- 1951 Supreme(Mad) 105

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1951 Supreme(Mad) 105

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mr. Justice Satyanarayana Rao and Mr. Justice Raghava Rao, JJ.
A.K. Gopalan, In re. .....In Re.
C.M.P. No. 354 of 1951.
Decided On : 19 March 1951

Advocates:
M.K. Nambiar for Messrs. Row and Reddy for Petitioner.
The Advocate-General (V.K. Thiruvenkatachari) with the Public Prosecutor (V.T. Rangaswami Aiyangar) for the State.

Headnote:
CONSTITUTION OF INDIA, 1950 - ARTICLE 226 - WRIT OF HABEAS CORPUS - DETENTION ORDER - MALA FIDES - ORDER PASSED TO CIRCUMVENT COURT ORDER - VALIDITY - POWER OF THE GOVERNMENT TO PASS FRESH ORDER OF DETENTION - SCOPE - CONDITIONS PRECEDENT - DUTY OF THE GOVERNMENT TO BRING TO THE NOTICE OF THE COURT ALL ORDERS OF DETENTION - NON-COMPLIANCE - EFFECT - ARTICLE 226 OF THE CONSTITUTION - SCOPE - POWER OF THE COURT TO ISSUE WRIT OF HABEAS CORPUS - EXTENT - POWER OF THE GOVERNMENT TO PASS FRESH ORDER OF DETENTION - SCOPE - CONDITIONS PRECEDENT - DUTY OF THE GOVERNMENT TO BRING TO THE NOTICE OF THE COURT ALL ORDERS OF DETENTION - NON-COMPLIANCE - EFFECT - ARTICLE 226 OF THE CONSTITUTION - SCOPE - POWER OF THE COURT TO ISSUE WRIT OF HABEAS CORPUS - EXTENT.
Fact of the Case:

The petitioner was detained under a detention order passed by the Government. He filed a petition for a writ of habeas corpus challenging the legality of his detention. The High Court allowed the petition and ordered his release. The Government, however, immediately re-arrested the petitioner under a fresh detention order passed before the High Court's judgment was pronounced. The petitioner challenged the validity of the fresh detention order, contending that it was passed mala fide to circumvent the High Court's order.
Finding of the Court:

The Court held that the fresh detention order was mala fide and invalid. It observed that the Government had passed the order with the intention of evading the effect of the High Court's judgment in the prior petition. The Court also held that the Government had failed to bring the fresh detention order to the notice of the High Court at the time of the delivery of the judgment in the prior petition, which was a serious circumstance reflecting upon the bona fides of the Government in making the order. The Court further held that the Government was bound to respect the High Court's judgment and could not disregard it even if there were decisions to the contrary. The Court also held that the Government had not acted in accordance with the law in passing the fresh detention order without specifying the time limit as required by the High Court's judgment. The Court also held that the Government had not acted in accordance with the law in passing the fresh detention order without specifying the time limit as required by the High Court's judgment.
Issues: 1. Whether the fresh detention order was mala fide and invalid? 2. Whether the Government had failed to bring the fresh detention order to the notice of the High Court at the time of the delivery of the judgment in the prior petition? 3. Whether the Government was bound to respect the High Court's judgment and could not disregard it even if there were decisions to the contrary? 4. Whether the Government had acted in accordance with the law in passing the fresh detention order without specifying the time limit as required by the High Court's judgment?
Ratio Decidendi: 1. An order of detention passed by the Government is mala fide and invalid if it is passed with the intention of evading the effect of a High Court judgment ordering the release of the detenu. 2. It is the duty of the Government to bring to the notice of the High Court all orders of detention which may justify the detention of the person whose application for release is under consideration. 3. The Government is bound to respect the High Court's judgment and cannot disregard it even if there are decisions to the contrary. 4. The Government must act in accordance with the law in passing a fresh detention order, including specifying the time limit as required by the High Court's judgment.
Final Decision: The Court made the rule nisi absolute and ordered the petitioner to be set at liberty forthwith.

