judgement:
vil Appeal Nos.
1840 1842/72.
Appeals from the Judgment and Orders dated the 15th April, 1971 of the Delhi High Court in Civil Writ Petitions Nos. 54, 1183 and 1184/69.
Mrs. Shyamla Pappu, R.N. Sachthey and Girish Chandra for the appellant in C.A. 1840/71.
R.N. Sachthey and Girish Chandra for the Appellants in CAs.
1841 42/71.
H.K. Puri for the Respondents.
The Judgment of the Court was delivered by KHANNA, J.
This Judgment would dispose 0 civil appeals Nos. 1840, 1841 and 1842 of 1971 which have been filed on certificate by the Company Law Board against the common judgment of Delhi High Court in three writ petitions by the respondent company and its two managing directors to challenge order dated September 27, 1967.
The respondent company, Upper Doab Sugar Mills Ltd., is a public limited company governed by the provisions of the (hereinafter referred to as the Act).
The company has its registered office at Shamli, district Muzaffarnagar (Uttar Pradesh).
Its main business is manu facture of sugar from sugar cane.
It also manufactures spirits, industrial alcohols and rum from molasses.
From 1951 onwards the respondent company was managed by a firm of managing agents.
Two of the partners of that firm were Shri Rajinder Lal and Shri Nannder Lal.
The managing agency agreement of that firm was to expire on January 14, 1967.
On October 4.
1966 the Board of Directors of the company resolved not to continue the managing agency of the said firm and decided to appoint two managing directors to con duct and manage the affairs of the company.
Accordingly, on October 8, 1966 in exercise of the powers under article 117 of the articles of association of the company the Board of Directors resolved to appoint Shri Rajinder Lal and Shri Narinder Lal as the two managing directors of the company.
The salary of each of the managing directors was fixed at Rs. 5,000 per month.
In addition to that, each managing director was to get commission at the rate of 31/2 per cent of the net profits of the company during a financial year computed in the manner .laid down in section 309(5) of the Act.
Besides that, other service benefits such as gratuity, provident fund, free medical treatment, transportation and free furnished residential accommodation were to be pro vided to each of the managing directors.
The resolution of the Board of Directors was placed before the shareholders of the company in a general meeting.
The shareholders approved the said resolution to appoint Shri Rajinder Lal and Shri Narinder Lal as managing directors on the terms set out in that resolution.
An application was thereafter made under section 269 of the Act to Company Law Board, appellant, for obtaining approval to the appointment of Shri Rajinder Lal and Shri Narinder Lal as managing directors.
The powers of the Central Government, it may be stated, have been delegated to the appellant Board for exercising, inter alia, powers under section 269 of 505 the Act.
The appellant Board after obtaining some addition al information and after some further correspondence granted as per letter dated September 28, 1967 approval to the appointment of Shri Rajinder Lal and Shri Natruder Lal as managing directors of the company.
The said approval was granted subject to the various terms and included the fol lowing condition: "The total remuneration of each managing director by way of commission and salary shall not exceed Rs. 1,20,000 (Rupees one lakh twenty thousand) per annum.
" The company made a representation to the appellant Board that the aforesaid ceiling of Rs. 1,20,000 would not ade quately remunerate the two managing directors and that the aforesaid ceiling be raised.
The Board rejected that repre sentation.
Three writ petitions were thereafter filed in January 1969 by the company and Shri Rajinder Lal and Shri Narinder Lal for restraining the appellant Board from giving effect to the condition set out above that the total remu neration of each managing director should not exceed Rs. 1,20,000 per annum.
Prayer was made that the appellant Board be directed to accord approval for payment to the managing directors the remuneration as passed in the resolu tion of the Board of Directors along with the necessary perquisites.
The petition was registered by the appellant Board and the affidavit of the Secretary of the Board was filed in opposition.
At the hearing in the High Court the following two questions were agitated on behalf of the respondent company and its managing directors: "(1) Whether the administrative ceiling imposed by the Board on 28 9 1967 on the remuneration payable to the Managing Directors by the Company is ultra vires or illegal? (2 ) Whether the refusal by the Board to enhance the remuneration of the Managing Directors above the ceiling of Rs. 50,000/ for the loss year was bad because the Company was not granted adequate heating and because the order of refusal did not state the reasons therefor ?" The High Court answered the second question against the respondent company.
This question also no longer survives m these appeals.
On the first question, the High Court after referring to the various provisions held that the action of the Board in reducing the remuneration of the managing directors was arbitrary and void.
In this connection, the High Court observed: "But any condition regarding remunera tion which is contrary to the provisions of sections 198 and 309 would not be regarded as germane to section 269 inasmuch as the Legis lature has exhaustively dealt with remunera tion in sections 198 and 309 with the effect that section 269 does not include in its scope any element regarding the fixation of remuner ation.
" Referring to the general administrative policy of the Gov ernment of fixing ceiling on managerial remuneration, the High Court observed 506 that any such policy which resulted in placing a ceiling below the legislative ceilings fixed by sections 198 and 309 was illegal as being contrary to sections 198 and 309.
In the result, the High Court quashed the condition imposed by the Board fixing the remuneration of the managing direc tors.
In appeal before us Mrs. Shymala Pappu has assailed the correctness of the judgment of the High Court.
As against that, Mr. Puri on behalf of the respondents has canvassed for the correctness of that judgment.
In order to appreciate the respective arguments, it may be necessary to set out the necessary provisions of the Act, as they stood at the relevant time.
Sub sections (1), (2) and (3) of section 198 read as under: "198.
Overall maximum managerial remu neration and managerial remuneration in case of absence or adequacy of profits. (1) The total managerial remuneration payable by a public company or a private company which is a subsidiary of a public company, to its direc tors and its managing agents, secretaries and treasurers or manager in respect of any finan cial year shall not exceed eleven per cent of the net profits of that company for that financial year computed in the manner .laid down in sections 349, 350 and 351, except that the remuneration of the directors shall not be deducted from the gross profits: Provided that nothing in this section shall affect the operation of sections 352 to 354 and 356 to 360.
(2) The percentage aforesaid shall be exclusive of any fees payable to directors under sub section (2) of section 309.
(3) Within the limits of the maximum remuneration specified in sub section (1) a company may pay a monthly remuneration to its managing or whole time director in accordance with the provisions of section 309 or to its manager in accordance with the provisions of section 387.
" Section 269 reads as under: "269.
