os 102105 to 110 of 1956
Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus
N C Chatterjee Sadhan Chandra Gupta and janardhan Sharma for petitioners in Petitions Nos 102 105 to 108 of 1956
Sadhan Chandra Gupta and Janardhan Sharma for petitioners in Petitions Nos 109 and 110 of 1956
CKDaphtary SoliCitor General for India Porus A Mehta and R H Dhebar for respondents in Petitions Nos 102 and 105 of 1956
Porus A Mehta and R H Dhebar for respondents in Petitions Nos 106 to 110 of 1956
September 17
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
These are petitions filed under article 32 of the Constitution for the issue of writs in the nature of habeas corpus
They arise on the same facts and raise the same questions
On 13 1 1956 the Commissioner of Police Bombay passed orders under section 32 of the IV of 1950 hereinafter referred to as the Act directing the detention of the present petitioners and pursuant thereto they were actually arrested on 16 1 1956
The grounds on which the orders were made were formulated on 19 1 1956 and communicated to the petitioners the next day
On 21 1 1956 the Commissioner reported the fact of the order and the grounds therefor to the State Govern 655 ment which approved of the same on 231 1956
The contention of the petitioners before us is that when the Commissioner passed the orders for detention on 13 1 1956 it was his duty under section 33 to report that fact forthwith to the State Government and as be did not do so until 21 1 1956 he had acted in contravention of the statute and that the detention was therefore illegal
That raises the question as to what forthwith in section 3 3 of the Act signifies and whether on the facts the report was made forthwith within the meaning of that word in that sub section
The word forthwith it has been observed is of elastic import
In its literal sense it might be construed as meaning that the act to be performed forthwith in relation to another should follow it automatically without any interval of time or as held in some of the American
authorities should be performed at one and the same time as the other
But even in America the preponderance of judicial opinion does not favour this construction
In Corpus Juris Volume 26 page 998 the position is thus stated Although the term has received a strict conStruction ordinarily it is not to be strictly construed but should receive a liberal or reasonable construction 
Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case
In England there is a long catena of decisions interpreting the word forthwith occurring in statutes rules and contracts and their trend has been to construe it liberally
As early as 1767 discussing the meaning of the word immediately  and the word forthwith his been held to have the same significance Lord Hardwicke observed in Rex vs Francis But then the word immediately is strongly insisted on as a word which excludes all mesne acts and time and therefore that this taking away the money must necessarily be in the presence of Cox
1 Cun 165   1183
656 But all the nine Judges held this word immediately to be of so loose a signification and not to imply necessarily that the money was taken away in Cox s presence
For this word does neither in its use and application nor in its grammatical construction exclude all mesne acts or time But it is more necessary and proper in this case to consider the signification of this word in the legal way
And it is plain that in this acceptation it is not understood to exclude mesne acts or time And on the Statute Hue and Cry 27 Eliz c 13 section 11 where  the words with as much convenient speed as may be are made use of all the precedents have expressed these words by the word immediate as may be seen in the books
The last case which I shall mention on this point is that of the writs of habeas corpus issuing out of this Court which are most frequently made returnable immediately and in this case the word is never understood either to exclude mesne acts or time but only means with convenient speed In Beg
vs The Justices of Worcester1 where the question was as to the meaning of the word forthwith in section 50 of 6 Will
IV Coleridge J observed I agree that this word forthwith  is not to receive a strict construction like the word immediately  so that whatever follows must be done immediately after that which has been done before
By referring to section 50 it seems that whatever is to be done under it ought to be done without any unreasonable delay
I think that the word forthwith  there used must be considered as having that meaning  The meaning of the word immediately came up for consideration in Thompson vs Gibson2
Holding that it was not to be construed literally Lord Abinger C B observed If they acts of Parliament could be construed literally consistently with common sense and justice undoubtedly they ought and if I could see 1 1889 7 Dowl
789 791 54 RR 902 903
2 1841 8 M  NV 282  1047
657 upon this act of Parliament that it was the intention of the legislature that not a single moment s interval should take place before the granting of the certificate I should think myself bound to defer to that declared intention
But it is admitted that this cannot be its interpretation we are therefore to see how consistently with common sense and the principles of justice the words immediately afterwards  are to be construed
If they do not mean that it is to be done the very instant afterwardsdo they mean within ten minutes or a quarter of an hour afterwards I think we should interpret them to mean within such reason able time as will exclude the danger of intervening facts operating upon the mind of the Judge so as to disturb the impression made upon it by the evidence in the cause
In agreeing with this opinion Alderson B expressly approved of the decision of Lord Hardwicke in Rex vs Francis1
This construction of the word immediately  was adopted in Page vs Pearce Lord Abinger C B observing It has already been decided and necessarily so that the words immediately afterwards in the statute cannot be construed literally and if you abandon the literal construction of the words what can you substitute but within a reasonable time   In The Queen vs The Justice 3 of Berkshire3 where the point was as to the meaning of forthwith in section 52 of 35  36 Vict Chapter 94 Cockburn C J observed The question is substantially one of fact
