judgement:
ition No. 2030 of 1980.
Under Article 32 of the Constitution.
Ramjethmalani, M. M. Lodha and Harjinder Singh for the Petitioner.
V. section Desai, Mrs. Shobha Dixit, R. N. Poddar and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by 643 BHAGWATI, J.
This petition for a writ of habeas corpus challenges the continued detention of one Mahendra Chordia under sub section (1) of section 3 of the (hereinafter referred to as COFEPOSA Act).
On 4th June, 1980 an order of detention dated 27th May 1980 was served on Mahendra Chordia (hereinafter referred to as the detenu) and he was taken under detention.
The order of detention recited that the Governor of Maharashtra was satisfied with respect to the detenu that, with a view to preventing him from smuggling goods and abetting the smuggling of goods, it was necessary to make an order directing him to be detained and by the order of detention, the Governor of Maharashtra in exercise of the powers conferred under sub section (1) of section 3 of the COFEPOSA Act read with the Order of the President of India in the notification of the Government of India dated 17 February, 1980 directed that the detenu be detained under that Act.
Simultaneously with the order of detention, another order dated 27th May was also issued by the Governor of Maharashtra directing that the detenu be detained in the Nasik Road Central Prison.
When the petitioner was arrested and taken under detention, he was also served with a document dated 27 May 1980 containing the grounds of detention as required by sub section (3) of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution.
The grounds of detention referred to several documents and statements including two tape recorded conversations, one between the detenu and one Ahluwalia and the other between the detenu, Ahluwalia and an advocate by the name of Kumar Mehta.
The detenu therefore addressed a letter dated 6th June, 1980 to the Deputy Secretary to the Government of Maharashtra requesting him at his earliest to send "all statements documents and material" to enable him to make an effective representation against his detention.
The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents, statements and materials relied upon in the grounds of detention so that the detenu could make an effective representation and also specifically calling upon the Deputy Secretary to furnish the transcripts of the tapes as also to produce the original tapes for his inspection so that he could prove that the voice recorded on the tapes was not his.
This representation was admittedly received by the Deputy Secretary on 14th June 1980.
The detenu thereafter addressed another communication to the Deputy Secretary requesting him to supply one accurate copy of the tapes, so that he could have the tapes played in the presence of those 644 who would recognise his voice, to enable him to lead evidence through them that the voice recorded on the tapes was not his as also to let him know on whose final satisfaction the order of detention was made.
This letter though originally dated 14th June, 1980 was not despatched to the Deputy Secretary until 1st July, 1980 because in the meanwhile the detenu had been taken to Bombay and it was only after his return to Nasik Road Central Prison that the letter could be despatched through the jailor and hence the date was altered to 1st July, 1980.
It appears that this letter was received by the Deputy Secretary on 8th July, 1980.
But, prior to his forwarding the letter dated 1st July, 1980 to the Deputy Secretary, the detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the Government of Maharashtra praying for re vocation of the order of detention.
The detenu pointed out in this representation that, by his letters dated 5th, 6th and 14th June, 1980, he had requested for the tapes to be supplied to him to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and, in the circumstances, the hearing of the case before the Advisory Board would be futile.
The detenu also complained in the representation that though he had asked for copies of the documents and statements relied upon in the grounds of detention, they had not been supplied to him.
This representation containing the prayer for revocation of the order of detention was received by the Deputy Secretary on 30th June, 1980.
Now it appears that copies of the statements and documents relied upon in the grounds of detention were forwarded by the Deputy Secretary to the Superintendent of Nasik Road Central Prison by registered letter dated 3rd July 1980 and these copies were handed over to the detenu on 11th July 1980.
Mean while, one Vikraman Investigating officer of the Customs Department was deputed to the Nasik Road Central Prison alongwith the tapes and the tapes were played in the presence of the detenu and the Deputy Superintendent of Nasik Road Central Prison on 8th July 1980.
The representations of the detenu dated 9th June, 1980 and 26th June, 1980 were then considered by the Under Secretary on 11th July, 1980 and since in the mean time the letter dated 1st July 1980 requesting for supply of one accurate copy of the tapes was received by the Government, the Under Secretary suggested, with reference to this request that "since the tapes were given to the detenu for inspection and played before him, the request for supply of copies of the tapes may have to be rejected" and he also recommended that the request of the detenu for revocation of the order of detention may be rejected.
The Deputy Secretary approved the noting of the Under Secretary that the request for revocation of the detention order may 645 be rejected and the file was immediately put up before the Secretary on the same day and the secretary also approved the proposal for rejecting the request for revocation of the order of detention but recommended that the Customs Department must give to the detenu the transcripts of the tapes, as otherwise he would take a stand in the Court that his defence was prejudiced.
It appears that the Chief Minister endorsed the noting of the Secretary on 14th July 1980.
Pursuant to this decision of the Government, a letter dated 15th July 1980 was addressed to the detenu rejecting his representations and declining to revoke the order of detention.
It is difficult to appreciate what purpose could possibly be intended to be served by giving copies of the tapes to the detenu after rejecting his representations, but all the same, copies of the tapes were handed over to the detenu on 20th July, 1980.
The detenu 's mother in the mean while preferred the present petition in this Court and on 10th July, 1980 rule nisi was issued on the petition by this Court.
There were several grounds on which the detention of the detenu was challenged in the petition.
But it is not necessary to refer to all the grounds since there is one ground which is, in our opinion, fatal to the continued detention of the detenu and it will be sufficient if we confine our attention to that ground.
The contention of the petitioner under the ground was that though several statements and documents were relied upon in the grounds of detention and considerable reliance was also placed on two tape recorded conversations in the grounds of detention, the detaining authority did not serve on the detenu along with the grounds of detention, copies of those statements, documents and tapes and it could not therefore be said that the grounds of detention were duly served on the detenu as required by sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution.
