judgement:
Appeal No. 146 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 17th day of December, 1952, of the High Court of Judicature at Madras in Referred Case No. 45 of 1952 arising out of the Report dated the 27th day of March, 1951, of the Court of District Judge, Krishna in C.M.P. No. 123 of 1951.
section P. Sinha, (K. R. Chaudhary and Sardar Bahadur, with him), for the appellant.
R. Ganapathy Iyer and P, G. Gokhale, for respondent No. 1.
1056 T. Satyanarayana and P. G. Gokhale, for respondent No. 3. 1954.
December 3.
The Judgment of the Court was delivered by DAS J.
This is an appeal by special leave from an order made by a Special Bench of the High Court of Judicature at Madras under section 12 of the (Act XXXVIII of 1926) debarring the appellant from practising as an advocate for a period of five years.
The material facts are these.
The appellant before us is an advocate ordinarily practising at Masaulipatam.
In Calendar Case No. I of 1949 on the file of the Additional First Class Magistrate 's Court at Masaulipatam nine persons were charged with the offence of conveying rice from the village to other villages without permits.
Accused Nos. 2 and 4 were not represented by any advocate.
Accused Nos. 1, 3, 5, 6 and 8, all cart men, were defended by the appellant.
Accused No. 7, who initiated the proceedings out of which the present appeal arises and who is hereinafter referred to as "the petitioner", was defended by another advocate.
The case was disposed of on the 30th September, 1949.
Accused Nos. 1, 3, 5 and 6 were acquitted.
Accused No. 2 was convicted and sentenced to a fine of Rs. 20 and in default of payment of fine to undergo simple imprisonment for one month.
Accused No. 4 and the petitioner, accused No. 7, were also convicted and sentenced to pay a fine of Rs. 300/ each and in default of payment of fine to undergo simple imprisonment for six months.
Accused No. 8 was sentenced to pay a fine of Rs. 100/ and in default of payment of the fine, to simple imprisonment for three months.
Accused No. 2 paid the fine but the other three convicted persons did not.
The four convicted persons including the petitioner thereafter engaged the appellant to prefer an appeal to the Sessions Court.
The appeal was presented before the Sessions Court on the 8th October, 1949 and on the same day a petition was filed on behalf of accused Nos. 4, 7 (petitioner) and 8 for an order staying the 1057 realisation of the fine.
That application for stay came up before the learned Sessions Judge on the 10th October, 1949 when notice was directed to issue to the Public Prosecutor.
On the 11th October, 1949 the learned Judge passed the following order: "Suspended pending disposal of this petition.
Call on 14. 10".
On the 14th October, 1949 the following further order was passed: "Execution of sentences suspended till disposal of appeal".
The appeal was posted for hearing on the 25th November, 1949 and was adjourned from time to time.
Eventually, it was finally heard on the 13th July, 1950 when the appeal was allowed and the conviction and sentences of all the appellants were set aside.
On the 25th January, 1951 the petitioner caused a registered notice (exhibit A/2) to be sent to the appellant alleging that on the 11th October, 1949 the appellant had represented to him that the Court had refused to suspend the sentences and that unless the amount of fine was deposited the petitioner would be sent to jail.
It was further alleged that on such representation the petitioner had on that day paid to the appellant a sum of Rs. 300 for which the appellant had passed to the petitioner a chit (exhibit A/1) under his own signature acknowledging receipt of the said sum.
The chit (exhibit A/1) which is addressed to the petitioner runs as follows: "This day, you have paid to me a sum of Rs. 300 (three hundred rupees only)".
It is signed by the appellant and below his signature appears the date 11th October 1949 and the time 5 15 P.m. is also mentioned below the signature.
The allegation in the registered notice further was that the appellant had concealed from the petitioner the fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the appeal had eventually been allowed.
The notice ended with a threat that if the appellant failed to return the sum of Rs. 300 together with interest at 12 per cent.
per annum from the 11th October 1949 up to date of 1058 payment the petitioner would be constrained, in addition to such other proceedings as he may be advised to take for recovery of the said amount, to complain against the appellant and his unprofessional conduct to the High Court and the Bar Council.
This notice was received by the appellant on the 12th February 1951 and on the next day, 13th February 1951, the appellant issued three registered notices Exs.
A/3, A/4 and A/5 to the petitioner.
In exhibit A/5 the appellant complained that the petitioner had been evading payment of the agreed fee of Rs. 150 and on firm demand having been made by the appellant on the 21st January 1951 for payment of such fee before the 25th January 1951 the petitioner had issued the registered notice exhibit A/2.
In exhibit A/4 the appellant alleged that the petitioner instructed the appellant to file a stay petition as the petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware.
In those circumstances the allegations contained in the petitioner 's notice exhibit A/2 were false and highly defamatory.
He further alleged that the petitioner was also present in Court on the 13th July 1950 when the appeal was allowed.
In the circumstances, there was no need for the petitioner to pay any money to the appellant for the purpose of paying the fine.
The appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately.
In exhibit A/3 the appellant stated that the petitioner had come to him on the 6th October 1949 to engage him as his advocate for filing an appeal.
Seeing that the appellant was then pressed for money for payment of an installment of a loan No. 616 to the Land Mortgage Bank, Pedana, the petitioner volunteered to arrange for a loan of Rs. 300 for the appellant at Pedana and asked him to give a chit in his favour and to send the appellant 's clerk with the petitioner.
The petitioner did not, however, succeed in arranging for any money but the chit exhibit A/I remained with him.
There was a denial that there was any consideration for the chit exhibit A/I. On the 7th March 1951 the petitioner sent a reply generally 1059 denying the allegations contained in the three several notices sent by the appellant to the petitioner.
That reply was received by the appellant on the 13th March 1951 and on the 14th March 1951 the appellant issued a further rejoinder exhibit A/7 denying the allegations in the petitioner 's reply and stating that the statements in his three notices were true.
It was further alleged that when the petitioner failed to sup ply the amount mentioned in the chit exhibit A/I the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saving the petitioner gave the appellant on the 16th October 1949.a hand letter (exhibit D/8) admitting that the petitioner was unable to supply the amount of Rs. 300 mentioned in the said chit as promised.
The petitioner did not send any reply to this letter in spite of the fact that the appellant had therein referred to a hand letter (exhibit D/8) dated the 16th October 1949 which totally nullified the value of the chit exhibit A/I. The petitioner then on the 27th March 1951 sent a petition to the High Court making a complaint against the appellant of professional misconduct and praying that the Hon 'ble High Court might be pleased to order an enquiry into the allegations made in his complaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case.
Along with the petition were submitted a photograph of the chit exhibit A/I and copies of the registered correspondence that passed between the petitioner and the appellant.
Even in this petition the petitioner did not refer to the band letter (exhibit D/8) of the 16th October 1949 and did not specifically deny having written the same.
Upon the presentation of the petition the appellant submitted a written explanation before the High Court.