It is impossible to lay down any bard and fast rule as to what is the meaning of the word immediately  in all cases
The words forthwith  and immediately  have the same meaning
They are stronger than the expression within a reasonable time  and imply prompt vigorous action without any delay and whether there has been such action is a question of fact having regard to the circumstances of the particular case
1 dun
165   1188
2  678 1212
3 471
658 The same construction has been put on the word forthwith  occurring in contracts
In Hudson and others vs Hill and others1 which was a case of charterparty it was observed at page 280  Forthwith  means without unreasonable delay
The difference between undertaking to do something forthwith  and kithin a specified time is familiar to everyone conversant with law
To do a thing forthwith  is to do it as soon as is reasonably convenient
In Reg
vs Price2 it was held by the Privy Council that the word forthwith in a bail bond meant within a reasonable time from the service of notice
On these authorities it may be taken an act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay
But it is argued by Mr N C Chatterjee that the view taken in the above decisions as to the meaning of the word forthwith has been abandoned in the later decisions and that under the law as it stands when an act has to be performed forthwith in relation to another what has to be decided is not whether it was done within a reasonable time but whether it was done so closely upon the other as to form together one continuous act
He relied in support of this opinion on the decision in Be Muscovitch3 affirming that in Re Muscovitch1
That was a decision on rule 132 of the Bankruptcy Rules which provided that Upon entering an appeal a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from
The facts were that the appeal was lodged in time on 25 10 1938 but the notice was served on 28 10 1938 and it was found that there was no satisfactory reason or no reason at all why there was any delay in the matter Re Muscovitch4
On that it was held that the requisition that the notice shall forthwith be sent was not satisfied
This is authority only for the position that when an Act is done after an interval of time and there is no explanation forthcoming for 1 280
2  8 Moore PC 208 3 4  659 the delay it cannot be held to have been done forthwith
That is made clear by Sir Wilfrid Greene M R in the following passage in Re Muscovitch1 at page 139 Having regard to the construction which was put upon the word forthwith  which is peremptory and admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances which cannot be avoided I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule
Reliance is also placed for the petitioners on the decision in Ex parte Lamb In re Southam2 which was followed in Re Muscovitch1
There construing the word forthwith in rule 144 of the Bankruptcy Rules 1870 which corresponds to rule 132 which was the subject of interpretation in Re Muscovitch1 Jessel M R observed at page 173 Ithink that the word forthwith  must be construed according to the circumstances in which it is used Where as in Hyde vs Watt83 there is a covenant to insure a man s life there must of necessity be some delay for the act could not be done in a moment
But where an act which is required to be done forthwith  can be done without delay it ought to be so done
In that case also the learned Judges found that the delay was not explained
And the observation of Lush L J in the same case was that the word forthwith  has not a fixed and an absolute meaning it must be construed with reference to the objects of the rule and the circumstances of the case
There is nothing in the decisions in Re Muscovitch1 and Ex parte Lamb In re Southam2 which can be considered as marking a departure from the construction put on the word forthwith in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition and that any delay in the matter should be satisfactorily explained
1 2 3  660 It is argued for the petitioners that even if the con
struction put on the word forthwith in the above decisions is accepted as correct it must in any event yield to any contrary intention expressed in the statute and that the provisions of the Act afforded clear indication of such an intention
It is co intended that the legislature while providing in section 7 that the grounds should be communicated to the detenu as soon as may be has enacted that the report under section 33 should be sent forth with that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing that as the words as soon as may be import that the act might be performed in a reasonable time the word forthwith which is more peremptory must be construed as excluding it
The decisions in Emperor vs Phuchai1 and in K U Kulkarni vs Ganpat Teli2 were quoted in support of the position that when two different expressions are used in different parts of the same clause or section they should be construed as used in different senses
We agree that forthwith in section 33 cannot mean the same thing as as soon as may be in section 7 and that the former is more peremptory than the latter
The difference between the two expressions lies in our opinion in this that while under section 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient under section 33 what is allowed is only the period during which he could not without any fault of his own send the report
Under section 7 the question is whether the time taken for communicating the grounds is reasonably requisite
Under section 33 it is whether the report has been sent at the earliest point of time possible and when there is an inter val of time between the date of the order and the date of the report what has to be con sidered is whether the delay in sending the report could have been avoided
1 ILR 50 All
909 AIR 1929 All
2 ILR 1942 Bom
287 AIR 1942 Bom
661 It was contended that as section 7 required that the communication should be made not later than 5 days from the date of the order and as section 33 was more peremptory than section 7 in that it required that the report should be made forthwith the period allowable under section 33 could not exceed 5 days and that as in these cases the reports were sent 8 days later they could not be held to have been sent forthwith