The petitioner urged that sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution required that the detaining authority should as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and such grounds would comprise not merely a bare recital of the grounds of detention but also all statements and documents relied upon in the grounds of detention, because these latter would also form part of such grounds.
It was also contended by the petitioner in the alternative that, in any event, the detaining authority was bound to give copies of the statements, documents and tapes relied upon in the grounds of detention to the detenu without any avoidable delay in order that the detenu should have the earliest opportunity of making an effective representation against the order of detention.
The argument of the petitioner was 646 that, in the present case, though the detenu asked for the copies of statements, documents and material relied upon in the grounds of detention as early as 6th June, 1980, the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not the copies of the tapes which were supplied only on 20th July 1980.
This delay in supplying copies of the statements, documents and tapes was, in the submission of the petitioner wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and this infected the continued detention of the detenu with the vice of illegality.
This ground of challenge urged on behalf of the petitioner appeared to us to be well founded and that is why, by an order dated 8th August 1980 made immediately on the conclusion of the arguments, we allowed the petition and directed that the detenue be set at liberty forthwith.
We now proceed to give our reasons for making that Order.
We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler.
We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation.
But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil.
The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law.
The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind.
Without it life would not be worth living.
It is one of the pillars of free democratic society.
Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it.
The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.
This Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time.
It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law.
If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be.
The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law.
This Court would be laying down a dangerous precedent if it allows a hard case to make bad law.
We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner tramelled by the fact that this is a case where a possible smuggler is seeking his release from detention.
It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies.
Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention.
This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention.
This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: Vide Naranjan Singh vs State of Madhya Pradesh; Sheikh Hanif, Gudma Majhi & Kamal Saha vs State of West Bengal, and Dulal Roy vs The District Magistrate, Burdwan & Ors.
It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act.
It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition:Vide Nazamuddin vs The State of West Bengal.
Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.:Vide Mohd. Alam vs State of West Bengal and Khudiram Das vs State of West Bengal & Ors.
This practice marks a departure from that obtaining in England where observance of the strict rules of pleading is insisted upon even in case of an application for a writ of habeas corpus, but it has been adopted by this Court in view of the peculiar socio economic conditions prevailing in the country.
Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition.
The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law.
This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.
The court has always regarded personal liberty as the most precious possession 649 of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.
We must therefore now proceed to examine whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue.
Clause (5) of Article 22 of the Constitution reads as follows: "article 22(5): When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
" Section 3, sub section of the COFEPOSA Act provides as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made, as soon as may be, after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention."
The true meaning and import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das vs State of West Bengal (supra): "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security."
It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub section (3) of section 3 of the COFEPOSA Act, the words "as soon as may be" 650 have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
" The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention.
These are the two outside time limits provided by section 3, sub section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of clause (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention.
If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of section 3, sub section (3) of the COFEPOSA Act.
Now it is obvious that when clause (5) of Article 22 and sub section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and section 3, sub section (3) of the COFEPOSA Act.
One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.
There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of 651 Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) is not satisfied the continued detention of the detenu would be illegal and void.
Now, in the present case, the grounds of detention were detention were served upon the detenu on 4th June, 1980 at the time when he was taken under detention, but these grounds which were served upon the detenu did not include the documents, statements and other materials relied upon in the grounds and forming part of them.
The detenu, therefore by his letter dated 6th June, 1980, requested the Deputy Secretary to send at his earliest "all statements, documents, materials" relied upon in the grounds of detention in order to enable him to make an effective representation against his detention.
But copies of these documents, statements and other materials were not supplied to the detenu until 11th July, 1980 and so far as the tapes were concerned, their copies were furnished to the detenu even later on 20th July, 1980.
It is clear from the discussion in the preceding paragraph that under clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, the detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention, that is, on or before 9th June, 1980 and in any event, even if we assume that there were exceptional circumstances and reasons for not supplying such copies within five days were recorded in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980.
It was, of course, not the case of the detaining authority before us that reasons for not supplying copies of the documents, statements and other materials to the detenu within five days were recorded in writing nor were any such reasons produced before us, but even if there were any such reasons recorded in writing, coupled with the existence of exceptional circumstances, the detaining authority, could not delay the supply of copies of the documents, statements and other materials to the detenu beyond 19th June, 1980.
Even if there were any circumstances justifying the delay in supply of copies of documents, statements and other materials beyond 19th June, 1980 it would afford no defence to the detaining authority, for clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act lays down an inexorable rule of law that the grounds of detention shall be communicated to the detenu not later than fifteen days from the 652 date of detention.
There are no exceptions or qualifications provided to this rule which operates in all its rigour and strictness and if there is any breach of this rule, it must have the effect of invalidating the continued detention of the detenu.
There can therefore be no doubt that, in the present case, the continuance of the detention of the detenu after 19th June, 1980 was unconstitutional and it was not open to the detaining authority to seek to justify the continued detention on the ground that there were sufficiently compelling reasons which prevented it from supplying copies of the documents, statements and other materials to the detenu until 11th July, 1980 and copies of the tapes until 20th July, 1980.
It may be pointed out that even if our interpretation of the words "the grounds on which the order has been made" in clause (5) of Article 22 and section 3 sub section (3) of the COFEPOSA Act be wrong and these words do not include the documents, statements and other materials relied upon in the grounds of detention, it is unquestionable that copies of such documents, statements and other materials must be supplied to the detenu without any unreasonable delay, because otherwise the detenu would not be able to make an effective representation and the fundamental right conferred on him to be afforded the earliest opportunity of making a representation against his detention would be denied to him.
The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the later cannot be meaning fully exercised.
This would seem to be clear on a fair interpretation of clause (5) of Article 22 but apart from this view which we are inclined to take on principle as a matter of interpretation, the law is now well settled as a result of several decisions of this court commencing from Ramachandra A. Kamat vs Union of INDIA (1) that: "When the grounds of detention are served on the detenu, he is entitled to ask for copies of statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
when copies of such documents are asked for by the detenu, the detaining authority should be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of each case.
