<NAME>, J.

1. The question referred to this Bench for determination is as to whether <ORG> can interfere in the exercise of its supervisory jurisdictions under Article 227 of the Constitution of India, with the finding of <ORG> recorded when a dispute, which is the subject matter of a proceeding under Section 145, Cr. <NAME> cannot be decided by the Magistrate before whom it is pending, and it is referred to a civil Court for a finding. Section 146 of the Code provides that if the Magistrate in such a case is of the opinion that he is unable to decide as to which of the contesting parties was in such possession of the subject of dispute, he may attach it and draw up a statement of the case and forward the record of the proceedings to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject matter of dispute on the date of the order. Sub-section (1B) of Section 146 provides that at the conclusion of the enquiry the civil Court shall transmit its finding together with the record of the proceedings to the Magistrate by whom the reference was made and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of <ORG>. Sub-section (1D) provides that no appeal shall lie from any finding of <ORG> given on a reference under this section nor shall any review or revision of any such finding be allowed. Sub-section (1E) lays down that an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. A decision of <ORG> of this Court reported in <CITATION> , 1962 BLJR 105: (1962 (2) Cri LJ 577) is to the effect that in view of the provisions of Sub-section (1D) of Section 146, Cr. <NAME> <ORG> is not competent to interfere with the finding of <ORG> returned by it on a reference under Sub-section (1) of this section, but that it is competent to rectify any palpable error under Article 227 of the Constitution of India.

2. Accordingly, two questions arise in substance for consideration in the present reference. One is, whether Article 227 of the Constitution can, be applied and that the finding of <ORG> in the present context can be interfered with by <ORG>. Article 227 of the Constitution provides that every High Court shall have superintendence over all <ORG> and tribunals throughout the territory in relation to which it exercises jurisdiction. <ORG> in the very nature of its constitution is subordinate to <ORG> and as such is subject to the supervisory jurisdiction of <ORG> as contemplated under this Article. It is unnecessary to refer in detail to the relevant provisions preceding the incorporation of this Article in the Constitution of India. It is enough to state that the jurisdiction to superintend was conferred upon <ORG> of the three Presidency towns and the same was also incorporated in Section 9 of the Indian High <ORG> Act, 1861. When the Government of India Act, 1915, was enacted, Sections 9 and 15 of the Indian High <ORG> Act, 1861, which together comprised the Superintending jurisdiction of <ORG>s, came to be replaced by Section 107 of the Government of India Act, 1915. Under Section 224 of the Government of India Act 1935, the power to superintend conferred upon <ORG> under Section 107 was curtailed to a certain extent so far as the judicial part of it was concerned, inasmuch as Sub-section (2) of Section 224 provided, "Nothing in this section shall be construed as giving to <ORG> any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision".

The superintending jurisdiction was both administrative and judicial under the Indian High <ORG>s Act as also Government of India Act, 1915, but under Section 224 of the Government of India Act, 1935, the, jurisdiction was narrowed down to administrative superintendence. Under Article 227 , however, <ORG> thought it fit to invest larger power in <ORG>, so that the position in this respect now is the same as it was under Section 107 of the Government of India Act, 1915, and under Section 15 of the Indian High <ORG>s Act, 1861. In general terms, no restriction has been placed upon this power of <ORG> which, is to be exercised in a suitable case; yet it is well settled that, where an appeal is provided, the <ORG> will not interfere by any peremptory order with the ordinary course of adjudication, save in cases wherein a defeat of law and a grave wrong are manifest and are irremediable by the regular procedure, vide <CITATION> 7 Bom 341 (FB). It has also been laid down in the above decision, in so far as it is relevant that the <ORG> will, in all cases, regard its exercise of the extraordinary jurisdiction as discretional, and subject to considerations of the importance of particular case.

The principle laid down in the above case is that the <ORG> will sedulously abstain from making any order or refusing to make it on grounds the appreciation of which is exclusively assigned by law to some other authority, provided the legal competence be exercised in good faith on matters that may reasonably be understood as within its lawful range. Their Lordships of the Supreme <ORG> in the cases of <CITATION> ) AIR 1955 SC 233; <CITATION> , AIR 1958 SC 398 and <CITATION> , AIR 1960 SC 137 have also considered the scope and defined the limits of discretion to be exercised by the High <ORG> under Articles 226 and 227 of the Constitution. In the following case, they have also held that if another effective remedy be open to the party then exercise of jurisdiction under Article 227 will not be resorted to: <CITATION> , AIR 1961 SC 1506. Similar is the view expressed by the Bombay High <ORG> in <CITATION> , AIR 1956 Bom 545 and the Calcutta High <ORG> in <CITATION> , AIR 1952 Cal 526. The principle laid down by the Supreme <ORG> in the above decisions is that the scope of the power of interference by the High <ORG> under Article 227 is co-extensive with the exercise of its power under its writ jurisdiction under Article 226 of the Constitution, and the power of interference may extend to quashing an impugned order on the ground apparent on the face of the record; but under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority.

One of the questions mooted in the case of <NAME>, AIR 1958 SC 398 was whether an interlocutory order passed by <ORG> could be interfered with by <ORG> in an appeal against that order, and it was laid down that although, ordinarily, such an order could not be interfered with, yet <ORG> would interfere with such, an order wheat the features of the case warrant such interference Mr. <NAME> has referred in particular to the decision in the case of <NAME>, AIR 1960 SC 137 wherein it has been laid down that however wide may be the powers of <ORG> under Article 227-- and it is definitely wider than the power under Section 115 of the Code of Civil Procedure it is well established that <ORG> cannot in the exercise of its powers under that section, assume powers to correct every mistake of law.

Where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice but, if anything, it is merely an erroneous decision which error, not being apparent on the face of the record, it cannot be corrected by <ORG> in revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution. The conclusion seems to be that <ORG>, as a rule, will not interfere in the exercise of its superintending jurisdiction with the order of a subordinate Court merely on questions of facts or only because there is failure to consider certain affidavits filed by the parties, if <ORG> is satisfied that <ORG> has fairly considered the evidence on record, even if every item of evidence has not been gone into.

3. Mr. <NAME> has urged that If an alternative effective remedy is open, <ORG> will not exercise its jurisdiction under Article 227 of the Constitution. It is true, no doubt, that <ORG> in the case of <NAME>, AIR 1961 SC 1506 and <ORG> of Bombay in the case of <NAME>, AIR 1956 Bom 545 and <ORG> in the case of <NAME>, AIR 1952 Cal 526 Save laid down that where an alternative remedy 5s open, <ORG> will, as a rule, not interfere either under Article 226 or 227. That, in fact, is a well known consideration in determining whether <ORG> should give relief by way of issuing a writ or in its power of superintendence, although the aforesaid decision of <ORG> makes it clear that it is not an inflexible rule and it is a matter of discretion for <ORG> to be exercised on a consideration of a variety of individual facts. In the present case, Mr. <NAME> has referred to Sub-section (1E) of Section 146, Code at Criminal Procedure, which lays down that an order under this section shall be subject to any subsequent decision of a <ORG> of competent jurisdiction. It is true, no doubt, that an order under this section can be reopened by way of regular suit for declaration of title, but that, in itself, will be hardly a ground for the refusal by <ORG> to exercise its jurisdiction under Article 227 in a suitable case. If that view were taken, even a judgment containing a flagrant violation of legal principles, or principles of natural justice, would also be upheld, which is putting the matter in the extreme form, and I am not inclined to agree with Mr. <NAME> in so far as his contention is based on Sub-section (1E) of Section 146.

4. Another relevant question, however, for consideration in determining whether <ORG> will exercise its jurisdiction under Article 227 of the Constitution, in the matter of a finding by <ORG>, is as to whether the exercise of such jurisdiction will not be superfluous, inconvenient and cumbersome, The view appears to be as expressed in some of the decisions, to which reference has been made by the learned counsel, that Sub-section (1D) bars out any appeal, review or revision of such a finding and as such the only remedy open, to a party must be the procedure provided under Article 227 of the Constitution. It is no doubt, true that Sub-section (1D) in terms refers to this matter specifically, but the point for consideration is whether it amounts to prohibiting an appeal review or revision of such a finding recorded by <ORG> or it goes beyond it and puts such a finding beyond the power of <ORG> as well to consider when the matter comes up before it under Sections 435 and 439, Code of Criminal Procedure when such finding has been reserved by the Magistrate and an order has been plained by him in conformity with the decision of <ORG>.

It is, no doubt, true that an opinion has been expressed in some of the decisions that Sub-section (1D) gives finality to the finding of <ORG> and that it cannot be interfered with either under SECTIONS 435 and 439 or under Article 227 of the Constitution. That was the view expressed by <NAME>, J. of <ORG> in <CITATION> , AIR 1960 All 559 and some other decisions, vide <CITATION> , AIR 1959 Mad III: <CITATION> , AIR 1958 Pat 85; <CITATION> , 1962 BLJR 267: (AIR 1962 Pat 468); <CITATION> , AIR 1959 Cal 366 to the effect that <ORG> is now a competent to interfere in the exercise of its revisional jurisdiction with the finding of <ORG> as accepted by the Magistrate in any circumstances, howsoever illegal, improper or other-wise incorrect it may be. But the question for decision is whether this Court will follow the opinion expressed by the learned Judges in these cases.