The High Court,, under section 10 of the , referred the matter to the District Judge to enquire into the allegations made in the petition and to submit A report.
The District Judge issued a notice to the appellant setting forth the following charges: 136 1060 "1.
That you have suppressed fraudulently the order of the Additional Sessions Judge, Krishna at Masaulipatam, suspending payment of fine of Rs. 300 and made in Crl.
M. P. No. 180 of 1949 in C. A. No. 82 of 1949 preferred against the conviction and sentence passed by the Additional First Class Magistrate, Bandar, in C.C. No. 1 of 1949, on his file, against the petitioner, who is the seventh accused therein; 2.
That you, having fraudulently suppressed the above stated fact, have represented to the petitioner that the amount of fine of Rs. 300 had to be deposited into Court on pain of the petitioner being sent to jail and received the said sum of Rs. 300 from him and passed a receipt in his favour for the same; 3.
That you, even though the above said C.A. No. 82 of 1949 on the file of the Additional Sessions Judge, Krishna at Masaulipatam was allowed by the judgment dated 13 7 1950, having all knowledge about it did not inform the petitioner that the said C.A. No. 82 of 1949 was disposed of, and later on informed him that it was dismissed, and the conviction and sentence were confirmed; 4.
That you, therefore, wrongfully withheld the amount of Rs. 300 belonging to the petitioner without depositing into Court as represented by you and also without refunding it to the petitioner even after the said appeal was allowed in spite of repeated requests and demands made by him, and 5.
That you have falsely set up a plea of not having received the said sum of Rs.300 from the petitioner, for which you have passed a receipt in his favour, and later on set up that you wanted to borrow the said amount from him during the subsistence of the relationship of advocate and client, which (borrowing from a client) itself is prohibited by law".
The petitioner examined himself (P.W.1) and his brother Potharaju (P.W.2) as his witnesses in support of the allegations in the petition.
The appellant examined himself (R. W. 1) and his clerk D. Venkatarangam (R.W.2), Kameswararao, the secretary of the Vadlamannadu Co operative Land Mortgage Bank at 1061 Pedana (R.W.3) and Venktadri, clerk of an advocate (R.W.4) in support of his defence.
On a consideration of the entire evidence the learned District Judge found that the testimony of the petitioner and his brother was not credible and acceptable and that there was no reason to reject the testimony of the appellant and his clerk and other witnesses and he came to the conclusion that it bad not been satisfactorily proved that the appellant was guilty of any of the charges framed against him.
The District Judge sent a report accordingly.
The matter was placed before a Special Bench of the Madras High Court.
The Special Bench had no hesitation in agreeing with the findings of the learned District Judge on charges 1, 2 and 3.
In their opinion much reliance could not be placed on the veracity of the complainant himself The High Court, in agreement with the learned District Judge, held that the appellant was not guilty of the first three charges.
Coming to the last two charges the learned Judges were struck by several facts, namely, (i) the passing of two receipts for two sums of money each of Rs. 300 which were identical with the amount of fine imposed on each of the accused Nos. 4 and 7 (petitioner) and (ii) the date of payment, namely, the 11th October 1949 on which date the petitioner and the fourth accused had to deposit the fine.
The learned Judges were strongly impressed with the fact that the chit exhibit A/I had been allowed to remain with the petitioner.
The High Court also noted that if the arrange ment was that the appellants clerk would pass a formal stamped receipt after getting the money there was no necessity to issue an informal receipt in favour of the petitioner in advance.
The learned Judges further pointed out that in none of the three notices dated the 13th February 1951 any reference had been made by the appellant to the hand letter (exhibit D/8) 'dated the 16th October 1949.
The High Court concluded that the failure to mention this hand letter in the earliest reply by the appellant cast considerable doubt on the genuineness of the document and consequently the Court could not act on the basis that it 1062 contained a true statement of facts admitted by the petitioner.
The High Court also referred to several other minor points suggesting the improbability of the appellant 's story.
The High Court held that the appellant had received a sum of Rs. 300 from the petitioner on the 11th October 1949 as acknowledged by the appellant in the chit exhibit A/ 1.
The High Court accordingly held that charges Nos. 4 and 5 had been proved against the appellant and passed orders against the appellant debarring him from practicing as an advocate for five years.
The appellant has now preferred this appeal after having obtained special leave from this Court.
We have been taken through the evidence by learned advocates appearing on both sides.
It appears to us that while there are some facts which cast some doubt on the version of the appellant there are other material facts completely overlooked by the High Court which nevertheless have a material bearing on the truthfulness or falsity of the complainant 's story.
It is true that the appellant did not refer to the hand letter (exhibit D/8) in his replies Exs.
A/3, A/4 and A/5 to the petitioner 's letter exhibit A/2, but the appellant did refer to it in his rejoinder exhibit A/7 of the 14th March 1951.
It is significant that the petitioner did not send any reply to this last rejoinder and deny the allegations definitely made by the appellant.
It is further significant that the petitioner did not deny the genuineness of the band letter exhibit D/8 even in his petition.
In his evidence the petitioner admits the signature on the hand letter to be his own but states that it must have been made out by the appellant on a blank paper on which he had induced the petitioner to put his signature on the representation that the same would be used as a Vakalatnama.
It is very difficult to accept this story because the petitioner knew from his experience as an accused in the trial Court that no Vakalatnama was required in a criminal case.
Nor has any of the other appellants been produced as a witness to say that any such signature was taken from any of them on blank paper.
Further, the petitioner was present in Court on the 11th October when 1063 the interim stay order was made.
exhibit A/1 bears the hour 5 15 P.m. below the signature of the appellant which shows that chit came into existence after court hours.
It is utterly impossible to believe that the petitioner would deposit Rs. 300 with his new advocate in spite of the fact that in the earlier part of the day the interim order for stay had been made.
It is also significant that accused No. 4 who is also alleged to have paid Rs. 300 to the appellant for a similar purpose has not been called as a witness to corroborate the evidence of the petitioner and his brother.
The question of the ability of the petitioner to advance Rs. 300 is one of great importance in this case.
The petitioner is not a man of means.
He alleged that he had raised the sum of Rs. 300 by selling some miscellaneous gold.
No goldsmith or shrove was called to produce his books and give evidence in corroboration of the petitioner and his brother.
Indeed, the petitioner could not even mention the name of any shroff to whom he is supposed to have sold his gold.
The High Court completely overlooked this aspect of the matter and in the absence of satisfactory evidence showing that the petitioner was in a position to pay the sum of Rs. 300 it will be extremely risky to hold that the fact of payment of Rs. 300 by the petitioner to the appellant has been proved only because there are some weaknesses in the appellant 's story.
The appellant 's story that he required Rs. 600 to be paid to the Land Mortgage Bank is supported by the secretary of the Land Mortgage Bank (R.W. 3) who stated that the appellant bad informed him that he had raised Rs. 300 only and that a person who had promised to arrange for a loan of Rs. 300 had failed to do so and that the appellant had asked his advice as to what he was to do.