" The facts as we find them here are that the detenu asked for copies of the documents, statements and other materials relied upon 653 in the grounds of detention by his letters dated 6th June, 1980 and 9th June, 1980 and he also complained about non supply of such copies in his representation dated 26th June, 1980 but it was only on 11th July, 1980 that such copies were supplied to him and even then the copies of the tapes were not furnished until 20th July, 1980.
There was thus a delay of more than one month in supply of copies of the documents, statements and other materials to the detenu.
The burden of satisfactorily explaining this delay and showing that there was sufficient cause for it was on the detaining authority and an attempt was made by the detaining authority to discharge this burden by filing an affidavit made by C.R. Mulherkar, Deputy Secretary to the Government of Maharashtra.
It was stated in this affidavit that the letter of the detenu dated 6th June, 1980 requesting for copies of the documents, statements and other materials relied upon in the grounds of detention was received in the Home Department on 10th June, 1980 and on receipt, this letter was forwarded to the Asstt.Collector of Customs for his remarks on 12th June, 1980.
The Assistant Collector of Customs forwarded his remarks to the Deputy Secretary on 24th June, 1980 alongwith one set of copies of documents and statements relied upon in the grounds of detention and these were received by the Deputy Secretary in the Home Department on 27th June 1980.
The next two days, namely 28th and 29th June, 1980 were holidays and on 2nd July 1980 the State Government took a decision to supply these copies to the detenu and they were forwarded to the detenu through the Superintendent of Nasik Road Central Prison alongwith a registered letter dated 3rd July 1980 which, for some inexplicable reason was not received by the Superintendent until 10th July 1980, and hence it was said these copies could not be delivered to the detenu until 11th July 1980.
This was the explanation offered by the detaining authority for the delay in supplying copies of the documents, statements and other materials to the detenu but we do not think this explanation can be accepted by us as satisfactory.
It is clear from the facts narrated above that though the Assistant Collector of Customs received the letter of the detenu forwarded by the Deputy Secretary on 12th June 1980, he did not respond to it until 24th June 1980 and this delay of 12 days has not been satisfactorily explained either in the affidavit of C.R. Mulherkar or in any affidavit filed by the Assistant Collector of Customs.
It was urged before us that the documents and statements of which copies were requested by the detenu ran into 89 pages and it was therefore reasonable to assume that a few days must have been taken in the Customs Department to make copies of these documents and statements and hence the time of 12 days taken up by the Assistant Collector of Customs in sending copies of the documents and statements to the 654 Deputy Secretary could not be said to be unreasonable.
This argument is patently unsound, because the Assistant Collector of Customs ought to have kept ready with him copies of the documents, statements and other materials relied upon in the grounds of detention since it should have been anticipated that these copies would have to be supplied to the detenu in order to enable him to make an effective representation against his detention and it does not lie in the mouth of the Assistant Collector of Customs to say that his department started making copies for the first time when a request for copies was made by the detenu.
In fact, copies of the documents,statements and other materials relied upon in the grounds of detention should have been available with the detaining authority itself so that they could be supplied to the detenu immediately as soon as a request was made in that behalf.
Of course, our view is and that is what we have said in the earlier part of the judgment, that copies of the documents, statements and other materials relied upon in the grounds of detention from part of such grounds and they have to be supplied to the detenu within the time limited under clause (5) of Article 22 and section 3 sub section (3) of COFEPOSA Act, but even if that be not the correct view, there is little doubt that copies of these documents.
statements and other materials should be available with the detaining authority and they should be supplied without unreasonable delay as soon as the detenu makes a request for the same.
The time of 12 days taken up by the Assistant Collector of Customs was therefore unreasonably long for which no explanation at all was forthcoming from the detaining authority.
We must in the circumstances hold that there was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu was accordingly illegal and void and the detenu was entitled to be released forthwith from detention.
It is also necessary to point out that there was unreasonable delay in considering the representations of the detenu dated 9th June 1980 and 26th June 1980.
It is now settled law that on a proper interpretation of clause (5) of Article 22, the detaining authority is under a constitutional obligation to consider the representation of the detenu as early as possible, and if there is unreasonable delay in considering such representation, it would have the effect of invalidating the detention of the detenu.
Vide; V. J. Jain vs Pradhan (1) here in the present case the representation of the detenu dated 9th June 1980 was received by the Deputy Secretary on 14th June 1980 while the representation dated 26th June 1980 was received on 30th June 1980 and yet no decision was taken on these representation of the detenu until 14th 655 July 1980.
The question is whether this delay could be said to have been reasonably explained by the detaining authority.
The representation of the detenu dated 9th June 1980 was received in the Mantralaya on 14th June 1980 but that day and the next day being holidays, it came to the hands of the concerned officer only on 16th June 1980, and a copy of it was forwarded to the Assistant Collector of Customs for his remarks on 23rd June 1980.
It is difficult to see to see why the concerned officer in the Mantralaya should have taken seven days for just forwarding a copy of the representation of the detenu to the Assistant Collector of Customs.
There is no explanation at all for this delay in any of the affidavits filed on behalf of the detaining authority.
The Collector of Customs thereafter forwarded his remarks on 30th June 1980 and here again there was a delay of seven days for which no explanation is forthcoming.
The remarks of the Assistant Collector of Customs were received by the concerned officer on 2nd July 1980 and there after the representation started on its upward journey from the Undersecretary to the Chief Minister.
It appears that by this time the second representation of the detenu dated 26th June 1980 was also received by the State Government and hence this representation was also subjected to the same process as the representation dated 9th June, 1980.
It was only on 11th July 1980 that these two representations dated 9th June 1980 and 26th June 1980 came to be considered by the Under Secretary and he made a noting on the file recommending that the request of the detenu for revocation of the order of detention may be rejected, and this noting was approved by the Deputy Secretary as well as the Secretary on the same day and the Chief Minister endorsed it on 14th July 1980.
