Keshav Nilkanth Joglekar vs The Commissioner Of Police
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Petitions Nos. 102, 105 to 110 of 1956
Decision Date: 17 September 1956
Coram: Bhuvneshwar P. Sinha, S.K. Das, P. Govinda Menon, Venkatram Ayyar
In the matter of Keshav Nilkanth Joglekar versus the Commissioner of Police, the Supreme Court rendered its judgment on 17 September 1956. The case was heard by a bench that included Justice Bhuvneshwar P. Sinha, Justice S. K. Das and Justice P. Govinda Menon. The petitioner was Keshav Nilkanth Joglekar and the respondent was the Commissioner of Police for Greater Bombay, together with related petitions. The decision is reported in 1957 AIR 28 and 1956 SCR 653. The issue concerned the Preventive Detention Act, 1950 (Act IV of 1950), specifically sections 3(3) and 7, and the meaning of the term “forthwith” in the statutory duty of a police officer to report a detention order to the State Government.
Section 3(3) of the Preventive Detention Act requires that when an order of detention is made by an officer specified in section 3(2), the officer must “forthwith” report the fact of the order and the grounds on which it is made to the State Government. The provision further states that no such order shall remain in force for more than twelve days after its making unless, in the meantime, the order has been approved by the State Government. On 13 January 1956 the Commissioner of Police, Bombay, exercised his authority under section 3(2) and passed orders directing the detention of the petitioners. Consequently, the petitioners were arrested on 16 January 1956. The grounds supporting the detention were supplied to the petitioners on 20 January 1956, and the following day the Commissioner sent the required report to the State Government. The State Government gave its approval on 23 January 1956.
The petitioners challenged the legality of their detention on the basis that the Commissioner’s duty under section 3(3) was to report the detention “forthwith” on the date the order was made, namely 13 January 1956. They argued that the delayed report, which was made on 21 January 1956, violated the statute and rendered the detention illegal. The Court examined the circumstances surrounding the delay and found that the postponement in sending the report could not have been avoided by the Commissioner. The delay was largely attributable to causes to which the petitioners themselves had contributed.
Having considered the statutory language and the purpose of the provision, the Court held that the word “forthwith” in section 3(3) does not possess a fixed or absolute meaning. Its interpretation must be guided by the object of the section and the facts of each case. The term is not equivalent to “as soon as may be” found in section 7, which allows a reasonable period that is conveniently practicable. By contrast, the requirement in section 3(3) permits only the period during which the officer could not, without any fault of his own, send the report. Accordingly, the Court concluded that the Commissioner’s conduct did not constitute a statutory breach, and the detention remained valid under the Act.
It was held that an act described as required to be done “forthwith” must be considered duly performed when it is executed with all reasonable dispatch and without any avoidable delay. The Court supported this interpretation by relying on decisions such as The Queen v. The Justices of Berkshire ([1878‑79] 4 Q.B.D. 469), Hudson and others v. Hill and others ([1874] 43 L. J. C. P. 273), and Beg v. Price (8 Moore P.C. 203). These authorities were cited to illustrate that “forthwith” does not demand instantaneous performance but rather a prompt and efficient completion consistent with the purpose of the provision.
The matter before the Court comprised petitions numbered 102, 105 to 110 of 1956, filed under Article 32 of the Constitution seeking writs of habeas corpus. Counsel for the petitioners included N. C. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma for petitions 102, 105‑108, and Sadhan Chandra Gupta together with Janardhan Sharma for petitions 109 and 110. Counsel for the respondents comprised C. K. Daphtary, Solicitor‑General for India, Porus A. Mehta and R. H. Dhebar for petitions 102 and 105, and Porus A. Mehta with R. H. Dhebar for petitions 106‑110. The judgment was delivered on 17 September 1956 by Justice Venkatarama Ayyar. The factual background was that on 13 January 1956 the Commissioner of Police, Bombay, issued orders under section 3(2) of the Preventive Detention Act 1950 directing the detention of the petitioners, and the detainees were arrested on 16 January 1956. The substantive grounds for detention were prepared on 19 January 1956 and communicated to the detainees on 20 January 1956. The Commissioner then reported the existence of the order and its grounds to the State Government on 21 January 1956, and the State Government approved the report on 23 January 1956. The petitioners contended that the Commissioner was obliged by section 3(3) of the Act to report the detention order to the State Government “forthwith,” and that by waiting until 21 January 1956 to do so he violated the statute, rendering the detention illegal. Consequently, the Court needed to determine the meaning of “forthwith” within section 3(3) and to decide whether the Commissioner’s report satisfied that requirement. The Court noted that “forthwith” is a term of flexible meaning. Literally, it could be read to require the subsequent act to follow immediately with no time interval, or, as some American authorities suggest, to occur at the same moment as the antecedent act. However, prevailing American jurisprudence rejects such a strict construction. As observed in Corpus Juris, Volume 26, page 998, the term, though sometimes given a narrow interpretation, is ordinarily not to be construed rigidly but should receive a liberal or reasonable construction accounting for the nature of the act and the circumstances of the case.
