Anal Chandra Banarjee v. the State of West Bengal

Judgment

ORIGINAL JURISDICTION: Writ Petition No. 274 of 1971. A. c. BANERJEE v. WEST BENGAL (She/at, J.) Under f\rticle 32 of the Constitution of India for a writ in the nature of habeas corpus. N. N. Goswami, for the petitioner. D. N. Mukherjee and G. S. Chatterjee, for the respondent. The Judgment or the Court was delivered by Shela!, J. The order of detention, dated April 7, 1971, passed a,llainst the petitioner ho~rein and in pursuance of which· the petitioner was arrested and detained in jail the next day, recites that it was passed under sec .. ~ ( 1) and (3) of the West Bengal (Prevention -of Violent Acilvitj_es) Act, President's Act 19 of 1970, !he ground for which was' tlfa~ the District Magisll'll'te, 24 Parganas, who Jl\ISSed it, was satisfied that it was necessary to detain the petitioner with a view to prevent him fromacting in a manner · · i:>rejudicial to the maintenance of public order.

The grounds of detention sel'Vect on him at the time of his arrest narrated three incidents in which he was said to have been involved. The first ground was that on November 13, 1970 he, · together with some others, committed theft of copper traction wire from a wagon lying in Naihati South Yard, and that when the railway police and the railway protection force on duty rushed at the spot, the petitioner and his associates threw '-bombs at them, with intent to kill them. The second ground was that on· December 23, 1970, the petitioner and his associates were removing 29 pieces of rail from the same railway yard and when the members of the railway protection force attempted to stop them frogi doing so, the petitioner ljnd his said associates threw bombs at them with intent to kill tllem.

The third and the las! grourid was as follows : ''That oil 13-1-71 in . between 12.00 and 12.20 hours, you alon11; with your associaties being armed with bombs, swords, lathis, etc. entered in a clash with another E!OUP with a view to kill them. Your violent aotlvities created a serious panic in the station area and disturbed the public order." Fro~ ilie Dym Dum Central 1 ail where the petitioner was det$ed he made a representation, dated April 29, 1971, to the State Government. That representation together with the record of the case was placed before the Advisory Boatd, who it appears, also heard the petitioner in person. · 'l)o representation, dated April 29, 1971 was in ~oneral terms .in which the petitioner denied the said grounds alleged against himi and maintained that ho was a law 'abidin11; citir.en who never indulged in activities of ·the kin~~Red a11;ainst him.

The Board, after ~sldering the said represe11tation, the said record of <the case and after hearing him, as aforesaid, reported that there was, in its opinion, sufficient cause for his deten1ion. It seems that thereupon 1the Government confirmed the said detention order and directed continuation of bis detention thereunder. So far there does not appear to be any difficulty as all the steps following the petitioner's arrest appear to have been taken by the detaining authority in compliance with the provisions of the Act. But two questions have been raised before us on behalf of the petitioner. The first was raised by the petitioner himself in the written arguments submitted by him to this Court from jail and the second was raised by his counsel during the course of the hearing of the petition. The point raised by the petitioner was in regard to ground No. 2 in the grounds of detention in which it wa~ alleged that the petitioner participated in the incident said to have iaken place on December 23, 1970.

The petitioner's allegation was that on January I, 1971 the Naihati G.R.P. police appeared beJore the Magistrate, Sealdah, stating that the petiiioner was arrested in a police case referred to as Naihati G.R.P. Case No. 11, dated November 23, 1970 under secs. 148, 379 and 307 o( !he Penal Code and sec. 6 ( 3) of the Explosive Substances Act, but that the Magistrate, a(ter considering the facts and circumstances of the case, released him on bail. That case, according to the petitioner was still pending. The contention was that the authorities, having elected to institu'te proceedings against him under the Code of Criminal Procedure, could not, while those proceedinl1)S were s!ill pending, also fake parallel p,roceedings · under the present Act thereby placing, firstly, the petitioner under a double jeopardy, and secondly, conducting investigation in that case witho\!.t that investigation being under the courts supervision and control.

The argument was that if the petitioner were to ~ kept under preventive detention under the present Act it would not be necessary as it would otherwise ~. for the police to ask for remand orders and produce the petrtioner before the Magistrate whenever such orders were prayed for. The detention order and the detention thereunder, it was argued, were on the aforesaid two grounds invalid, The second conten1ion concerned the third ground of the grounds of detention and related to the alleged incident, dated January 13, 1971, when the petitioner and his associates who were armed with bombs, swords, Iathis etc. were said to have clashed wrth another group.