It is indeed difficult to see how these two representations of the detenu could be rejected by the detaining authority when the request of the detenu for copies of the tapes was pending and the Secretary to the State Government in fact made a noting on 11th July 1980 that the copies of the tapes must be given to the detenu by the Customs Department.
But even if we take the view that it was not necessary for the detaining authority to wait until after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu, and particularly the representation dated 9th June 1980.
This ground is also in our opinion sufficient to invalidate the continued detention of the detenu.
These were the reasons for which we allowed the writ petition and directed immediate release of the detenu from detention.
We may point out that we have not pronounced upon the validity of the order of detention but merely held the continued detention of the detenu 656 to be illegal on the ground of non compliance with the requirements of clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act, and therefore nothing that is said by us in this judgment should be considered as an expression of opinion on the validity or correctness of the order of detention as made.
We are unable to appreciate as to why the Customs Department has not yet filed a charge sheet against the detenu for prosecuting him in respect of the incidents referred to in the grounds of detention even though more than six months have passed since then.
If the investigation reveals that the detenu was responsible for smuggling or abetting the smuggling of goods in contravention of law, the Customs officers should adopt criminal proceedings against the detenu as quickly as possible and try to bring him to book in the criminal courts.
We hope and trust that there will be no unreasonable delay on the part of the Customs officers in completing the investigation of the cases against the detenu and prosecuting him in the criminal courts if the evidence gathered by them in the course of the investigation justifies such a course.
N.V.K. Petition allowed.

summary/full:
The detenu was taken under detention on 4th June, 1980 by an order of detention dated 27th May, 1980.
The order of detention recited that with a view to preventing him from smuggling goods and abetting the smuggling of goods it was necessary to detain him.
After detention he was also served on the same day, the grounds of detention.
The grounds of detention referred to several documents and statements including two tape recorded conversations.
The detenu addressed a letter dated 6th June, 1980 asking for all statements, documents and material to enable him to make an effective representation against his detention.
The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents etc.
relied upon in the grounds of detention and to furnish the transcripts of the tapes as also to produce the original tapes, so that he could prove that the voice recorded on the tapes was not his.
The detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the State Government praying for revocation of the order of detention, wherein he pointed out that by his letters dated 5th, 9th and 14th June, 1980, he had requested for the tapes to be supplied to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and in the circumstances the hearing of the case before the Advisory Board would be futile.
Meanwhile the Investigating Officer of the Customs Department was deputed to the Central Prison alongwith the tapes, and the tapes were played in the presence of the detenu and the Deputy Superintendent of the Central Prison on 8th July, 1980.
The representations of the detenu were examined by the government, who by their letter dated 15th July, 1980 rejected the representations and declined to revoke the order of detention.
In the writ petition under Article 32 of the Constitution filed by the mother of the detenu it was contended: (1) that the detaining authority did not serve on the detenu alongwith the grounds of detention, copies of the statements, documents and tapes referred to in the grounds of detention and it could not, therefore, be said that the grounds of detention were duly served 641 on the detenu as required by sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution, and (2) that the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not copies of the tapes which were supplied only on 20th July, 1980 and that this delay was wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and consequently the continued detention of the detenu was illegal and void.
Allowing the writ petition.
^ HELD: 1.
There was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of all the relevant documents, and therefore his continued detention was illegal and void.
The detenu was entitled to be released forthwith from detention.
[654 F] 2.
The power of Preventive detention can be justified only in the interest, of public security and order and it is tolerated in a free society only as a necessary evil.
The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the duty of the courts to ensure that his power is exercised strictly in accordance with the requirements of the Constitution and the law, the courts always leaning in favour of upholding personal liberty.
[646 F] 3.
The Constitution has while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.
[646 H] 4.
If the detaining authority wants to preventively detain a smuggler it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be.
[647 B] 5.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention and when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention.
[647 G] Naranjan Singh vs State of Madhya Pradesh AIR 1971 SC 2215, Sheikh Hanif Gudma Majhi & Kamal Saha vs State of West Bengal , Dulal Roy vs The District Magistrate, Burdwan & Ors.
; , Nazamuddin vs The State of West Bengal ; , Mohd. Alam vs State of West Bengal ; , Khudiram Das vs State of West Bengal & Ors. ; , referred to.
On a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) 642 is not satisfied, the continued detention of the detenu would be illegal and void.
[650 H 651B] 7.
The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised.
This would seem to be clear on a fair interpretation of clause (5) of Article 22.
[652 E F] Ramachandra A. Kamat vs Union of India ; referred to.
In the instant case the detenu asked for copies of the documents, statements and other materials relied upon in the grounds of detention by his letters dated 6th June, 1980 and 9th June, 1980 and he also complained about non supply of such copies in his representation dated 26th June, 1980 but it was only on 11th July, 1980 that such copies were supplied to him and even then the copies of the tapes were not furnished until 20th July, 1980.
There was thus a delay of more than one month in supply of these copies, and the burden of satisfactorily explaining this delay and showing that there was sufficient cause for it was on the detaining authority.
The delay of 12 days i.e. from 12th June, 1980 until 24th June, 1980 has not been satisfactorily explained either in the affidavit of the Deputy Secretary to the State Government or in any affidavit filed by the Assistant Collector of Customs.
There was, therefore, an unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements etc.
relied upon in the grounds of detention.
The continued detention of the detenu was accordingly illegal and void and he was entitled to be released forthwith from detention.
[652 H 653B, G; 654 F] 8.
The representation of the detenu dated 9th June, 1980 was received by the Deputy Secretary on 14th June, 1980 while the representation dated 26th June, 1980 was received on 30th June, 1980 and no decision was taken on these representations of the detenu until 14th July, 1980.
