State of Bombay vs Purushottam Jog Naik

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Case No. 30 of 1950

Decision Date: 26 May, 1952

Coram: Vivian Bose, M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea

In the case titled The State of Bombay versus Purushottam Jog Naik, decided on the twenty-sixth day of May in the year 1952, the Supreme Court of India rendered its judgment. The judgment was authored by Justice Vivian Bose, who sat together with Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan and Justice B. K. Mukherjea. The petition was presented by the State of Bombay and the respondent was identified as Purushottam Jog Naik. The official date of the judgment is recorded as 26/05/1952, and the bench composition is reiterated as Justice Vivian Bose, Justice M. Patanjali Sastri, Chief Justice, and Justices Mehr Chand Mahajan, B. K. Mukherjea, B. K. Das and Sudhi Ranjan. The decision is reported in the law reports as 1952 AIR 317 and 1952 SCR 674, and it has been subsequently cited in numerous later decisions, including but not limited to R 1961 SC1381, RF 1961 SC1762, R 1962 SC113, R 1964 SC1823, R 1967 SC295, RF 1967 SC1145, F 1974 SC1957, D 1987 SC294, R 1988 SC1987, F 1988 SC2090, R 1990 SC1361, RF 1991 SC1557. The legal provisions examined in the case were Section 3 of the Preventive Detention Act of 1950, Article 166 of the Constitution of India (the year 1950), and the procedural issues concerning the form of a detention order, the requirement that the order state that the Government is satisfied, the necessity for the order to be issued expressly in the name of the Governor, the validity of the order, the possibility of proving the order by other evidence, the evidentiary value of a Secretary’s affidavit, and the appropriate form of verification.

The material portion of the order of detention that was issued under Section 3 of the Preventive Detention Act, 1950, read as follows: “Whereas the Government of Bombay is satisfied with respect to the person known as J. N. that, with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order: Now, therefore, the Government of Bombay is pleased to direct that the said J. N. be detained. By order of the Governor of Bombay (Signed) V. T. D., Secretary to the Government of Bombay, Home Department.” The Bombay High Court held that this order was defective because it was not expressly “in the name of the Governor” as required by Article 166(1) of the Constitution, and consequently the order was not protected by Article 166(2).

The Supreme Court, however, held that the order was not defective merely because it stated that the Government of Bombay was satisfied and that the Government of Bombay was pleased to direct the detention of J. N. The Court observed that although the addition of the words “and in his name” to the phrase “By order of the Governor of Bombay” would have removed any doubt, the order was in substance expressed to be made in the name of the Governor of Bombay within the meaning of Article 166. The Court further held that, assuming the order were defective, the State Government could still prove the validity of the detention by other means. It was held that it was not absolutely necessary in every case to call the Minister in charge; if the Secretary or any other officer possessed the requisite knowledge and his affidavit was believed, that would be sufficient proof. The Court emphasized that verification of such orders should invariably be fashioned on the lines of Order XIX, Rule 3, of the Civil Procedure Code, whether or not the Code was expressly applicable, and that when the matter deposed to is not based on personal knowledge, the sources of information must be clearly disclosed.

When a statement in a judicial record is not derived from the deponent’s own personal knowledge, the source of the information must be identified and disclosed with clarity. This principle was reiterated in the present judgment, which concerned an appeal lodged under Article 132 (1) of the Constitution of India. The appeal, identified as Case Number 30 of 1950, challenged the judgment and order dated 24 October 1950 issued by the High Court of Judicature at Bombay, presided over by Justices Bavdekar and Vyas, in Criminal Application No. 1003 of 1950. The appellant was represented by the Attorney-General for India and the Solicitor-General for India, aided by counsel for the appellant, while the respondent was present ex parte. The judgment was delivered on 26 May 1952 by Justice Bose. The matter before the Supreme Court arose from an order of the Bombay High Court that directed the release of the respondent, who had been detained pursuant to Section 3 of the Preventive Detention Act, 1950. The Attorney-General explained that the Government did not seek to re-arrest the respondent; rather, it wished to test the High Court’s decision on certain points that would have far-reaching consequences for preventive detention proceedings in the State of Bombay. Relying on the Privy Council precedent in King-Emperor v. Vimlabai Deshpande, the Court proceeded to hear the appeal while expressly directing that the respondent should not, under any circumstances, be re-arrested in connection with the matters raised in the appeal.