It is true, no doubt, that against a finding of <ORG>, no appeal review or revision will lie under the Code of Civil Procedure inasmuch as <ORG>, while adjudicating the reference made by tile Magistrate, does not act as <ORG> independently but only records a finding as a tribunal which in itself will not be operative unless it is adapted by the Magistrate, although the latter is bound to act in conformity with it. It is only when such a finding becomes a part of the order of the Magistrate and is integrated into it that it becomes operative and binding upon the parties. The reference to prohibition of appeal, review or revision of the finding of <ORG> is based on the principle that it is not a final order and not binding upon by any party being only an intermediate stage in the proceeding, and as such no appeal, review or revision will lie against it, mainly, under the Code of Civil Procedure and even under the Code of Criminal Procedure for the obvious reason that it is the opinion expressed about certain matters referred to <ORG> by the Magistrate. To infer from this, however that the <ORG> also prohibited the consideration or the propriety or otherwise of the finding by <ORG>, when it has been adopted by the Magistrate and an order passed on it, against which an application in revision has been filed by the party aggrieved, will amount to laying down that the <ORG> by prohibiting an appeal, review or revision under Sub-section (1D) has also by implication included under it Sections 435 and 439 of the Code of Criminal Procedure.

Those two sections confer power upon <ORG> to consider any order passed by the <ORG> subordinate to it to call for the records and rectify any illegality or impropriety in the order which in some cases may also cover a case of rectifying a defective finding of fact, if it is so grave or serious as to merit interference by <ORG>. In my opinion, however, Sub-section (1D) cannot be read in that form. If the <ORG> intended to curtail the power of <ORG> in regard to an order passed under Section 146 , Cr. P. C, there should have been side by side an amendment of Sections 435 and 439 . The same not having been done, Sub-section (1D) must be given a narrow interpretation so as to confine it only to the finding of the Civil <ORG> as such and not to extend it to the position which results when such a finding has been adopted by the Magistrate and order passed upon its basis. It is true, no doubt, that the opinion expressed in some of the decisions is that this will amount to doing indirectly what could not be done directly. In my opinion, however, it will be an unsound application of the aforesaid principle in the present context. The legislature appears never to have intended barring out interference under Sections 435 and 439 . What it really intended to do was that the finding of the Civil <ORG> which, in the absence of Sub-section (1D), might be liable to construction that this ' being a finding of the Civil <ORG>, it might be subject to the provisions of the Code of Civil Procedure, cannot be interfered with. That contingency has been ruled out by Sub-section (1D) so that the matter would now be governed by the Code of Criminal Procedure, It is true, no doubt, that even under the Code of Criminal Procedure, the finding of the Civil <ORG> as such cannot be interfered with, because, in the first place. Code of Criminal Procedure applies to the order of a Criminal <ORG> and a finding of the Civil <ORG> as such cannot be subject to revision under the Code of Criminal Procedure. Moreover, it is an interlocutory order and to allow it to be made subject matter of a revisional jurisdiction would be extremely inconvenient. If that were so, it may well be that <ORG> will interfere with it at one stage under Article 227 or under Sections 435 and 439 , and the same finding accepted by the Magistrate may come up for examination by <ORG>, if, for instance, the jurisdiction of the Magistrate to pass the order strictly in terms of Sections 145 and 146 of the Code of Criminal Procedure, such as the existence of the apprehension of a breach of the peace due to a dispute, may be questioned. Thus, there will be one proceeding under Article 227 of the Constitution and yet another proceeding under Sections 435 and 439 of the Code of Criminal Procedure for another purpose. In my opinion, therefore, such a procedure will be definitely inconvenient and cumbersome. If, on the contrary, the view adopted is that at one stage the finding of the Civil <ORG> is acted upon by the Magistrate, and an order in conformity there with is passed, it becomes an order by a Magistrate and it will be subject to the provisions of Sections 435 and 439 of the Code of Criminal Procedure, the position is rationalised. This was the opinion expressed by Mr. Justice <NAME> of the Madras High <ORG> in the case of <CITATION> , AIR 1960 Mad 169. That was a case in which two applications in revision were filed by the petitioner; one against the finding of the Civil <ORG> and another against the order passed by the Magistrate acting upon that finding. The High <ORG> dismissed both the applications; the one against the Magistrate not on the ground of jurisdiction but on the ground that no point was made out for interference under, Section 439 , and the other one was dismissed on the ground that ho revision application against the finding of the Civil <ORG> as such was maintainable in terms of Sub-section (1D) of Section 146 . But the learned Judge made the following observation : --

"(7) This restriction is but proper because the findings get merged in the decision of the magistrate and all the grounds that can be urged against the finding can be urged against the finalised decision and if there is no such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity. This wise restriction has been conceived in the best public interests and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of this <ORG>".

The decision seems to be in line with the opinion I have expressed above and, to my mind, that is the correct view to be followed in regard to the interpretation of the various sub-sections of Section 146 Cr. P. C.

I may refer in this connection to a rule of legal construction of a statute when there are provisions therein which may appear in some matters to be inconsistent with each other. It is settled that in such a case the principle of harmonious construction is to be followed and only when that is altogether precluded, on account of the plain terms of the relevant provision the question arises which is to prevail by implication. This is known as exposition ex visceribus actus. What Lord <NAME> observed in <NAME> v. <NAME>, (1828) 7 B and C 643, 660, as quoted by <ORG> (5th edition, page 94), is pertinent and runs thus : --

"In construing Acts of <ORG> we are to look not only at the language of the preamble or of any particular clause, but at the language of the whole Act. And if we find in the preamble or in any particular clause an expression not so large and extensive in its import as those used in other parts of the Act, and upon a view of the whole Act we can collect from the more large and extensive expressions used in other parts the real intention of the <ORG>, it is our duty to give effect to the larger expressions, put withstanding the phrases of less extensive import in the preamble or in any particular clause".

Coming now to the facts of the case, the disputed lands are 8 bighas 4 kathas, being plot Nos. 585 (4 bighas 10 kathas from the east) and 592 (14 Kathas from the south) of khata No. 81 and plot No. 471 (3 bighas from the south) of Khata No. 97 of village Mohanpur. According to the case of the petitioners, who were second party, a part of this land was given to <NAME> and his two brothers from whose heirs the first party purported to have purchased the disputed land. The mortgage, however was redeemed and, after redemption, the petitioners took over possession. They continued to be in possession thereafter. The case of the first pasty was that each party was in possession in his own right for a long time. In support of their respective cases, both parties adduced documentary evidence and affidavits sworn by the witnesses produced by them. A pleader Commissioner was appointed to submit his report. The documents filed by them included rent receipts, canal parchas and bill papers of sugarcane. Apart from the above documents, the first party also filed sale deeds and affidavits sworn by four persons. The learned Magistrate of Sasaram who held the enquiry found himself unable to decide the dispute on account of its complicated nature and referred the matter to the Additional Subordinate Judge of Sasaram for a finding. The latter, on a consideration of the evidence led by the parties, recorded a finding in favour of the first party and forwarded it to the Magistrate who accepted it and passed orders in favour of the first party. The second party accordingly has come up in revision against that order.

5. Learned Counsel for the petitioners has not raised any clear question of law, but has raised the point that the finding of the learned Additional Subordinate Judge suffers from non-consideration of certain important documents filed by the petitioners and also errors of record. He has also ignored completely the affidavits filed on behalf of the parties which also would vitiate his finding in terms of a number of decisions of this court.

6. In support of his first contention, he has placed before us a short history of the various transactions relating to the disputed property. Khata Nos. 81 and 97 measure 61 bighas and 4 bighas respectively. Out of this area, 23 bighas were not given in mortgage, and the mortgage which was executed in 1895 in favour of <NAME> related only to 40 bighas. A rent suit was instituted by the landlord in 1895. The mortgagees were compelled to pay the entire arrears of rent and they became statutory mortgagees of the entire khatas 81 and 97 under Section 171 of the Bengal Tenancy Act. They got themselves recorded as raiyat in respect of the entire khata. In 1918, a suit was instituted by <NAME> and <NAME> for redemption and for a declaration that a further rent sale of the two holdings in 1905 during the subsistence of the mortgage interests was a fraudulent rent sale and the properties which were purchased by the first party did not lose their character as mortgage interest. The suit was thus framed as a composite suit one prayer of which was for redemption and the other was for declaration. The prayer for redemption was, however, withdrawn but that for declaration was pressed and the suit was dismissed. The mortgagors contemplated to prefer an appeal against that decision but, in the meantime, the parties came to an amicable settlement and on the 9th May, 1920, the terms of the compromise were drawn up by which the petitioners got back their 23 bighas and the mortgagees remained in possession of the remaining area as such. This continued up to 1951 when a part of the land was redeemed by a registered document. Another suit was instituted again for redemption of the remaining area. The suit was decreed. On appeal taken from that decision, however, the judgment of <ORG> was reversed.