This argument mixes up two different matters contained in section 7
The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression as soon as may be which must by its very nature be indefinite depending on the facts and circumstances of the case
It will be as erroneous to read 5 days into the period allowable under the expression as soon as may be as to read the 12 days within which the State has to approve the order under section 33 into the period which is allowable under the expression forthwith
The result then is that the report sent by the Commissioner to the State on 21 1 1956 could be held to have been sent forthwith as required by section 33 only if the authority could satisfy us that in spite of all diligence it was not in a position to send the report during the period from 13th to 21st January 1956
We must now examine the facts from the above standpoint
The Commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956 though the orders themselves had been made as early as 13th January 1956
Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay there had been considerable agitation for the establishment of a Samyuktha Maharashtra with the city of Bombay included in it
An action committee had been set up on 15 11 1955 for the purpose and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki
The final decision on the question was expected to be taken and announced in the middle of January 1956 and the atmosphere was highly sur charged
It was in this situation that the Commis 662 sioner decided to take action under section 32 of the Act against the leading spirits of the movement and passed the present orders for detention against the petitioners on 13 1 1956
In his affidavit the Commissioner states that he decided first to locate the persons against whom orders of detention were made by me on the 13th January 1956 and after having done so to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders
Then the affidavit goes on to state It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense pregnant with danger on the 13th January 1956 and continued to be so till 16th January 1956 and actual rioting occurred during that night and those riots continued till 22nd January 1956
I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants
In this unusual and tense situation it was not possible to make a report earlier than the day on which it was made
We see no reason for not accepting these statements
What happened on the 16th and the following days are now matters of history
The great city of bombay was convulsed in disorders which are among the worst that this country has witnessed
The Bombay police had a most difficult task to perform in securing life and property and the authorities must have been working at high pressure in maintaining law and order
It is obvious that the Commissioner was not sleeping over the orders which he had passed or lounging supinely over them
The delay such as it is due to causes not of his making but to causes to which the activities of the petitioners very largely contributed
We have no hesitation in accepting the affidavit and we bold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him they were sent forthwith within the meaning of section 33 of the Act
663 Mr section C Gupta put forward some special contentions on behalf of the petitioners in CMPs
109 and 110 of 1956
He contended that as the order originally made against the petitioner in CMP No 109 of 1956 was that he should be detained in Arthur Road Prison Bombay the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction
It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison and that he was kept temporarily in Arthur Road Prison pending arrangements to transport him to Nasik
It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities and that they could not constitute grounds for detention in future
This contention is clearly unsound
What a person is likely to do in future can only be a matter of inference from various circumstances and his past record will be valuable and often the only record on which it could be made
It was finally contended that what was alleged against the petitioners was only that they advocated hartal and that was not a ground for making an order of detention
But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work business and transport with a view to promote lawlessness and disorder and that is a ground on which an order could be made under section 32
All the contentions urged by the petitioners therefore fail and these petitions must be dismissed


Summary:
Section 33 of the  provides that when an order of detention is made by an officer mentioned in section 32 he shall forthwith report the fact to the State Government together with the grounds on which the order has been made  and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government
On 13th January 1956 the Commissioner of Police Bombay passed orders under section 32 of the directing the detention of the petitioners and in pursuance thereof  they were arrested on 16th January 1956 The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fact of the order and the grounds therefor to the State Government which approved of the same on 23rd January 1956
The petitioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under section 33 to report that fact forthwith to the State Government and as he did not do so until 21st January 1956 he had acted in contravention of the statute and that the detention was therefore illegal
It was found that the delay in sending the report could not have been avoided by the Commissioner and that it was due to causes to which the petitioners had very largely con tributed
Held that the word forthwith in section 33 of the  has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case
It cannot mean the same thing as as soon as may be in section 7 of the Act and the former is more peremptory than the latter
The difference between the two 
expressions lies in this that while under a 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient under section 33 what is allowed is only the 654 period during which he could not without any fault of his own send the report
An act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay
The Queen vs The Justices of Berkshire 1878 79 4 QBD 469 Hudson and others vs Hill and others 1874 43 L J CP 273 and Beg
vs Price   relied on