The secretary then told the appellant that as he had made an excess payment in 1948 towards and on account of the principal it would be enough if he paid the amount of Rs. 377/9/ which the appellant bad.
It is significant that the Bank 's records show that the appellant had paid only Rs. 377/9/ into the Bank on the 4th November, 1949.
If the petitioner had paid 1064 Rs. 300 to the appellant there would have been no reason why the appellant should not have paid the entire Rs. 600 towards his liability to the Bank.
The learned District Judge who had the advantage of seeing the witnesses and hearing the evidence disbelieved the evidence of the petitioner and his brother and we see no compelling reason to take a different view of it.
On the facts and circumstances of this case we think that charges 4 and 5 have not been brought home to the appellant or, at any rate, the appellant is entitled to the benefit of the doubt.
In the circumstances, we hold that the order passed by the High Court should be reversed and we direct that the complaint against the appellant do stand dismissed as not proved.
Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappropriate for the appellant to have made the Honourable Judges of the Madras High Court respondents to this appeal.
It appears that in some cases involving contempt of Court the Honourable Judges have been made parties.
It is not necessary for us to express any opinion on this occasion as to the propriety of that procedure in contempt cases but we are clearly of the opinion that in an appeal arising out of a proceeding under the Bar Councils Act the appropriate parties should be the advocate concerned, the complainant, if any, the Bar Council or the secretary thereof and the Advocate General of the State concerned to whom notices have to be issued under section 12(3) of the .
Appeal allowed.

summary/full:
It is wrong and inappropriate to implead the Judges of the High Court as respondents in an appeal preferred to the Supreme Court by an Advocate against whom an order of suspension was passed by the High Court under section 12 of the .
In such appeal the proper respondents are the complainant if any, the Bar Council or Secretary thereof and the Advocato General of the State concerned


judgement:
minal Appeal No. 101 of 1972.
Appeal by special leave from the Judgment and order dated the 25th February, 1972 of the Rajasthan High Court at Jodhpur in section B. Criminal Revision No. 52 of 1972.
B. D. Sharma, section K. Bagga, section Bagga, Rani Arora and Yash Bagga, for the appellant.
section M. Jain, for respondent No. 1.
section N. Prasad, for respondent No. 2.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The appellant filed a complaint against the 2nd respondent before the Add.
Munsiff Magistrate of Jodhpur City under sections 323 and 504 I.P.C.
The 2nd respondent was the Post Master General, Rajasthan and the appellant a clerk in the Head Post Office 560 at Jodhpur.
He was also the, Divisional Secretary of National Union of Postal Employees.
The relevant portion of the complaint is as follows "4, That the accused came on tour to Jodhpur on 25 10 1971.
He arrived at the Head Post Office Jodhpur, in connection with the inspection at 5.45 P.M.
The complainant reached to submit his representation to the accused for cancelling his transfer, when.
the accused just sat in his jeep and the complainant started narrating his story '.
That the accused being enraged by this complaint, kicked him in his abdomen and abused him by saying "Sale, Goonda, Badmash, on one hand you are complaining and on the other hand you are requesting for the cancellation of transfer.
That the complainant became very much enraged over this incident but he suppressed his anger because of being responsible citizen and to avoid any further disturbance.
That after kicking and abusing the complainant the accused ran away in his jeep.
" The 2nd respondent filed an application under section 197 of the Code of Criminal Procedure praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged, if at all done by the accused, were done while discharging his duties as a public servant.
The Munsiff Magistrate dismissed the application but Justice Mehta of the Rajasthan High Court allowed the revision petition filed by the 2nd respondent and set aside the order of the lower court holding that the 2nd respondent could not be prosecuted unless prior sanction of the Central Government had been obtained.
This appeal is against that order.
The law regarding the circumstances under which sanction under s.197 of the Code of Criminal Procedure is necessary is by now well settled as result of the decisions from Hori Ram Singh 's(1) case to the latest decision of this Court in Bhagwan Prasad Srivastava vs N. P. Misra.
(2) While the law is well settled the difficulty really arises in applying the law to the facts of any particular case.
The intention behind the section is to prevent public servants from being unnecessarily harassed.
The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention.
Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned.
Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty.
The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty.
The test appears to be not that the offence is capable of being committed only, by a (2) [1971] (1) section C. R. 317.
(1) 561 public servant and not anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty.
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 need the act constituting the ,offence be so inseparably connected with the official duty as to form part and parcel of the same transaction.
What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.
It does not apply to acts done purely in a private capacity by a public servant.
Expressions such as the "capacity in which the act is performed", "Cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section.
An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.
In Hori Ram Singh 's case (supra) Sulaiman, J. observed : "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 trans action.
" In the same case Varadachariar, J. observed "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 observed in case: "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 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." In Matajog Dobey vs H. C. Bhari(2) the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by section 197.
After referring to the earlier cases the court summed up the results as follows : "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 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.
" Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to (1) 1948 L R. 75 1.
A. 41.
(2) [1955](2) section C. R. 925.
562 have been done in the, course of performance of the 2nd respondent 's duty.
At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said ' to be in purported exercise of his duty.
Very clearly it is not.
We must make it clear, however, that we express no opinion as to the truth or falsity of the allegations.
We must also make it clear that this is not the end of the matter.
As was pointed out in Sarjoo Prasad vs The King Emperor(1), referring to the observations of Sulaiman, J. in Hori Ram Singh 's case (supra) the mere fact, that the accused proposes to raise a defence of the act having purported to be done in.
execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction.
At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty.
But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
Whether sanction is necessary or not may have for depend from stage to stage.
The necessity may reveal, itself in the court of the progress of the case (see observations in Matajog Dobey vs H. C. Bhari (supra) In Bhagwan Prasad Srivastaval vs N. P: Misra (supra), also it was pointed out that it would be, open.
to the appellant (.the 2nd respondent in this case) to place the material on record during the course of the trail for showing what his duty was and also that the acts complained of were so interrelated with, his official duty, so as to attract the protection afforded by s.197, Cr.
This appeal is, therefore allowed and the order of the learned Judge of the High Court is set aside.
S.B.W. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant filed a complaint against respondent No. 2, his superior officer, in the Postal Department, under sections 323 and 502 of I.P.C. alleging that when the appellant went with a certain complaint to the second respondent, the second respondent kicked him,in his abdomen and abused him by saying "Sale, gunde, badmash.
" The second respondent filed an application under section 197 of the Cr.
P.C. praying that the Court should not take cognizance of the offence without the sanction of the Government, as required by Section 197 of the Cr.
P.C. it was further contended that the alleged acts, if at ail done by the accused were done while discharging his duties as a public servant.
The trial Magistrate dismissed the application.
The 'High Court allowed the revision application of second respondent.
Allowing the appeal, HELD : (1) At this stage, the Court is concerned only with one point, whether on facts alleged in the complaint, it could be said that the acts were done in purported exercise of his duties.
