dedol-hf/india-case-legal-rag huggingface dataset:
cution.  He further argued that one Sarat Chandra Ghose, who
was  present  at  the  house of  the  accused  when  it  was
searched,  has  also  not been  examined.   These  arguments
however  have very little force, since there is no  evidence
to  show  that those persons had seen the occurrence,  an  d
they also do not take note of the fact that such evidence as
has been adduced by the prosecution, if believed, was suffi-
cient  to support the conviction of the appellant. The  Ses-
sions Judge in his charge to the jury referred  specifically
to  the  very  argument urged before us, and  he  told  'the
jurors  that if they thought it fit it was open to  them  to
draw  an inference against the prosecution. There can be  no
doubt that the jurors were
27
206
properly  directed on the point and they  evidently  thought
that the evidence before them was sufficient for  convicting
the appellant.
    The  second contention urged on behalf of the  appellant
relates  to  his defence, which, briefly  stated,  was  that
Kumad  Patra, the injured man, entered his house during  his
temporary absence, went to the bedroom of his wife, who  was
a young lady, and committed indecent assault on her and  was
assaulted  in these circumstances. This story was  not  sup-
ported  by any evidence but was merely suggested  in  cross-
examination, and the Sessions Judge while referring to it in
his charge to the jury, observed:--
''If  I were left alone, I would not have  believed  the
defence  version.  But you are not bound to accept my  opin-
ion,  nor you should be influenced by it  It is for  you  to
decide  whether  you will accept the defence  suggestion  in
favour of which there is no such positive evidence."
    The  Sessions Judge undoubtedly expressed himself  some-
what strongly with regard to the defence suggestion, but  he
coupled his observations, which we think he was entitled  to
make, with an adequate warning to the jurors that they  were
not bound to accept his opinion and should not be influenced
by  it.  The defence version was rejected by the  jury,  and
there can be no doubt that on the materials on the record it
would have been rejected by any court of fact.
The  last contention put forward by the learned  counsel
for  the appellant was that he was not examined as  required
by law under section 342 of the Criminal Procedure Code.  It
appears  that three questions ware put to the  appellant  by
the  Sessions Judge after the conclusion of the  prosecution
evidence.   In the first question, the Sessions Judge  asked
the  appellant what his defence was as to the  evidence  ad-
duced,  against him; in the second question, the  Judge  re-
ferred to the dispute about the pathway and asked the appel-
lant  whether he had inflicted injuries on Kumad Patra;  and
in the third question, the appellant was asked.
207
whether he would adduce any evidence. The facts of the  case
being  free from any complications and the points  in  issue
being simple, we find it difficult to hold that the examina-
tion  of the appellant in this particular case was not  ade-
quate. To sustain such an argument as has been put  forward,
it is not sufficient for the accused merely to show that  he
has  not been fully examined as required by section  342  of
the Criminal Procedure Code, but he must also show that such
examination  has materially prejudiced him.  In the  present
case, it appears that the point urged here was not raised in
the grounds of appeal to the High Court, nor does it find  a
place  in the grounds of appeal or in the statement of  case
filed  in this court.  It has nowhere been stated  that  the
accused was in any way prejudiced, and there are no  materi-
als before us to hold that he was or might have been  preju-
diced.   We  have read the Sessions Judge's  charge  to  the
jury, which is a very fair and full charge, and nothing  has
been shown to us to justify the conclusion that the  verdict
of the jury should not have been accepted.
The appeal accordingly fails and is dismissed.
                                Appeal dismissed.
Agent for the appellant: P.K. Chatterji.
 Agent for the respondent: I. N. Shroff for P.K. Bose.
208
PETITIONER:
MAKHAN SINGH TARSIKKA
        Vs.
RESPONDENT:
THE STATE OF PUNJAB.
DATE OF JUDGMENT:
10/12/1951
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1952 AIR   27            1952 SCR  368
 CITATOR INFO :
 R          1952 SC 106  (9)
 F          1952 SC 181  (5,13,26)
 R          1958 SC 163  (12,39,42)
ACT:
Preventive  Detention  Act  (IV of 1950  as  amended  in
1951) ss. 3 (i), 9, 11, 12--Order of detention fixing period
of  detention  in initial order itself before  reference  to
Advisory     Board--Legality-Deprivation     of     personal
liberty--Duty to follow procedure strictly.
