Binod Bihari Mahato v. State of Bihar & Ors.

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 278 of 1974. Petition under Article 3 2 of the Constitution of India. K. K. Sinha and S. K. Sinha, for the petitioner. B. B. MAHATO v. B!HAR (Bhagwati, J.) Lal Narayan Sinha, Solicitor General of India, Gyan Sudha Misra md B. P. Singh, for the respondents. The Judgment of the Court was delivered by BHAGWATI, J. The petitioner, who is an advocate practising in the courts in Dhanbad in the State of Bihar, has filed the present petition challenging the validity of an order of detention dated 18th March, 197 4 made by the District Magistrate, Dhanbad under section 3 of the Maintenance of Internal Security Act, 1971. The case of the petitioner is that he is a prominent public figure in the District of Dhanbad and he has been Pramukh of Baliapur Anchal since the last about ten years and Vice-Chairman of. Zila Parislmd, Dhanbad since about four years.

He has been associated with nwn.erous social, educational and political institutions in the District of Dhanbad and he is engaged in diverse •activities calculated to bring about social and economic uplift of down-trodden people of Dhanbad \District. The 16th Annual Con· vention of Bihar Raiya Panchayat Parishad was scheduled to be held at Gosaidih in Dhanbad District on. 16th March, 1974 and the peti· tioner was the' Clrairman of the Reception Committee. The ruling party · was very much concerned about the growing popularity of the petitioner with the backward classes, and therefore, with a view to undermining his position, the ruling party chose this particular time when the 16th Annual Convention of the Bihar Rajya Panchayat Parishad was shortly due. to be held and got a 'false case instituted against the petitipner at . P. S. Tundi.

The petitioner was arrested at Dhanbad on 6th March, 1974 and after being produced before the Sub-Divisional Magistrate, he was taken tq Bhagalpur Central Jail from Dhanbad. On March 11, 1974 the petitioner made an application to the Sub-Divisional Magistrate for being released on bail but no immediate order was passed on thatapplication and the petitioner was, therefore, constrained to move the Sessions Judge for· bail on 14th March, 1974. The Sessions Judge granted bail to the petitioner and on the bail bonds being verified and accepted by the. Sub-Divisional Magistrate, an order dated 18th March, 1974 was passed for release of tge petitioner. On the same day, that F · is 18th March, 1974, the District Magistrate, Dhanbad passed an order detaining the petitioner under section 3 of the Act on the ground that it was necessary to do so with a view to preventing the petitioner from acting in any manner prejudicial to the m~ 'r.tenance of public order.

The order of detention was in· Hindi, which is the official language of the State of Bihar but there was also an English version of the order of detention. There was no material difference between the Hindi and English versions of the order of detention. Pursuant to the order of detention, the petitioner was arrested on 21st March, 1974 as soon as he was released on bail in compliance with the order of release passed by the Sub-Divisional Magistrate and at the time of his arrest the Hindi as well as English versions of the order of detention were served on him tqgether with the grounds of detention which were also in Hindi and English versions. The Hindi version, as translated in English, set out the following grounds of detention : "l. He has beeR propagating communal. hatred between Adi basis and outsider$ (Biharis) and also between SUPREME C:OURT REPORTS Adibasis and non-Adibasis for quite some time.

He has been instigating the A.dibasis to take up arms and- Iaws in their own hands in several speeches and otherwise. As a result of these instigations and incitements, public order has been disturlx:d several times at severaf p1'a.ces. It would I\Ot be possible to give details of such instances, but as illustration, a few of them lire given below: 2. 011 25-2-1973, at: Katras ·ceramic Factory, Tilatanr; P. S. Katras, District Dhanbad, he instigated the employees of the said ceramic factory to {~move the outsiders (Biharis) by force from th_e employment of the said factory and in consequence of the said abetment, 200 persons, armed with deadly weapons like lathi, gra,sa etc., took out a procession and attacked the shop of one Ram Kripal Dubey an:d assaulted him and his father by means of lathi and grasa, and also damaged the factory and immediately thereafter the violent processionists attacked the residential quarters sitU'ated in the factory premises and assaulted the · inmates and thereby committed acts prejudicial to the maintenance of public order;

3. On 29-8-73, jn the Railway Football Maidan, Gomoh, P. S. Topchanchi, District Dhanbad, in course of public speech, he asked the people to take J.aw in their own hands by speaking 'Apna Faisla Ap Karo', 'Pahle Gherao Karo, Fir Mukka Lath Se Maro, Fir Lathi Chhalao, Uspar Vi N•ahin Sunta Hai To Sar Kat ,Lo'. Similarly, on 3--11-73, at the said place, he, in a public meeting organised by "Chotanagpur-Santhal Pargana Alag Raj Nirman Soamity", instigated to local advasis anct harijans to capture the lands purchased by the non· Adibasis by means of force and to harvest the standin'll: paddy crops therefrom.