Applying the test laid down in the decisions of the Federal Court and Supreme Court to acts complained of, viz., licking the complainant and abusing, cannot be said to have been done in the course of the performance of the duty by the second respondent.
[561H] (2) The facts subsequently coming to light during the course of the judicial enquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction.
It may be possible for the second respondent to,place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter related with his official duty, so as to attract the protection afforded by sec.
197 of the Cr.
Whether sanction is necessary or not may have to depend from stage to stage.
[562D] Horiram Singh, , Bhagwan Prasad Srivastava vs N. P. Mshra, [1971] 1 S.C.R. 317, Matajog Dobey vs H. C. Bhari ; and Sarjoo Prasad vs The King Emperor.
relied upon.


judgement:
iminal Appeal No. 52 of 1970.
Appeal from the Judgment and Order dated the 10th October, 1969, of the Allahabad High Court (Lucknow Bench) Lucknow, in Criminal Appeal No. 48 of 1968).
K. B. Rohatgi, for the appellants.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave by Ram Prasad (65), his son Udit Narain (22) and their servant Sri Pal (22) against the judgment of the Lucknow Bench of the Allahabad High Court affirming on appeal the judgment of the Additional Sessions Judge Lucknow whereby the three appellants and three others, namely 651 Sarju Putti and Jaganath had been convicted under section 148 and section 302 read with section 149 Indian Penal Code and had been sentenced to undergo rigorous imprisonment for a period of 18 months on the first count and imprisonment for life on the second count.
The occurrence giving rise to the present case took place on March 31, 1967 at 2.30 p.m. in front of and inside the tarwaha of the house of Jaskaran, father of Jagannath accused, in village.
Gadarian Purwa at a distance of two miles from police station.
Mandiaon.
The person murdered during the course of the occurrence was Parmeshwar Din (35).
The prosecution case is that Parmeshwar Din de eased and Sita Ram (PW 4) purchased two plots of land situated in the area of village Gadarian Purwa from Paggu and others for Rs. 3,000 as per sale deed dated December 23, 1966.
The possession of these plots had been taken by the vendees about one or two months earlier when they paid Rs. 500 as earnest money.
The vendees sowed wheat in those plots.
Sarju and Putti accused, who are both brothers, laid claim to, those plots.
As Ram Prasad accused was an influential person, Sarju and Putti sought his assistance in obtaining the possession of the plots.
Ram Prasad is also stated to have been assured by Sarju and Putti that in case they were successful in getting those two plots ', they would give him half of the land.
On March 31, 1967, it is stated, Parmeshwar Din was getting the wheat crop standing in the two plots mentioned above harvested.
The plots are at a distance of about 150 paces from the house of Jaskaran, father of Jagannath accused.
Umrao (PW 1) as well as Sita Ram (PW 4) were also present in the fields along with Parmeshwar Din.
The actual work of harvesting was being done by seven labourers, four of whom were women.
The male labourers were Shankar, Baddal and Bubba.
At about 2.30 p.m., it is alleged, Udit Narain accused came to Parmeshwar Din and told him that some persons were waiting for him in the abadi of Gadarian Purwa to have some talks with the deceased regarding the two Plots in dispute.
Parmeshwar Din deceased then went with Udit Narain.
Shortly thereafter, Umrao and Sita Ram PWs heard the cries of Parmeshwar Din.
On looking towards the house of Jaskaran, they found that the six accused had surrounded Parmeshwar Din and were giving bank a blows to him in front of that house.
The six accused then dragged Parmeshwar Din deceased inside the tarwaha which had a thatched roof.
The tarwaha had one shutterless opening.
Umrao and Sita Ram then ran towards the tarwaha and stood close to the opening of the tarwaha.
The labourers engaged in harvesting also followed Umrao and Sita Ram to that place.
Chandrika (PW 2) and Mohan (PW 3) were passing that way at that time.
Both of them on hearing alarm also came there and saw the accused giving banka blows to Parmeshwar Din.
Umrao and others shouted to the accused not to kill Parmeshwar Din, but they too were threatened by the accused.
The accused thereafter ran away.
Umrao and 652 Others then went inside the tarwaha and.
found Parmeshwar Din lying dead in a pool of blood.
A number of persons then collected 'there.
Umrao got report Ka 1 written by his son Hari Prasad.
Umrao thereafter went to police, station Mandiaon and lodged there report Ka 1 at 5.30 p.m. Station Officer Tiwari (PW 11) was not present at the police station at the time he report was lodged.
On being informed about the lodging of the report, the Station Officer went to the place of occurrence and arrived there at 6.30 p.m.
The Station Officer on arrival recorded the statements of Umrao, Sita Ram and Mohan PWs and prepared inquest report relating to the dead body of the deceased.
The body was thereafter sent to the mortuary where post mortem examination was performed by Dr. Jaitle on April 1, 1967.
Out of the appellants, Udit Narain and Sri Pal were arrested ,on April 7, 1967, while Ram Prasad surrendered in court on April 14, 1967.
The six accused in their statements denied the prosecution allegations about their having participated in the assault on Parmeshwar Din deceased.
Sarju and Putti also denied the prosecution allegation that Parmeshwar Din and Sita Ram had purchased the land in question and had brought the same under cultivation.
The case of Ram Prasad and Udit Narain was that they had been falsely involved in this case 'because of the enmity of Sita Ram PW with whom, according to these accused, Ram Prasad had an altercation on an earlier occasion.
The trial court accepted the prosecution case and convicted and ,sentenced the six accused as mentioned above.
The judgement of the trial Court was, as already stated, affirmed on appeal by the High Court.
In appeal before us, Mr. Anthony on behalf of the appellants has assailed the conviction of the accused appellants on the ground that the evidence adduced by the prosecution in this case is not reliable and suffers from infirmities.
As against that, Mr. Rana on behalf of the State has canvassed for the correctness of the view taken by the High Court.
It cannot be disputed that Parmeshwar Din deceased was the victim of a murderous assault.
Dr. Jaitle, who performed post mortem examination on the dead body of Parmeshwar Din, found as many as 23 injuries on the body, out of which 18 were incised wounds, One of the incised wounds had resulted in cutting the occipital bone and another had resulted in cutting the frontal bone.
The incised injuries, in the opinion of the doctor, had been caused by some heavy sharp edged weapon.
The death of the deceased was due to shock and haemorrhage resulting from the head and neck injuries.
The injuries were sufficient in the ordinary course of nature to cause death.
653 According to the prosecution case, the injuries found on the body, of the deceased had been caused by the six accused, including the three appellants.
The prosecution, in order to substantiate that allegation, examined Umrao (PW 1), Chandrika (PW 2), Mohan.
(PW 3) and Sita Ram (PW 4) as eye witnesses of the occurrence These witnesses supported the prosecution case as given above.
The trial court, on consideration of the material on record, accepted the evidence of the four eye witnesses.