There is no explanation at all for this delay in any of the affidavits filed on behalf of the detaining authority.
This is sufficient to invalidate the continued detention of the detenu.
[654 655 C, G] 9.
The Customs Department has not filed a charge sheet against the detenu for prosecuting him in respect of the incidents referred to in the grounds of detention even though more than six months have passed.
There should be no unreasonable delay on the part of the Customs authorities in completing the investigation of the cases against the detenu and prosecuting him in the criminal courts if the evidence gathered by them in the course of the investigation justifies such a course.
[656 B C]


judgement:
N: Criminal Appeal Nos.
282 283 of 1974.
From the Judgment and Order dated 19 4 1973 of the Bombay High Court (Nagpur Bench) Nagpur in Criminal Appeal Nos. 216 and 243 of 1971.
J. L. Nain and M. N. Shroff for the Appellant.
J. C. Batra (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
These two appeals by the State of Maharashtra are directed against a common judgment, dated April 19, 1973, of the High Court of Bombay, Nagpur Bench, Nagpur.
Both will be disposed of by this judgment.
They arise out of these facts: 697 Three persons, namely, Shankar, Sk.
Bannu and Mohamad Nazir were tried for offences punishable under Sections 205, 419, 465, 467 and 471 of the Indian Penal Code, on the basis of a complaint made on August 12, 1978 by Shri R. K. Karandikar, Judicial Magistrate, First Class, Akola, under Section 476 read with Section 195 of the Code of Criminal Procedure.
Bannu, accused 2 was, at the relevant time, serving as a Clerk to an Advocate at Akola.
Mohamad Nazir, accused 3, is the son of Sk.
Bannu.
Accused 1, Shankar, was a milkman residing at Dabki Road, Akola.
On October 25, 1968, in respect of offences under Section 85(1)(2) and (3) of the Bombay Prohibition Act, one Deolal Kishan was arrested.
He was produced before Shri L. G. Deshpande, Judicial Magistrate (First Class), Akola, and was remanded to custody till November 2, 1968.
On November 1, 1968, an application was made before that Court for releasing Deolal Kishan.
Along with that application, an affidavit was filed which purported to have been sworn by one Gulabrao Rupchand Tikar as a surety.
This affidavit was sworn before the Senior Clerk (P.W. 2) and accused 2, Sk.
Bannu is alleged to have identified him as Gulabrao and attested that application for this purpose.
The Senior Clerk accordingly accepted what they stated and he made the necessary endorsement on the affidavit.
Thus, on the basis of that affidavit, Deolal Kishan was released on bail on November 1, 1968.
The Bail Application and the affidavit were scribed by accused 3.
The case against Deolal Kishan was transferred on April 20, 1969 to the Court of Mr. Karandikar, Judicial Magistrate (First Class), Akola, before whom it came up for hearing on May 12, 1969.
On that date, Deolal Kishan did not appear.
Consequently, the Court issued a non bailable warrant against him for his arrest and production.
Notice was also issued to the surety, Gulabrao Rupchand Tikar (P.W.3).
Gulabrao appeared before the Magistrate on.
June 2, 1969 in response to the notice and filed a reply in writing (exhibit 25/A) contending that he had never stood as surety for the accused Deolal Kishan; and that he did not make any affidavit, nor did he sign the application or the affidavit or the bail bond.
According to him, he was literate and could sign his name, while the application and the affidavit, in question, bore thumb impressions of the surety.
Gulabrao denied that he swore any affidavit for standing surety of Deolal Kishan.
Thereupon, the Magistrate recorded the statement of Gulabrao and initiated an inquiry.
He called Mohd. 698 Nazir, accused 3, the scribe of the bail application, and recorded his statement.
He also called accused 2, Sk.
Bannu, and directed him to produce the real surety on June 10, 1969 as the Magistrate was satisfied on the inquiry made by him that the person named in the bail application as the surety was not the real surety.
On November 9, accused 3, Mohd. Nazir, made an application to the Magistrate on behalf of his father, accused 2, that the real name of the surety was Shankar Kishan Kawitkar.
Thereupon, the Magistrate, on June 10, 1969, issued summons to accused 1, Shankar Kishan Kawitkar.
The latter appeared in response to the summons on June 17, 1969.
The Magistrate recorded his statement (exhibit 29), in which he admitted that the bail application and the affidavit had been thumb marked by him at the instance of accused 2, and that he had no knowledge about the contents of the application and the affidavit.
On the preceding facts, the Magistrate made a complaint to the Judicial Magistrate (First Class), Akola, for prosecution of the three accused persons in respect of the aforesaid offences.
The complaint came up before Shri P. N. Panchawadkar, Judicial Magistrate, who after holding an inquiry under Section 207A of the Code of Criminal Procedure, recorded the evidence of the material witnesses and finding that there was a prima facie case against all the accused.
Accordingly, he committed them for trial to the Court of Session.
The case came up for trial before the Additional Sessions Judge, who, after recording the prosecution evidence, came to the conclusion that there was no case against accused 3 and acquitted him.
He found that accused 1, Shankar was guilty of an offence under Section 205 of the Indian Penal Code and convicted him under that Section and sentenced him to suffer rigorous imprisonment for three years and a fine of Rs. 1,000, or, in default of payment of fine, to six months further rigorous imprisonment.
Accused 1 was further convicted in respect of offences under Sections 419,465 and 471, Penal Code, and was sentenced to two years ' rigorous imprisonment on each count, with a direction that the sentences on all the counts, would run concurrently.
Accused 2, Sk.
Bannu was convicted under Section 205 read with Section 109 of the Indian Penal Code and sentenced to three years ' rigorous imprisonment and a fine of Rs. 1,000, or, in default, to suffer six month 's further rigorous imprisonment.
He was further found guilty of the offences under Sections 419, 465 and 471 all read with Section 109, Penal Code, and sentenced to two years ' rigorous imprisonment on each count, with a direction that the sentences would run concurrently.