The respondent had initially been taken into custody under an order issued by the District Magistrate of Belgaum on 26 February 1950, an authority that at the time lay outside the jurisdiction of the magistrate concerned. On 11 July 1950, the Bombay High Court ruled that such a detention was invalid, a determination recorded in the case of In re Ghate. Consequently, a comprehensive review of fifty-seven cases, including that of the respondent, was undertaken, and orders were issued on 17 July 1950. In the course of this review, approximately fifty-two detainees were released, while fresh detention orders were issued in the remaining cases by the Government of Bombay. The order affecting the respondent was phrased as follows: “Whereas the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga Village, Taluka Karwar, District Kanara, that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 3 of the Preventive Detention Act, 1950 (No. IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained. By order of the Governor of Bombay, Sd/-- V. T. Dehejia, Secretary to the Government of Bombay, Home Department. Dated at Bombay Castle, this 17th day of July, 1950.” The respondent was served with the grounds for his detention on 26 July 1950, and a more detailed set of grounds was provided on 9 August 1950. The original grounds began with the statement, “In furtherance…”.

In the first set of grounds for detention, it was alleged that, because of the respondent’s campaign for non-payment of rent, he was inciting people in Belgaum District to commit violent acts against landlords and that it was probable he would continue such conduct. The second set of grounds added further particulars, stating that the persons he was alleged to have incited were tenants residing in Hadalge and surrounding villages in Khanapur Taluka of Belgaum District, and that this alleged instigation had been carried on by him for several months up to his arrest in April 1949. On 24 August 1950 the respondent filed an application before the Bombay High Court under section 491 of the Criminal Procedure Code seeking an order for his release. The High Court granted the relief sought, and the present appeal is directed against that order.

The learned High Court judges based their first ground of attack on the contention that the detention order dated 17 July 1950 was defective because it was not expressed in the proper legal form prescribed by the Constitution. Their reasoning rested on article 166(1), which requires that “all executive action of the Government of a State shall be expressed to be taken in the name of the Governor.” They observed that the detention order began with the preamble “Whereas the Government of Bombay is satisfied…,” and that the operative part read “Now, therefore … the Government of Bombay is pleased to direct…,” without any reference that the Governor of Bombay was pleased to direct the detention. Accordingly, the judges held that the order was not expressed to be made in the name of the Governor and therefore did not enjoy the protection of clause (2) of article 166. While they conceded that the State could establish by other evidence that a valid order had been passed by the proper authority, they held that the written document (Record No. 3) purported to embody the order could not be used to prove its validity because it failed to employ the formula prescribed by article 166(1).

The Court found this conclusion untenable. It emphasized that it was not seeking to encourage laxity in drafting, nor to endorse inventive experiments with statutory or constitutional language, but that the substance of article 166 and the order itself must be examined. The Court observed that the order in question is indeed “expressed” to be made in the name of the Governor because it contains the phrase “By order of the Governor.” It explained that one meaning of “expressed” is to make known the opinion or direction of a particular person, and that when a Secretary to the Government informs the detainee that the action is taken under the Governor’s orders, the Secretary is, in substance, acting on behalf of the Governor. Accordingly, the order satisfies the constitutional requirement of being expressed in the Governor’s name.

In this case the Court observed that when an order states that it is made “by order of the Governor”, the effect is that the order is issued in the name of the Governor and conveys the Governor’s opinions, feelings and directives to the person detained. The Court further held that the Constitution does not demand a rigid, formulaic wording to give effect to such a requirement; what matters is whether the substance of the constitutional requirement is satisfied. The Court reminded that the order under consideration was issued under the Preventive Detention Act, 1950, and therefore had to comply with the provisions of that Act. Section 3 of the Act authorises the State Government, if satisfied, to make an order directing the detention of a person. The Court noted that, under section 3 of the General Clauses Act, the expression “the State Government” is defined to mean the Governor. However, the Court explained that this definition does not automatically impose the same meaning on the wording of the order itself, because the General Clauses Act does not apply to the order. Rather, the order merely reproduces the language of Section 3 of the Preventive Detention Act, and consequently the term must be given the same meaning as it has in that Act, especially since the order concludes with the words “By order of the Governor of Bombay.” The Court observed that Section 3 of the Preventive Detention Act lists the authorities empowered to make detention orders. The list includes the State Government, the Central Government, any District Magistrate or Sub-Divisional Magistrate, and certain Commissioners of Police, but it does not expressly include the Governor of a State. Although the term “State Government” in a statute is interpreted to refer to the Governor, there is no statutory provision that equates the Governor with the State Government for purposes of making a detention order. The Constitution, in fact, confers upon the Governor distinct functions and powers that are separate from those of the Government. Accordingly, the Court found it appropriate that the order should have stated that the Government of Bombay was satisfied, rather than attributing the authority to some entity not contemplated by the Act, and that it was the Government that directed the detention. The Court also considered proper that the order be executed under the Governor’s orders and be authenticated, in accordance with the rules, by the Secretary’s signature. While the Court acknowledged that inserting the words “and in his name” after “By order of the Governor of Bombay” would have removed any doubt, it could not conceive of a situation where an order purporting to be made by the Governor of Bombay fails to be made in his name. The Court illustrated this principle by analogy: if a person signs a communication with his own name, the communication is issued in his name; similarly, if he employs an agent to sign on his behalf and the agent states that he is signing under the person’s orders, the document still proceeds in the name of that person.

