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Supreme Court of India

MAKHAN SINGH TARSIKKA versus THE STATE OF PUNJAB

Decided
10 December 1951
Judges listed
M. PATANJALI SASTRI (as the open data lists them; this may not name the whole bench)
Disposal
Appeal(s) allowed

Citations

Official
[1952] 1 S.C.R. 368 · 1951 INSC 56
Also cited as
  • AIR 1952 SC 27 (9 citing judgments)
  • (1951) SCC 1140 (2 citing judgments)

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The Court's text

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PATANJALI SASTRI c. J.-This is a petition under article 32 of the Constitution praying for the release of the petitioner from his alleged unlawful detention. We accepted the petition and, at the conclusion of the hearing, ordered the petitioner to be released. We now proceed to give the reasons for our order.

p. 368

The petitioner was arrested and detained under an order dated 1st March, 1950, made by the District Magistrate, Amritsar, under section 3(1) of the Preventive Detention Act, 1950 (hereinafter referred to as "the Act") and the grounds of detention were communicated to the petitioner as required by section 7 ()f the Act on 15th March, 1950. The petitioner challenged the validity of the order on various grounds, but, while the petition was pending after this Court issued a rule nisi to the respondent, the petitioner was served on 6th August with another detention order <lated 30th July, 1951, purporting to be made by the Governor of Punjab under sub-section (1) of section 3 and section 4 of the Act as amended by the Preventive Detention (Amendment) Act, 1951, and he was scrvt:d with fresh grounds 0£ detention on 16th August, 1951. :Thereupon the petitioner filed a supplementary petition :impugning the validity of the said order on the ground, inter alia, that it directed the detention of the petitioner up to 31st March, 1952, the date on which 1:he Act itself was to expire and that this was contrary to the provisions of the Act as amended. On behalf of the respondent, the Advocate-General of Punjab urged that the said order was not intended to be a fresh order of detention but was passed only with a view to limiting the period of detention till 31st March, 1952, as it had been held in some cases that an order of detention for an indefinite period was bad. The -0rder runs as follows:-

p. 369

the Governor of Punjab is statisfied with respect to the person known as Ma~han Singh Tarsikka, son of Gujjar Singh, Jat, of Tarsikka, Police Station Jandiala, Amritsar District, that with a view to preventing him from acting in a manner prejudicial to the security of the State, it is necessarry to make the following order :

p. 369

Now, THEREFORE, m exercise of the powers conferred by sub-section (1) of section 3 and section of the Preventive Detention Act, 1950 (Act IV of 1950), as amended by the Preventive Detention (Amendment) Aot, 1951 (Act IV of 1951), the Governor of Punjab hereby directs that the said Makhan Singh Tarsikka be committed to the custody of the Inspector- General of Prisons, Punjab, and detained in any jail of . the . State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punish~ ment fpr breaches of discipline as have been specified by a general order or as contained in the Punjab Communist Detenu Rules, 1950.

pp. 369–370

It will be seen that the terms of the order make it clear thaf is was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of· grounds on the petitione'r :is required by section 7 of the Act; a proceeding which would be wholly unnecessary if no fresh order of detention was intended. Indeed, it was suggested on behalf of the petitioner that the said order follow~cl by"service of fresh grounds only four days before 'the date fixed for the hearing of the petition by this Court was a deliberate move by the respondent to circumvent the objections raised by the petitioner to the validity of the earlier order of 1st March, 1950, and thus render the proceeding ii1fructuous. However that may be, we ' are · clearly of opinion that the order dated 30th July, 1951, must be regarded as a fresh order made for the petitioner's detention in supersession of · the earlier order and the question is whether it was illegal in that it straightaway directed that the petitioner be detained till 31st March, 1952, which was the date of the expiry of the Act.

p. 370

Whatever might . be the position under the Act be.fore its amendment in February, 1951, it is clear that the Act as amended requires that every case of deter!tion should· be placed before an AdviSory Boaril: eonstituted under the Act (section 9) and provides that if the Board reports that there is sufficient cause for the detention "the appropriate Government may· confirm ·tile ' detention order and continue the deten~ tion of . the person concerned for such period . as it thinks fit" (section 11). ·It is, therefore, plain that. It is only after the Advisory Board, tt> which the cas'e has been referred, reports that the detention is justified; the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advoc:ite-General, however, urged that in view of the provU.ion in section 11(2) that if the Advisory Board repoi:ts that there is no sufficient cause for the detention, the person concerned would be released forthwith, the direction in the order dated 30th July, 1951, that the petitioner should be detained till 31st March, 1952, could be· ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would ·tend to prejudice a fair consideration of the petitioner's case when it is placed before the Advisol}' Board~ It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected.

pp. 370–371

" Petition allowed. Agent for the respondent: P. A. Mehta.

p. 371

BHAGAT SINGH

p. 371

v.

p. 371

THE STATE

p. 371

GURDEV SINGH-Caveator. -~SAYYED Au, and

p. 371

JJ.]

p. 371

Criminal Procedure Code (Tl of 1898), s. 234(1 )-Misioinder of charges-Firing single shot at ttl!o persons to kill them-Whether one off-tmce ok two offences.

p. 371

- The appellant was tried in respect of the following c)larg6: (i) causing the death of A and thereby committing an offenec punishable under 302, Penal Code, (ii) firing a short at B and

p. 371