In the written arguments submitted by the petitioner from jail, the petitioner made a general denial stating that, if such an incident had occurred and he had been involved in it the police were bound to file a case against him but that no such case was filed which indicated that he had nothing to do with -tl)e alleged incident, and had been falsely involved A. C. BANARJEE V. WEST BENGAL (She/at, /.) ' in it. Counsel appearing for him raised another point, and that was that ground No. 3 was vague and uncertain and was couched in such iµdefipite language that it would be impossible for the petitioner to eff.ectively make a representation. We prl)Ceed to consider •this contention first bc:cause in the view we take concerning it it would not be necessary for us to go into the contention regarding ground No. 2 of the grounds of detention. Ground No. 3, no doubt, specifies the date and the time when the incident alleged therein was said to have taken place.

It also alleges that the petitioner and his associates were armed during the alleged incident with weapons such as bombs, swords, lathis etc., and that they had a clash "with another group", and that incident "created a serious panic in the sta!ion area". The ground does not state what the authority meant by "another group", nor does it s!ate in which "station area" the said alleged incident was said to have taken place resulting in panic. It will be seen that the first and the second grounds mentioned two incidents of theft said to have been committed in the yard of the Naib,ati railway siation. The question is, ill Jhe absence of any particulars as to the place where the incidenf .alleged in in the !hird ground took place, what would the expression "station area" mean to the petitioner, and whether the petitioner would not get the impression that the District Magistrate meant thereby · Naihati railway station or Naihati police station area.

In his representation, the petitioner merely denied all the three grounds and maintained that he had no concern with any of the three incidents alleged in the grounds of detention. In his written arguments submitted to this Court he, firstly, denied having anything to do with the incident of January 13, 1971 a,nd then proceeded to state that all those allegations were made falsely against him by the Naihati railway police, and that they were false because if the said alleged incidents had in fact occurred, the police were bound_ to launch proceedings against him. He further asserted that at any rate, !he local police, that is, the Naihati police, were bound· to make some record of them in the general diary maintained by the said police station.

It is, thus, clear tha! the petitioner was under the impression, in the absence of the place or the locality where the said incident was said to have taken place, according to the District Magistrate, either in Naihati railway Station or the area under the jurisdiction of Naiha'.i polk.~ station. Such an impression, it appears, was likely because when read in the context of the first and the second grounds, the reader of the third ground in the absence of any particulars as regards the l0-L887 Sup Cl/72 (1972) 3 S.C.ll. locality where the said allel!;ed incident took place, might well infer thait the locality there alleged must be Naihati railway station area.

That such was !he impression of the petitioner appears from the assertion made by him in para 6 of his writren argilments that the allegations in respect of all the grounds were made against him by Naihati Railway police, and !hat those were false because neither they nor the Naihati Police made any ·reference to them in the l!;eneral diaries maintained by ithem, nor lodged any complaint against him. In para 7 of the affidavit in reply of the State, the av~rment for the first time made was tha!I: the alleged incident of January 13, 1971 took place not in Naihati Railway Station area but at Palta Railway Station which resulted in "panic in the said station area and disturbed public peace and tranquillity". Apart, thus, from ground No. 3 in the grounds of detention beinl!: vague by reason of its omissjon to mention the locality, there was in the context of the other two grounds a likelihood of the petitioner. beine; under a wro~ impression that according to !he District Magistrate the incident there alleged had taken place 0 in Naihati Railway Station area.

That being so, it is obvious that the petitioner could not make a correct and proper representation which must mean that the omissio.n to mention the locality prevented him from effectively making a representation. The omission to specify the group with whom the petitioner and his a_ssociates came into clash also renders fuat ground vague and indefinite, resulting once ag.ain in disabling the petitioner from efi'e!:tively making a representation. Suppose that the petitioner wan!ed to maintain that on January 13, 1971 he was never at or near Palta Railway Station or that the group with whom he was said to have clashed was his own group or was friendly with him, and therefore, there was no possibility of any such clash. He could . not obviously have been able ~o do so in the absence 11 of particµlars about the locality and ithe name or description of the said 1troup.

The result of those Omissions being to prevent the petitioner from effectively · making representation, his detention under the said order must be found to be invalid. The petition, for the reasons aforesaid, succeeds and is allowed. Accordingly we direct that the petitioner be released from jail and set at liberty forthwith. K.B.N. Petition allowed.