Then a second appeal was preferred. This also was compromised. A third suit, however, still remained pending. According to the petitioners, the disputed plots formed part of the 23 bighas of land which was not given in mortgage but in respect of which a statutory mortgage sprang up which, however, again, was terminated by compromise dated the 9th of May, 1920. <NAME>, grandson of <NAME>, the original mortgagee, sold 2 bighas 2 kathas out of the land comprised in plot No. 392, and 12 kathas and 1 bigha 10 kathas out of plot No. 471 comprised in khata No. 97, to <NAME> and <NAME>, first party, on the 18th of February, 1950. <NAME> and <NAME> applied to <ORG> for mutation of their names in respect of this area of 2 bighas 12 khathas, but their application was rejected. The disputed plots, as I have mentioned above, are plot Nos. 471, 585 and 592, measuring 8 bighas. On the 3rd of February, 1960, <NAME>, one of the grandsons of <NAME>, executed a sale deed in favour of <NAME> nephew of <NAME>, opposite party No. 1, relating to 18 kathas ro dhurs out of plot No, 585 of khata No. 81. On the same date, <NAME> executed another sale deed in favour of <NAME>, opposite party No. 11. On the same date, <NAME>, another grandson of <NAME>, executed a sale deed in favour of opposite party Nos. 1, 11 and 13, namely, <NAME>, <NAME> and Collector <NAME>, out of plot Nos. 585 and 471; 5 bighas 10 kathas out of plot No. 585 and one bigha out of plot No. 471. On the same date, <NAME> executed a sale deed in favour of Collector <NAME> comprising 10 kathas out of plot No. 585. In 1959, <NAME> <NAME>, had executed a sale deed in favour of <NAME>, opposite party No. 11, conveying 15 kathas out of plot No. 585, khata No. 81.

Mr. <NAME> appearing for the petitioners urged that all these sale deeds which, apparently, lend strong support to the case of the opposite party should have been completely discarded inasmuch as once it was held that under the compromise dated the 9th of May, 1920, 23 bighas of land were put back in possession of the mortgagors represented by the petitioners and, further that the disputed lands are comprised in those khatas, any subsequent sale deed by the family of the mortgagees relating to the same property is wholly ineffectual for the purpose of passing title to the vendees or for affecting the possession of the mortgagors. The learned Additional Subordinate Judge has lost sight of this aspect of the case. The deed of compromise (Saraite safainama), however, is an unregistered document and Mr. <NAME> has contended that it has been referred to in some other documents later on. Mr. <NAME> has drawn our attention to the following documents which, according to him, have not been considered at all:

(1) The report of the pleader commissioner who found the disputed plots amalgamated with the admitted plots of the petitioners. The report was submitted on the 26th of July, 1960.

(2) Report of the Canal S. D. O. dated the 18th of January, 1954. That also showed that plot No. 584 and plot No. 585 were amalgamated at least in 1954, if not earlier.

(3) Survey Register of Cane Cooperative Society to show that from 1940-41 to 1953 <NAME>, petitioner, grew sugarcane over these plots.

(4) The application of the first party in 1952-53 for mutation of their names in the canal papers in regard to plot No. 585, which, was rejected.

(5) The application by <NAME> to have his name mutated in regard to plot Nos. 571 and 592, also rejected.

(6) The application of opposite party No. 4 made before the Canal S. D. O. on the 15th September, 1950. That also was rejected.

(7) The Khatian showed that plot No. 471 is part of khata No. 97 and the receipts which are filed in respect of khata No. 81 cannot relate to the land under khata No. 97.

Learned Counsel has also contended that the opposite party has not filed any canal parchas from the period 1950 onwards, whereas the petitioners have filed them. He has also contended that out of the affidavits filed on behalf of the opposite party, which the learned Subordinate-Judge has not considered, the affidavits of <NAME> and <NAME> are of no value, as they are partisan witnesses and they are bound down along with the members of the opposite party in the proceeding under Section 107 , Code of Criminal Procedure. As for the affidavits on behalf of the petitioners, there is one by a police constable who was deputed to the village for the personal safety of the petitioners who apprehended breach of the peace from the side of the opposite party.

7. Mr. <NAME> for the opposite party has contended that there are two Bajidawas which do not mention the names of the petitioners as having any interest in the disputed land; but it is incorrect. The finding of the learned Additional Subordinate Judge is that these Bajidawas, dated the 28th July, 1959, and 6th January, 1960, were executed after the executants parted with their interest in the disputed land. The <ORG> also does not show the plot number. The field bujharat has been in favour of the first party. In my opinion, the documents in favour of the parties are of a very conflicting character. The affidavits filed on their behalf also, in the circumstances, cannot improve the position, as a result it cannot be held that the finding of the learned Additional Subordinate Judge is necessarily vitiated. It may be that there are certain errors in the finding and the consideration of the evidence is not as full and clear as it should be. For that reason, we gave liberty to the learned Counsel for the parties to place before us an analysis of the very large number of documents filed by them in support of their respective cases. In view of the fact that the -documents are of a conflicting nature, and of considerable weight for either party, I find myself unable to interfere with the findings of the learned Additional Subordinate Judge as was laid down by <NAME>, C. J. in <NAME> v. <NAME>, 35 Cal WN 374 : (AIR 1931 Cal 619). It may be mentioned that the learned Counsel for the opposite party placed considerable reliance on the field bujharat which was prepared only a few months before the initiation of the proceedings under Section 144 , C. P. C. The <ORG> has amended Sections 145 and 146 of the Code of Criminal Procedure for the sake of speedy disposal of these proceedings and to send the case back to the Court below, in the circumstances of this case, for a decision now, would mean further delay.

8. In the result, the application is dismissed and the rule is discharged. If the petitioners are aggrieved by the order, it will be open to them to resort to <ORG> by a regular suit for declaration of title and recovery of possession.

Sahai, J.

9. I agree that there is no merit in this application, and it should be dismissed. I find it necessary, however, to express my views on some of the points which arise for determination in this case.

10. The points which this Bench has to consider may be formulated as follows:

1. Does Sub-section (1D) of Section 146 of the Code of Criminal Procedure, which is to the effect that no appeal, review or revision shall He against a finding of <ORG> on a reference under the section, apply only so long as the Magistrate has not disposed of the proceeding under Section 145 in conformity with the decision of <ORG>?

2. Can <ORG> interfere with the finding of <ORG> at any stage in exercise of its power of superintendence under Article 227 of the Constitution?

11. As to the first question, my learned Brother <NAME>, <NAME> has expressed the view that the provisions of Sub-section (1D) of Section 146 bar an appeal, review or revision under the Code of Civil Procedure, and even under the Code of Criminal Procedure, only so long as the Magistrate does not pass his order in conformity with the decision of <ORG>. I have considered the matter from several aspects; but, with respect, I find myself quite unable to agree with this view.

12. It is necessary, first, to consider the position of <ORG> while hearing a reference under Section 146 and the nature of the proceeding before it. It is not possible, in my opinion, to equate the position of <ORG> with an amicus curiae. The meaning of the expression 'amicus curiae' as given in Webster's New International Dictionary; is:

"a friend of <ORG>; hence, in practice, a bystander or party who suggests or states some matter of law for the <ORG>'s assistance".

A note appended under this is to this effect:

"An amicus curiae is heard only by the leave and for the assistance of the <ORG>, and upon a case already before it. He has no control over the suit, and no right to Institute any proceedings therein".

It is thus manifest that an amicus curiae has no legal position or right. He merely assists the <ORG> by pointing out the law or evidence at the request of the <ORG>, which is free to accept or reject his opinion. Under Section 146 of the Code of Criminal Procedure, the Civil <ORG> has a definite statutory position. Possibly, the legislature has provided for reference to the Civil <ORG> on the basis that the presiding officer of the Civil <ORG>, who devotes himself exclusively to judicial work, has more experience in judicial matters than a Magistrate, who has multifarious kinds of duties, including judicial work and administrative work. Furthermore, it is not open to the Magistrate either to accept or to reject the finding of the Civil <ORG>. He is bound to pass orders in conformity with the decision of the Civil <ORG>.

13. The nature of the proceeding before <ORG> continues to be criminal, and does not become civil. As stated by <NAME>, J. in <CITATION> , AIR 1958 Pat 308, "......the proceeding even on reference made to <ORG> on the point of possession retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and is as such all along kept in the seisin of the criminal <ORG> for its final conclusion".

With respect, I agree with this observation as well as the reasons given therefor.