On appeal the learned Judges of the High Court again examined that evidence and found the same to, be convincing.
Nothing cogent has been brought to our notice as may justify interference with the concurrent findings of the trial court.
and the High Court arrived at as a result of the appraisement of the evidence of the four eye witnesses.
It has been pointed out that the statement of Chandrika was, recorded during the investigation of the case 25 days after the occurrence, and as such, not much reliance can be placed upon the testimony of this witness.
In this respect we find that the evidence of Chandrika shows that on the morning of the day following the,occurrence, he went to Muzaffarpur in district Barabanki where his father in law was lying ill.
The witness stayed in Muzaffarpur for about six days and thereafter returned to his village.
In the meanwhile, Sub Inspector Tiwari had gone back to the police station.
The SubInspector subsequently called the witness and recorded his statement on April 25, 1967.
Chandrika 's name as an eye witness of the occurrence had been mentioned in the first information report which was lodged within about three hours of the occurrence.
In the circumstances, the delay in recording the police statement of Chandrika by the investigating officer would not justify rejection of Chandrika 's testimony.
In any case, we find that apart from the statement of Chandrika, the prosecution case is also supported by the evidence of ' other three eye witnesses.
So far as these witnesses are concerned, their statements were recorded by the investigating officer soon after he arrived at the place of occurrence.
Argument has also been advanced on behalf of the appellants that there, is no mention in the first information report that injuries were caused to Parmeshwar Din deceased by the accused before the deceased was dragged inside the tarwaha, while, according to the evidence of the eye witnesses in court, the injuries to the deceased ' were caused by the accused both before he was dragged as well as inside the tarwaha.
Reference to the first information report shows that it is recited therein that the deceased was dragged and given banka blows by the accused.
The omission to make an express mention in the first information report that banka blows were given to the deceased before he was dragged inside the tarwaha would not in the circumstances, in our opinion, make much material difference.
Assuming that banka blows were caused to the deceased inside the tarwaha, this fact would not exculpate any of the accused.
The accused at the time of the occurrence were armed with bankas.
They dragged the deceased inside the, tarwaha and gave banka blows to 654 him.
It is plain that the injuries were caused to the deceased prosecution of the common object of all the accused to cause death of the deceased.
The appellants, in the circumstances, car derive any benefit from the inability of the prosecution witnesses .state as to which particular injury was caused which of the accused.
It has also been argued that the evidence of the eye witnesses is of partisan character and, therefore, It is not safe to base the conviction ,of the accused upon that evidence.
We find it difficult to accede to this contention beause the trial court and the High Court while appraising the evidence of these witnesses, considered all the features ,of the case and came to the conclusion that the evidence of the witnesses was trustworthy and reliable.
We find no cogent ground to take a different view.
Considerable stress has been laid by Mr. Anthony upon the fact ,that, besides the four eye witnesses who have been examined in this case, the occurrence, according to the first information, report, had also been witnessed by Baddal, Shankar and Hubba.
These persons were, however, not examined as witnesses at the trial.
It is also pointed out that in addition to these persons, the occurrence was also ,witnessed by Sham Lal and Hubba (this Hubba is different from Hubba whose name was mentioned in the first information report), who also arrived at the scene of occurrence.
Sham Lal and Hubba too. were not examined as witnesses.
The non examination of these witnesses, in our opinion, would not introduce an infirmity fatal to the prosecution case: It is no doubt true that the prosecution is bound to produce witnesses who are essential to the unfolding of the nar rative.
on which the prosecution is based.
Apart from that, it cannot be laid down as a rule that if a large number of persons are present at the time of the occurrence, the prosecution is bound to call and ;examine each and every one of those persons.
The answer to the ,question as to what is the effect of the non examination of a particular witness would depend upon the facts and circumstances of each case.
In case enough number of witnesses have been examined with tregard to the actual occurrence and their evidence is reliable and .sufficient to base the conviction of the accused thereon, the prosecution may well decide to refrain from examining the other witnesses.
Like wise, if any of the witnesses is won over by the accused party and as such is not likely to state the truth, the prosecution would have a valid ground for not examining him in court.
The prosecution would not, however be justified in not examining a witness on the ground that his evidence even though not untrue would go in favour of the accused.
It is as much the duty of prosecutor as of the court to ensure that full and material facts are brought on the record so that there may be no miscarriage of justice.
The discharge of such a duty cannot be affected by the consideration that some of the facts if brought on the record would be favourable to the accused.
In case the court finds that the prosecution has not examined witnesses 655 for reasons not tenable or not proper, the court would be justified in drawing an inference adverse to the prosecution.
So far as the present case is concerned, we find that the prosecution has examined four eye witnesses of the ence and their evidence has been found by the trial court and the High Court to be reliable, convincing and sufficient to warrant the conviction of the accused.
It has not been shown to us that the evidence of the persons who were not examined as witnesses was essential for the unfolding of the narrative on which the prosecution was based.
The present is not a case wherein the witnesses not examined could have given evidence on a point regarding which the witnesses actually examined were not in a position to depose.
We are, therefore, of the view that the failure of the prosecution to examine the persons mentioned above as witnesses would not justify interference with the judgments of the High Court and the trial court.
The appeal fails and is dismissed, S.B.W. Appeal dismissed.

summary/full:
The appellants were convicted u/s 148 and 302 read with Sec. 149 of the I.P.C.
The conviction was challenged in the Supreme Court, inter alia, on the ground that besides the eye witnesses, the F.I.R. mentioned the names of three more persons who had seen the incident but they were not examined by the prosecution.
In rejecting the contention and dismissing the appeal.
HELD : Non examination of some of the eye witnesses mentioned in the F.I.R. does not introduce any fatal infirmity to the prosecution case.
It is no doubt true that the prosecution is bound to produce witnesses who are essential to the unfolding of the narrative on which the prosecution is based.
Apart from that, it cannot be laid down as a rule that if a large number of persons are present at the time of the occurrence,.
the prosecution is bound to call and examine each and every one of those persons.
The answer to the question as to what is the effect of the non examination of a particular witness would depend upon the facts and circumstances of each case.
In case enough number of witnesses have been examined with regard to the actual occurrence and their evidence is reliable and sufficient to base the conviction of the accused thereon, the prosecution may well decide to refrain from examining the other witnesses.
Likewise, if any of the witnesses is won over by the accused party and as such is not likely to state the truth, the prosecution would have a valid ground for not examining him in court.
The prosecution would not, however, be justified in not examining a witness on the ground that his evidence even though not untrue would go in favour of the accused.
It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on the record so that there may be no miscarriage of justice.
The discharge of such a duty cannot be affected by the consideration that some of the facts if brought on the record would be favourable to the accused.
In case the court finds that the prosecution has not examined witnesses for reasons not tenable or not proper, the court would be justified in drawing an inference adverse to he prosecution.
[654F]


judgement:
minal Appeal No. 116 of 1973.