HEADNOTE:
    Whatever  might  be  the position  under  the  Preventive
Detention  Act of 1950 before it was amended in 1951,  under
the Act as amended in 1951, the Government should  determine
what the period of detention should be only after the  Advi-
sory  Board to which the case is referred reports  that  the
detention is justified. Fixing of the period of detention in
the  initial order itself is contrary to the scheme  of  the
Act and cannot be supported.  It cannot be treated as a mere
surplusage  as it would tend to prejudice a fair  considera-
tion  of the detenu's case by the Advisory Board, though  he
would  have to be released forthwith if the  Advisory  Board
reports that there is no sufficient cause for detention.
    Before a person is deprived of his personal liberty  the
procedure  established by law must be strictly followed  and
must not be departed from to the disadvantage of the  person
affected.
JUDGMENT:
      ORIGINAL  JURISDICTION.  Petition  No.  308  of  1951.
Application under article 32 of the Constitution for a  writ
in  the nature of habeas corpus praying for the  release  of
the petitioner from detention.
H.J. Umrigar (amicus curiae), for the petitioner.
S.M.  Sikri,  Advocate-General of the Punjab,  (Jindra  Lal,
with him) for the respondent.
1951.  December 10. The Judgment of the Court was deliv-
ered by
    PATANJALI SASTRI C.J.--This is a petition under  article
32 of the Constitution praying for the release of the  peti-
tioner from his alleged unlawful detention. We accepted  the
petition and, at the conclusion of the hearing, ordered  the
petitioner  to  be released.,  We now proceed  to  give  the
reasons for our order.
369
The petitioner was arrested and detained under an  order
dated  1st  March, 1950, made by  the  District  Magistrate,
Amritsar, under section3(1) of the Preventive Detention Act,
1950 (hereinafter referred to as "the Act ") and the grounds
of detention were communicated to the petitioner as required
by  section7 of the Act on 15th March, 1950. The  petitioner
challenged the validity of the order on various grounds but,
while  the  petition was pending after this Court  issued  a
rule  nisi to the respondent, the petitioner was  served  on
6th August with another detention order dated 30th July,1951
1,  purporting  to be made by the Governor of  Punjab  under
sub-section(1)  of  section 3 and section 4 of  the  Act  as
amended  by the Preventive Detention (Amendment) Act,  1951,
and  he was served with fresh grounds of detention  on  16th
August, 1951. Thereupon the petitioner filed a supplementary
petition  impugning  the validity of the said order  on  the
ground, inter alia, that  it  directed the detention of  the
petitioner up to 31st March, 1952, the date on which the Act
itself  was  to  expire and that this was  contrary  to  the
provisions  of  the  Act as amended.  On  behalf     of  the
respondent,  the Advocate-General of Punjab urged  that  the
said order was not intended to be a fresh order of detention
but  was passed only with a view to limiting the  period  of
detention till 31st March, 1952, as it had been held in some
cases  that an order of detention for an  indefinite  period
was bad.  The order runs as follows :-
    WHEREAS the Governor of Punjab is satisfied with respect
to the person known as Makhan Singh Tarsikka, son of  Gujjar
Singh,  Jat, of Tarsikka, Police Station Jandiala,  Amritsar
District, that with a view to preventing him from acting  in
a  manner  prejudicial to the security of the State,  it  is
necessary to make the following order:
    Now,  THEREFORE, in exercise  of  the  powers  conferred
by  sub-section  (1) of section 3 and section  4     of  the
Preventive Detention Act, 1950 (Act IV of 1950), as  amended
by the Preventive Detention (Amendment) Act, 1951 (Act IV of
1951), the Governor
370
of Punjab hereby directs that the said Makhan Singh Tarsikka
be  committed  to  the custody of  the  InspectorGeneral  of
Prisons, Punjab, and detained in any jail of the State  till
31st March, 1952, subject to such  conditions as to  mainte-
nance, discipline and punishment for breaches of  discipline
as have been specified by a general order or as contained in
the Punjab Communist Detenu Rules, 1950.