14. In my judgment, the only interpretation which can be put upon Sub-section (1D) is that the finding of <ORG> cannot be challenged in that <ORG> or in a superior <ORG> at any stage. The first line of reasoning which leads me to this conclusion is very simple. Sub-section (1B) provides for <ORG> to conclude the inquiry and transmit its finding to the Magistrate and for the Magistrate to dispose of the proceeding under Section 145 in conformity with the decision of <ORG>. The Magistrate's function, therefore, is only to declare the possession of that party whose possession has been found by <ORG>. Even after he has given such a declaration, the finding of <ORG> remains the finding of that <ORG>, and does not become the finding of the Magistrate. The Magistrate does pass the final order; but he cannot give any finding of his own, vide AIR 1959 Cal 366. There is thus no question of the finding of <ORG> merging into the "finding" of the Magistrate.

15. Sub-section (1D) speaks of the finding of <ORG>, and, if the legislature had meant that that finding would become subject to appeal, review or revision after the Magistrate passes his order, there could be no difficulty in adding, at the end of the sub-section, the words 'until the Magistrate passes his final order. Addition of those words was necessary also because an earlier Sub-section, i.e. (1B), has provided for the passing of the final order by the Magistrate. In the absence of those words, it is not possible for me to hold that the finding remains sacrosanct so long as the Magistrate does not pass his final order but becomes subject to revision by <ORG> like any other order of an inferior <ORG> as soon as he passes such order.

16. The question can be considered from another point of view. I have already observed that the proceeding before <ORG> retains its nature as a criminal proceeding. No appeal, review or revision under the Code of Civil Procedure could, therefore, be entertained against the finding of <ORG>, even if Sub-section (1D) had not existed. No appeal against that finding could lie even under the Code of Criminal Procedure because Section 404 of that Code lays down that no appeal would lie from any judgment or order of <ORG> except as provided by the Code or any other law for the time being in force. Ho section of the Code nor any other law provides for an appeal against the finding of <ORG> on a, reference under Section 146 . There is no provision in the Code , giving power to <ORG> to review its own judgment. Unless the power of review was specifically given to <ORG>, therefore, it could not review its finding on a reference of the kind in question. A revision could also not lie under Sections 435 and 439 because Section 435 speaks of the record in a proceeding before an inferior Criminal Court being called for and examined, and Section 439 speaks of orders which may be passed in a proceeding, the record of which has been called for by <ORG> itself or has been reported for orders.

At the stage when <ORG> arrives at its finding and before the Magistrate passes his final order, the record is not before an inferior <ORG>. Hence, powers under Sections 435 and 439 cannot be exercised. Even if it is assumed, however, that a criminal revision lies because the proceeding can be said to be one before an inferior <ORG> on the ground that the Magistrate retains seisin over it even while the reference is pending before <ORG> all that was necessary to provide for under Sub-section (1D) was to bar a criminal revision against the finding of <ORG>. Instead of doing that, the legislature has used very strong language by saying that no appeal, review or revision would lie. If the only purpose was to bar a criminal revision against the finding of <ORG> until the Magistrate passed his final order, it would mean that the legislature unnecessarily used very emphatic language to achieve very little.

17. It is said that, if the legislature intended by enacting Sub-section (1D) to curtail <ORG> power of revision, there should have been a corresponding amendment of Sections 435 and 439 . I am unable to agree. There is, in my opinion, not the slightest doubt that a revision lies against the final order of the Magistrate because there is no prohibition in Section 146 against a petition for revision being entertained from the Magistrate's order. All that Sub-section (1D) means is that the finding of <ORG> will not be liable to be challenged before that Court or a superior Court. In view of the amendment introduced in Sections 145 and 146 by Act 26 of 1955, there are three different stages in a proceeding under Section 145 . At the first stage, the Magistrate draws up a proceeding under that section when be is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or its boundaries. He then proceeds under Section 145 , and, if he can find possession with either party as required by Sub-section (4) of that section, he declares that party to be in possession. It is only if he is of opinion that none of the parties is in possession or if he is unable to decide as to which party is in possession that he can make a reference to <ORG>. The first stage is over when the reference is made. The second stage is the inquiry before <ORG> ending with a finding arrived at by that Court relating to possession. The third stage starts when the finding goes to the Magistrate. He has then to pass final order in conformity with the finding. <ORG> power to examine the proceedings before the Magistrate in the first and the third stages cannot be doubted. All that Sub-section (1D) says is that the finding of <ORG> will not be liable to be challenged. It is thus open to <ORG> to interfere if the Magistrate's order is not in conformity with <ORG>'s finding or if there is some illegality in drawing up the proceeding or in making the reference. The restriction against interference with <ORG>'s finding is a special provision, and it is a well-established principle that a special provision controls a general provision. It was not, therefore, necessary to amend Sections 435 and 439 of the Code.

18. I may mention another point. The <ORG> amended Sections 145 and 146 by Act 26 of 1955 with the purpose of expediting disposal of a proceeding under Section 145 . It is for this reason that parties' right to examine witnesses has been taken away, and they have now to file affidavits instead in a proceeding under Section 145 . Besides, the legislature has expressed its hope in Sub-section (4) of Section 145 that the Magistrate would as far as practicable, conclude the inquiry within a period of two months. Under Section 146 , as it stood previously, the Magistrate had to attach the disputed property in case he was unable to find which of the parties was in possession. That has been done away with. In view of the amendments, the matter has to be referred to <ORG>, and the proceeding under Section 145 has to be terminated in accordance with the finding of <ORG> which has to conclude the inquiry, as far as practicable, within a period of three months. Sub-section (1E) of Section 146 provides that the order passed under Section 146 would be subject to a subsequent decision of <ORG> of competent jurisdiction. In view of that provision, the finding of <ORG> on a reference is not conclusive for all time. That being so, I do not think that there is any hardship to any party if the provisions of Sub-section (1D) are construed to mean that the finding of <ORG> cannot be challenged in criminal revision at any stage.

19. In my opinion, <ORG> continues to have power to interfere with the finding of <ORG> in exercise of its power of superintendence under Article 227 of the Constitution, if a case is made out for exercise of that power. I do not think that it will be inconvenient or cumbersome for any party to seek his remedy against an order passed by the Magistrate under Section 145 on the basis of <ORG>'s finding. He can file his petition under Sections 435 and 439 as well as Article 227 of the Constitution. <ORG> will then interfere under Article 227 with the finding of <ORG> only if a case for interference under that Article is made out; but it will exercise its ordinary power of revision under Sections 435 and 439 in so far as the proceedings before the Magistrate are concerned. I do not apprehend any difficulty if this procedure is followed.

20. Views similar to those which I have expressed above on the interpretation of Sub-section (1D) have been taken by <NAME>, J; in AIR 1959 Mad 111. In that case, the petition for revision was filed against the final order of the Magistrate. The learned Judge observed that no appeal, review or revision could lie against the finding of <ORG>. He further observed that <ORG> could not go into the correctness of the finding of <ORG> because that would amount to doing indirectly what was prohibited directly. This reasoning also supports the conclusion which I have reached. In AIR 1960 Mad 169, <NAME>, J. has relied upon the decision in <NAME> case, AIR 1959 Mad 111, on the point that no revision lies against the finding of <ORG>, but has made certain observations which indicate that the restriction applies only so long as the finding of <ORG> does not "get merged in the decision of the Magistrate". With great respect, I am unable to accept the observation as correct. As I have already said, the. Magistrate does not arrive at any finding, and there is no question of merger of findings. All that happens is that the Magistrate declares one party or the other to be in possession in accordance with the finding of <ORG>, which continues to retain its separate identity.

21. I may also refer to a Bench decision of this Court in 1962 BLJR 267: (AIR 1962 Pat 468) in which I delivered the judgment of the Bench. The conclusions which I have reached in that decision are in accord with the conclusion which I have reached in this case.

22. Though the finding of <ORG> is, under Sub-section (1D), not subject to appeal, review or revision, the constitutional power of superintendence given to <ORG> under Article 227 cannot be held to have been taken away. I may, refer only to AIR 1952 Cal 526 in this connection. Under Section 9(1) of the West Bengal Bargadars Act, it was provided that no award or order of a <ORG> or of an Appellate Officer shall be questioned in any <ORG>. The High <ORG> was included under the definition of '<ORG>'. Their Lordships observed that those provisions could not prevail against the Constitution, and that <ORG> could, in suitable cases, pass a necessary order in exercise of its power under Article 227.

