Das, J.:— This rule was issued by a Bench of this Court in respect of a detenu who was ordered to be released by this Court on the 7th of October, 1948. A petition was received from the detenu, from jail, to the effect that in spite of the order, of this Court he was not released. The rule was issued on receipt of the petition from the detenu.
We have heard the learned Advocate-General on behalf of the Province of Bihar and Mr. Basantachandra Ghosh on behalf of the detenu.
The material facts are the following. The petitioner Subodh Kumar Singh was arrested on the 31st of March, 1948, by an order of the District Magistrate of Muzaffarpur. On the 12th of April, 1948, an order of detention was passed against him by the Provincial Government under section 2(1)(a) of the Bihar Maintenance of Public Order Act, 1947. On the 24th of April, 1948, the grounds of his detention were communicated to him under the provisions of section 4 of the Bihar Maintenance of Public Order Act, 1947. On the 30th of August, 1948, the petitioner sent an application under section 491, Criminal Procedure Code, from jail. On this petition a rule was issued by the Court on the 16th of September, 1948. The rule which was issued to the District Magistrate, directed to the latter to show cause and send the relevant papers by the 28th of September, 1948, and the 1st of October, 1948, was fixed for the hearing of the case. The case was actually heard on the 7th of October, 1948, on which date this Court considered the legality or otherwise of the detention, and held that the petitioner was not being legally detained. This Court directed the release of the petitioner forthwith. But some events which happened previous to the 7th of October, 1948, must also be stated here. In compliance with the rule issued by the Court, the District Magistrate sent the relevant papers on the 25th of September, 1948. On the 1st of October, 1948, the order of detention passed against the petitioner expired, because the period of six months for which the petitioner could be detained under the first order of detention expired on the 1st of October, 1948, counting from the date of the petitioner's arrest on the 31st of March, 1948. On the 30th of September, 1948, however, a fresh order of detention was passed against the petitioner. This fresh order of detention may be called the second order of detention for the sake of convenience. On the 2nd of October, 1948, the petitioner filed another petition in which he raised the question that his detention on the 1st of October, 1948, was illegal, inasmuch as the first order of detention had expired on the 30th of September, 1948. This petition of the prisoner, or at least a report about such a petition, from the Superintendent of the Central Jail, Hazaribagh, appears to have been received by the office of this Court on the 4th of October, 1948. But neither the second order of detention, nor the report of the Superintendent of the Central Jail, Hazaribagh, dated the 2nd of October, 1948, and received on the 4th of October, 1948, were brought to the notice of this Court when it passed the order of release on the 7th of October, 1948.
The order of release passed on the 7th of October, 1948, was communicated to the District Magistrate on the 10th of October, 1948. The District Magistrate sent the order of release to the Superintendent of the Central Jail, Hazaribagh, and the latter officer received the order of release on the 14th of October, 1948. On that very date the Superintendent of the Central Jail, Hazaribagh, wrote to the Deputy Commissioner of Hazaribagh enquiring as to what the effect of the order of release passed by this Court was, and if in face of the second order of detention the petitioner should still be detained. The Deputy Commissioner of Hazaribagh made a note on the letter of the Superintendent of the Central Jail to the following effect:—
“The prisoner may be retained until further orders of the Hon'ble High Court or Government. The Collector, Muzaffarpur, may be informed.”
On the same date the Superintendent of the Hazaribagh Central Jail forwarded a copy of his correspondence with the Deputy Commissioner to this Court, and asked for necessary orders by return of post. This was received by the office on the 18th of October, 1948, and on the 20th of October, 1948, this Court issued a rule on the Advocate-General. Three days after the issue of the rule on the Advocate-General, that is, on the 23rd of October 1948, an order purporting to contain the grounds of detention as per the second order of detention, was made, and this was served on the petitioner on the 24th of October, 1948, on which date the petitioner was also released. It is worthy of note that the grounds of detention as per the second order of detention were served only a short time before the release of the petitioner on the same date.
On the facts stated above, three questions have been agitated before us. The first question is if the petitioner can still be detained after, the order of release passed by this Court. That question is of no importance now, except so far as it is necessary to answer it for future guidance of the officers concerned, inasmuch as the petitioner was released on the 24th of October, 1948, a day before the case was listed for hearing by this Court.