Appeal by special leave from the judgment and order dated May 28, 1973 of the Punjab and Haryana High Court at Chandigarh in Criminal Writ No. 9 of 1973.
B. K. Garg and section C. Agarwala, for the appellant.
V. M. Tarkunde, section K. Mehta and R. N. Sachthey, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This is an appeal against the judgment of the High Court of Punjab & Haryana dismissing the appellant 's petition under Article 226 of the constitution of India read with section 491 Cr.
P.C. for the issue of a writ in the nature of habeas corpus or any other appropriate writ, order or direction for his production before the Court and to be set at liberty.
The appellant is a British citizen.
employed in the Accounts Branch.
Head Post Office Brimingham and General Secretary of the United Kingdom Akali Dal.
He came to India oil 6 11 1972 to attend the Bhog ceremony of 'Sant Fateh Singh who died on 30th October, 1972.
He was arrested on 16A 1 1972 in pursuance of an order for his detention under the provisions of sub section (2) of section 3 read with section 3 (1) (a) (i) & (ii) of the .
This order was approved by the State Government oil 27 11 1972.
The Advisory 664 Board 's report in respect of the detention was made on 4 1 1973 and the State Government confirmed the order of detention on 16 1 1973.
The grounds of detention were as follows : (a) That you on 11 11 72 held secret meeting in Gurdwara Rani Bazar Sharifpura, Amritsar at 7.00 p.m. .
In the meeting you told them that the Sikhs could not get justice at the hands of Hindus in India.
Therefore, it was necessary to secure Home Land for Sikhs by resorting to the use of force as the Bania Government at the Centre could not accept the demand of Sikh Home Land by persuasion or other peaceful means.
You further assured them that there was no paucity of funds with U. K. Akali Dal and sufficient amount could be made available which could be spent in the achievement of Home Land on the lines suggested above.
You also informed them that your organisation (U.K. Akali Dal) had made , Rs. 50,000/available in India for use for the achievement of the Home Land.
You further told them that you could also be receiving sufficient money from your organisation in U.K. in the near future.
You further exhorted them to organise the movement in a systematic manner, raising volunteers and setting offices at suitable places in Punjab.
You further directed them to collect arms, explosives etc for use for the achievement of the object at the proper time.
You further instigated them to create hatred amongst Hindus and Sikhs and cause communal disturbances in Punjab.
You also advised them to enlist large number of paid workers who could work as "suicide squads" at the proper time and till then their services could be used in doing propaganda in the villages for creating favorable atmosphere amongst the Sikh masses in support of the creation of Sikh Home Land.
(b) That you on 12 11 1972 again addressed a secret meeting in Gurdwara Rani Bazar, Sharifpura, Amritsar at 8.00 p.m. .
In this meeting you instigated them that the Sikh community could not survive in India in the present Hindu Raj.
Therefore, the Sikhs must secure separate Home Land by force so that they could live with honour and dignity.
You further added that Sikhs could only prosper if separate Home Land for Sikhs is achieved.
You further instigated them that they would have to make all sorts of efforts including use of arms and indulgence in violence in order to achieve the Home Land.
You further exhorted them to enlist the services of young elements in the Sikhs 665 who would work wholeheartedly for the achieve ment of the Home Land and were prepared to make big sacrifices.
You further informed them that your Organisation (U.K. Akali Dal) would be prepared to provide them with any amount they would be requiring for organising the movement and for purchasing the arms etc.
You further suggested that they should create cells in the Sikh Units of Armed Forces of India and police for enlisting their sympathy and support which would be of great help for the creation of the Home Land.
You also instigated them to create hatred amongst the Hindus and Sikhs in order to create tension and communal disturbances which would be great help in achieving their object.
(c) That you again on 14 11 1972 addressed another meeting at Jullundur. .
In this meeting you told the participants that if the Sikh Home Land was not achieved the Sikhs would be reduced to status of 'Ghasiaras ' and they could not live an honorable life like a free citizen of India and further told them that the "Panth" created by sacrifices of great Gurus would be eliminated.
You further instigated them that the Sikhs would have to make all sorts of sacrifices to achieve the Home Land for Sikhs.
You also suggested to them that the active workers should propagate the ideology of Sikh Home Land amongst the Sikh masses particularly in youth and students.
You further assured them that you would arrange funds for them from U.K. for the purchase of arms which could be used in the struggle for the Home Land.
The also suggested that the Sikhs who go to U.K. should be asked to get arms licenses in India and they would be provided arms in U.K. by ' him free of cost.
They on return could make use of these arms in the struggle for the Home Land.
You also instigated them to create tension amongst the Hindus and Sikhs and cause communal disturbances.
You also suggested the participants that they should propagate in the Sikh masses that the Sikhs were being given step motherly treatment in the matter of selection of services in the 'Bania ' Govern ment and to the Sikh agriculturists.
AR the participants assured you to work on the lines suggested by you." To complete the narration of facts it is necessary to refer to the proceedings of the Punjab Legislative Assembly on 7 3 1973 in which the Chief Minister of Punjab replying to a representation for the release of the appellant from detention did not mention any of the grounds contained in the order of detention, but sought to justify it by saying that the petitioner was in Pakistan at Nankana Sahib at the time of Guru Nanak 's Birthday in November 1971 alongwith a Pakistani 666 official, that he had been photographed getting down from a Pakistani plane, and that he had made a statement to a newspaper that 'India was a prison house for Sikhs. ' The petitioner had also alleged in his writ petition that when the Prime Minister of India visited England in 1971 the Sikh community residing in the U.K. had staged a .demonstration expressing its concern against the Government of India 's interference in the management of Sikh Gurdwaras of Delhi State by taking over the management of the Gurdwaras and handing over the same to a Board nominated by it from amongst its own henchmen, that the Prime Minister of India was annoyed and irritated on account of this demonstration and the petitioner being one of the foremost organisers of that demonstration incurred the displeasure of the Prime Minister 's partymen and under their direction a false story has been concocted to harass him and to prevent him to return to England to join his service.
Nothing was, however, said about this during the course of the arguments.
Mr. Garg did not seek to argue nor could he argue that any of the grounds given for the appellant 's detention were vague or irrelevant.
It is now settled law that preventive detention is not a punishment for the past activities of a person but is intended to prevent the person detained from indulging in future in activities which may produce the results mentioned in section 3 of the .
It is also well settled that the Court will not go into the truth or .otherwise of the facts alleged as grounds of detention.
The sufficiency of the grounds for detention is not also a matter which the court will go into.
There can also be so doubt that the appellant 's activities detailed in grounds (a) to (c) bring his case squarely within the ambit of sub clauses (i) & (ii) of clause (a) of subsection (1) of ' Section 3 of the .
The argument, however, was advanced that in respect of a foreign clause (a) of sub section 3(1) should be read along with clause (b) of that sub section, and if so read an order of detention in respect of ' a foreigner can only be made with a view to regulate his continued presence in India and to making arrangements for his expulsion from India.