23. It has been argued that <ORG> ought not to pass an order in exercise of its power under Article 227 , if a suitable alternative remedy is available. I agree with my learned Brother <NAME>, J. that there is no inflexible rule that <ORG> cannot issue a writ or pass an order in exercise of its power under Article 227 simply because an alternative remedy is available. I also agree that <ORG> has discretion to entertain a petition for issue of a writ or order notwithstanding the existence of such an alternative remedy in suitable cases. In the present case, I have held that, in a criminal revision arising out of a final order of the Magistrate, <ORG> cannot examine the correctness of <ORG> finding. This remedy is, therefore, not open to the aggrieved party. The only other remedy is provided in Sub-section (1E) of Section 146 . In pursuance of that remedy, an aggrieved party has to institute a suit. In my opinion, <ORG> cannot refuse to interfere in exercise of its power under Article 227 , if a case is made oat for exercise of such power, only on the ground that, by means of a lengthy remedy of a suit, the aggrieved party can get his redress. I wish only to add that, as a rule, <ORG> will decline to interfere under Article 227 before the Magistrate passes his final order on the ground that it will be inconvenient and duplication of work to entertain one petition before and one petition after the Magistrate passes his final order in conformity with the finding of <ORG>.

24. The limits of exercise of powers under Article 227 are well settled. In AIR 1960 SC 137, their Lordships have observed about the power under Article 227 as follows:

"However wide it (the power) may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that <ORG> cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by <ORG> in revision under Section 115 of the Code of Civil Procedure or under Article 227".

25. For the reasons given above, I would answer the first question which I have formulated by saying that the bar applies at all stages and the second question by saying that <ORG> can and would interfere with <ORG> finding in appropriate cases under Article 227 after the Magistrate passes his final order in accordance with that finding. We could, therefore, interfere with the finding of the learned <NAME> in this case, if a case for exercise of our power under Article 227 of the Constitution had been made out. My learned Brother <NAME>, <NAME> has discussed the merits, and if is perfectly clear that no such case has been made out. Hence, I agree with the order proposed.

<NAME>, J.

26. I have had the advantage of perusing the judgments of my esteemed brethren <NAME>, <NAME> and <NAME>, <NAME> and I agree that Criminal Miscellaneous No. 100 of 1962 should be dismissed.

27. I would, however, add a few words of my own. The important question for consideration is whether <ORG> can interfere with the finding of <ORG> under Sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final, order is passed.

28. Sub-section (i) of Section 146 Cr. P. C. provides for a reference to <ORG> for a decision of the question whether any or which of the parties was in possession, if the Magistrate is of the opinion that none of the parties was then in such possession or is unable to decide as to which of them was then in such possession of the subject of dispute.

29. Sub-section (1A) lays down how <ORG> shall dispose of the reference and decide the question of possession. Sub-section (1B) is important. It directs <ORG> to conclude the inquiry within three months of the appearance of the parties before it and transmit its finding to the Magistrate and the Magistrate shall dispose of the proceeding in conformity with the decision of <ORG>. Sub-section (1C) provides for costs of the reference. Then follows the controversial provision incorporated in Sub-section (1D). It provides that no appeal from nor any review or revision of any such finding of <ORG> shall He. It will be observed that this provision does not impose any bar to any review or revision of the order of the Magistrate passed under Sub-section (1B). It only provides that the finding of <ORG> (and not the order of the Magistrate) shall not be questioned in review or revision.

30. Another noteworthy thing is that no alteration has been made in Sections 435 and 439 with the result that the powers of <ORG> under these sections remains unaffected. There is, therefore, no reason to bar a revision from the order of the Magistrate passed under Sub-section (1B). It will also be observed that if the Magistrate himself decides the question of possession without reference to <ORG> and passes order under Section 145 , Criminal Procedure Code , declaring the possession of one or the other party, it is beyond controversy that that order is open to revision. There appears to be no foundation for distinction between an order passed by a Magistrate under Sub-section (4) of Section 145 and Sub-section (1B) of Section 146 of the Code of Criminal Procedure. It is recognised that a revision may lie even against the order of the Magistrate under Sub-section (1B) of Section 146 , Cr. P. C. but it is said that the revision in such a case must be limited in scope but there would appear no ground for such a differentiation. To say that powers under Sections 435 and 439 can be exercised without limitation in respect of an order passed under Sub-section (4) of Section 145 and for a limited purpose under Sub-section (1B) of Section 146 is to introduce substantial qualification in Sections 435 and 439 , which the <ORG> in its wisdom did not think it proper to do.

31. It is argued that it would be anomalous to question the finding of <ORG> after it is integrated in the order of the Magistrate when appeals from and review or revision of such an order is completely barred. This argument sounds plausible but lacks substance. Taking Section 146 , Cr. P. C. as a whole, the intention of the <ORG> appears to be to bar revision, review or appeal at different stages of the same proceeding. It is, manifest that the <ORG> has not expressly' barred a revision or review of the order of the Magistrate under Sub-section (1B). To permit revision against the finding of <ORG> at one stage and also against the order of the Magistrate at another stage would have frustrated the very object of the amendment," namely, to shorten the duration of the proceeding under Section 145 , Cr. P. C. This is so because one function is assigned to the civil <ORG> and the other to the Magistrate. Therefore, in my opinion, when a revision is preferred against the order of the Magistrate under Sub-section (1B), not only the operative order of the Magistrate but the entire proceeding including the findings of the civil <ORG> are before the <ORG> and, therefore <ORG> can, in appropriate cases, interfere with the findings of the civil <ORG>, if they are in flagrant violation of the well recognised principles of law. Such a construction not only harmonises the different provisions of Sections 145 and 146 , but also dispenses with the limitations sought to be imposed upon the powers of <ORG> under Sections 435 and 439 . Once we proceed to lay down the qualification, it would be difficult to draw a line where to stop. It is true that this <ORG> will not ordinarily "interfere with a considered finding of the civil <ORG>. At the same time, it is difficult to prescribe the exact principles which may guide <ORG> in disposing of the matters in all such cases.

32. As regards application of Article 227 of the Constitution of India, it is altogether a different question The powers of <ORG>, cannot be taken away or abridged by a Legislative enactment; and, as such, Sub-section (1D) of Section 146 has not and cannot have that effect. <ORG>, however, as a rule, will not interfere with the finding of <ORG> merely on the ground of non-consideration of some evidence or some irregularity found to have been committed by <ORG>. It is only in exceptional cases of flagrant violation of legal principles and that also after the Magistrate has passed final orders in conformity with such finding that <ORG> will interfere. Otherwise, such an interference at an earlier stage will lead to duplication and prolongation of the proceedings which the <ORG> has intended to avoid.

33. For these reasons, I agree with the views expressed by my esteemed brother <NAME>, <NAME>


PETITIONER: N. MEERA RANI Vs. RESPONDENT: GOVERNMENT OF <NAME> & ANR. DATE OF JUDGMENT22/08/1989 BENCH: <NAME>, JAGDISH SARAN (J) BENCH: <NAME>, JAGDISH SARAN (J) RANGNATHAN, S. OJHA, N.D. (J) CITATION: 1989 AIR 2027 1989 SCR (3) 901 1989 SCC (4) 418 JT 1989 (3) 478 1989 SCALE (2)363 CITATOR INFO : R 1990 SC 516 (10) R 1990 SC1196 (5,18) RF 1990 SC1202 (11,12) D 1990 SC1763 (5) RF 1991 SC1640 (12) RF 1991 SC2261 (12) ACT: National Security Act , 1980-- Section 3(2) and 12(1) subsisting custody of detenue does not invalidate order of detention--Detention order can be made in anticipation to operate on release of detenue. HEADNOTE: By an order dated 7.9.88 the Collector & District Magis- trate Madurai under s. 3(2) of the National Security Act, 1980 made an order for keeping in custody <NAME>, the husband of the appellant/ petitioner. The State <ORG>. on 25.10.88 by its order under s. 12(1) of the Act confirmed the order of detention agreeing with the opinion of <ORG> and ordered the detention of the detenue for 12 months from the date of his detention. The wife of the detenue challenged this preventive detention by filing a writ of Habeas Corpus in <ORG>. <ORG> by its order dated 6.3.89 dismissed the writ petition. The appellant-petitioner challenged the dismissal of the writ by <ORG> by way of special leave and also by filing a writ petition under Article 32 of the Constitution of India. This Court while quashing the detention order, HELD: Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenue is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order; but, even so, if the detain- ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. [919E-G] In the instant case, the the detention order read with its annexure indicates the detaining authority's awareness of the fact of detenue's 902 jail custody at the time of the making of the detention order. However there is no indication therein that the dete- nue could be released on bail. On the contrary the detention order shows satisfaction of the detaining authority that there was ample material to support the criminal charge against the detenue. The order of detention passed on 7.9.1988 and its confirmation by <ORG> on 25.10.1988 is therefore clearly invalid since the same was made when the detenue was already in jail custody for the offence of bank dacoity with no prospect of his release. [919H- <CITATION> .,  4 SCR 921--relied upon. <CITATION> .,  3 SCC 490; Dr. <NAME> v. District Magis- trate, Jabalpur & Anr.,  4 SCC 164; <CITATION> .,  2 SCC 43; <CITATION> , Dhanbad,  3 SCR 939; <CITATION> .,  4 SCC 232; <CITATION> - bad, Bihar & Ors.,  4 SCC 416; <CITATION> .,  4 SCC 48 and Smt. Shashi Aggarwal v. State of U. P. & Ors.,  1 SCC 436. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 511 of 1989.