Appointment or re appointment of managing or whole time director to require Government approval in certain cases. ( 1 ) In the case of a public company or a private company which is a subsidiary of a public company, whether such public company or pri vate company is an existing company or not, the appointment of a person for the first time as a managing or whole time director shall not have any unless approved by the Central Gov ernment: Provided that in the case of a public company, or a private company which is a subsidiary of a public company, incorporated after the commencement of the Companies (Amendment) Act, 1960, the appointment of a person as a managing 507 or whole time director for the first time after such incorporation may be made without the approval of the Central Government but such appointment shall cease to have effect after the expiry of three months from the date of such incorporation unless the appointment has been approved by that Government.
(2) Where a public company or a private company which is a subsidiary of a public company, is an existing company, the re ap pointment of a person as a managing or whole time director for the first time after the commencement of the Companies (Amendment) Act, 1960, shall not have any effect unless approved by the Central Government.
" Sub sections (1), (2) and (3) of section 309 read as under: "309.
Remuneration of directors. ( 1 ) The remuneration payable to the directors of a company, including any managing or whole time director, shall be determined, in accordance with and subject to the provisions of section 198 and this section, either by the articles of the company, or by a resolution or, if the articles so require, by a special resolu tion, passed by the company in general meeting and the remuneration payable to any such director determined as aforesaid shall be inclusive of the remuneration payable to such director for services rendered by him in any other capacity: Provided that any remuneration for services rendered by any such director in any other capacity shall not be so included if (a) the services rendered are of a profession al nature: and (b) in the opinion of the Central Govern ment, the director possesses the requisite qualifications for the practice of the profes sion.
(2) A director may receive remuneration by way of a fee for each meeting of the Board, or a committee thereof.
attended by him: Provided that where immediately before the commencement the Companies (Amendment) Act, 1960, fees for meetings of the Board and any committee thereof, attended by a director are paid on a monthly basis, such fees may contin ue to he paid on that basis for a period of two years after such commencement or for the remainder of the term of office of such direc tor, whichever is less, but no longer.
(3) A director who is either in the whole time employment of the company or a managing director may he paid remuneration either by way of a monthly payment or at a 508 specified percentage of the net profits of the company or partly by one way and partly by the other: Provided that except with the approval of the Central Government such remuneration shall not exceed five per cent of the net profits for one such director, and if there is more than one such director, ten per cent for all of them together.
" Sub section (1 ) of sect,ion 637A reads as under: "637A. Power of Central Government to accord approval, etc., subject to conditions and to prescribe fees oft applications. ( 1 ) Where the Central Government is required or authorised by any provision of this Act, (a) to accord approval, sanction, consent, confirmation or recognition to or in relation to, any matter; (b) to give any direction in relation to any matter; or (c) to grant any exemption in relation to any matter; then, in the absence of anything to the con trary contained in such or any other provision of this Act, the Central Government may ac cord, give or grant such approval, sanction, consent, confirmation, recognition, direction or exemption subject to such conditions, limitations,ions or restrictions as it may think fit to impose and may, in the case of contravention of any such condition, limita tion or restriction, rescind or withdraw such approval, sanction, consent, confirmation, recognition, direction or exemption.
" After hearing learned counsel for the parties and giving the matter our earnest consideration, we are of the opinion that the view taken by the High Court in quashing the condi tion imposed by the appellant Board about the fixation of the remuneration of the managing directors cannot be sus tained.
The High Court in arriving at its conclusion took: the view that section 198 and the proviso to sub section (3) of Section 309 specially dealt with the question which arose for determination.
In view of those provisions, the High Court inferred that sections 269 and 637A upon which reliance had been placed by the appellant Board could not be of much avail to the appellant.
Mr. Puri on behalf of the respondents has adopted the same reasoning in this Court and has contended that sect,ion 198 and the proviso to sub sect,ion (3) of section 309 being special provisions relat ing to the remuneration of managing directors, they would exclude so far as that question is concerned, general provisions like those contained in sections 269 and 637A. The above reasoning, we find, is vitiated by an innate fallacy.
Section 198 deals with the overall maximum manage rial remuneration and managerial remuneration in the case of absence or adequacy of profits.
The total managerial remu neration payable by a public company or a private company which is a subsidiary of a public company to its managerial staff, according to sub section (1) of that section, cannot exceed 11 per cent of the net profits for a financial year.
The total managerial remuneration covers the remuneration not merely of the managing 509 directors but also of other managerial personnel like secre taries, treasurers and managers.
Sub section (3) of the section provides that Within the limits of the maximum remuneration, a company may pay a monthly remuneration to its managing director in accordance with section 309.
Sub section (1) of section 309 prescribes the formalities which have to be complied with for fixing of the remuneration of a managing or full time director of a company.
We are not concerned with sub section (2) of that section.
Sub section (3).
which constitutes the main plank of the case of the respondents, provides that a director who is either in the whole time employment of the company or a managing direc tor may be paid remuneration either by way of monthly pay ment or at a specified percentage of the net profits of the company or partly by one way or partly by the other.
Ac cording to the proviso to that sub section, except with the approval of the Central Government, such remuneration of the whole time director or managing director shall not exceed 5 per cent of the net profits for one such director and if there is more than one such director 10 per cent for all of them together.
Perusal of section 309 shows that it does not deal with the appointment of managing directors.
It only pertains to the remuneration of managing or whole time directors who have already been appointed.
The effect of the proviso to sub section (3) of section 309 is that if the tenure of a managing director who has already been appointed continues after the coming into force of the Act, the remu neration to be paid to such a managing director shall not after the coming into force of the Act exceed 5 per cent of the net profits for one such director, and if there be more then one such director, 10 per cent for all of them together.
The present, however, is not a case of managing direc tors having been appointed earlier and continuing to act as such after the coming into force of the Act.
Shri Rajinder Lal and Shri Narinder Lal have been appointed managing directors of the company for the first time after the coming into force of the Act.
Their appointment as managing directors had to be approved in terms of section 269 of the Act.
The company consequently applied to the Central Gov ernment for approving their appointment.
The appellant Board, to whom the powers of the Central Government have been delegated for this purpose, while granting approval to the appointment of the aforesaid two persons as managing directors, inserted the condition that the total remunera tion of each managing director by way of commission and salary shall not exceed rupees.
one lakh twenty thousand per annum.
The above remuneration is in addition to the benefit of certain perquisites which would be available to the managing directors.
The Board, in our opinion, acted well within its power in imposing this condition.
Section 637A of the Act makes it clear inter alia that where the Central Government is required or authorised by any provision of the Act to accord approval in relation to any matter, then, in the absence of anything to contrary contained in such or any other provision of the Act, the Central Government may accord such approval subject to such conditions, limitations or restrictions as it may think fit to impose.