It was, therefore, urged that as the appellant had made arrangements for his departure to England on 18 12 1972, his detention for purposes other than that of regulating his presence in India or making arrangements for his expulsion from India was illegal.
It was also urged that even at this stage the appellant is anxious to go to England and that he would be satisfied if an order is made to take him wider proper escort and put him on a plane leaving for England.
We are not impressed with this argument.
The power of a State to deal with foreigners committing offenses inside its territory is not ill dispute, The power of a State to detain even a foreigner who is found inside its territory in order to prevent him from indulging in prejudicial activities inside its territory cannot also be questioned.
Mr. Garg did not seek to question the power of Parliament to legislate with regard to that subject.
But he contended, however, that the power of Parliament in respect of preventive detention is found in Entry 9 of List I, 'Schedule VII of the Constitution.
and the power of the Parliament 667 and the State Legislature in entry 3 of the Concurrent list, that clause (b) of section 3(1) of the Will not fall under either of those entries and that only clause (a) will fall within the ambit of that power and the power given by clause (b) can therefore be used only in aid of the power given by cause (a).
We are unable to accept this contention either.
Clause (a) and clause (b) deal with two different kinds of powers.
Under clause (a) the power is given to the State to detain any person, including a foreigner for any of the purposes mentioned in that clause.
Under clause (b) power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion irom India.
It is within the competence of the detaining authority to exercise the power conferred on it under clause (a) or clause (b).
In this case the order of detention is made under clause (a) and therefore clause (b) does not come into picture at all.
We are not able to agree with the contention that clause (b) would be beyond the legislative competence of Parliament unless it is interpreted in the manner in which Mr. Garg wants it to be interpreted.
It is well established that the various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of that legislation cannot be questioned.
Entry 10, List I, Schedule VH: Foreign Affairs; all matters which bring the Union into relation with any foreign country, would certainly cover clause (b).
We may also refer to the which confers much more stringent powers in relation to a foreigner than clause (b).
It has not been argued that those powers are not valid or that the is not a valid piece of legislation.
We may legitimately presume that the laws of various countries of the world confer similar powers on their respective Governments in relation to foreigners.
In Hans Muller of Nurenburg vs Superintendent Presidency Jail, Calcutta & Ors.(1) this Court held that section 3(1)(b) of the , which is exactly similar to clause (b) of section 3(1`) of the , as well as section 3 (2)(c) of the , on which it is based are not ultra vires of the Constitution.
It was also held that section 3(1) (b) of the is reason.
ably related to the purpose of the Act, namely preventive detention.
, inasmuch as the right to expel a foreigner conferred by section 3 (2) of the Foreigners Art on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the confers the power to use the means of preventive detention as one of the methods of achieving this end.
This decision does not mean that section 3 (1) (a) could not be used for the purposes for which it is plainly intended, We are conscious that the whole question at issue in this case is not whether the appellant could be detained in order that he might be expelled but whether he could continue to be detained except for that purpose.
In the face of the very clear provisions of section 3 (1 ) (a), (1) 668 we have no doubt on that point.
Indeed the Parliament to have specifically contemplated the contingency and provided for it.
It is not only in a case where a foreigner wants to continue in India that the power is, available but even where in order to avoid preventive detention he offers to go out of the country.
it was urged that to place such an interpretation on this provision would be contrary to Article 51 of the Constitution, that if it all possible the section should be so interpreted as not to conflict with the provisions of Article 51.
We see no such contradiction if it is interpreted as we have done.
Reliance was placed upon a statement in Starke 's Introduction to International Law (7th Edn.) found at page 348 where it is stated that "Detention prior to explosion should be avoided, unless the alien concerned refuses to leave the State or is likely to evade the authorities.
Reference, was also made to Oppoenheim 's International Law (7th Edn.) where at page 631 it is stated that "Just as a State is competent to refuse admission to an alien, so, in conformity with its territorial supremacy, it is competent to expel at any moment an alien who has been admitted into its territory.
" It was urged that is the only power which State has in dealing with an alien who had come to a country under a passport which, as was held by Lord Alverstone, C.J. in R.v.
Brailsford, (1) is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual 's protection as a Britsh subject in foreign countries.
It was therefore, urged that to detain a foreigner who has come to the country with a passport would be a breach of international amity.
It is obvious in this case that the appellant taking advantage of the fact that by race he is an Indian proposed to indulge in activities which are a danger to the integrity and security of this country.
The first duty of a state is to survive.
To do so it has got to deal with enemies both overt and covert whether they be inside the country or outside.
This fact that the appellant if released would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country is a relevant factor in determining whether he could be detained in this country when he is found in this country.
It is not necessary for the purposes of this case to consider whether if the appellant had not come to this country at all and stayed in England and continued to indulge in activities prejudicial to the integrity and safety of this country a detention order could be passed against him and he could be brought to this country.
Even persons, whether they are Indian citizens or foreigners.
who have committed crimes in this country but have escaped to another country could be brought back only if there are extradition arrangements with the country to which they have escaped and the offence is an extraditable offence.
We are aware that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for Preventive detention.
It is not to be assumed that this country Will indulge in such a useless, and pointless exercise.
But that is quite different from saying that there cannot be (1) 669 a law in this country providing for such detention.
But if such a person happens to come to this country we presume he can be detained.
We do not accept the argument that a person like the appellant could be detained only if it is apprehended that if not detained he would indulge in prejudicial activities in this country and not if his activities are outside this country even though they may have a prejudicial effect on this country.
Take the case of a person acting prejudicially to the security of a State in this country while residing in another State.
We have no doubt that he can be detained by the former State.
The same analogy applies to this case.
International Law does not seem to deal with the case of nationals of one country acting in that country to the prejudice of the security and integrity of another country and whether anything could be done about them.
To allow a person like the appellant to go bac k to England at his request in spite of the certainty that while in England he will continue to indulge in activities prejudicial to the security and integrity of this country would be like the action of some foolish people who take a rat caught in a trap in their house to the road and release it.
It was urged that only where the grounds of detention were based on facts which can be held to amount to an offence either in India or in a foreign country for which he could be punished could he be detained.
We are not able to appreciate the import of this argument.
As is well known, preventive detention is not a punishment for an offence.
To accept the argument on behalf of the appellant would make the grounds given in section 3(1) of the meaningless.
Take for instance action prejudicial to the relations of India with foreign powers.
As far as we are aware, there is no law enabling anybody in India to be punished for acting in a mannerprejudicial to the relations of India with foreign powers.
it cannothowever be argued that detention on that ground is not permissible.
Take again the case of activities prejudicial to the Defence of India.
For the present of course, we have the Defence of India Act still in force.
Let us assume a period when it was not in force, does it mean that a person acting in a manner prejudicial to the defence of India cannot be detained even though there is no law dealing with that question.
That is why the , which was passed when there was no war and no emergency, provided for detention on the same grounds as in .