In discussing the proper interpretation of the term “forthwith” as used in statutes, the Court observed that the word possesses a flexible meaning and should not be given a rigid construction. The Court explained that, in its literal sense, “forthwith” could be understood to require that the act mentioned be performed immediately, without any delay, or, as some American authorities have suggested, at precisely the same moment as the related act. However, the Court noted that the majority of American judicial opinion does not support such a strict reading. Citing Corpus Juris, Volume 26, page 998, the Court quoted the passage that, although the term has sometimes been interpreted narrowly, it is ordinarily to be given a liberal or reasonable construction, taking into account the nature of the act to be performed and the surrounding circumstances.
The Court then turned to English jurisprudence, indicating that there is a long line of decisions that have similarly interpreted “forthwith” in statutes, rules, and contracts in a liberal manner. Referring to an early authority from 1767, the Court recounted Lord Hardwicke’s remarks in Rex v. Francis, where the judge considered the words “immediately” and “forthwith” to have the same significance. Lord Hardwicke observed that, although the word “immediately” is strongly insisted upon as a term that excludes all intermediate acts and time, the nine judges of that case held that “immediately” is of a loose signification and does not necessarily require the act to be performed in the presence of the plaintiff. The judges reasoned that the word, both in its use and grammatical construction, does not exclude intermediate acts or time, and that it is more appropriate to consider its legal meaning, which does not preclude such intervals.
The Court further noted that, in the context of the Statute Hue and Cry, 27 Eliz. c. 13, s. 11, where the phrase “with as much convenient speed as may be” is employed, preceding authorities have equated such language with “immediately.” Similarly, the Court cited the frequent practice in writs of habeas corpus issued by this Court, which are normally required to be returned “immediately,” a term that is understood not to exclude intermediate acts or time but merely to demand promptness.
In the case of Beg. v. The Justices of Worcester, the Court referred to the question of the meaning of “forthwith” in section 50 of the Statute of William IV. Justice Coleridge observed that the word should not receive a strict construction like “immediately,” wherein the subsequent act must follow instantly after the preceding one. Instead, the word should require that whatever is mandated by the statute be performed without unreasonable delay, meaning that “forthwith” carries the meaning of doing the act within a reasonable period rather than at the exact moment.
The Court also discussed the meaning of “immediately” in Thompson v. Gibson, where Lord Abinger, C.B., held that the word should not be interpreted literally if such a literal reading would conflict with common sense and justice. He asserted that, if Parliament’s intention were clear that no moment’s delay was permissible, the courts would be bound to follow that intention; however, the Court concluded that the appropriate interpretation must align with common sense and the principles of justice, thereby requiring a reasonable, not literal, construction of “immediately.”