In view of the provisions of sections 269 and 637A of the Act, we find no infirmity in the condition imposed by 510 appellant Board.
The provisions of both sections 269 and 637A expressly deal with the question which arises directly in this ease.
We may observe that according to the affidavit filed on behalf of the appellant Board, since 1959 the said Board has been imposing a maximum administrative ceiling on the total amounts payable to a managing director.
The basic principle that has been kept in view by the Board is that no individ ual should be paid remuneration exceeding Rs. 1,20,000 per annum or Rs. 10,000 per month.
A large number of instances have also been given by the Board and it would appear there from that the maximum remuneration which has been allowed by the Board to the managing director of any company is Rs. 1,20,000.
The High Court, in our opinion, was in error in quashing the order of the Board.
We accordingly accept the appeals, set aside the judgment of the High Court and dismiss the writ petitions.
Looking to all the facts, we leave the parties to bear their own costs throughout.
P.B.R. Appeals allowed.

summary:
Section 198(1) of the provides that the total managerial remuneration payable by a public compa ny to its directors in respect of a financial year shall not exceed eleven per cent of the net profits of that company for that financial year.
Sub section (3) prescribes that within 'the limits of the maximum remuneration specified in sub section
(1) a company may pay a remuneration to its managing or whole time director in accordance with the provisions of section 309.
Section 309(3) provides that a director who is either in the whole time employment of the company or a managing director may be paid remuneration either by way of monthly payment or at a specified percentage of the net profits of the company or partly by one way or partly by the other.
The proviso provides that except with the approval of the Central Government such remuneration shall not exceed five per cent of the net profits for one such director and if there is more than one such director ten per cent for all of them together.
Section 637A provides that where the Central Government is required or authorised by any provi sion of the Act to accord approval in relation to any matter the Central Government may accord such approval subject to such conditions, limitations, restrictions as it may think fit to impose.
In 1966 the respondent company appointed two managing directors and sought the approval of the Central Government under section 269 of the for their appoint ment.
Granting its approval the Company Law Board fixed a ceiling on the total remuneration payable to each managing director by way of commission and salary.
The Company 's representation to the Board to raise the ceiling of remuner ation was rejected.
In a petition under art, 226 of the Constitution the High Court held that the action of the Board in reducing the remuneration was arbitrary and void and that any condition regarding the remuneration which is contrary to the provi sions of sections 198 and 309 would not be germane to section 269 and that section does not include in its scope any element regarding the fixation of remuneration.
Allowing the appeals of the Board.
HELD: The High Court was in error in quashing the order of the Board.
In view of the provisions of sections 269 and 637A there is no infirmity in the condition imposed by the Board.
[510C; 509H] Section 309 does not deal with the appointment of manag ing directors but pertains to the remuneration of managing or .whole time directors who had already been appointed.
The effect of the proviso to section 309(3) is that if the tenure of a managing director already appointed continued after the coming into force of the Act, the remuneration to be raid to such managing director shall not, after the coming into force of the Act, exceed 5% of the net profits to be paid for one such director and if there be more than one such director 10% for all of them together.
[509D] In the instant case since the managing director had been appointed for the first time after the coming into force of the Act their .appointment had to be approved in terms of section 269.
The Board, while granting permission, inserted a condition regarding the total remuneration of each managing director.
In so doing the Board acted well within the power.
[509F G] 16 1546 SCI/76 504


judgement:
21, 22 and 44 of 1951.
(1) ; (3) ; (2) ; , (4) 453 Applications under article 32 of the Constitution praying for the issue of writs in the nature of habeas corpus.
Hardayal Hardy for the petitioners in Petitions Nos. 21 and 22 Gopal Singh for the petitioner in Petition No. 44.
S.M. Sikri for the respondents.
April 6.
The following judgments were deliv ered.
PATANJALI SASTRI J. These three petitions have been pre sented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas corpus for release of the petitioners who are respectively the President, VicePresident and Secretary of the Hindu Mahasabha of the Delhi State.
The petitioners were arrested on 22nd August, 1950, by order of the District Magistrate, Delhi, made under sub section (2) read with clause (a) sub clause (i) of sub section (1) of section 3 of the (hereinafter referred to as the Act).
The order ran as follows: "Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I, Rameshwar Dayal, District Magistrate, Delhi, hereby order the detention of . . under sub section (2) of section 3 (1) (a) (ii) of the .
Given under my seal and signature".
The grounds of detention communicated to the petitioners were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus: "In pursuance of section 7 of the you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you are that your speeches generally in the past and particularly on .
August, 454 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby preju dice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is neces sary to make the said order".
The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution, but the petitions were dismissed.
It appears to have been con tended before the learned Judges (Khosla and Falshaw JJ.) who heard those petitions that although this Court held in A.K. Gopalan vs The State of Madras (1) that the provisions of section 3 of the Act were constitutional and valid, detention under that section was ultra vires and illegal where, as here, it was based on the ground of making speech es prejudicial to the security of the State or the mainte nance of public order.
This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another vs The State of Delhi (2) and Romesh Thappar vs The State of Madras (3).
This contention was rejected on the ground that no such proviso could be read into section 3 on the strength of the later decisions referred to above which related to a different point, viz., the scope of authorised restrictions on the right to freedom of speech conferred by article 19 (1).
Falshaw J. (with whom Khosla J. concurred), proceeded, however, to draw attention to what he conceived to be an ' 'anomaly ' ' while a State Government should not be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by pre censor ship of news, the Government should, for the same object, be entitled to place a person under preventive detention which is "even greater restriction on personal liberty than any restriction on a newspaper ever could be".
This distinction appeared to the learned Judge to be illogical, and he thought that there was "an apparent conflict" between the decisions of this Court in Gopalan 's case (1) and the other cases, which could only be resolved by this Court.
"It (1) ; (3) ; , (2) ; 455 would be well" the learned Judge concluded "if the point were raised in this form at an early date in the Supreme Court".
No wonder that, after this encouragement, the peti tioners have preferred these petitions raising the same contention before us.
On behalf of the petitioners Mr. Hardy submitted that the provisions of the Act should not be used to prevent a citizen from making speeches though they might be considered to be prejudicial to the maintenance of public order, for maintenance of public order is not a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Court in the Cross roads(1) and the Organizer(2) cases.
It is true that in those cases this Court decided by a majority of 5 to 1 that "unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause (2) of article 19 although the restrictions which it seeks to impose may have been conceived generally in the interests of public order".
