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Rajasthan High Court, Jaipur Bench
Bapna & Ranawat, JJ.
Umraomal - Appellant
Versus
State Of Rajasthan - Respondents
Constitution Writ petitions under Art. 226
Decided On : September 10, 1953
Sec. 13 no doubt empowers the State Government to modify an order made by the District Magistrate but it cannot modify the grounds on which the District Magistrate based his satisfaction. In other words the Government cannot substitute its own satisfaction for the satisfaction of the District Magistrate. The Government itself is authorised under the law to order detention if it is satisfied that the activities of any person are within the ambit of sec. 3 of the Preventive Detention Act and while the Government can itself make an order of detention it cannot substitute its own satisfaction and impose that satisfaction upon the District Magistrate. Thus where the District Magistrate considered it essential to detain a person to prevent him from acting in a manner prejudicial to the maintenance of public order and tranquility, but the Government considered that a single reason, namely, to prevent the person from acting in a manner prejudicial to the maintenance of "public order" was sufficient, it was held that such modification was not contemplated by sec. 13. (Para 9 & 15)
Modification means maintenance of the order with slight change and this would not include an attempt at validation of the order which was illegal at its inception. If the order is otherwise valid in itself then it may be modified in other particulars. (Para 21)
The disturbance of public order is in theory a word of wide import and all acts involving disturbance of public tranquility are in theory disturbances, of public order ; The difference between them being only a difference of degree. The Constitution requires a line to be drawn in the field of public order or tranquility marking off, more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind. In the Penal Code there are various offences ranging from unlawful assemblies and riots to in surrections, rebellions and waging of war which run into each other and all have in common one feature, namely, the disturbance of normal tranquility, but all these offences have been differently graded for awarding different punishments. The limits of permissible legislation are given in the seventh schedule of the Constitution at item No. 9 in list I and item No. 3 in list III and it is obvious that the personal liberty of the individual was only meant to be curtailed for grave reasons and any and every disturbance of public tranquility would not come within the ambit of the disturbance of public order. (Para 12)
The pleading of any cause which an individual may think it beneficial is permitted by the grant of the fundamental right to freedom of speech and expression mentioned under Art. 19 of the Constitution. It may be that such person may not have the same view as the views of the District Magistrate on the question of the expediency or the necessity of the imposition of Municipal Taxes. If some person pleads his cause by lawful means, it cannot be said that he was acting in any manner prejudicial to public tranquility. (Para 12)
The Preventive Detention Act has undergone several amendments and as the law stands finally amended the scheme of the Act is that an order of detention when passed a District Magistrate is reported to the State Government to which he is subordinate along with a transmission of grounds and particulars bearing on the matter. This order of detention can remain in force for 12 days unless in the meanwhile it is approved by the Government. If the State Government approves of the order, the Slate Government has to report the fact to the Central Government and send the grounds and certain other particulars which have a bearing on the necessity of the order. The detenu is to be supplied, with the grounds on which the order is made, as soon as may be, but not later than five days from the date of detention. The State Government thereafter has to place the grounds on which the order has been made and the representation made by the detenu, if any, before an Advisory Board within thirty days of the date of detention together with the report of the District Magistrate sent by him to the Government The Advisory Board, after acting in the manner provided in S. 10 (as amended) submits its report to the State Government within ten weeks from the date of detention. In case, the Advisory Board reports that there is sufficient cause for the detention, the State Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. The fixation of the period of detention thus comes in after the matter has been scrutinised by the Advisory Board. The fixation of the period of detention by the District Magistrate is therefore not permitted by any of the provisions of the Act and such a direction would tend to prejudice a fair consideration of the detenus case when it is placed before the Advisory Board. (Paras 17 & 18)
Petitioner No. Presented by For release of Arrested at Jaipur on under orders of District Magistrate Jaipur. Dated
100 of 53 Umraomal. Amarnarain. 1.9.1953 31.8.1935
101 of 53 Shabbirali. Gaffar Ali. – do – – do –
102 of 53 Prakash Chandra Bhanwarlal – do – – do –
103 of 53 – do – Harikishan Vyas – do – – do –
104 of 53 Chhaganlal Surajmal – do – – do –
105 of 53 Chiranjilal Kailash Chand Bakiwal – do – – do –
106 of 53 Manmal. Sheikh Mohd. Islam – do – – do –
107 of 53 Govardhanlal Kamla Prasad – do – – do –
108 of 53 Inderlal Umraochand Jain Azad – do – – do –
109 of 53 Harikishan Govardhan Dass Bomb – do – – do –
110 of 53 Gangasharan Sharan – do – – do –
111 of 53 Premlal Chandra Shekhar – do – – do –
112 of 53 Gulabsingh Kushalsingh – do – – do –
113 of 53 Gulabsingh Bhagchand Chhajed – do – – do –
2. Petitions Nos. 100 to 137 were presented in this Court on the 2nd September 1953 and petitions Nos. 108 to 113 on the 5th September 1953. All these petitions involve similar questions of law and fact and are therefore dealt with by one judgment. The detenus were arrested under the orders of the District Magistrate, Jaipur, dated the 31st August 1953, purporting to act under clause(a) of sub-section (2) of Section 3 of the Preventive Detention Act of 1953. The orders in all the cases are similar and were as follows:—
"No............ Dated 31st August, 1953.
Whereas, I, Ramniwas Hawa, District Magistrate, Jaipur, am satisfied that (name and description of detenu) is indulging in activities highly prejudicial to the maintenance of public order and tranquillity and whereas with a view to prevent him from acting in such a manner, it is considered essential to detain him ;
I, in exercise of the powers conferred on me by clause (1) of sub-sec. (2) of sec. 3 of the Preventive Detention Act, 1950, as amended by the Preventive Detention Amendment Acts of 1951 and 1952, Ordered that the said (name and description of the detenu) shall be detained in jail for a period of one month as a Class I detenu.
Sd/- R.N. Hawa,
District Magistrate, Jaipur.
3. Learned counsel for the petitioners challenges the validity of the order on three grounds—
1. that although detention of a person is authorised to prevent him from acting in any manner prejudicial to the maintenance of public order the addition of a second ground that it was necessary to do so to prevent him from acting in any manner prejudicial to public tranquillity was not authorised and in as much as an invalid reason was added to a valid reason it was impossible to determine the grounds which weighed with the magistrate in ordering his detention and it is not possible to say that it was only on account of the valid reasons that the detention had been ordered.
2. that the order purports to say that the detention had been ordered earlier and therefore the present order only recorded that fact, and as the earlier order had not been disclosed it was impossible to say on what grounds the detention had been ordered.
3. That the District Magistrate mentioned the period of detention as one month although he was not authorised to prescribe such period and the order was illegal from its inception.
4. The learned Advocate General who appeared for the State explained that the past tense of the word "order" in paragraph 2 of the detention order was a typing error and there was no order prior to that issued on the 31st August 1953 by the District Magistrate for the detention of any of the detenus. It was contended that the Addition of the word "and tranquillity" after "public order" did not make any difference as the word "public tranquillity" is synonymous with the words "public order" and in any case what the District Magistrate meant by using the words "public tranquillity" did not mean anything else than "public order".
5. In regard to the objection on this score and the third objection, it was further stated that the Governmen
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