From the Judgment and Order dated 6.3.1989 of <ORG> in W.P. No. 14828 of 1988.

WITH Writ Petition (Criminal) No. 205 of 1989.

(Under Article 32 of the Constitution of India). <NAME> and <NAME> for the Appellant/Petitioner. <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by <ORG>, <NAME> Special leave granted.

The appellant-petitioner, Smt. <NAME>, is the wife of <NAME>, who has been detained under the Nation- al Security Act , 1980 (Act No. 65 of 1980) (hereinafter referred to as "the Act"). An order dated 7.9.1988 was made by the Collector and District Magistrate, Madurai, under section 3(2) of the Act directing that the detenu be kept in custody in the Central Prison, Madurai. Thereafter, <ORG> by its order dated 25.10.1988 made under section 12(1) of the Act has confirmed the order of deten- tion agreeing with the opinion of <ORG> consti- tuted under the Act and directed that the detenu be kept in detention for a period of 12 months from the date of his detention. This preventive detention of the detenu was challenged in <ORG> at Madras by his wife, the appellant-petitioner, under Article 226 of the Constitution praying for issuance of a writ of habeas cor- pus. <ORG> by its order dated 6.3.1989 has dis- missed the writ petition. The appellant-petitioner has then challenged dismissal of the writ petition by <ORG> by special leave under Article 136 of the Constitution of India in this <ORG>. The appellant-petitioner has also filed a writ petition under Article 32 of the Constitution of India for the same purpose in this <ORG> challenging direct- ly her husband's preventive detention. The object of filing this writ petition directly in this <ORG>, in addition to the appeal by special leave, is to raise some additional grounds to challenge the detenu's detention. Both these matters have been heard together and are being disposed of by this common judgment.

We may now state the arguments advanced to challenge the detenu's detention before mentioning the relevant facts which are material for deciding those points. <NAME>, learned counsel for the appellant-petitioner, has advanced three contentions. The first contention is that certain documents which have been referred to in some grounds of detention were not supplied to the detenu with the result that the detenu was not given a proper and rea- sonable opportunity for making an effective representation and, therefore, the order of detention is vitiated for this reason alone. The second contention is that some documents in the form of newspaper reports showing that the detenu was apprehended and detained even prior to 21.8.1988 when the detenu was shown to have been arrested in connection with an offence punishable under section 397 I.P.C. were not placed before the detaining authority when it formed the opinion mentioned in the detention order which has also vitiated the detention order. The last contention is that the fact of detenu's arrest in connection with an offence punishable under section 397 I.P.C. and of remand to custody by the Magistrate as well as the contents of the bail application dated 22.8.1988 which was rejected by the Magistrate were not taken into account by the detaining authority before passing the order of detention dated 7.9.1988 which also renders the detention order invalid. On the other hand, <NAME>, learned counsel for the respondents contended that even assuming that some documents referred in the grounds of detention were material and were not supplied to the detenu the effect is not to invalidate the detention order for that reason alone in view of section 5A of the Act which has been inserted by Act 60 of 1984 with effect from 21.6.1984 since the detention order can be sustained even on the remaining grounds. In respect of the detenu's custody in connection with the offence under section 397 I.P.C. and rejection of his bail application, it was urged that this fact was con- sidered by the detaining authority and, therefore, it does not result in any infirmity. <NAME>, on behalf of the appellant-petitioner, further contended that section 5A of the Act cannot be construed in the manner suggested by the learned counsel for the respondents since the guarantee to the detenu under Article 22(5) of the Constitution results in invalidating the entire detention order as claimed by him.

The material facts mentioned in the detention order and its annexure are now stated. A branch of <ORG> is located in a rented accommodation in flat No. 634, K.K. Nagar in Madurai. On 6.8.1988, the <ORG> Manager and the staff of the <ORG> were attending to the business of the <ORG> which then had 443 packets containing valuable ornaments weighing about 20,576.150 grams valued at about rupees sixty-two lakhs and cash amounting to Rs.38,945.00. These gold ornaments were pledged with the <ORG> as security for loans advanced by the <ORG> of certain borrowers. At about 10.55 A.M. on 6.8.1988 the <ORG> was looted and these orna- ments and cash were taken away by armed dacoits on the point of revolver after locking the <ORG> employees and customers in the strong room. The dacoits escaped in an ambassador car with registration No. TDL-9683 and a motorcycle bearing registration No. TNK-6727. The dacoits are stated to be one <NAME> and some other Sri Lanka nationals who were tempo- rarily living in a nearby flat which was in the possession of the detenu. It is stated that the ambassador car used in the dacoity had been stolen on 4.8.1988 from Quilon in the State of Kerala by <NAME> and his companions. It is further stated that the dacoity was committed in order to fund the militant organisation known as <ORG> with which the detenu has been associated and that the detenu along with these Sri Lanka nationals belonging to the Sri Lanka militant organisation had entered into a criminal conspiracy to commit these cognizable offences. The object of these militant organisations is to achieve a separate Tamil Ealam in Sri Lanka and to secure secession of Tamil Nadu from <ORG> by violent means. It is further stated that the detenu received from <NAME> through <NAME> and <NAME> a share of the booty comprising of gold ornaments weighing about 8325. 150 grams valued at about Rs.25 lakhs and Rs. 15,000.00 in cash which was a part of the booty looted from the <ORG> on 6.8.1988 in addition to a box con- taining one revolver, 2 pistols, 3 grenades, 6 bombs and a knife. It is further stated that on 9.8.1988 the detenu took <NAME> and <NAME> in his car bearing registration No. TNU- 8500 to Madras along with <NAME> and <NAME> and subsequent- ly on 10.8.1988 the detenu sent them to Nellore in Andhra Pradesh in his car to help them escape. It is also stated that a note was sent by the detenu to the news media in the name of <ORG> owning respon- sibility for the dacoity and threatening the law enforcement agency and the Government servants with dire consequences if they attempted to apprehend them. It is then said that on 21.8.1988 the detenu was arrested at Samayanallur while he was driving his car bearing registration No. TNU-8500 to- wards Madurai when he made a voluntary confession in the presence of witnesses. The car bearing registration No. TNU-8500 was seized at 19.15 hours on 21.8.1988 in front of <ORG> and the detenu's confession led to recovery of gold ornaments weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with <ORG> tags and chits and a set of keys from the detenu's house on 21.8.1988 at 20.15 hours. In pursuance to detenu's confession recovery was also made of a box containing one revolver, 2 pistols with ammunition, 3 grenades, 6 bombs and one knife from the house of <NAME>, an employee of the detenu in Madurai. Further recovery of a bag containing gold ornaments weighing about 1015.600 grams valued at Rs.3,05,000.00 was made from the shop of <NAME> in Madurai and <NAME> also made a confession pursuant to which the recovery was made of gold ornaments weighing about 25.900 grams from <NAME>. Subsequently, these ornaments were identified as those which had been looted in the above-mentioned dacoity on 6.8.1988. It is on these grounds that the impugned detention order dated 7.9.1988 was passed for the detenu's preventive detention under the Act. The detention order as well as its annexure containing the relevant ground of detention are quoted as under:

"ANNEXURE 'A' PROCEEDINGS OF THE COLLECTOR AND DISTRICT MAGISTRATE, <NAME>.

PRESENT: <NAME>, I.A.S.

N.S.A. NO. 73/88 Dated: 7.9.1988 DETENTION ORDER WHEREAS, I, M. DEVARAJ, I.A.S.

Collector and District Magistrate, Madurai, am satisfied with respect to the person known as <NAME> @ Thambi, male, aged 30 years, S/o (late) <NAME>, residing at Block No. 2, H.I.G. Colony, Anna Nagar, Madu- rai Town that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order.

(2) Now, therefore, in exercise of the powers conferred by sub-section (2) of section 3 of the National Security Act, 1980 (Central Act 65 of 1980) read with orders issued by the Government in G.O. Ms. No. 1169, public (L & O-F) Department, dated 3.8.1988 under sub-section (3) of the said Act, I hereby direct that the said <NAME> @ Thambi be detained and kept in custody in the Central Prison, Madurai.

Given under my hand and seal of office, this the 7th day of September, 1988.

sd/-

Collector and District Magistrate, Madurai To Thiru Nallathambi @ Thambi, S/o (Late) Thiru S. Mathu, Block No. 2, H.I.G. Colony, Anna Nagar, Madurai-20.

(Now in Central Prison, Madurai as remand prisoner) Through. <NAME>, Deputy Superin- tendent of <ORG>, Tirupparankundram, Madurai City, for service under acknowledgement."

"ANNEXURE 'B' N.S.A. No. 73/88 Dated 7.9.88

Sub: National Security Act , 1980 (Central Act 65 of 1980)--detention of <NAME> alias <NAME>, Male aged 30 years, S/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madu- rai u/s. 3(2) of the National Security Act , 1980--Grounds of detention.