But it will be noticed that the Statutory provi sions which were there declared void and unconstitutional authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre censor ship on the publication of a journal.
No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalan 's case(s), the Court is called upon to adjudge the legality of the deten tion of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order Although personal liberty has a content sufficiently comprehensive to include the freedoms enumerated in article 19 (1), and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and conditions subject to which (1) ; (3) ; (2) ; 59 456 alone they could be taken away or abridged.
The interpreta tion of these articles and their correlation were elaborate ly dealt with by the full Court in Gopalan 's case(1).
The question arose whether section 3 of the Act was a law impos ing restrictions on "the right to move freely throughout the territory of India" guaranteed under article 19 (1) (d) and, as such, was liable to be tested with reference to its reasonableness under clause (5) of that article.
It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did not fall within the purview of article 19 and its validity was not to be judged by the criteria indicated in that article but depended on its compliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was con stitutional.
If the learned Judges in the High Court had paid close attention to the judgments delivered in this Court, they would have found that there was nothing illogi cal in that view and no conflict between the decisions in that case and in the other cases to which reference has been made.
The observations of the Chief Justice in Gopalan 's case(1) make the position quite clear: " As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e), and (g)have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argument is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also, to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2) to (6), permit ting abridgement of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even (1) ; 457 ordinary assault, will be illegal.
Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any preconceived notions.
So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub clauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive deten tion, his right under any of these sub clauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life.
On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 (1) generally must fail.
Any other construction put on the article, it seems to me, will be unreasonable.
"(1) Similar conclusions expressed by the other learned Judges will be found at pages 194, 229, 256 and 305.
It follows that the petitions now before us are governed by the decision in Gopalan 's case(1), notwithstanding that the petitioners ' right under article 19 (1)(a) is abridged as a result of their detention under the Act.
The anomaly, if anomaly there be in the resulting position, is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded by this Court by an over whelming majority in the cases referred to above must now be taken to be settled law, and courts in this country will be serving no useful purpose by discovering supposed conflicts and illogicalities and recommending parties to re agitate the points thus settled.
(1) ; , 100 101.
458 Mr. Hardy next contended that, in view of the recent decision of this Court in The State of Bombay vs Atma Ram Sridhar Vaidya(1), the grounds of detention communicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their "representations" to the Chief Commissioner, Delhi, and the requirements of clause (5)of article 22 not having thus been complied with, the petitioners were entitled to be set at liberty.
Accord ing to Mr. Hardy it was not sufficient that the time and place of the alleged speeches and their general effect were indicated, but it was also necessary that the offending passages or at least the gist of them should be communicated in order to enable the petitioners to make effective repre sentations.
In the case relied on, this Court, no doubt, held by a majority that, though the first part of article 22 (s), which casts an obligation on the detaining authority to communicate the grounds of the order of detention would be sufficiently complied with if the" deductions or conclusions of facts from facts" on which the order was based were disclosed, the latter part of the clause, which confers on the person detained the right of making a "representation" against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particu lars to enable him to make his representation.
It was further held that the sufficiency of this "second communica tion" of particulars was a justiciable issue, the test being whether "it is sufficient to enable the detained person to make a representation which, on being considered, may give relief to the detained person.
" While the communication of particulars should, subject to a claim of privilege under clause (6), be" as full and adequate as the circumstances permit", it did not, however, follow from clause (6) that "what is not stated or considered to be withheld on that ground must be disclosed and if not disclosed there is a breach of a fundamental right.
A wide latitude is left to the authorities in the matter of disclosure." Referring to the use of the term (1) ; 459 "vague" in this connection,.
it was remarked: "If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague" This decision does not, in our opinion, support the broad proposition contended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should communicate to the person the offending passages or at least the gist of such passages on pain of having the order quashed if it did not.
In the cases now before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect (being such as to excite disaffection between Hindus and Muslims) was also stated.
It is difficult to see how the communication of particular passages or their substance one of the petitioners denied having made any speech on the day specified was necessary in addition to the particulars already given, to enable the petitioners to make their representations.
It should be remembered in this connection that the Court is not called upon in this class of cases to judge whether or not the speech or speeches in question constituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person constituted an offence under those sec tions.
That is a matter for the detaining authority to be satisfied about.
Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be made only before the executive authori ties.
In such circumstances the suggestion that without the communication of the offending passages or their substance the petitioners were not in a position to make their repre sentations 460 to the executive authorities sounds unreal and is devoid of substance.
It may be possible to conceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them, but the present cases are not of such peculiar character.
On the other hand, cases have come before this Court where speeches were alleged to have been made after midnight at secret gatherings of kisans and workers inciting them to violence, crime and disorder.
Such allegations could only be based in most cases on information received by the executive authorities from confidential sources and it would not be practicable in all such cases to have a record made of the speeches delivered.
To hold that article 22 (5) requires that, wherever detention is grounded on alleged prejudicial speeches, the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate.
In the case of these petitioners, no doubt, the speeches are said to have been made at public meetings, and it is not suggest ed on behalf of the respondents that no record was made of the speeches, so that the details asked for could have been furnished.
The omission to do so, for which no reason is disclosed in these proceedings, is regrettable, as it has given rise to avoidable grievance and complaint.
The au thorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above: "In numerous cases that have been brought to our notice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order.
Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number 461 of words in the communication conveying the grounds of detention.
In our opinion, this attitude is quite deplora ble".
This, however, does not affect our conclusion in these cases that the grounds communicated to the petitioners contain sufficient particulars to enable them to make their representations to the authority concerned, and that the requirements of article 22 (5) have thus been complied with.
It is also urged that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention.
This point is now concluded against the petitioners by the decision of this Court in Ujager Singh vs The State of Punjab (1) and Jagjit Singh vs The State of Punjab (2) where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders could not be said to be of indefinite duration and unlawful on that ground.
Lastly, it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power, and that the orders of detention were made "for the collateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had nothing to do with the maintenance of public order".
Allegations of mala fide conduct are easy to make but not always as easy to prove.
The District Magistrate has, in his affidavit filed in these proceedings, stated that, from the materials placed before him by persons experienced in investigating matters of this kind, he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he has emphatically repudi ated the purpose and motive imputed to him.
We have thus allegations on the one side and denial on the other, and the petitioners made no attempt to discharge the burden, which undoubtedly lay upon them, to prove that the District (1) Petition No. 149 of 1950.
(2) Petition No. 167 of 1950.
462 Magistrate acted mala fide in issuing the orders of deten tion.
The petitions are dismissed.
MAHAJAN J.