The second question is the propriety or otherwise of not bringing to the notice of the Court the second order of detention, and the legal effect of the second order of detention as respects the order of release by this Court. The learned Advocate-General appearing for the Province of Bihar has contended before us that though it might have been proper for the Provincial Government to bring to the notice of this Court the second order of detention passed on the 30th of September, 1948, but, as a matter of law, the order of release passed by this Court on the application filed by the petitioner relates to the first order of detention against which the application was directed, and does not affect the legality of the second order of detention; nor does the order of release automatically discharge the second order of detention. The learned Advocate-General has also referred to certain practical difficulties in the Secretariat in the matter of keeping this Court posted up to date as to the orders of detention passed against a particular detenu who has made an application to this Court. I must say that the contention of the learned Advocate-General that, as a matter of law, the order of release passed by this Court relates only to the first order of detention, has caused me some surprise. In my opinion, this contention is based on a misapprehension of the nature of the proceedings under section 491 of the Code of Criminal Procedure. section 491, Criminal Procedure Code, says, inter alia, that any High Court may, whenever it thinks fit, direct—
“(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; and (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.”
There are other clauses which are not material for our present purpose, and need not be recited. It is clear to me that in a proceeding under section 491, Criminal Procedure Code, this Court has to consider the legality or otherwise of the detention of a particular person in public or private custody. The legality of the detention has to be considered not with reference to a particular order only. If there are more orders than one against a particular person on the date on which the question of his detention is under consideration, it is certainly the duty of the detaining authority to produce the orders of detention in support of, or, in justification of the detention. I do not think it is open to the Provincial Government to keep a second order of detention up its sleeve, and allow an order of release to be passed on the first order of detention, and then produce the second order of detention for the purpose of detaining the man after the order of release had been passed. To allow or encourage such a practice would be tantamuont to stultifying the order of this Court. The nature of a proceeding under section 491 of the Code of Criminal Procedure was considered by the Federal Court in Basantachandra Ghose v. King-Emperor Dealing with the contention that the High Court could enquire into the validity of detention under, an earlier order only, their Lordships said as follows:—
“It was finally contended that as the previous order of this Court directed an enquiry into the validity of the detention under the order of the 19th March, 1942, the decision of the High Court must be limited to that question, and that it was not open to the High Court to base its decision on the subsequent order of the 3rd July, 1944. This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release, merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention, but whether in the face of the later valid order the Court can direct the release of the petitioner.”
Therefore, the true question or consideration in a proceeding Under section 491, Criminal Procedure Code, is if the person who has been detained is illegally or improperly detained in public or private custody. A habeas corpus writ in England directs the production of the body of the prisoner, and the return to the writ should ordinarily show the justification for the detention. No rules have been framed by this Court under sub-section (2) of section 491 of the Code of Criminal Procedure, and there is no uniform practice for the production of the prisoner in Court when the question of his detention is under consideration. It is clear, however, that under clause (a) of sub-section (1) of section 491 this Court can direct that a person within the limit of this Court's jurisdiction be brought up before the Court to be dealt with according to law. If the Provincial Government have a second order of detention, which would justify the detention of the prisoner, it is clearly the duty of the Provincial Government to bring forward that order to the notice of this Court. If, in spite of the opportunity given to the Provincial Government to justify the detention of a particular person, the Provincial Government do not produce a second order of detention passed antecedent to the hearing of the case, the blame lies on the Provincial Government. I do not think that it is open to the Provincial Government in such circumstances to bring forward the second order of detention for detaining the person in spite of the order of release passed by this Court. I must make it clear that these observations relate only to an antecedent order of detention passed before the order of release and which the Provincial Government had an opportunity of producing in support of the detention of the prisoner. These observations would not apply to a case where an order of detention is passed subsequent to the order of release on fresh or different grounds; nor would they apply to a case where the Provincial Government have had no opportunity of producing the order of detention in reply to the rule issued by this Court. If the contention of the learned Advocate-General is accepted, namely, that in spite of the order of release passed by this Court the second order of detention still remains valid, some very absurd results are likely to follow. Take, for example, the present case. The learned Advocate-General has conceded before us that the grounds of detention in support of the second order of detention were substantially the same as the grounds of detention in support of the first order, of detention. This Court held that the grounds of detention in this case did not fulfil the requirements of section 4 of the Bihar Maintenance of Public Order Act, 1947. Obviously, the Provincial Government could not pass a second order of detention on the same grounds. The second order of detention if passed on the same grounds would naturally fall with the first order of detention. Moreover, it would be highly improper and also unfair to keep this Court ignorant of an order of detention which might have justified the detention of the prisoner and allow this Court to pass an order of release and then bring up that order of detention in justification of the detention of the prisoner. I am clearly of the view that it was the duty of the Provincial Government to bring to the notice of the Court all orders of detention which might justify the detention of the person whose application for release was being considered by this Court on the 7th of October, 1948. As to the practical difficulties mentioned by the learned Advocate-General, I am not satisfied that those practical difficulties were of such a character as to prevent the Provincial Government from bringing to the notice of this Court, the second order of detention passed against the detenu whose application was under consideration by this Court. Even if there were any practical difficulties, they cannot override the law; nor can they override the basic principle of the liberty of the subject on which the ordered progress of society and the state depends. I consider it necessary that it should be made clear once for all that no officer can flout or disobey the order of this Court for the release of a prisoner. If any officer, however highly placed he may be, does so intentionally, he does so at his peril.