A detention order under section 3(2) of the National Security Act (Central Act 65 of 1980) has been made on <NAME> alias <NAME>, male, aged 30 years, s/o (Late) S. Mathu, 2, H.I.G. Colony, Anna Nagar, Madurai vide order NSA No. 73/88 dated 7.9.1988. (2) The grounds on which the said deten- tion has been made are as follows:

XXX XXX XXX XXX

(9) In furtherance of the conspiracy <NAME> sent a note to the news media in the name of Tamil Nadu Makkal Vidhuthalai Eyakkam owning responsibility for the dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them.

(10) On 21.8.88 at 1400 hours, <NAME>, was arrested at Samayanallur while he was driving his car TNU 8500 towards Madurai. He gave a voluntary confession which was recorded in the presence of witness (1) <NAME>, Village Administrative Officer, Sathamgalam and (2)Pannerselvam, Village Administrative Officer, Thiruppalai. The car TNU 8500 was seized at 1915 hours on 21.8.88 in front of <ORG>. In pursuance of his confession gold jewels weighing about 7275.750 grams valued at Rs.21,85,000.00 in 172 bags and 19 empty bags with bank tags and chits and a set of key were recovered from his house on 21.8.88 at 20.15 hours. Further in pursuance of his confession a box containing 1 revolver, 2 pistols with ammunition, 3 gre- nedes, 6 bombs, 1 knife was recovered from the house of accused <NAME> located in 27, Lakshimipuram, 6th Street, Madurai who is also an employee under <NAME>. Further pursuant to his confession a bag containing gold jewels weighing about 1015.600 grams valued Rs.3,05,000.00 was recovered from the moulding workshop of accused <NAME> located in 10-A, Bharatiar Main Street, K. Pudur, Madurai. Pursuant to the confession of <NAME> gold jewels weighing about 25.900 grams was recovered from the accused <NAME>. The above jewels recovered were identified to be stolen from <ORG> on 6.8.88.

(11) The chance prints developed from the scene of occurrance in <ORG>, K.K. Nagar Branch, Madurai tallied with the fingerprints of accused <NAME>. (12) The chance prints developed from the ambassador car TDL 9683 which was abandoned at new Mahali Party Street, Madurai after the commission of armed dacoity tallied with the finger-prints of accused <NAME>.

(13) The chance prints developed from the ambassador car TDL 1919 and TDT 3699 which were used in earlier attempts tallied with the finger-prints of accused <NAME>.

XXX XXX XXX (18) I am aware that Thiru Nalla-

thambi is in remand and would be proceeded with under normal law. Though the name of <NAME> does not find a place in the F.I.R. and though he has not physically par- ticipated in the commission of the armed dacoity, a reading of the records and the statement clearly disclosed the facts that <NAME>, was an active participant in the said conspiracy to loot the K.K. Nagar branch of <ORG>. In furtherance of the conspiracy <NAME> had made preparation for the commission of the armed dacoity as discussed in para 4 above. Further <NAME> had received a portion of booty of gold jewels weighing about 8325. 150 grams valued Rs.25 lakhs and cash Rs. 15,000.00 from the stolen jewels and cash robbed from the abovesaid Bank and re- ceived a box containing 1 revolver, 2 pistols, 3 grenades, 6 bombs and a knife used in the commission of offence. Subsequently, the said jewels, firearms and bombs mentioned above were recovered in pursuance of the confession of <NAME>. Further <NAME> sent a notice to the News Media in the name of "Tamil Nadu Makkal Vidhuthalai Eyakkam" owning responsibility of the armed dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. Therefore, as a detaining authority I am satisfied that there is compelling necessity warranting the deten- tion of <NAME> under the National Security Act and if <NAME> is allowed to remain at large it will not be possible to prevent him from indulging in activities prejudicial to the maintenance of public order.

(19) I am also satisfied on the materials mentioned above that if <NAME> is allowed to remain at large, he will indulge in further activities prejudicial to the maintenance of public order and further the recourse to normal law would not have their desired effect of effectively preventing him from indulging in activities prejudicial to the maintenance of public order and, there- fore, I consider that it is necessary to detain him in custody with a view to prevent- ing him from acting in any manner prejudicial to the maintenance of public order.

XXX XXX XXX XXX."

The first argument of the learned counsel for the appel-

lantpetitioner is based on the above quoted grounds in para Nos. 11, 12 and 13 relating to the chance printes developed from the scene of occurrence in the <ORG>, the ambassador cars TDL 9683, TDL 1919 and TDT 3699 which tallied with the finger-prints of <NAME>, an accused in the <ORG> dacoity case. It was argued that the report of the finger-prints expert who gave this opinion was not supplied to the detenu even though it was a material document to enable the detenu to make an effective representation in respect of these grounds of detention. Another similar document relates to ground No. 9 which mentions a note sent by the detenu to the newspaper media in the name of Tamil Nadu Makkal Vidu- thalai Eyakkam owning responsibility for the <ORG> dacoity and threatening the law enforcement agency and Government servants with dire consequences if they dare to apprehend them. It was argued that the non-supply of these documents on which the grounds of detention Nos. 9, 11, 12 and 13 are based has deprived the detenu of his legitimate right of effective representation against the same which is guaran- teed under Article 22(5) of the Constitution of India and this defect results in invalidating the entire detention order. The reply of learned counsel for the respondents is that section 5A of the Act is a complete answer to this argument inasmuch as this defect at best requires only the exclusion of these grounds of detention and no more. It was urged by learned counsel for respondents that the remaining grounds of detention were sufficient to sustain the deten- tion order by virtue of section 5A of the Act. Learned counsel for the appellant-petitioner also contended that such a result is not envisaged by section 5A of the Act which did not apply to such a situation and the guarantee under Article 22(5) of the Constitution rendered the defect fatal to the detention order.

Section 5A of the Act clearly provides that the deten- tion order under section 3 of the Act has been made on two or more grounds, shall be deemed to have been made separate- ly on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as provid- ed in section 3 with reference to the remaining grounds or ground. In other words, a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as non-existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section 5A was inserted in the Act with effect from 21.6.1984 to overcome the effect of the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds. It is, therefore, doubt- ful whether the construction of Section 5A suggested by learned counsel for the appellant-petitioner can be accept- ed. However, in the present case, it is not necessary for us to express any concluded opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later. The second argument of learned counsel for the respond- ents may also be considered before we deal with the last contention on which we propose to quash the detention order. The second contention is that the detenu's arrest in connec- tion with the <ORG> dacoity case is shown on 21.8.1988 when he was actually arrested much earlier in connection with the <ORG> dacoity as appeared in some local newspapers but those newspaper reports are not shown to have been placed before the detaining authority. On this basis, it was argued that the satisfaction reached by the detaining authority has been vitiated.

The question of the date on which the detenu was taken into custody in connection with the Bank dacoity is material for the last contention which we shall consider hereafter but the same has no relevance in this connection. Contents of the newspaper reports except for the fact of earlier arrest which was known to the detaining authority were not relevant for the satisfaction needed to justify making of the detention order. The detaining authority's satisfaction was to be formed on the basis of material relevant to show the detenu's activities requiring his preventive detention with a view to prevent him from acting in a manner prejudi- cial to the maintenance of the public order. The newspaper reports indicating that the detenu was already in custody could at best be relevant only to show the fact that he' was already in detention prior to the making of the detention order. We have already mentioned that this fact of the detenu's custody before the making of the order of detention on 7.9.1988 was known to the detaining authority and its effect is a separate point considered later. The other contents of the newspaper reports had no other relevance for this purpose. This contention of learned counsel for the appellantpetitioner is, therefore, rejected. The last contention of learned counsel is based on the fact that the detenu was already in custody in connection with the Bank dacoity when the order of detention was made on 7.9.1988. It is also clear that on 22.8.1988 the detenu had moved a bail application which had been rejected and he had been remanded to custody. It is significant that the detention order itself describes the detenu as a person in custody in the Central Prison at Madurai and the order was served on him through the Superintendent of the Prison. The question now is of the effect of the detenu's earlier custody on the validity of the deten- tion order.