699 Against the judgment of the learned Additional Sessions Judge, Shankar and Sk.
Bannu preferred an appeal before the High Court.
The High Court held that the proceedings before Shri Karandikar are not the same proceedings or continuation of the same proceeding which was before Shri L. G. Deshpande, the previous court, in which or in relation to which the offence is said to have been committed within the meaning of Section 476 read with Section 195, Criminal Procedure Code; that the investigation stage is quite a distinct proceeding than the one which came to be transferred on the file of Shri Karandikar, it being a regular trial.
In this view of the matter, the High Court concluded: "We are of the view that such a complaint could have only been made by Mr. L. G. Deshpande who had released the accused on bail prior to the initiation of the case or his successor in office in that Court.
So far as these proceedings in which the accused were released on bail by Mr. L. G. Deshpande are concerned, Mr. Karandikar cannot be said to be the successor in office of Mr. L. G. Deshpande.
" On this reasoning, the High Court held that the complete proceedings before the Committing Magistrate were without jurisdiction, and by a writ quashed the same.
In the result, the appeals of Shankar and Sk.
Bannu were allowed and their convictions were set aside.
The High Court, however, granted a certificate under Article 134 of the Constitution that the case was fit for appeal to this Court.
The question that falls for consideration in this case is, whether Shri Karandikar, Judicial Magistrate who made the complaint for prosecution of the accused in respect of offences under Sections 205, 419, 465, 467 and 471, Penal Code, was competent to initiate the proceedings within the meaning of Section 195 read with Section 476 of the Code of Criminal Procedure, 1898.
The relevant provisions of that Code are as under: "section 195 (1) No Court shall take cognizance (a). . . . . . (b) of any offence punishable under any of the following sections of the same Code, namely, Ss. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or 700 (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877.
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided (a) where appeals lie to more than one Court, the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
" The material part of Section 476 of the Code of 1898 is as follows: "section 476.
Procedure in cases mentioned in Section 195. (1) When any Civil, Revenue or Criminal Court, is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, sub section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the First Class having jurisdiction. . . " 701 Section 476A gives powers to the superior court to complain when the subordinate court has omitted to do so.
It may be noted that an offence under Section 205, Penal Code, as in the present case, will fall within the ambit of clause (b) and an offence under Section 471, Penal Code will fall under clause (c) of sub section (1) of Section 195.
The words "in or in relation to" which occur in clause (b) are not repeated in clause (c).
But these words occur in Section 476 both with reference to clause (b) and clause (c) of Section 195(1).
The interpretation of these words is not res integra.
There was a conflict of judicial opinion in regard to the meaning and ambit of these words.
One line of decisions took the view that the words "in relation to" are vide enough to cover a proceeding in contemplation though it may not have begun at the date of the commission of the offence, but was subsequently instituted in court.
This view is no longer good law in view of the pronouncement of this Court in M. L. Sethi vs R. P. Kapur.
That case related to the commission of an offence under Section 211, Indian Penal Code.
The question was whether the expression "in or in relation to", according to clause (b) of sub section (1) of Section 195 is applicable to cases where there can even in future be a proceeding in any court in relation to which the offence under Section 211, Indian Penal Code may be alleged to have been committed.
The Court answered this question in the negative, with these observations: "When examining the question whether there is any proceeding in any court there are three situations that can be envisaged.
One is that there may be no proceeding in any court at all.
The second is that a proceeding in a court may actually be pending at the point of time when cognizance is sought to be taken of the offence under section 211, I.P.C. The third is that, though there may be no proceeding pending in any court in which or in relation to which the offence under section 211, I.P.C. could have been committed, there may have been a proceeding which had already concluded and the offence under section 211 may be alleged to have been committed in, or in relation to, that proceeding.
It seems to us that in both the latter two circumstances envisaged above, the bar to taking cognizance under s.195(1) (b) would come into operation." Now, thus, the settled position is that the bar in Section 195(1)(b) does not apply if there is no proceeding in any court at all when the offence mentioned in the aforesaid clause (1) has been 702 committed.
In other words, the Section contemplates only the proceedings pending or concluded and not in contemplation.
In the instant case, it is common ground that the forged bail bond and the false affidavit were presented in the court of Shri Deshpande, Magistrate in bail proceedings.
Shri Deshpande, it is not disputed before us, had also the jurisdiction to try the case which was then under investigation with the police.
While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a 'court ', the proceedings in the bail application being judicial proceedings.
This position has been clarified recently by this Court in Kamalapati Trivedi vs State of West Bengal.
It was held by this Court (per majority) that while deciding the question of bail, the Magistrate cannot but be regarded as a Court acting judicially, notwithstanding the fact that an offence of the accused is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate.
It was added that the taking cognizance of any offence by a Magistrate under Section 190 is not a condition precedent for him to be regarded as a Court.
It was further explained that an order of bail passed by a Magistrate, also, decides the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in the discharge of his judicial duties which factor constitutes it an act of a Court.
It was further observed: ". all orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub section (3) of section 183 of the Code discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial, or earlier according to the exigencies of the situation obtaining at a particular stage, and which involves, if need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof.
They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part." Considered in the light of the above enunciation in Kamalapati Trivedi 's case, the bail proceedings before the Court of the Magistrate, Shri Deshpande could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process the second stage of which commenced on presentation of the challan by the Police in the Court of the Magistrate for an enquiry or trial of the 703 accused person to whom the bail had been granted.
Indeed, the surety bond, which is alleged to have been forged in the name of Gulabrao Roopchand Tikar, in terms, was intended to be used for procuring the attendance of the accuses, by the Court before whom the chargesheet under Section 173, Cr.
P.C. might be presented by the Police for inquiry or trial.