Again on 4-2-74, in Golf Ground, Dhanbad, P.S. and district Dll'anbad, in a meeting of Adibasis organised by Jharkhand Party, he instigated the people to take the law in their hands and to disturb the public peace by uttering "Agar Aaaz Harne Koi Hat Dikhaega To USka Hat Kat Lange, Aur Angali Dhikaega To Angali Kat Lange' and thereby committed acts prejudicial to the maintenance of public order; 4. On 1-11-73, at'viilage Maachkocha and Mahatotund, P. S. Topchanr.hi. District Dhal.1bad, in consequence of instigation given bv him. and his co-associates, namely, Gopal Chandra Munshi, Sriram Manjhi. Rashiklal Majhi, Shibu Soren and others in village Maichokocha · in the preceding nil!ht, Jhari Manihi, Buddhu Manjhi, and others, belonging to 'Shivaji Samai~ forcibly took away the standing paddy crops from plot No. 383 · in 8, B. MAHATO V. BIHAR (Bha&Wtlli, J.) village Maichakocha and plot No. 340 in village Mahatotanr, belonging to one Ram Anandi Singh, and grown by him, and thus committed acts prejudicial to, the maintenance of public order;

5. On 3-3-74, at vilfage Singhdih, P.S. Topchanchi, district Dhanbad, he instigated the local Adivasis and Harijans in a Public meeting convened by "'Jharkhand Alag. Raj Nirman Samiti" to capture the lands of non- Adibasis by me•ans of force and violence and so in consequence of the said instigation immediately there-- after the Adibasis and Harijans, numbering about 4,000. took out a procession being armed with deadly wea-· · pons, under his leadership' and on way, in between Singdih and Amalkhori d•amaged a motor car bearing No. BRW 9981 and thus committed acts prejudicial tothe maintenance of public order; 6. On 4-3-74, at village Dumanda, P.S. Tundi, District Dhanbad, he organised a meeting of the. Manjhis (Adibasis) and instigated them to loot the properties of 'Dikus' (non-AdiV'asis) namely, Joy Narayan Chou-· dhury of village Durgadih, K. C. ChOpra, Ismail Mia. and others and in consequence of the said abetment on 5-3-74, at about 1.30 p.m.

500 persons, armed with deadly weapons like bows and arrows, bhalla, farslra, Jathi etc., formed an unlawful assembly with the common object of looting the properties of 'Dikus' and for-· cibly removing them from there, and in prosecution of the said common object they surrounded the house of the said Joy Narayan Choudhury in village Durgadih, P.S. Tundi, District Dll'anbad, and started pelting brickbats and shooting arrows as a result .of which Ganga Bishnu Prasad and Girdhari Rai sustained injuries and thereafter set -fire to the house of said Joy Narayan Choudhury and thus committed •acts prejudicial to the maintenance of public ·order."

219• Then the Hindi version proceeded to recite the satisfaction of the· District Magistrate that in the circumstances he was satisfied that if the· petitioner "is allowed to remain at l•arge, he will indulge in activities prejudicial to the maintenance of public order" and for prevention of such activities he considered the detention of the petitioner necessary. The English version also gave the same grounds of detention but the· satisfaction of the District Magistrate recited in the English version was a little different. It stated that the District Magistrate was satisfied that if the petitioner "is allowed to remain at large he will indulge in activities prejudicial to the ma_intenance of public order or security of the State" and for prevention of such activities he considered the deten- . tion of the petitioner necessary. The words "or security of the State" were added in the recital of the satisfaction in the English version· thou~h they were absent in the Hindi version.

The petitioner made an elaborate and exhaustive representation to the State Government against the ordG_r of detention in an attempt to answer the grounds orr [1975] 2 s.,c.R. which the order of detention was based, but this represenration was rejected by the State Government on 24th April, 1974. In the mean time the case of the petitioner was placed by the State Government before the Advisory Board and the representation of the petitioner was also forwarded to the Advisory Board for its consideration. The Advisory Board gave an opportunity ~o the petitioner to be person-ally heard and after considering all the facts and circumstances of the case gave its opinion on 2nd May, 1974 that there was sufficient cause for the detention of the petitioner. The State Government thereafter confirmed the order of detention on 11th May, 1974. This 'detention order was c:hallenged by the petitioner by filling a petition under Art. 226 of the Constitution in the High Court of Judicature at Patna.