These three petitions under article 82 of the Constitution of India were presented by Prof. Ram Singh, Bal Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the .
The petitioners are respectively, the President, Vice President and the Secre tary of the Delhi State Hindu Mahasabha.
The grounds of detention supplied to them are almost identical.
Those furnished to Prof. Ram Singh read as follows : "In pursuance of section 7 of the , you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and partic ularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
You are further informed that you are entitled to make a representation against your detention to the State Govern ment, that is, the Chief Commissioner, Delhi.
" The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Khanna only the 15th August, 1950, is mentioned as the date on which the public speech was made, and in the case of the third petitioner, it is only the 13 th August, 1950.
Mr. Hardy on behalf of the petitioners.
inter alia urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are not suffi cient to enable them to make an effective representation to the State Government against 463 their detention and that being so, their detention is ille gal.
An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners ' speeches generally, and particularly those made on the 13th and 15th August, 1950, at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims.
No particulars of the offending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit.
Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the 13th and 15th respectively by the other two.
So far as the earlier speeches are concerned, it is not even stated on what occasions, on what dates and during what years were those speeches made or delivered.
After a refer ence to the dates of the two speeches, the conclusion drawn by the District Magistrate has been mentioned.
The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right conferred on the petitioners by article 22 (5) of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this infer ence is not justified.
After considerable thought I have reached the decision that these cases fall within the ambit of the decision of this Court in The State of Bombay vs Atma Ram Shridhar Vaidya (1).
In that case certain general principles ap plicable to cases of this nature were stated by the learned Chief Justice, who delivered the majority judgment, in the following terms: (1) That if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must (1) ; 60 464 be sufficient to attain that object.
Without getting infor mation sufficient to make a representation against the order of detention it is not possible for the man to make the representation.
Indeed, the right will be only illusory but not a real right at all.
(2) That while there is a connection between the obliga tion on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different.
For the first, the test is whether it is sufficient to satisfy the authority.
For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earli est opportunity.
On an infringement of either of these two rights the detained person has a right to approach the court and to complain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22(5) is established he is bound to be released by the court.
(3) That it cannot be disputed that the representation mentioned in the second part of article 22(5) must be one which on being considered may give relief to the detaining person.
It was pointed out that in the numerous cases that had been brought to the notice of the court it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order, and that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention and that such an attitude was quite deplorable.
In my opinion, these observations have an apposite application to the grounds furnished to the petitioners in the present cases.
The speeches alleged to have been made by the petitioners were made in public meetings and could not be described as of a confidential nature and no privi lege in respect of them was 465 claimed under article 22 (6) of the Constitution.
That being so, the material on the basis of which the District Magistrate drew the inference that these speeches would cause or were likely to cause disaffection amongst Hindus and Muslims should have been communicated to the petitioners so that they may be able to make a representation, which on being considered may give relief to them.
For that purpose either the words used by them or the substance of the speeches should have been communicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that no reasonable person could draw an inference from them that those were likely to cause hatred and enmity between the two communi ties.
The sufficiency of the material supplied is a justi ciable issue, though the sufficiency of the grounds on which the detaining authority made up his mind is not a justicia ble issue.
In my opinion, in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would not be able fully to exercise their fundamental right of making a representation and would not be able to furnish a proper defence to the charge made against them.
Envisaging oneself in the position of a person asked to draw out a written representation on behalf of the detenus on the materials supplied to them, the effort could not proceed beyond a bare denial of the speeches having been made, or a bald statement that no words were used which could possibly excite disaffection between Hindus and Mus lims.
Such a representation would be an idle formality inasmuch as mere denials without any cogent arguments to support them would convince nobody.
Without a knowledge of the offending words or passages, or their substance, it is not possible to argue that the inference drawn is not a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be considered to excite disaffection 466 amongst Hindus and Muslims.
The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code.
Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been considered and discussed.
In the words objected to were known, the representation on behalf of the detenus could easily have been drawn up with the help of judicial precedents and reasoning considered good in those cases.
Again, without knowing the substance of the offending words from which the inference has been drawn by the detaining authority it is not even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or concern the propagation of some political creed to which no objection could be taken.
As regards the two speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and Muslims is correct, the detenus were guilty of the offence under section 153A of the Indian Penal Code and could not only have been punished for the offence under that section but could also have been kept out of harm 's way for the future by that procedure.
A charge sheet under that section or in a trial under section 124A which uses analo gous language would have been defective if it did not men tion the substance of the speeches alleged to have been made by the person charged.
[Vide Chint Ram vs Emperor (1); Chidambaram Pillai vs Emperor(2); Mylapore Krishnaswami vs Emperor(3).] In some of these cases the charge was in substance similar to the charge here.
If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein, a fortiori, the material supplied in a preventive (1) A.I.R. 1931 Lah. 186.
(3) I.L.R. (2) I.L.R. 467 detention case on a similar charge should be regarded as insufficient when a man has not even a right of being heard in person and has merely to defend himself by means of a written representation.
It has to be remembered in this connection that the phrase "excite disaffection amongst Hindus and Muslims" is of a very general nature and an inference of this kind may easily have been drawn on materi al which would not warrant such an inference.
No reason whatsoever has been stated in the affidavit of the District Magistrate for not disclosing the words used by the detenus even after 'this length of time and from which he drew the conclusions on the basis of which he has kept the petition ers under detention for a period well over six months or more.
For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal.
I accordingly order the release of the petition ers.
On the other points argued in the case I agree with judgment of Sastri J. BOSE J.
I agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view.
I am of opinion that these petitioners should all be released on the ground that their detentions are illegal.
I do not doubt the right of Parliament and of the execu tive to place restrictions upon a man 's freedom.
I fully agree that the fundamental rights conferred by the Constitu tion are not absolute.
They are limited.
In some cases the limitations are imposed by the Constitution itself.
In others, Parliament has been given the power to impose fur ther restrictions and in doing so to confer authority on the executive to carry its purpose into effect.
But in every case it is the rights which are fundamental, not the limita tions; and 'it is the duty of this Court and of all courts in the land to guard and defend these rights jealously.
It is our duty and privilege to see that rights which were 468 intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.
We are here to preserve intact for the peo ples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cher ish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action.
It is the right to personal freedom which is affected here: what the Constitution calls the "right to move freely throughout the territory of India.
" Now I do not for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention.
Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely, the regrettable necessity to do so is to my mind undoubted.
The safety of the State, which is para mount, requires it and, in any event, the Constitution allows it but and this is important subject to limita tions.
