Petns. Nos. 106 to 110 of 1956.
Sections 3 and 7-Past activities if can be ground for detention-Grounds for detention-Instigation of hartal.
On 13-1-1956 the Commissioner of Police, Bombay, passed orders under S. 3 (2) of the Act, directing the detention of the petitioners, and pursuant thereto, they were actually arrested on 16-1-1956. The grounds on which the orders were made were formulated on 19-1-1956, and communicated to the petitioners the next day. On 21-1-56 the Commissioner reported the fact of the order and the grounds there for to the State Government, which approved of the same on 23-1-1956. The contention of the petitioners was that when the Commissioner passed the orders for detention on 13-1-1956, it was his duty under S. 3 (3) to report that fact forthwith to the State Government and as he did not do as until 21-1-1956, he had acted in contravention of the Statute and that the detention was therefore illegal.
Held: (1) An act which is to be done forthwith must be held to have been so done, when it is done with all reasonable dispatch and without avoidable delay. But when an act is done after an interval of time and there is no explanation forthcoming for the delay, it cannot be held to have been done "forthwith. Hence the word "forthwith" means only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should be satisfactorily explained.
(2) The word "forthwith" as in S. 3 (3) of the Act cannot mean the same thing as "as soon as may be" in section 7 and the former is more peremptory than the latter. The difference between the two expressions lies in this that while under S. 7 the time that is allowed to the authority to send the communication to the detenue is what is reasonably convenient, under S. 3 (3) what is allowed is only the period during which he could not, without any fault of his own, send the report.
(3) Under Section 7 the question is whether the time taken for communicating the grounds is reasonably requisite. Under S. 3 (3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided.
The period of 5 days provided in S. 7 is an absolute one and is independent of the period which is permissible under the expression "as soon as may be," which must, by its very nature, be indefinite depending on the facts and circumstances of the case. It will be as erroneous to read 5 days into the period allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S. 3 (3) into the period which is allowable under the expelling "forthwith."
(4) In the circumstances of this case, the interval of 8 days between the passing of the order of detention and the working of report was unavoidable and the report was sent "forthwith" within the meaning of S.3(3) of the Act.
(5) The contention that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities and that they could not constitute grounds for detention in future is clearly unsound. What a person is likely to do in future can only be a matter of inference from various circumstances and his past record will be valuable and often the only record on which it could be made.
(6) Instigation of hartal bringing about a complete stoppage of work business and transport with a view to promote lawlessness and disorder, is a ground on which an order can be made under S. 3 (2). - (Jammu and Kashmir) Preventive Detention Act, IV of Sambat (2011), Section 8(1), Proviso-Interpretation-Meaning of "as soon as may be"-Time prescribed for communicating grounds of detention to the detenue.
By two separate orders made by the Jammu and Kashmir Government on April 26, 1956, in exercise of the powers conferred on it by subsection (I) of section 3 of the Act the Government ordered that the petitioners be detained. Each of the orders recited that the Government had been satisfied with respect to each of the petitioners that with a view to preventing him from acting in a manner prejudicial to the security of the State, it was necessary to make an order that he be detained. No grounds having been supplied to either of the petitioners nor any declaration having been made under the proviso to S. 8 (1) of the Act for a considerable time, each of the petitioners applied to the High Court of Jammu and Kashmir under S. 491 of the Code of Criminal Procedure for on order in the nature of a writ of habeas corpus. During the pendency of those applications on June 30, 1956, that is to say, more than two months after the date of the original order of detention a declaration was made by the Government under the proviso to S. 8 (1) to the effect that it would be against the public interest to communicate to the detenues the grounds on which the detention orders had been made. On July 28, 1956, both the petitions were dismissed by the High Court. The cases of the petitioners were reviewed by the Government under S. 14(2) of the Act in consultation with a person nominated for that purpose on June 4, 1956, and it was satisfied that the petitioners should continue to be detained and accordingly passed order8 to that effect under S. 14 of the Act on September 26, 1956. In the mean. time on September 19, 1956, the petitioners filed applications under Art. 32 of the Constitution of India. The question was whether the declarations were made within the time prescribed by S. 8 (1) of the Act for communicating the grounds of detention and, if not, whether the petitioners had been lawfully detained.