But a . Division Bench of the High Court did not find any infirmity in the detention and by an order dated 14th May, 1974 rejected the petition. The petitioner thereupon filed the present petition in this Court under Art. 3 2 of the Constitution. challenging the validity of his detention on various grounds. The first ground on which the validity of his detention was challenged on behalf of the petitioner was that the English version of the grounds of detention recited th•at the District Magistrate was satisfied that if the petitioner was allowed to remain at. large he would indulge in activities prejudicial to the maintenance of public order or security of the State.

This recital showed that the District Magistrate did not apply his mind with any seriousness either to the acts alleged in the grounds of detention against the petitioner or to the question whether they fell within the purview of the expression "the maintenance of public order" or "the security of the State" or both and that was sufficient to vitiate the order of detention. Now, there can be no doubt, in view of the decisions of this Court in Kishori Mohan Bera v. The State of West Bengal(1) and Akshoy Konai v. State of West Bengal(2 ) that if the order 'of detention purports to be based on the satisfaction of the detaining authority that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order or security of the State, it would clearly be an invalid order.

TI1e satisfaction of the detaining authority in 11uch a case would be on the disjunctive and not conjunctive grounds and tha~ would me-an that the detaining authority was not certain whether it had reached its subjective satisfaction as to the necessity of exercising the power of detention on the ground of danger to public order or danger to the security of the State. If the detaining authority felt that it was necessary to detain the petitioner on the ground that his activities affected or were likely to -affect both public order and the security of the State, it would use the conjunctive 'and' and not the disjunctive 'or' in reciting its satisfaction.

Where, however, the disjunctive 'or' is used instead of the conjunctive 'and', it would mean that the detaining authority was either not certain whether the alleged activities of the petitioner endangered public order or the security of the State, or it did not seriously -apply its mind to the question whether such activities fell under one he:ad or the other and merely reproduced mechanically the language of section 3(1) (a)(ii). When such equim A. T, R. 19'72 S. C. 1749, (2) A. I. R.1973 S. C· JOO. B. B. MAHATO v. BIHA'R (Bhagwati, J.) 22 l vocal language is used and the detenu is not told whether his alleged activities set out in the grounds of detention fell under one head or the. other or both, it would b.e difficult for· him to make an adequate re· presenl'ation against the order of detention. If, therefore, it appears in the present case that the order of detention made by the District.

Magistrate was based on the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying on activities .. prejudicia,l to the maintenance of public order or the security of the St•ate, it would have to be struck down as .invalid. But we do not find that there is any such infirmity in the order of detention. Whether we look at the Hindi version or the English version, the satisfaction which is recited in the order of det~ntion and on .which the order of detention is manifestly and avowedly based, is that it is necessary tO detain. the petitioner with a view to preventing him from acting in any manner prejudicioal to the maintenance of public order. There is no reference to the security of the State in the recital of the satisfaction· contained in the order of detention.

The District Magistrate was satisfied that it. was necessary to detain the petitioner only on the ground that his acti·· vities were prejudicial to the maintenance of public order •and it was on the basis of this satisfaction that he made the order of detention. The· · Hindi version of the grounds of detention also reiterated the satisfaction· of tlie District Magistrate based on the same ground, namely, · tll'ai the petitioner, if allowed to remain at large, would indulge in activities pre-· judicial to the maintenance of public order. The recital of the satisfaction in the Hindi version of the grounds of detention did not make· •any reference to danger to the security of the Sta.te by reason of the activities of the petitioner. It is only in the English version of the grounds of detention that we find the words "security ·of the State"· added in the recital of the satisfaction of the District Magistrate.

That ·is obviously the result of inadvertence and no argument can be founded upon it. In the first ·place, Hindi being the official langU'age of the· State, it is the Hindi version of the grounds of detention which must be regarded as authentic and the validity of the detention must be judged with reference to the Hindi version of the grounds of detention and not II the English version.

Secondly, even if we confine ourselves to the· English version of the grounds of detention, it is clear that at the end of each of the grounds it is stated in so many words that the acts of the petitioner were prejudicial to the maintenance of public order and there is no reference there to prejudice to the security of the State and' it is only in the conclusion based on these acts that we find a recital of the satisfaction that if the petitioner is allowed to remain at lar11:e, he would indulge inactivities prejudicial to the maintenance of public order or the security of the State. ·The words "or the security of the· State" are obviously incongru,ous in. the context. They do not fit in · with the conclusion drawn at the end of each of the grounds which is confined only to the maintenance of public order and nothing more . . There can be no doubt that these words have crept in the Eng!ii;h· , version of the grounds of detention·through some mistake.