   It will be seen that the terms of the order make it clear
that  it  was intended to operate as a fresh order  for  the
detention of the petitioner and this view is strengthened by
the  fact  that the order was followed by the service  of  a
fresh  set of grounds on the petitioner as required by  sec-
tion 7 of the Act; a proceeding which would be wholly unnec-
essary if no fresh order of detention was intended.  Indeed,
it  was suggested on behalf of the petitioner that the  said
order  followed by service of fresh grounds only  four  days
before  the  date fixed for the hearing of the  petition  by
this  Court was a deliberate move by the respondent to  cir-
cumvent  the  objections  raised by the  petitioner  to  the
validity  of the earlier order of 1st March, 1950, and  thus
render the proceeding infructuous.  However that may be,  we
are clearly of opinion that the order dated 30th July, 1951.
must be regarded as a fresh order made for the  petitioner's
detention in superession of the earlier order and the  ques-
tion  is  whether  it was illegal in  that  it  straightaway
directed  that the petitioner be detained till  31st  March,
1952, which was the date of the expiry of the Act.
      Whatever  might be the position under the  Act  before
its amendment in February, 1951, it is clear that the Act as
amended  requires  that every.case of  detention  should  be
placed  before an Advisory  Board constituted under the  Act
(section  9)  and provides that if the  Board  reports  that
there is sufficient cause for the detention "the appropriate
Government may confirm the detention order and continue  the
detention  of  the person concerned for such  period  as  it
thinks  fit" (section 11).  It is, therefore, plain that  it
is only after the Advisory Board, to which the case
371
has been referred, reports that the detention is  justified,
the Government should determine what the period    of deten-
tion should be and not before.  The fixing of the period  of
detention  in the initial order itself in the  present  case
was, therefore, contrary to the scheme of the Act and cannot
be supported.  The learned Advocate-General, however,  urged
that in view of the provision in section 11 (2) that if  the
Advisory Board reports that there is no sufficient cause for
the detention, the person concerned would be released forth-
with, the direction in the order dated 30th July, 1951, that
the  petitioner  should be detained till 31st  March,  1952,
could be ignored as mere surplusage.  We cannot accept  that
view.   It  is obvious that such a direction would  tend  to
prejudice a fair consideration of the petitioner's ease when
it  is  placed before the Advisory Board. It cannot  be  too
often  emphasised  that before a person is deprived  of  his
personal  liberty the procedure established by law  must  be
strictly  followed  and  must not be departed  from  to  the
disadvantage of the person affected.
                                    Petition allowed.
Agent for the respondent: P.A. Mehta.
PETITIONER:
COMMISSIONER OF POLICE, BOMBAY
        Vs.
RESPONDENT:
GORDHANDAS BHANJI.
DATE OF JUDGMENT:
23/11/1951
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
CITATION:
 1952 AIR   16            1952 SCR  135
 CITATOR INFO :
 D          1954 SC 592  (16)
 F          1955 SC 661  (7)
 APL        1958 SC 419  (34)
 D          1965 SC1740  (18)
 R          1970 SC1896  (15)
 RF         1975 SC 550  (9)
R          1978 SC 851  (8)
 D          1982 SC 149  (44)
 R          1982 SC 691  (11)
 D          1982 SC1407  (12)
ACT:
    City  of Bombay Police Act (1 of 1902), s.  22(1)--Rules
under  the  Act,  rr. 8, 238 to 257,  263  to  283--Specific
Relief  Act (I of 1877), s. 45--Licence for construction  of
cinema--Duties of Commissioner of Police--Permission granted
by     Commissioner--Cancellation     of     licence      by
Government--Validity of cancellation--Discretion of  Commis-
sioner--Duty   to   exercise   discretion--Application   for
mandamus  to order Commissioner to  grant  permission--Main-
tainability--Proper                           relief--Public
orders--Construction--Reference to explanations given subse-
quently--Propriety of.
HEADNOTE:
    An application by the respondent for permission to build
a cinema on a site within the City of Bombay was rejected by
the Commissioner of Police, Bombay.  The respondent  applied
for reconsideration of his application and the Commissioner,
acting  on  the  advice of the  Cinema  Advisory  Committee,
granted  the application on the 16th July, 1947,  though  he
indicated  in  an affidavit flied later that  but  for  this
advice he would have refused the application again.   Subse-
quently, under instructions from Government the Commissioner
sent  the following communication to the respondent:  "I  am
directed by Government to inform you that the permission  to
erect  a cinema at the above site granted to you  under  the
office  letter dated 16th July, 1947, is  hereby  canceled."
The  respondent applied to the High Court of Bombay  for  an
order  under s. 45 of the Specific Relief Act directing  the
Commissioner of Police, Bombay, to withdraw the cancellation
and to grant permission for the erection of the cinema,  and
the  High  Court  directed the Commissioner  of  Police  "to
withdraw  the  order of cancellation passed  by  him."   The
Commissioner of Police appealed to the Supreme Court.