This brings me to the third question involved in this case. Mr. Basantachandra Ghosh appearing for the petitioner has very seriously contended before us that a rule for contempt of Court should issue at least against two of the officers concerned, viz., the Deputy Commissioner of Hazaribagh and the Joint Secretary to the Government of Bihar, Political Department. We have considered the materials on the record and the arguments advanced by Mr. Basantachandra Ghosh. We are unable to find, however, that there was any intentional disobedience of the order of this Court. So far as the Superintendent of the Central Jail at Hazaribagh is concerned, Mr. Basantachandra Ghosh has conceded that officer was not to blame; he asked for instructions from the Deputy Commissioner and then from the Provincial Government and this Court. On the letter of the Superintendent of the Central Jail dated the 14th of October, 1948, enquiring from the Deputy Commissioner as to the effect of the second order of detention, the Deputy Commissioner noted that the prisoner should be retained until further orders of the High Court or Government. Personally, I think the Deputy Commissioner was wrong. He should have told the Superintendent of the Central Jail to seek the orders of this Court at once, if the latter was in any doubt about the order of this Court, it was no business of his to direct the detention of a prisoner who has been ordered to be released by this Court. I am satisfied, however, that the Deputy Commissioner himself was under a misapprehension as to the effect of the second order of detention and did not appreciate the legal position. I do not think that there was any intention to flout or disobey the order of this Court. As to the Secretary to the Government of Bihar, the learned Advocate-General has pointed out to us that the certified copy of the judgment of this Court dated the 7th of October, 1948, was sent to the Political Department on the 21st of October, 1948, and it was only on receipt of the complete judgment that the Secretary to the Government was in a position to know why the order of detention was held to be illegal. Mr. Basantachandra Ghosh, on the contrary, has drawn our attention to the fact that the Superintendent of the Central Jail had all along sent copies of the correspondence to the Provincial Government, and from that correspondence the Secretary to the Government of Bihar should have been in a position to know that an order of release had been passed in respect of the petitioner and that the latter could not be detained under the second order of detention. Taking the most charitable view of the matter, I am inclined to think that there was probably a misapprehension regarding the legal position all round. In the circumstances, I do not think that this is a fit case in which a rule for contempt of Court should issue. I must not be understood, however, to hold that this Court takes a lenient view of such action as amounts to a disobedience of the order of this Court. If in future any officer is found to have flouted or disobeyed the order of this Court, this Court will not hesitate to take severe action.
There is one other matter which I need mention. I have not been able to understand why it was considered necessary to serve more or less the same grounds of detention on the petitioner on the 24th of October, 1948, the very same date on which he was ordered to be released. Mr. Basantachandra Ghosh has argued that this was a mere make-believe, and the order of release was passed in fear of the fact that the case was listed for hearing on the 25th of October, 1948. On the materials in the record it is difficult to appreciate the reason why the order containing the grounds of detention and the order of release were served on the same day. The learned Advocate-General has stated that the grounds of detention were served probably to validate the detention for the days following the order of release by this Court, in pursuance of support the second order of detention I doubt very much if an illegal order could be legalised in that way. Be that as it may, I do not think that any further action should be taken in this case by way of issuing a rule for contempt. I only hope that this Court will not have any occasion in future to deal with a case of intentional flouting or disobedience of an order of this Court.
The rule is disposed of accordingly.
Narayan, J.:— I agree.
S.H
Order accordingly.