So far as the Constitution is concerned, it has given Parliament the power to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item a in List III, and I have no doubt that the legislation sought to be impugned here is intra vires.
But I am unable to hold that the executive action taken in these cases on the strength of that legislation is within the law.
The executive has no power to detain except within the four corners of the Constitution and the Act now challenged.
In my, opinion, it has not kept itself within those limits.
The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right nor the desire to go behind them.
My brother Mahajan has 469 set out his view of the law which these cases have settled.
I respectfully agree with him and will not cover the same ground.
But I do wish to say this.
I am not prepared to place any narrow or stilted construction either upon the Constitution or upon the decisions of this Court which have so far interpreted it.
If it were permissible to go behind file Constitution and enquire into the reason for the provi sions dealing with the fundamental rights, one would find them bound up with the history of the fight for personal freedom in this land.
But that is not permissible and is irrelevant.
What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is "cribbed, cabined and confined".
I conceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights.
I do not mean to say that any impossible or extravagant construction should be employed such as would make the position of Government impossible or intolerable.
But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words convey, namely to confer the fullest possible degree of personal liberty upon the subject consistent with the safety and welfare of the State.
My Lord the Chief Justice has pointed out in The State of Bombay vs Atma Ram Shridhar Vaidya (1) that the information supplied to the detenu must be sufficient to enable him to meet the charges contained in the grounds given to him.
and that without that the right would be illusory.
Are the present cases covered by that rule ? I do not think they are.
Put at their highest, the grounds set out the date and place of the meetings at which the speeches complained of are said to have been made and they do no more than say that they were.
(1) ; 470 "such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi.
" I have no quarrel with the details regarding the date and place but I do not consider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars.
Now I fully agree that each case will have to be decided on its own facts so far as this is concerned.
But when weighing the circumstances this must be borne in mind.
The detenu has no right of personal appearance before the Advisory Board or other revising authority, nor can he be represented by counsel.
The Board or other authority can deal with his representation without hearing him or anyone on his behalf.
Therefore, his only hope of being able to convince the Board lies in the explanation he offers.
But how can anyone give a fair explanation of his conduct unless he is told with reasonable plainness what he has done, and in the case of a speech, the words used are everything.
They have been called "verbal acts" in another connection.
Now I take it to be established that Government is bound to give a detenu rea sonable particulars of the acts complained of when conduct is in question.
Why should a different rule obtain when the acts complained of are verbal ? It was contended in the argument that the man who makes the speech is in a position to know what he said and so is not at a disadvantage.
But that, in my opinion, is not the point.
He may know what he said but he cannot know what the authorities think he said unless they give him some reasona ble inkling of what is in their minds.
It has to be remem bered that what the Advisory Board has before it is not necessarily the words employed or even ' their substance but what the authorities say the man said.
This has to be viewed from two angles.
The first is whether the reports handed in to the authorities are Correct.
Even with the utmost good faith mistakes do 471 occur and it is quite easy for a reporter to get his notes mixed and to attribute to A what was said by B. But unless A knows that is what happened, it would be very difficult for him to envisage such a contingency and give the necessary explanation of fact in his representation.
The next point is this.
When a man ,is told that his speech excited disaffection and so forth, he is being given the final conclusion reached by some other mind or minds from a set of facts which are not disclosed to him.
If the premises on which the conclusion is based are faulty, the conclusion will be wrong.
But even if the premises are correct, the process of reasoning may be at fault.
In either event, no representation of value can be made without a reasonably adequate knowledge of the premises.
Envisage for a moment the position of the Board.
In the ordinary course, it would have before it a speech with the offending passages in full, or at any rate the gist of them.
From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is not told the premises on which the conclusion is based.
In most cases, that sort of representation would have very little value.
Consider this illustration.
Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said nothing objectionable but that unknown to him the police, through a perfectly bona fide mistake, had imputed to him certain offensive words used by another speaker.
What would be the value of a detenu saying "I said nothing objectionable" and that is almost all he can say in such a case.
He cannot envisage the mistake and say, "Oh yes, that was said, but not by me.
It was said by A or B." Consider a second illustration where the detenu had quoted a well known living authority.
I can conceive of cases where words in the mouth of A might be considered objectionable by some but would never be condem ned in the mouth of B. It might make a world of difference to 472 the detenu if he could explain the source of the passages complained of in his speech.
But it might be very difficult for him to envisage the possibility of objection being taken to anything coming from the source from which he quoted.
I am anxious not to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government, but I do conceive it to be our duty to give a construction which, while falling strictly within the ambit of the language used, is yet liberal and reasonable, just to the detenu, fair to the Government.
And after all, what does a construction such as I seek to make import ? It places no great or impossible strain on the machinery of Government.
All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of the thought, time and energy which the law compels in the case of even the meanest criminal who is arraigned before the Courts of this country.
The fact that there is absent in the case of these persons all the usual safeguards, the glare of publicity, the right to know with precision the charge against him, the right to speak in his own defence, is all the more reason why Government should be thoughtful, considerate and kind and should give them the maximum help.
In any case, that, in my opinion, is what the Constitution requires and I am not prepared to abate one jot or tittle of its rigours.
My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case.
One is Vaidya 's case (1) and the other Lahiri 's (2).
In the latter, the point whether the gist of the speech should be given was not considered.
It seemed to have been assumed that it need not.
But I am unable to accept that as authority for anything beyond the fact that was not consid ered necessary on the facts and in the circumstances of that particular case.
As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of (1) ; (2) Not reported, 473 what is vague "must vary according to the circumstances of each case.
" It was also said there that "the conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., mate rials on which the detention order was made.
" It was further said "Ordinarily, the 'grounds ' in the sense of conclusions drawn by the authorities will indicate the kind of prejudi cial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representa tion setting out his innocent activities to dispel the suspicion against him." This envisages cases in which that would not be enough.
It is therefore sufficient for me to say that in a case of this kind, where the matter has to turn on the facts and circumstances of each case, no useful purpose can be served by examining the facts of some other case for use as an analogy.
In my opinion, on the facts and circumstances of the present cases, the grounds supplied were insufficient and the gist of the offending passages should have been supplied.
The omission to do so invalidates the detention and each of the detenus is entitled to immediate release.
Petitions dismissed.
Agent for the petitioners in Petitions Nos. 21 & 22: Ganpat Rai.
Agent for the petitioner in Petition No. 44: V.P.K. Nambiyar.

dataset_name: IN-Abs

summary:
The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the peti tioners under section 3 of the .
The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particu larly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance 01 public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order.