We cannot invalidate the order of detention on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versio11s, · the Hindi version of the grounds of detention and the totality of tbe· co_ntext so far as the English version is concerned. The petitioner then contended that the first ground insofar as it .alleged that the petitioner was propagating communal hatred between Ad1vasis and other (Biharis) and also between Adivasis and non- .Adivasis was vague and unintelligible and the order of detention was on that account invalid. We do not see any force in this contention. Adivasis are the original inhabitants of the area while outsiders are those Bihari.s who have come from outside and who are, therefor~, .regarded as outsiders by the original inhabitants. The petitioner was, according to this allegation contained in the first ground, stirring hatred between these two groups of people.

He· was also propagating hatred between two other groups of people, namely, Adivasis on the one hand and non-Adivasis on the other. This allegation cati hardly be regarded as vague and unintelligible. In fact the District Magistrate gave not less than five instances containing detailed and elaborate particulars and they were sufficiently informative so as to provide more than adequate opportunity to the petitioner to made an effective representation .. This ground must, therefore, be regarded as wholly unjustified and must be rejected. The next ground urged on behalf of the petitioner was that the District Magistrate had taken into account many more instances than those set outin grounds (2) to (6) and that was apparent from the use of the expression "It would not be possible to give details of such instances" in ground ( 1) . This ground is also, in our opinion, unsustainable.

It is true that the District Magistrate st'ated in ground ( 1) that it would not be possible to give details of instances where by reason of instigation and abetment of the . ·petitioner disturbances of public order had taken place, but th>at does not mean that the District Magistrate had "arious instances in mind which he took into account in arriving at his subjective satisfaction without disclosing them to the petitioner. What the District Mljgistrate mc•ant to say by using this expression was that instances of this nature were so many that one could not possibly have details of all of them, but there were a few before him by way of illustra.tion ankl since he had relied on them for arriving at the requisite sa~sfaction, he proceeded to reproduce them in grounds (2) to (6). The only instances on which the District Magistrate relied for arriving at the requisite satisfaction were those set out in grounds (2) to (6) a.nd no others.

This ground also, then~- fore, cannot avail the petitioner. It was then contended on behalf of the petitioner that the instance set out in ground (2) could not be reg'arded as one where communal hatred was -propagated by the petitioner either between Adivasis and outsiders or between Adivasis and non-Adivasis and it did not, therefore, justify the inference set out in ground ( 1). But this contention is also futile, because it is clear from the instance as narrated in ground (2) that the p_etitioner instigated the employees of Katras Ceramic · Factory to remove the outsiders (Biharis) by force from the employment of that fuctory, and in. consequence of this instigation. violence was committed by 200 persons armed with deadly weapons like lathis. bhalas etc. and if this could not be regarded as propagation of communal lratred between Advasis and outsiders (Bifiaris), we fail to see I B. B. MAHATO v. BIHAR (Bhagwati, J.) what other instance can be so branded.

Thls incident also had direct nexus with maintenance of public order. The petitioner also contended that the instance set out in ground ( 4) was an instance involving removal of paddy crops from two plots of land in villages Marchacocha and Mahatotund and that could have no relation to mamtenance of public order. But.is must be remembered that this instance does not Stand in isolation.

It· is a part of a series of instances set out in grc;mnds ( 2) , ( 3) , ( 5) and ( 6) and if it is viewed in the context. of these other . instances, it is clear that it is not a looalised instance affecting merely maintenance of law and order but a part of a series of acts affecting maintenance of public order._ I · The last ground urged on behalf of the petitioner was that paragraphs 5 and 7 of the affidavit filed by Miss Sunila Dayal, Deputy Secretary to Government of B1har, Heme Department, in reply·to the petition showed that there were various other materials in regard tl> the petitioner which were taken into account by the District Magistrate in arriving at his subjective satisfaction anq. since no opportunity was given to the petitioner to make an affective representation in regard to such materials, the order of detention was bad. This ground is also untenable.

It is true that various statements in regard to the activities of the petitioner were made in p•ar.agraphs 5 and 7 of the counter affi· davit of Miss Sunila Dayal but these were obviously intended to repel the allegations of the petitioner that he was a dedicated social and . public worker ~evoted to the uplift of the backward and down~trodden classes. They were not set out .as facts taken into account by the District Magistrate for the purpose of arriving at his subjective satisfaction in regard to .the necessity of the detention · of the petitioner. Miss Sunila Dayal did not state anywhere in her counter a!fidavit that these facts weighed with the District Mugistrate in reaching the requisite satisfaction. · In fact, the District Magistrate himself had made an afildavit in reply to the petition filed by the petitioner in the High Court of Patna and ,in that afildavit, he did not refer to any of these facts 0s having been 1 taken into account by him in passing the order of detention.

This ground ·must also, therefore; fail. Thesed~e the only grounds urged in support of the petition and since there is no substance in them, the petition fails and the rule is discharged. V.M.K. Petition dislnissed.