    Held,  (i)  that there was nothing in the  letter  dated
16th July, 1947, to indicate that the decision was not  that
of the Commissioner himself given in the bona fide  exercise
of the discretion vested in him. The sanction was not conse-
quently  invalid merely because the Commissioner decided  to
accept  the  advice of the Cinema  Advisory  Committee  even
though  without  that advice he would not have  granted  the
permission.
    (ii)  There  was no valid cancellation  of  the  license
because  (a), the order of cancellation communicated to  the
respondent 'was one made by the Government of Bombay and not
by  the  Commissioner on his own authority;he acted  in  the
matter  only as a transmitting agent; (b), under  the  rules
framed under
136
section  22 (1) (f), (1) (g) and (n) of the City  of  Bombay
Police  Act  1902 the Government of Bombay had no  power  to
cancel of license once issued.  The only person vested  with
authority to grant or refuse a license for the erection of a
building to be used for purposes of  public amusement is the
Commissioner of Police.
 (iii)  The relief sought by the respondent of an injunction
to direct the Commissioner of Police to grant permission for
the   erection of a cinema could not be granted  because  he
had already granted permission and there was no  valid order
of cancellation.
  (iv)   The other relief asking for an injunction directing
the commissioner to withdraw the cancellation also could not
be  granted because Rule 250 vests the Commissioner with  an
absolute discretion in the matter.
  (v)  Though there was no specific provision of law  compel
ling  the Commissioner to exercise the discretion vested  in
him under Rule 250, inasmuch as the enabling power vested by
Rule  250 was vested in the Commissioner for the welfare  of
the  public at large it was coupled with a duty to  exercise
it  when  the circumstances so demanded.   The  Commissioner
could  consequently be ordered under s. 45 of  the  Specific
Relief Act to exercise his discretion and decide whether the
licence should or should not be cancelled.
(vi)  The words "any law" in s. 45 do not  mean  statutory
law alone but embrace all kinds of law whether referable  to
a statutory provision or otherwise.  Therefore the  perform-
ance
of duties under the rules can be compelled under the  provi-
sions of s. 45.
  (vii)  There  was  no other specific  and  adequate  legal
remedy  open to the respondent within the meaning of  s.  45
for though the respondent could  have ignored the  so-called
order  of cancellation , he could only have done so. at  his
peril  as it purported to emanate from the State  Government
and was served by a public officer. The remedy of injunction
was not a proper and adequate remedy in the circumstances of
the present case.
  (viii) The petition was not incompetent under s. 46 of the
Specific  Relief Act as there had been a demand  of  justice
and  a denial thereof within the meaning of the  section  in
the circumstances of the case.
  (ix) Public orders, publicly made, in exercise of a statu-
tory authority cannot be construed in the light of  explana-
tions subsequently given by the officer making the order  of
what he meant or of what was in his mind, or what he intend-
ed  to do.  As such orders are meant to have  public  effect
and  are intended to affect the acting and conduct of  those
to  whom they are addressed' they must be  construed  objec-
tively  with  reference to the language used  in  the  order
itself.
137
    Julius  v.  Lord  Bishop of Oxford (5  App.  Cas,  214),
Alcock,  Ashdown & Co v. Chief Revenue Authority (50  I  .A.
227) referred to.
JUDGMENT:
CIVIL  APPELLATE JURISDICTION:  Civil  Appeal No. 93 of
1951.  Appeal  from the Judgment and Decree of  the   Bombay
High  Court (Chagla C.J. and Bhagwati J.) dated 6th  Septem-
ber,  1949,  in Appeal No. 16 of 1949, arising  out  of  the
Judgment dated' 2nd February, 1949, of a Single Judge of the
same High Court (Tendolkar J .) in Miscellaneous Application
No.  223  of 1948.  The facts of the case and  arguments  of
counsel are stated fully in the judgment.
C.K.  Daphtary, Solicitor-General for Indict (G.  N.  Joshi,
with him)for the appellant.
    N.C.  Chatterjee  (R. M. Hajarnavis, with him)  for  the
respondent.
    1951.   November  23.   The Judgment of  the  Court  was
delivered by
    BOSE  J.--The question here is whether an  order  should
issue  under section 45 of the Specific Relief  Act  against
the appellant, who is the Commissioner of Police, Bombay.
    The  respondent,  Gordhandas Bhanji, wanted to  build  a
cinema house on a plot of land at Andheri in the year  1945.