In the absence of a law dealing with that question, naturally enough the will have to decide whether the activity for which a person is detained is one prejudicial to the defence of India; so also an activity prejudicial to the security of India.
Defence of a country or the security of a country is not a static concept.
The days are gone by when one had to worry about the security of a country or its defence only during war time.
A country has to be in a perpetual state of preparedness.
Eternal vigilance is the price of liberty.
So it is that the founding fathers with considerable wisdom and foresight provided for laws for preventive detention and the limitations thereon mentioned in Article 22 of the Constitution.
Preventive detention is, of course, an anthema to champions of individual liberty.
But times being what they are, the Constitution makers in their wisdom have 670 provided for it.
It is not necessary to give further examples to show that prejudicial activities contemplated under section 3(1) of the are not necessarily activities prohibited or made punishable by a specific provision of law.
The cases relied upon to support the contrary proposition should be confined to the facts of those cases.
The only other question that remains to be dealt with is the one that arises out of the statement of the Chief Minister of Punjab in the Legislative Assembly on 7 3 1973.
The argument is that the Chief Minister 's reply shows that the, appellant has been detained and is, continued to be detained, not for the reasons which were intimated to him in the form of grounds of detention but really for the reasons mentioned in the Assembly and the detention is therefore, bad.
It is pertinent to remember in this context firstly that the order for the detention of the appellant was made by the District Magistrate of Amritsar.
He could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly.
Secondly, the approval by the Government of Punjab of the appellant 's detention was made on 16 1 1973.
There.
is nothing to show that on that day the Government of Punjab knew of the matters which the Chief Minister brought up in the Legislative Assembly on 7 3 1973, and the detention was approved by the Government only for those reasons.
We arc not prepared to assume, as was urged on behalf of the appellant, that the three matters mentioned in the Chief Minister 's speech should, have come to the notice of the Indian High Commission as soon as they took place and that they should have alerted the Punjab Government at once.
There is no warrant for such an assumption.
Except that one of the activities is said to be in 1971, we do not even know about the dates of the others.
Moreover, the Chief Minister 's reply was in answer to the demand of the Akali Dal Party for the appellant 's release.
The grounds of appellant 's detention must have been known to them.
The Chief Minister should, therefore, have been giving them additional information which came to his knowledge subsequently.
We are not, therefore, prepared to assume that the grounds for approval of the appellant 's detention were not the same grounds on which he was detainedbut some others, and therefore malice in law has been established.
Furthermore, by a Presidential order Articles 14, 19 and 22 of theConstitution have been suspended during the subsistence of the Proclamation of Emergency.
This contention is based on decisions of this Court interpreting Article 22.
They are, therefore, irrelevant in considering a petition under section 491 Cr.
We see no merit in the points raised on behalf of the appellant.
The appeal is dismissed.

summary/full:
The appellant, a British citizen, was detained under section 3(2) read with section 3 (1) (a) (i) and (ii) of .
The grounds of detention were that he was engaged in subversive activities by instigating and creating hatred between the Hindus and Sikhs and by calling upon the Sikhs to establish a separate homeland by resorting to violent methods.
In reply to ,I representation by the Akali party for the release of the appellant from detention the Chief Minister of Punjab stated in the State Assembly that the appellant was in Pakistan in November.
1971 alongwith a Pakistani official, that he had been photographed getting down from a Pakistani plane, and that he had made a statement to a newspaper that 'India was a prison house for Sikhs; but, he did not mention any of the grounds contained in the order of detention.
The appellant 's petition for the issue of a writ of habeas corpus on the ground that he had made arrangements to leave the country was dismissed by the High Court.
Dismissing the appeal to this Court, HELD : Clauses, (a) and (b) of section 3(1) of the deal with two different kinds of powers.
Under clause (a) power is given to the State to detain any person including a foreigner for any of the pur poses mentioned therein and under el.
(b) power is given to detain a foreigner either for regulating his continued presence in India or for making arrangements for his expulsion from India.
It is not only in a case where a foreigner wants to continue in India that the power to detain under el.
(a) was available but it is available even where, in order to avoid preventive detention, the foreigner offers to go out of the country.
[667 B C] (2)It is not correct to say that el.
(b) is beyond the legislative competence of Parliament, and, that, therefore, the order under el.
(a) could only be made with a view to regulate the presence of the appellant in India and not when the appellant wanted to leave India.
It is well established that various legislative entries should be interpreted in a broad manner and if any legislation could be brought within the ambit of any one or other of the legislative entries the validity of the legislation cannot be questioned.
Entry 10, List I, Schedule VII to the Constitution deals with foreign affairs and all matters which bring the Union into relations with a foreign country, would certainly cover el.
Therefore, it is within the competence of the detaining authority to exercise the power conferred on it either under el.
(a) or.
[667 C D] (3)The decision of this Court in Hants Muller of Nurenburg vs Superintendent, Presidency fail, Calcutta that section 3(1)(b) of Preventive Detention Act which is exactly similar to section 3 (1) (b) of the conferred power to use the means of preventive detention as one of the methods of achieving expulsion of a foreigner does not mean that section 3 (1) (a) of the cannot be used for the purpose for which it is plainly intended.
[667 E F] (4)The appellant, taking advantage of the fact that by race he is an Indian, proposed to indulge in activities which were a danger to the integrity and security 663 of tile country.
The first duty of the State is to survive.
To do SO it had got to deal with enemies both overt and covert whether they be inside the country or outside.
The fact that the appellant, if released, would go to England and from there continue to indulge in activities prejudicial to the security and integrity of this country was a relevant factor in determining whether he could be detained when he was found in this country.
It is true that there is no law in this country providing for extradition of persons against whom this country would consider it necessary to pass an order for preventive detention.
But if such a person hap pened to come to this country he could be detained.
It is not correct that a person like the appellant could be detained only if it was apprehended that if not detained he would indulge in prejudicial activities within the country.
[669 E F, H] (5)Preventive detention is not a punishment for an offence.
To accept the argument of the appellant that only where the grounds of detention were based on facts which could be held to amount to an offence either in India or in a foreign country, that he could be detained would make the grounds given in section 3(1) of the , meaningless.
Preventive detention is an anathema to champions of individual liberty, but times being what they are, the Constitution makers in their wisdom have provided for it in article 22.
In the absence of a law dealing with the matter the courts will have to decide whether the activities for which a person was detained was one prejudicial to the defence and security of India.
[669 D E,H] (6)The District Magistrate who made the order of detention could not have known of the activities of the appellant which the Chief Minister mentioned in the Assembly.
Moreover, the Chief Minister 's reply was in answer to a demand of the party for the appellant 's release.
The grounds of the appellant 's detention must have been known to them.
The Chief Minister was, therefore, only giving them additional information which came to his knowledge subsequently.
There fore, it could not be contended that the grounds for approval of the appellant 's detention were not the same grounds on which he was detained but some others, Hence no malice in law has been established.
[670 C, E, F]