The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the <NAME> was already in custody in connection with <ORG> at the time of making the detention order. The fact that the <NAME>'s application for grant of bail in the dacoity case had been rejected on 22.8.1989 and he was remanded to custody for the offence of bank dacoity punishable under section 397 I.P.C. is also evident from the record. The detention order came to be made on 7.9.1988 on the above grounds in these circum- stances. In the detention order the detaining authority recorded its satisfaction that the <NAME>'s preventive detention was necessary to prevent him from indulging in activities prejudicial to maintenance of public order in which he would indulge if he was allowed to remain at large. The above quoted paragraphs 18 and 19 of the Annexure to the detention order clearly disclose this factual position. However, it may be pointed out that the detention order read along with its annexure nowhere indicates that the detaining authority apprehended the likelihood of the <NAME> being released on bail in the dacoity case and, therefore, consid- ered the detention order necessary. On the contrary, its contents, particularly those of the above quoted paragraph 18 clearly mention that the <NAME> had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the F.I.R. as one of the dacoits who participated in the commission of the armed Bank dacoity yet the documents clearly revealed that the <NAME> was an active participant in the conspiracy to loot the bank in furtherance of which the dacoity was committed; and that considerable booty of that crime including weapons, bombs and hand-grenades were recovered from his possession pursuant to the <NAME>'s confession made after his arrest. These averments in the detention order indicate the satis- faction of the detaining authority that in its view there was ample material to prove the <NAME>'s active participa- tion in the crime and sharing the booty for which offence he had already been taken into custody. This view of the de- taining authority negatives the impression of likelihood of <NAME> being released on bail.

The real question, therefore, is: whether after the above satisfaction reached by the detaining authority and when the detenu was already in custody being arrested in connection with the Bank dacoity, could there be any reason- able basis for making the detention order and serving it on the detenu during his custody?

We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of <ORG> in <NAME> v. District Magis- trate, Burdwan & Anr., [964] 4 SCR 92 1. All subsequent decisions which are cited have to be read in the light of this <ORG> decision since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the <ORG> in <NAME>'s case (supra).

The detention order in <NAME> case (supra) was made and also served on the detenu while he was in jail custody. The detenu was then in jail where he had been kept as a result of the remand order passed by the competent court which had taken cognizance of a criminal complaint against him. The Constitution Bench considered the effect of the detenu's subsisting detention at the time of making of the order of preventive detention and held that the effect thereof had to be decided on the facts of the case; and that this was a material factor to be considered by the detaining authority while reaching the satisfaction that an order of preventive detention was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order after his release. It was indicated that the detenu's subsisting custody did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive detention notwithstanding his custody were necessary to sustain such an order.

The position of law was summarised by their Lordships as under:

"As an abstract proposition of law, there may not be any doubt that s. 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of deten- tion a few days before the person is likely to be released. The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary .......... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circum- stances of each case.

The question which still remains to be considered is: can a person in jail custo- dy, like the petitioner, be served with an order of detention whilst he is in such custo- dy?

XXX XXX XXX XXX

We have already seen the logical process which must be followed by the authority in taking action under s. 3(1)(a) . The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is neces-

sary to prevent him from acting in a prejudi- cial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevita- bly postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudi- cially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is neces- sary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3(1)(a) , and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the deten-

tion of the petitioner in the circumstances of this case, is not justified by s. 3(1)(a) and is outside its purview." (at pages 929-931 of SCR) (emphasis supplied) On the above principle <ORG> also explained the decision of <ORG> in <CITATION> ., A.I.R. 1953 Assam 97 in <NAME> case (supra) the Government had decided to abandon the pending prosecution in public interest and action for detenu's release was taken. In anticipation of his release, the order of detention was passed and it was served after he was actually released. In these circumstances the detention order and its service was held valid. The test indicated by <ORG> was duly satisfied. It is this principle and the test indicated therein which has to be applied in all such cases. Read in this manner the conclusion reached in each of the subsequent decisions satisfies this test.

<CITATION> ,  3 SCC 490 the order of preventive detention passed while the detenu was in custody was upheld since there was a likelihood of his release on bail and resuming his desperate criminal activities prejudicial to the mainte- nance of public order. The facts of that case, therefore, justified making the detention order according to the test laid down by the Constitution Bench in <NAME> case (supra). <CITATION> ,  4 SCC 164 was a case in which the order of detention was passed while the detenu was in jail custody in a proceeding under section 151 read with section 117 . The detention order was upheld since the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction that the detenu had the tendency to act in a manner prejudicial to the maintenance of public order after his release on the termination of the security proceedings under the Code . <CITATION> ,  2 SCC 43 the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail. The further question of the detaining authority's subjective satisfaction that it was necessary even then to make an order for preventing him from acting in a manner prejudicial to the security of the <ORG> did not, therefore, arise. While dealing with this aspect the correct position was reiterated as under:

"Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the <ORG>. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive deten- tion order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non- application of mind and would result in inval- idation of the order."

(at page 48) It is obvious that in this decision also the test indicated by <ORG> in <NAME> case (supra) was applied and the detention order was quashed on that basis.

<CITATION> ,  3 SCR 939 the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the detention order showed that the detaining authority was alive to the fact and yet it was satisfied that if the detenu was enlarged on bail, which was quite likely, he would create problems of public order which necessitated his preventive detention. <CITATION> ,  4 SCC 232 the detention order was passed when the detenu was in jail on the mere apprehension of likelihood of grant of bail on the basis of some stale grounds and a ground in respect of which the detenu had already been acquitted. It is obvious that even with the likelihood of grant of bail, the grounds of detention being stale or non-existent on the ground of the detenu's acquittal, they did not satisfy the required test of the detention order being based on valid grounds showing detenu's activities proximate in point of time to justify the detaining authority's satisfaction as reasona- ble. It was observed in passing that if the apprehension of the detaining authority about the likelihood of grant of bail was correct then it was open to challenge the bail order in a higher forum. This observation has accordingly to be read in the context of the facts in which it was made. <CITATION> ,  4 SCC 416 the detention order was held to be invalid because the jail custody of the detenu at the time of service of the order as also the prospect of his release were not considered while making the detention order. It was held that the detention order was invalid on the ground of non-application of mind to these relevant factors even if the detention was otherwise justified. The decision in <NAME> case (supra) was relied on and it was reiterated as under:

"If a man is in custody and there is no immi- nent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or. that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit or the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent."

(at pages 420- <CITATION> ,  4 SCC 48 it was reiterated that detenu being already in jail at the time of passing detention order does not by itself vitiate the detention if the detaining authority is aware of this fact but even then it is satisfied about the necessity of preventive detention. The <ORG> decision in <NAME> case (supra) and the other earlier deci-

sions were referred while reaching this conclusion. The correct posi- tion was reiterated and summarised as under:

"It is thus clear that the fact that the detenu is already in detention does not take away the jurisdiction of the detaining author- ity in making an order of preventive deten- tion. What is necessary in a case of that type is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In the facts of the present case, there is sufficient material to show that .the detaining authority was aware of the fact that the petitioner was in custody when the order was made, yet he was satisfied that his preventive detention was necessary."

(at page 58) A recent decision on the point is <CITATION> ,  1 SCC 436 in which also the settled principle is reiterated and it is pointed out that the ultimate decision depends on the facts of a partic-

ular case, the test to be applied remaining the same, as indicated in <NAME> case (supra). It was also pointed out in this decision that the earlier decisions of <ORG> in <NAME>, (supra) and <NAME>, (supra) do not run counter to the decision in <NAME> case (supra). In each of these cases the conclusion was reached on the facts of the particular case, the test ap- plied being the same. Similarly, in this decision it was once again pointed out that the detenu being already in jail, the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detenu would indulge in activities prejudicial to the maintenance of public order in case of his release on bail. The detention order in that case had been made merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. It was, therefore, held that the mere possibility of his release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of preventive detention in the absence of any material on the record to show that if released on bail he was likely to commit activ- ities prejudicial to the maintenance of public order. The detention order in that case was quashed on the ground that the requisite material to entertain such an apprehension reasonably was not present. The conclusion reached therein, on the facts and circumstances of the case, is as under:

"In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activi- ties prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of being bailed out. We do not think that the order of detention could be justified only on that basis."

(at page 440) A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in <NAME> case (supra). The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made.

None of the observations made in any subsequent case can be construed at variance with the principle indicated in <NAME> case (supra) for the obvious reason that all subsequent decisions were by benches comprised on lesser number of Judges. We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by <ORG> in <NAME> case (supra).

We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invali- date an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the <ORG> or to the maintenance of public order etc. ordinarily it is not, needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his an- tecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indica- tion therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complic- ity in the Bank dacoity including sharing of the booty inspite of absence of his name in the F.I.R. as one of the dacoits. On these facts, the order of detention passed in the present case on 7.9.1988 and its confirmation by the <ORG> Government on 25.10.1988 is clearly invalid since the same was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. It does not satisfy the test indicated by <ORG> in <NAME> case (supra). We hold the detention order to be invalid for this reason alone and express no opinion on merits about the grounds of detention. Consequently, the aforesaid order of detention dated 7.9.1988 passed by the Collector and District Magistrate, Madurai, and the order of confirmation dated 25.10.1988 by <ORG> are quashed. The appeal and the writ petition are allowed. This, however, will not affect the detenu's custody in connection with the criminal case under section 397 I.P.C. We may also clarify that in case the detenu is released in the aforesaid criminal case, the question of his preventive detention under the Act on the above material may be reconsidered by the appropriate au- thority in accordance with law and this judgment shall not be construed as an impediment for that purpose. No costs.

R.N.J. Appeal and Petition allowed.