Satyanarayana Rao, J.- On the 22nd February, 1951, this Court directed that the petitioner should be set at liberty forthwith and at that time the petitioner was present in Court. We reserved judgment in Crl.M.P. No. 153 of 1951 in which that order was made on 19th February, 1951. According to a note made by the Bench Clerk, the delivery of our judgment was completed on the 22nd February, 1951, at 11-40 a.m. The petitioner then asked us whether he was free to go as the police officers were present in Court. We then told him that he was at liberty to go wherever he pleased as he became a free citizen. The petitioner has filed an affidavit in support of this petition, which is also supported to some extent by the affidavit filed by Mr. V.G. Row, an advocate of this Court, who was advising the petitioner in several proceedings before this Court and was present in Court when Crl.M.P. No. 153 of 1951 was argued and when we pronounced judgment on the 22nd February, 1951. The events that transpired subsequently have been narrated in these two affidavits and the facts are not seriously controverted by the respondents. Immediately after our order was pronounced the petitioner, along with his advocate, Mr. V.G. Row, went out of the Court hall with the intention of proceeding to the office of the advocate in the Andhra Insurance Buildings in Thambu Chetti Street, Madras. After they proceeded about ten yards from the gate of the High Court two C.I.D. officers who followed them from the High Court told the petitioner that he was under arrest as there was an order of detention against him. This happened within five minutes after our judgment was pronounced. At the time of the arrest, the petitioner was not shown the order of detention but was taken in a car to the office of the Commissioner of Police, Egmore Madras In the car the order was shown to the petitioner. He was taken to the office of the Commissioner of Police and the order of detention was served on him at the office of the Commissioner at about 12-30 p.m. He was thereafter taken to the Penitentiary where on the same day he swore to an affidavit before an Honorary Presidency Magistrate, Madras, setting out these facts and contending that his arrest and detention were clearly intended to flout the order of this Court and that it was illegal. He filed this petition on 22nd February, 1951, under Art. 226 of the Constitution of India and section 491, Criminal Procedure Code, to order his production before this Honourable Court and to set him at liberty by issuing a writ of habeas corpus. He was taken to the Cuddalore jail on the morning of 23rd February, 1951, in a Police van.

The petition and affidavit were placed before us on the 23rd February, 1951, for orders by the direction of the Honourable the Chief Justice. The matter was posted to 25th February, 1951, as the petitioner wanted permission to argue the petition for the purpose of issuing a rule nisi and it was taken up for consideration on that day. We admitted the petition after hearing arguments and issued a rule nisi. As the learned Advocate-General was present in Court at that time, in consultation with him, the petition was posted for final disposal on 5th March, 1951. Two counter affidavits were filed on behalf of the respondents one by the Deputy Secretary to Government, Public Department and the other by the Assistant Commissioner of Police, Intelligence Section, Madras City Police. The Assistant Commissioner in his affidavit states that he was present in the High Court when the order releasing the petitioner was pronounced by this Court and under instructions of the Superintendent of Police, Special Branch, C.I.D., he arrested the petitioner in pursuance of an order of detention, a copy of which, intended to be served on the petitioner was presumably in his possession and custody at that time for he admits in the affidavit that after he got into the car along with the petitioner after arresting him, he showed the order

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1951 Supreme(Mad) 105

IN THE HIGH COURT OF JUDICATURE AT MADRASMr. Justice Satyanarayana Rao and Mr. Justice Raghava Rao, JJ.A.K. Gopalan, In re. .....In Re.C.M.P. No. 354 of 1951.Decided On : 19 March 1951

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Mr. Justice Satyanarayana Rao and Mr. Justice Raghava Rao, JJ.
A.K. Gopalan, In re. .....In Re.
C.M.P. No. 354 of 1951.
Decided On : 19 March 1951