In this case, the Court observed that the High Court had erred on the point concerning the validity of the order. The High Court had concluded that, because the order suffered from the defect previously discussed, it could not stand on its own; however, it held that the State Government could still demonstrate the order’s validity by alternative evidence. Accordingly, the High Court directed the Government to file an affidavit setting out the relevant facts. An affidavit was subsequently filed by the Home Secretary, but the High Court found it unsatisfactory and required an additional affidavit. The Home Secretary then furnished a second affidavit, yet the Court remained unconvinced and expressed the view that the Minister in charge should have executed an affidavit personally. The present Court declines to examine this further, noting that when an order of this nature cannot substantiate itself and must rely on external evidence, it becomes impossible to prescribe a definitive rule regarding the amount or type of evidence required. Such determinations are factual and will vary from case to case. While a court of appeal would have needed to decide this issue had it reached a different conclusion on the primary point and if the State had sought the respondent’s re-arrest, the present submission is limited to general principles. The Court therefore states that it is not mandatory in every instance for the Minister himself to execute an affidavit; if the Secretary or another individual possesses the necessary knowledge and his affidavit is credible, that will suffice. Nonetheless, the Court notes that the affidavits produced were improperly verified. Although the body of the affidavit indicated that the Secretary personally knew certain facts, the verification merely declared that the contents were true to the best of his information and belief. Such sloppy verification may, in some cases, lead to the affidavit’s rejection. Verifications should consistently follow the format prescribed by Order XIX, rule 3 of the Civil Procedure Code, irrespective of whether the Code is technically applicable. When the testimony is not based on personal knowledge, the sources of information must be clearly disclosed. The Court refers to the observations of Jenkins C.J. and Woodroffe J. in Padmabati Dasi v. Rasik Lal Dhar (1) and affirms the learned judges’ comments. It is emphasized, in fairness to the Home Secretary, that the High Court did not question his truthfulness, but rather his means of acquiring knowledge. The High Court was dissatisfied with his statement regarding the Minister’s “satisfaction” because it did not establish the Minister’s state of mind.

In this case, the Court observed that the question concerned the Home Secretary’s knowledge of the Minister’s state of mind. The learned Judges of the High Court had suggested that the Minister himself would have been a more satisfactory source of information, but the Court clarified that this issue was not a pure question of law. The Court explained that, as a matter of principle, a person’s mental state may be proved by evidence other than the person’s own testimony, and that the Home Secretary could possess the necessary knowledge if, for example, the Minister had expressly told him that he was satisfied or had indicated satisfaction through his conduct or actions. The Court further held that, should the Home Secretary’s affidavit have been accepted as sufficient in the particular instance, such an affidavit would constitute legally adequate proof. However, the Court emphasized that whether such proof would be sufficient in any given case, or whether the best evidence rule should be applied strictly, depended on the specific facts of each case.

In the factual matrix of the present appeal, the Court noted that fifty-seven cases had been dealt with over a period of six days and that orders relating to all of those cases were passed on a single day. The Court expressly refrained from passing judgment on the merits of those underlying cases. Instead, the Court focused on the legal proposition advanced by the High Court judges that an affidavit from the Minister in charge of the department was indispensable in every such case; the Court found that proposition to be an overreach. The learned Attorney-General had contended that the Minister could not be compelled to disclose the matters in question on the ground of article 163(3) of the Constitution, but the Court declined to decide that issue and left it open for future consideration.

The Court also addressed an argument concerning the privilege claimed by the Home Secretary on behalf of the State Government under article 22(6) of the Constitution. The Government had disclosed certain facts in the grounds provided to the detainee while asserting privilege over the remaining facts in its possession. The Court opined that the disclosed grounds were sufficiently specific to constitute an appropriate basis for the Government’s satisfaction. Regarding the undisclosed material, the Government claimed privilege in the Home Secretary’s affidavit on the ground of public interest, a point the Court noted but chose not to examine further because the respondent was not to be re-arrested. Although the Court considered the order of release to have been erroneous, it accepted the Government’s undertaking not to re-arrest the respondent and therefore directed that the respondent not be re-arrested in respect of the matters covered by the appeal. Consequently, the Court set aside the order of the High Court. The appellant’s agent was identified as the representative for the appellant.