The material part of the surety bond dated November 1, 1968, rendered into English, reads as under: "I undertake that the said Deolal Kishan, Maratha, shall be present before the Court of the Judicial Magistrate.
First Class, Akola, or,. before any other Magistrate conducting the preliminary inquiry . . .to answer the charges, and on his failure to do so, I do hereby bind myself to pay the sum of Rs. 500/ to the Government by way of fine.
" Under the terms of the Personal Bond, accompanying the surety bond, also, the executant had undertaken to appear before the Judicial Magistrate, First Class, Akola or before any other Magistrate who would hold an inquiry into or trial of charges framed against him.
In other words, the very terms of these bail bonds show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the Magistrate commencing with the presentation of a charge sheet under Section 173, Cr.
P.C. against the accused.
This being the real position, the bail proceedings before Shri Deshpande, and the subsequent proceedings before Shri Karandikar commencing with the presentation of the challan by the Police for the prosecution of Deolal Kishan, could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process.
Neither the time lag between the order of bail and the challan, nor the fact that on presentation of the challan, the case was not marked to Shri Deshpande but was transferred under Section 192 of the Code, to Shri Karandikar, would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole.
Indeed, the commission of the offences under Sections 205, 419, 465, 467 and 471, Penal Code, came to light only when Shri Karandikar, on the basis of the forged surety bond in question, attempted to procure the attendance of the accused.
If the earlier proceedings before Shri Deshpande and the subsequent proceedings before Shri Karandikar were stages in or parts of the one and the same process as we hold they were then it logically follows that the aforesaid offences could be said to have been committed "in or in relation to" the proceedings in the Court of Shri Karandikar, also, for the purpose of taking action under Section 476 of the Code.
704 In Behari Lal vs Sheikh Abdul Qadir Hamyari, it was held by the High Court of Lahore that if a case or proceeding in which the offence is committed has been before various courts, all the courts have the jurisdiction to complain, but normally, the court which finally tried the case would be the proper court to make a complaint.
The Calcutta High Court in Bhiku 's case, held that if a false complaint made to a Magistrate is transferred under Section 192 of the Code of Criminal Procedure to another Magistrate, the latter who had seisin of the case, can make a complaint.
In Maromma & Ors.
vs Emperor, it was held by the High Court of Madras that a false statement made during police investigation before a Magistrate and recorded by him under Section 164, Cr.
P.C. regarding an offence of murder, which is triable only by a Sessions Court, must be held to be "in relation to" the trial in that Court and a complaint can be made for the prosecution of the persons giving that false statement for an offence under Section 193, Penal Code, by the Sessions Court.
Similarly, in Athi Ambalayaran & Ors.
vs Emperor, a Division Bench (consisting of Waller & Pandalai JJ.) held that a statement made by a witness at the preliminary enquiry leading up to the trial in the Sessions Court is to be regarded as having been "in relation to" the subsequent proceedings in the Sessions Court.
Consequently, the Sessions Judge has jurisdiction to direct prosecution of the person making that false statement even if he finds that the statement made before the Committal Court of the Magistrate, was false.
The rationale behind these decisions is that if the two proceedings, one in which the offence is committed and the other, the final proceedings, in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to whom the case was subsequently transferred or which finally tried the case.
By the same token, the offences under Sections 205 and 471, Penal Code, in the present case can be viewed as having been committed "in relation to" the proceedings before the Court of Shri Karandikar to whom the case was transferred for disposal.
Thus considered, Shri Karandikar was competent to make a complaint in respect of the aforesaid offences, after conducting a preliminary inquiry under Section 476, Cr.
P.C. 705 Before concluding, we think it necessary to notice and distinguish the decision of this Court in Nirmaljit Singh Hoon vs The State of West Bengal & Ors.
In that case, the complaint was filed before the Chief Presidency Magistrate in respect of a cognizable offence of criminal breach of trust and cheating.
The Magistrate without taking cognizance of the case, sent that complaint under Section 156(3) of the Code to the police for investigation.
During that investigation or inquiry by the police, the alleged forged receipt was produced by the accused.
It was held that it could not be argued that this forged document was produced in a proceeding before the Court of Chief Presidency Magistrate, although the forged document formed part of the record of the case which part of the record of the case which went to the Chief Presidency Magistrate together with the report of the police.
The reason for so holding was that investigation ordered by a Magistrate under Section 156(3) is an investigation made by a police officer in his statutory right under sub sections (1) and (2).
Moreover, the Magistrate sending such a complaint for investigation under Section 156(3) cannot be said to have taken cognizance of the offence, and no proceeding could be said to have been commenced before him, of which the inquiry by the police could be said to be part and parcel.
Further, it cannot be said that the police officer acting under Section 156(3) was a delegate of Chief Presidency Magistrate or that the investigation by him was an investigation by or on behalf of the Magistrate.
On these premises, the Court held that the production of the forged receipt in the course of such an investigation was not production in a proceeding before the Chief Presidency Magistrate, so as to attract the ban under Section 195(1)(c).
In the instant case, it cannot be disputed that the bail proceedings before Shri Deshpande were judicial proceedings before a court, although such proceedings took place at a stage when the offence against the accused, who was bailed out, was under police investigation.
Thus, the facts in Nirmaljit Singh 's case were materially different.
The ratio of that decision, therefore, has no application to the case before us.
For all the foregoing reasons, we are unable to agree with the High Court that the bail proceedings before Shri Deshpande were "distinct and different" from those which were initiated on police challan in the Court of Shri Karandikar and, therefore, the latter was not competent to hold a preliminary inquiry under Section 476, 706 Cr.
P.C. and/or to make a complaint for prosecution of the respondents, herein, in respect of the offences under Sections 205, 419, 465, 467 and 471, Penal Code.
We, therefore, allow this appeal set aside the impugned judgment and send the case back to the High Court with the direction that it should restore the appeals of Sk.
Bannu and Shankar to their original numbers and after hearing the parties, decide the same afresh on merits, according to law.