The Court observed that the interval mentioned in the statute was intended to occur before the certificate was granted, and it felt bound to respect that expressed intention. However, it was conceded that such an interpretation could not be correct; therefore, the Court examined how the phrase “immediately afterwards” should be understood in a manner consistent with common sense and the principles of justice. The Court considered whether the phrase required the act to be performed at the very next instant, or whether it could be satisfied by a brief period such as ten minutes or a quarter of an hour after the preceding event. It concluded that the proper construction was that the action must be carried out within a reasonable time that excluded the possibility of intervening facts influencing the judge’s mind and altering the impression formed by the evidence in the case. In endorsing this view, Alderson, B. expressly approved the earlier decision of Lord Hardwicke in Rex v. Francis (1). The same construction of the word “immediately” was later adopted in Page v. Pearce, where Lord Abinger C. B. observed that it had already been decided, and necessarily so, that the words “immediately afterwards” in the statute could not be taken literally; once the literal meaning was abandoned, the only appropriate substitute was “within a reasonable time.” In The Queen v. The Justice‑3 of Berkshire (3), the Court addressed the meaning of “forthwith” in section 52 of 35 & 36 Vict., Chapter 94. Cockburn C. J. held that the question was essentially factual, noting that it was impossible to lay down a hard and fast rule for the meaning of “immediately” in every case. He explained that “forthwith” and “immediately” carried the same meaning, were stronger than the expression “within a reasonable time,” and implied prompt, vigorous action without any delay. Whether such prompt action had occurred, he said, was a question of fact that depended on the circumstances of each case. The same interpretation was applied to the word “forthwith” in contractual contexts. In Hudson and others v. Hill and others (1), a charter‑party case, the Court observed at page 280 that “forthwith” meant “without unreasonable delay,” and that the distinction between an undertaking to act “forthwith” and an obligation to act within a specified time was well known to those familiar with the law; to act “forthwith” was to act as soon as reasonably convenient. In Reg. v. Price (2), the Privy Council held that “forthwith” in a bail‑bond meant a performance within a reasonable time from the service of notice. Relying on these authorities, the Court concluded that an act required to be done “forthwith” must be deemed to have been done when it is performed with all reasonable dispatch and without avoidable delay. Nonetheless, counsel for the petitioner, Mr. N. C. Chatterjee, argued that the view expressed in the foregoing decisions regarding the meaning of “forthwith” had been abandoned by later cases, and that the current law required a determination of whether the act was performed so closely to the antecedent act as to constitute one continuous act rather than merely a performance within a reasonable time.
The learned counsel argued that the earlier construction of the word “forthwith” had been abandoned in later decisions and that, under the law as it currently stands, when an act is required to be performed forthwith in relation to another act, the question is not whether the act was done within a reasonable time but whether it was carried out so closely upon the other act as to form one continuous act. He supported this view by citing the decision in Be Muscovitch (3), which affirmed the earlier case Re Muscovitch (1). That case concerned rule 132 of the Bankruptcy Rules, which provides that “Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from.” The facts recorded that the appeal was lodged in time on 25‑10‑1938, but the notice of appeal was not served until 28‑10‑1938, and the court found that there was “no satisfactory reason or no reason at all, why there was any delay in the matter” (Re Muscovitch (4)). On that basis, the court held that the requirement that “the notice shall forthwith be sent” had not been satisfied. This authority is limited to the proposition that when an act is performed after an interval of time and no explanation for the delay is offered, the act cannot be said to have been done “forthwith”. Sir Wilfrid Greene M.R. clarified this position at page 139 of Re Muscovitch (1), stating that the construction placed upon the word “forthwith” is peremptory, admits no interval between the entry of the appeal and the sending of the notice except that which is imposed by unavoidable circumstances, and therefore it was impossible to say that the notice was sent forthwith within the meaning of the rule. The petitioners also rely on the decision in Ex parte Lamb: In re Southam (2), which was followed in Re Muscovitch (1). In that case the Court construed the word “forthwith” in rule 144 of the Bankruptcy Rules, 1870, which corresponds to rule 132 and was the subject of interpretation in Re Muscovitch (1). Jessel M.R., at page 173, observed that the word “forthwith” must be construed according to the circumstances in which it is used; where, as in Hyde v. Watt (3), there is a covenant to insure a man’s life, a certain delay is inevitable because the act cannot be performed instantaneously, but where an act required to be done “forthwith” can be performed without delay, it must be done so. The learned judges in that case also found that the delay was not explained. Lush L.J. added that the word “forthwith” does not have a fixed and absolute meaning and must be interpreted with reference to the objects of the rule and the circumstances of the case.
In this case, the Court examined the objects of the rule and the circumstances surrounding it. The Court observed that none of the decisions in Re Muscovitch (1) and Ex parte Lamb: In re Southam (2) indicated a departure from the earlier interpretation of the word “forthwith.” Those earlier authorities understood “forthwith” to mean that the required act must be performed with reasonable speed and expedition, and that any delay must be satisfactorily explained. The citations for those authorities are (1) [1939] 1 A.E.R. 185, (2) [1881‑82] 19 Ch. D. 169, and (3) 12 M & W. 254. The petitioners argued that even if the construction of “forthwith” in the cited decisions were accepted as correct, it must yield to any contrary intention expressed in the statute, and that the provisions of the Act clearly indicated such a contrary intention. The petitioners contended that the legislature, by providing in section 7 that the grounds should be communicated to the detainee “as soon as may be,” simultaneously enacted that the report required under section 3(3) should be sent “forthwith.” They asserted that the use of two different expressions in the two sections demonstrated that the expressions do not carry the same meaning; the phrase “as soon as may be” suggests a reasonable period, whereas the more peremptory word “forthwith” must be construed to exclude any reasonable delay.