Held (allowing the applications) : (1) The expression "as soon as may be" in sub-section (1) of section 8 of the Jammu and Kashmir Preventive Detention Act, whereby the Act prescribed the time within which the Government must communicate to the detenue the grounds of his detention, meant within a reasonable time, with the understanding to do the Act within the shortest possible time, from the date of detention.1
Although it might not be possible in many cases to compute the span of time thus indicated by hours, days or months, what was possible and the Court had to do in the facts and circumstances of each particular case, was to find whether the Act was or was not done within the time which was reasonably convenient or reasonably requisite.
The proviso to the sub-section clearly implied that the power it vested in the Government to exclude from the operation of the subsection certain class of detenues by making the required declaration, must be exercised and such declaration made before the expiry of the time prescribed by the sub-section for communicating to the detenue the grounds on which the detention order against him had been made.1
(2) In the present case the affidavits filed on behalf of the Government disclosed no particular circumstances or reason why the declarations under the proviso could not have been made before more than two months had elapsed from the dates when the orders of detention had become effective. The detenues must therefore be held to have been deprived of their liberty otherwise than in accordance with the procedure established by the Act, embodying as it does *e fundamental right guaranteed under Art. 22 (5) of the Constitution, and must be released forthwith.
Judgment
VENKATARAMA AYYAR J. - These are petitions filed under Art. 32 of the Constitution for the issue of writs in the nature of habeas corpus. They arise on the same facts and raise the same questions.
2. On 13-1-1956 the Commissioner of Police, Bombay, passed orders under S.3(2), Preventive Detention Act, 4 of 1950 (hereinafter referred to as the Act), directing the detention of the present Petitioners, and pursuant thereto, they were actually arrested on 16- 1-1956. The grounds on which the orders were made were formulated on 19-1-1956, and communicated to the petitioners the next day. On 21-1-1956 the Commr. reported the fact of the order and the grounds therefor to the State Government, 30 which approved of the same on 23-1-1956.
3. The Contention of the petitioners before us is that when the Commr. passed the orders for detention on 13-1-1956, it was his duty under S. 3(3) to report that fact forthwith to the State Govt., and as he did not do so until 21-1-1956, he had acted in contravention of the statute, and that the detention was therefore illegal. That raises the question as to what "forthwith" in S.3(3) of the Act signifies, and whether on the facts the report was made "forthwith", within the meaning of that word in that sub-section.
4. The word "forthwith", it has been observed, is of elastic import. In its literal sense, it might be construed as meaning that the act to be performed forthwith in relation to another should follow it automatically without any interval of time or, as held in some of the American authorities, should be performed at one and the same time as the other. But even in America, the preponderance of judicial opinion does not favour this, construction. In Corpus Juris, Volume 26, Page 998 the position is thus stated:
"Although the term has received a strict construction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construction. Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case."
5. In England, there is a long catena of decisions interpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to construe it liberally. AS early as 1767, discussing the meaning of the word immediately - and the word "forthwith" has been held to have the same significance - Lord Hardwicke observed in Rex v. Francis (1735) Cun 165: 49 ER 1129 at p. 1133 (A)
"But then the word immediately, is strongly insisted on, as a word which excludes all mesne acts and time; and therefore that this taking away the money must necessarily be in the presence of Cox. But all the nine Judges held this word immediately , to be of so 1oose a signification, and not to imply necessarily, that the money was taken away in Cox s presence. For this word does neither in its use and application, nor in its grammatical construction, exclude all mesne acts or time ....... But it is more necessary and proper in this case, to consider the signification of this word in the legal way. And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time .....
And on the Statute Hue and Cry, 27 Eliz.c.13, S.11, where the words with as much convenient speed as may be, are made use of all the precedents have expressed these words, by the word immediate, as may be seen in the books. The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court which are most frequently made returnable immediately, and in this case the word is never understood either to exclude mesne acts or time, but only means, with convenient speed ......"
6. In Reg. v. The Justice of Worcester (1839) 7 Dowl P C 789 at p,791: 54 R R 902 at P.903 (B), where the question was as to the meaning of the word forthwith in S.50 of 6 Will. IV, Coloridge, J. observed:
"I agree that this word forthwith is not to receive a strict construction like the word immediately , so that w
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