P.B.R. Appeals allowed.

dataset_name: IN-Abs

summary/full:
Section 195(1)(b) of the Code of Criminal Procedure, 1898 provides that no Court shall take cognizance of any offence punishable under section 205 (among others) I.P.C. when such offence is alleged to have been committed in or in relation to any proceedings in any Court, except on the complaint in writing of such Court.
Clause (c) of this sub section provides that no Court shall take cognizance of any offence described in, among others, section 471 when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced except on the complaint in writing of such Court.
Section 476 Cr.
P.C. provides that when any Criminal Court is, whether on application made to it or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195(1)(b) and (c) which appears to have been committed in or in relation to a proceeding in that court such court may make a complaint thereof and forward the same to a Magistrate First Class.
The prosecution alleged that in an application for release of a person arrested under the Bombay Prohibition Act on bail accused No. 2 identified the surety and that he attested the bail application.
Accused No. 3 was the scribe of the bail application and the affidavit accompanying it.
The Magistrate ordered his release on bail.
The case was transferred to another judicial magistrate who, when the accused failed to appear before him on the date of hearing, issued notice to the surety.
The person to whom the notice was issued (the purported surety) appeared before the Magistrate and stated that he had never stood surety in the case, nor had he ever made an affidavit nor signed any papers in this regard and being a literate person there was no question of putting his thumb impression on the affidavit and bail bond.
Accused No. 1 who was later named by accused No. 2 as the real surety admitted before the trial Magistrate that the bail application and the affidavit had been thumb marked by him at the instance of accused No. 2 and that he had no knowledge about the contents either of the application or of the affidavit.
The Magistrate made a complaint to the judicial Magistrate, First Class for prosecution of the three accused for the offences under sections 205, 419, 465, 467 and 471 IPC.
On finding that there was a prima facie case against all the accused the Magistrate committed them for trial.
695 The Additional Sessions Judge acquitted accused No. 3 but found accused No. 1 guilty of offence under sections 205, 419, 465 and 471 I.P.C. and accused No. 2 for offences under section 205 read with sections 109, 419, 465 and 471 read with section 109 I.P.C. and sentenced them variously.
On appeal by accused nos.
2 and 3 the High Court held that the proceedings before the transferee Magistrate were not the same proceedings or continuation of the same proceedings which were before the previous court in which or in relation to which the offence was committed within the meaning of section 476 read with section 195, Cr.
P.C. and that such a complaint could have been made only by the magistrate who released the accused on bail prior to the initiation of the case or his successor in office in that court but since the transferee Magistrate was not the successor in office of the Magistrate granting the bail, the proceedings before the committing Magistrate were without jurisdiction.
Allowing the appeals, ^ HELD : 1.
The High Court was not right in holding that the bail proceedings before the 'first ' Magistrate were "distinct and different" from those initiated on police challan before the transferee Court and that, therefore, the latter was not competent to hold a preliminary inquiry under section 476 Cr.
P.C. and/or to make a complaint for persecution of the respondents in respect of offences under sections 205, 419, 465, 467 and 471 IPC.
[706A C] 2.
An offence under section 205 I.P.C. will fall within the ambit of clause (b) and an offence under section 471 IPC, will fall under clause (c) of section 195(1).
The words "in or in relation to" occurring in clause (b) are not repeated in clause (c).
But these words occur in section 476 both with reference to clause (b) and clause (c) of section 195(1).
[701B].
The settled position on the interpretation of these provisions is that the bar in section 195(1)(b) does not apply if there is no proceeding in any court at all when the offence mentioned in section 195(1) had been committed.
In other words, the section contemplates only proceedings pending or concluded and not in contemplation.
[701H].
In the instant case, the forged bail bond and the false affidavit were presented in bail proceedings before the 'first ' Magistrate.
That Magistrate had jurisdiction to try the case which was then under investigation.
While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a court, the proceedings in the bail application being judicial proceedings.
[702B].
Kamalapati Trivedi vs State of West Bengal ; relied on.
The bail proceedings before the 'first ' Court could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process, the second stage of which commenced on presentation of the challan by the police in the court of the magistrate for an enquiry or trial of the accused person to whom the bail had been granted.
[702G].
The very terms of the bail bond in the instant case show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the magistrate commencing with the presentation of a charge sheet under section 173 Cr.
P.C. against the accused.
This being the real position, the bail proceedings before the 'first ' magistrate and the subsequent proceedings before 696 the transferee magistrate commencing with the presentation of the challan by the police for the prosecution of the accused in the prohibition case could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process.
Neither the time lag between the order of bail and the challan, nor the fact that on presentation of the challan, the case was not marked to the 'first ' Magistrate but was transferred under section 192 of the Code to the transferee magistrate, would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole.
If the earlier proceedings before the 'first ' court and the subsequent proceedings before the transferee court were stages in or parts of the one and the same process, then it logically follows that the aforesaid offences could be said to have been committed "in or in relation to" the proceedings in the Court of the transferee Magistrate also, for the purpose of taking action under section 476 of the Code.
[703D H].
The rationale behind decided cases is that if the two proceedings, one in which the offence was committed and the other, the final proceedings in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to which the case was subsequently transferred or which finally tried the case.
By the same token, the offences under sections 205 and 471 Penal Code in the present case can be viewed as having been committed "in relation to" the proceedings before the court of transferee magistrate to whom the case was transferred for disposal.
Therefore, the transferee magistrate was competent to make a complaint in respect of the offences, after conducting a preliminary inquiry under section 476, Cr.
P.C. [704F H].
In the instant case, it cannot be disputed that the bail proceedings before the 'first ' magistrate were judicial proceedings before a court, although such proceedings took place at a stage when the offence against the accused, who was bailed out, was under police investigation.
[705G].
Nirmaljit Singh Hoon vs The State of West Bengal & Ors., ; distinguished.