" The petitioners contended that under the Constitu tion the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of 452 speech guaranteed by article 19 (1) and that the grounds commu nicated were too vague and indefinite to enable them to make a representation and the provisions of article 22 (s) of the Constitution were not complied with, and their detention was therefore ultra vires and illegal: Held by the Full Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S.R. DAs and VIVIAN BOSE JJ.) that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 (1) and its deprivation would result in the extinction of those free doms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in articles 19, 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged.
Consequently, even though a law which restricts freedom of speech and expression which is not directed solely against the undermining of the security of the State or its over throw but is concerned generally in the interests of public order may not fall within the reservation of cl.
(2) of article 19 and may therefore be void, an order of preventive deten tion cannot be held to be invalid merely because the deten tion is made with a view to prevent the making of speeches.
prejudicial to the maintenance of public order.
The deci sions in Brij Bhushan and Another vs The State of Delhi (1) and Romesh Thappar vs The State of Madras(2) are not incon sistent with the decision in A.K. Gopalan vs The State(3).
Held per KANIA.
C.J., PATANJALI SASTRI and S.R. DAS JJ.
(MEHR CHAND MAHAJAN and BOSE JJ.
dissenting) As the time and place at which the speeches were alleged to have been made and their general nature and effect,.
namely, that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated, they were not too vague or indefinite to enable the petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that article 22 (8) was not complied with.
Per CHAND MAHAJAN and BOSE JJ.
(contra) In the absence of any indication in the grounds as to the nature of the words used by the petitioners in their speech es, from which an inference has been drawn against them, the petitioners would not be able fully to exercise their funda mental right of making a representation, and as there were no such indications in the grounds supplied, there was a non compliance with the provisions of el.
(5) article 22 and the detention was illegal.
The State of Bombay vs Alma Ram Sridhar Vaidya(4) applied.


judgement:
minal Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of the Calcutta High Court in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of the Court of Presidency Magistrate at Calcutta in Case No. C/2867 of 1950.
section C. Isaacs (C. P. Lal with him) for the appellant in both appeals.
C. K. Daphtary, Solicitor General of India (Porus A. Mehta and P. G. Gokhale with him) for the respondents in both appeals.
927 1955.
October 31.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These appeals come before us on special leave to appeal granted under article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petitions Nos. 559 of 1951 and 312 of 1952 preferred by the appellants respectively.
In Criminal Revision Petition No. 559 of 1951, the High Court (Harries, C.J. and Banerjee, J.) confirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal Procedure Code.
In Criminal Revision Petition No. 312 of 1952, Lahiri and Guha, JJ.
set aside an order made by another Presidency Magistrate that no sanction was required and they quashed the proceedings against the accused.
The incidents which gave rise to the two complaints are closely inter related and can be set out briefly.
In connection with certain proceedings pending before the Income Tax Investigation Commission it was found necessary to search two premises 17, Kalakar Street and 36, Armenian Street to inspect, take copies and secure possession of certain books, papers and documents believed to be in them.
A warrant was issued by the Commission for this purpose in favour of four persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search.
The authorised officials went to the Kalakar Street premises, third floor on the morning of December 1950.
Matajog Dobey, (Appellant in Criminal Appeal No. 67), the darwan of Kasbiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist.
They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables.
They tied him with a rope and assaulted him causing injuries.
On these facts, he filed a complaint on 27 12 1950 against H.C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Indian Penal Code, 928 Armenian Street premises on the evening of 26 12 1950.
Nandram Agarwala (father of Kashiram Agarwala) came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were collecting and packing into bundles for removal.
He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed.
Thereupon, two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was as saulted again before being sent to the hospital.
He was brought back and kept in the lock up till midnight when he was released on bail.
Setting out these facts, he lodged a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later.
The offences mentioned in the complaint are sections 323, 342 and 504, Indian Penal Code.
Later, the names of two police officers were given Bibhuti Chakravarti and Nageswar Tiwari.
The two complaints were sent over for judicial inquiry to two different magistrates.
On 21 2 1951, the magistrate held on Agarwala 's complaint that a prima facie case had been made out under section 323 against all the four accused and under section 342 against the two policemen.
On this report, summonses were directed to issue under section 323 against all the accused.
On 1 5 1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22 5 1951.
It was on this latter date that the 1st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal Procedure Code.
The objection was upheld and all the accused disc barged on 31 5 1951.
Nandram Agarwala went up to the High Court in revision, but the order of the Presidency Magistrate was affirmed.
In Matajog Dobey 's complaint, after the termina 929 tion of the inquiry, process was issued only against Bhari under sections 323 and 342 , Indian Penal Code for 22 12 1951.
After some adjournments, accused filed on 26 2 1952 a petition as in the other case raising the same objection.
The magistrate on whose file the case was pending overruled the objection and directed that the case should proceed.
Accused Bhari took the matter on revision to the High Court and succeeded.
In Nandram Agarwala 's case (Criminal Revision Petition No. 559 of 1951) Chief Justice Harries and Banerjee, J. held that the test formulated by the Privy Council in Gill 's case(1) applied and that on a fair reading of the complaint, bereft of exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty.
In Matajog Dobey 's case (Criminal Revision Petition No. 312 of 1952), the learned Judges (Lahiri and Guha, JJ.) came to the same conclusion in these words: "From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search".
Mr. Isaacs, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions on their behalf.
Firstly, an act of criminal assault or wrongful confinement can never be regarded as an act done while acting or purporting to act in the discharge of official duty; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope of employment; and thirdly, that in any case it was the duty of the court to allow the prosecution to proceed and not stifle it in limine.
He also urged that as the entry on the 23rd December was into a wrong place, P 17, Kalakar Street, and not 17, Kalakar Street which was the authorised premises, the search was illegal from the commencement.
He raised the (1) [1948] L.R. 75 I.A. 41. 930 constitutional point that section 5(1) of the Taxation on Income (Investigation Commission) Act XXX of 1947) and section 197, Criminal Procedure Code were ultra vires, as they were discriminatory in their nature, and offended article 14 of the Constitution.
In the course of his arguments, he referred to section 6 sub sections (7) and (9) of the Taxation on Income (Investigation Commission) Act (XXX of 1947) and rule 10 and the search warrant that was issued under them.
His main argument was that there was no power conferred by statute or under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment.
He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position.
The search warrant is in these terms: "Warrant of Authorisation under sections 6(7) and 6(9) and Rule 8.
Taxation on Income (Investigation Commission) Act, 1947.
Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the section Jhabbarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17, Kalakar Street, Calcutta (ii) 47 Khengraputty Street, Calcutta 7, and (iii) the second 'floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and out houses or other places in that locality.