At that date Andheri did not form a part of Bombay and under
the. rules then in force it was necessary to obtain  permis-
sion  from the District Magistrate of that area in the  form
of a No Objection Certificate.  Accordingly, the  respondent
made  the  necessary application on the 12th  of  September,
1945. Permission.was refused on the 30th of September, 1945,
on  the ground that the public of the locality objected  and
also because there was already one cinema theatre at Andheri
and  so  it  was  not necessary to  have  another  "for  the
present."
    On  the 1st of October, 1945, Andheri became a  part  of
Greater  Bombay  and the jurisdiction to grant or  refuse  a
license  was  transferred  to the  Commissioner  of  Police,
Bombay. The respondent accordingly put in a second  applica-
tion on the 21st of November, 1945, and
138
    addressed it to the Commissioner of Police.  After  some
correspondence  this  was also turned down on  the  19th  of
March, 1946, "owing to public opposition." Nothing  daunted,
the respondent applied again on the 1st of April, 1946,  and
asked  for  a "reopening" of his case. One  of  the  grounds
given was that
    "The Government of Bombay are giving very careful atten-
tion and affording all reasonable facilities to develop  the
Greater  Bombay into a model one.  A modern  cinema,  there-
fore, of the type I propose to build is indispensable."
In  view of that, not unnaturally, the  Commissioner  of
Police  appears to have consulted the Government of  Bombay,
for  he wrote to the respondent on the 25th of April,  1946,
saying that
    "the  whole question of considering and approving  sites
for cinemas is under the consideration of the Government  of
Bombay,"
and he promised that
    "when a decision is arrived at, your application will be
examined."
    It seems that somewhere about this time a Cinema Adviso-
ry Committee was constituted by Government. We have not been
enlightened about the scope and extent of its powers but  it
is  evident  from its nomenclature that its  functions  were
purely  advisory.  Five members of this Committee appear  to
have inspected the site on the 12th of May, 1947, and  after
prolonged discussion they reached the conclusion that
    "in  view  of the location of four schools near  by  the
site,  this site is unsuitable for the purpose required  and
therefore it should be rejected."
    A  note was drawn up to that effect and the  matter  was
ordered  to be placed on the agenda of the next  meeting  of
the Committee "for final decision."
    This  final decision has not been placed on  record  but
the  Commissioner of Police tells us in his  affidavit  that
within  a month the Committee advised that  the  application
should  be granted. Accordingly, the  Commissioner  accorded
the necessary permission by his
139
letter dated the 14/16th of July, 1947.  There is no  refer-
ence here to the recommendations of the Advisory co  Commit-
tee  and. though they may have weighed, and   rightly,  with
the Commissioner there is nothing on the face of the  letter
to  indicate that the decision was not that of  the  Commis-
sioner himself given in bona fide exercise of the discretion
vested in him.
    We refer to this because the Commissioner has stated  in
his affidavit that
    I was fully satisfied that the petitioner's  application
should  be refused, but that it was only at the instance  of
the  Cinema Advisory Committee that I granted the said  per-
mission on the 14th of July, 1947."
    That,  however,  would not affect the  validity  of  his
order. There is no suggestion that his will was overborne or
that  there was dishonesty or fraud in what he did.  In  the
absence of that, he was entitled to take into  consideration
the advice thus tendered to him by a public body set up  for
this  express purpose, and he was entitled in the bona  fide
exercise  of  his discretion to accept that advice  and  act
upon it even though he would have acted differently if  this
important  factor had not been present to his mind  when  he
reached  a  decision. The sanction accorded on the  16th  of
July, 1947, was therefore a good and valid sanction.
    This  sanction occasioned representations to  Government
presumably  by  the "public" who were opposing  the  scheme.
Anyway,  the  Commissioner wrote to the  respondent  on  the
19/20th September, 1947, and direct him
    "not  to  proceed with the construction  of  the  cinema
pending Government orders."
    Shortly  after,  on  the 27/30th  September,  1947,  the
Commissioner  sent the respondent the  following  communica-
tion:
    "I  am  directed by Government to inform  you  that  the
permission  to erect a cinema at the above site  granted  to
you under this office letter...dated the 16th July, 1947, is
hereby cancelled."
140
      It  will  be  necessary at  this  stage  to  determine
whether  this was a cancellation by the Commissioner  of  on
his own authority acting in the exercise of some power which
was  either vested in him or of which he bona fide  believed
himself  to  be possessed, or whether he merely acted  as  a