This is to authorise and require you, Sri H. C. Bhari, Authorised Official, Income tax Investigation Commission, (a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have 931 reason to believe that such books, documents or papers may be found; (b)to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (c) to make copies or extracts from such books, documents and papers; (d) to seize such books, documents and papers and take possession thereof; and (e)to exercise all other powers and duties under the said sections and the Rules relating thereto".
Straightaway, it may be conceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials.
Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear.
This, however, does not matter as the warrant authorises police assistance at the search.
The version of the complainants as to what happened at the search is set out in the two complaints.
The story of the accused is found in the petitions filed by Bhari urging the objection under section 197, Criminal Procedure Code.
Details about the occurrences were also elicited at the two judicial enquiries.
There are two medical certificates specifying the injuries found on Nandram Agarwala and Matajog Dobey.
The minor contentions may be disposed of at the outset.
Even if there was anything sound and substantial in the constitutional point about the vires of section 5(1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal.
Article 14 does not render section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification.
Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.
It was argued that 118 932 section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion.
There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties.
No one can take such proceedings without such sanction.
If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain, of discrimination.
But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant.
It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the govern ment and not in a minor official.
Further, we are not now concerned with any such question.
We have merely to see whether the court could take cognisance of the case without previous sanction and for this purpose the court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty.
Once this is settled, the case proceeds or is thrown out.
Whether sanction is to be accorded or not is a matter for the government to consider.
The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.
The objection based on entry into the wrong premises is of no substance; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error; or it may be that the party made an honest mistake.
As a matter of fact, the account books, etc. were found in P. 17, the premises raided.
Slightly differing tests have been laid down in the 933 decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty".
But the difference is only in language and not in substance.
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty.
No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty.
There must be a reasonable connection ' between the act and the official duty.
It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so inter related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
In Hori Ram Singh vs The Crown(1), Sulaiman, J. observes: "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty.
Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction".
The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it".
In affirming this view, the Judicial Committee of the Privy Council observe in Gill 's case(1) "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to (1) ,178.
(2) [1948] L.R. 75 I.A. 41.
934 lie within the scope of his official duty .
The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
Hori Ram 's case(1) is referred to with approval in the later ease of Lieutenant Hector Thomas Huntley vs The King Emperor(1) but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case.
The decision in Meads vs The King(1) does not carry us any further; it adopts the reasoning in Gill 's case(1).
There are two cases of this Court to which reference may be made here.
In Shreekantiah Ramayya Munipalli vs The State of Bombay(1), Bose, J. observes as follows: "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official 's duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
The section has content and its language must be given meaning".
The question of previous sanction also arose in Amrik Singh vs The State of PEPSU(6).
A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required".
The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such (1) ,178, (2) (3) [1948] L.R. 75 I.A. 185.
(4) [1948] L.R. 75 I.A. 41.
(5) ; , 1186.
(6) ; , 1307, 1308.
relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram 's case and also in Sarjoo Prasad vs The King Emperor(1).
Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution.
Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding.
But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition.
Sulaiman, J. refers (at page 179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground".
The other learned Judge also states at page 185, "At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty".
It must be so.
The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the case.
We are not prepared to concede in favour of the (1) , 936 appellants the correctness of the extreme proportion advanced by Mr. Isaacs on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials conducting the search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint.
Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc. might be secreted or destroyed in the interval; and it would encourage obstruction or resistance even to lawful acts.
It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject matter for inquiry during the proceedings; it would not make the act of removal improper or unlawful.
It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party.
Anyhow, section 6, sub section (9) of the Investigation Commission Act makes the provisions relating to searches applicable only "go far as they can be made applicable".
The two English cases relied on are scarcely of any help.
In Jones vs Owen"), a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside.
Hatton vs Treeby(2) was a case where the Act of Parliament which created a new offence did not in itself provide for a power of detention of the offender.
Where a power is conferred or a duty imposed by statute or otherwise ' and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution.
If in the exercise of the power or the performance (1) [1823] L.J. Reports (K.B.) 139; 2 D. & R. 600.
(2) [1897] L.R.2 Q.B.D. 452. 937 of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance.
This accords with commonsense and does not seem contrary to any principle of law.
The true position is neatly stated thus in Broom 's Legal Maxims, 10th Ed., at page 312: "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command".
Let us however assume that Mr. Isaacs is right in his contention.
Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty.
The belief that they had a right to get rid of the obstruction then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and entirely divorced from or unconnected with the dig ' charge of their duty that it was an independent act maliciously done or perpetrated.
, They. could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well founded or not.
Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc.
alleged against the accused are definitely related to the performance of their official duties.
But taken along with them, it seems to us to be an obvious case for sanction.
The injuries a couple of abrasions and a swelling on Nandram Agarwala and two ecohymosis on Matajog indicate nothing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded.
Mr. Isaacs finally pointed out that the fourth accused Nageswar Tewari was a constable and the case should have been allowed to proceed against him at least.
This question arises only in Nandram Agarwala 's case.
The Magistrate who dismissed the com 938 plaint took the view that theme was no use in proceeding against him alone, as the main attack was directed against the Income Tax Officials.
No such grievance was urged before the High Court and it is not raised in the grounds for special leave.
We hold that the orders of the High Court are correct and dismiss these two appeals.

summary:
In pursuance of a search warrant issued under section 6 of the Taxation on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case.
On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours.
Two separate complaints one by the darwan and the other by the proprietor under sections 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates.
The common question for determination in both the complaints was whether under the circumstances sanction was necessary under section 197 of the Code of Criminal Procedure.
Held that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of section 197 of the Code of Criminal Procedure.
article 14 does not render section 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against another is based on a rational classification.
A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official.
In the matter of grant of sanction under section 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty.
In other words there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the 926 accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of this performance of his duty.
The need for sanction under section 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained.
The question may arise at any stage of the proceedings.
The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish ,the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage.
The necessity may reveal itself in the course of the progress of the case.
Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command.
Gill and another vs The King, (1948) L.R. 76 I.A. 41, Hori Ram Singh vs The Crown, , 178, Albert West Meads vs The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley vs The King Emperor, (1944) F.C.R. 262, Shreekontiah Bamayya Munipalli vs The State of Bombay, ; , Amrik Singh vs The State of PEPSU, ; , Sarjoo Prasad vs The King Emperor, , Jones vs Owen, (1823) L.J. Reports (K.B.) 139 and Hatton vs Treeby, , referred to.