The petitioners relied on the decisions in Emperor v. Phuchai (1) and K. U. Kulkarni v. Ganpat Teli (2) to support the proposition that when two different expressions appear in different parts of the same clause or section, they should be understood in different senses. The Court agreed that “forthwith” in section 3(3) cannot mean the same thing as “as soon as may be” in section 7, and that the former expression is more peremptory than the latter. In the Court’s view, the distinction between the two expressions lies in the following manner: under section 7, the authority may send the communication to the detainee within a time that is reasonably convenient; under section 3(3), the authority may send the report only during the period in which it could not, without any fault of its own, send the report earlier. Accordingly, the question under section 7 is whether the time taken to communicate the grounds is reasonably requisite, whereas the question under section 3(3) is whether the report was sent at the earliest possible time. When a gap exists between the date of the order and the date of the report, the relevant consideration is whether the delay in sending the report could have been avoided. The cited authorities for this reasoning are (1) I.L.R. 50 All. 909: A.I.R. 1929 All. 38 and (2) I.L.R. [1942] Bom. 287: A.I.R. 1942 Bom. 191. It was further contended by the petitioners that, because section 7 required the communication to be made not later than five days from the date of the order, and because section 3(3) was more peremptory than section 7, the period permissible under section 3(3) could not exceed five days. The Court considered this argument in the subsequent analysis.
In this matter, the argument presented that section 3(3) was more peremptory than section 7 because it required the report to be made forthwith, that the allowable period under section 3(3) could not exceed five days, and that the reports, having been sent eight days after the orders, could not be deemed to have been made forthwith, was rejected as a conflation of two distinct provisions contained in section 7. The five‑day period specified in section 7 is an absolute term and operates independently of the period contemplated by the expression “as soon as may be,” which by its very nature is indeterminate and must be assessed in light of the particular facts and circumstances of each case. To read a rigid five‑day limitation into the flexible phrase “as soon as may be” would be as incorrect as to import the twelve‑day window within which the State must approve an order under section 3(3) into the meaning of the term “forthwith.” Consequently, the report that the Commissioner of Police forwarded to the State on 21 January 1956 could be considered to have been sent “forthwith” in accordance with section 3(3) only if the authority could demonstrate that, despite exercising all reasonable diligence, it was genuinely unable to dispatch the report during the interval from 13 January to 21 January 1956. The Court therefore turned to an examination of the factual matrix from this perspective. The Commissioner of Police had submitted an affidavit elucidating the reasons why the reports were not transmitted until 21 January 1956, even though the detention orders themselves had been issued as early as 13 January 1956. The affidavit recorded that, following the publication of a proposal to create a State of Maharashtra without the city of Bombay, there had been substantial agitation in favour of a united Maharashtra that would retain Bombay within its boundaries. An action committee had been constituted on 15 November 1955 for this purpose, and subsequent hartals and morchas had erupted, giving rise to episodes of lawlessness, violent clashes, and the arson of a police chowki. The final determination on the question of statehood was anticipated to be announced in mid‑January 1956, and the prevailing atmosphere was described as highly charged. In this volatile context, the Commissioner decided to invoke section 3(2) of the Act against the principal agitators of the movement and consequently issued detention orders against the petitioners on 13 January 1956. Within his affidavit, the Commissioner explained that his initial plan was to first locate all persons against whom the detention orders had been made on that date and, after completing that exercise, to arrest them simultaneously so that none could go underground, abscond, or evade the execution of the detention orders. He further stated that it had not been possible for him to forward the required report earlier because the situation in the City of Greater Bombay was tense and fraught with danger on 13 January 1956, a condition that persisted until 16 January 1956, during which period actual rioting broke out.
During the night of 16 January 1956 the riots began and they continued unabated until 22 January 1956. The Commissioner explained that he and his staff were occupied constantly with the task of preserving law and order while simultaneously undertaking measures to apprehend miscreants. Because of this unusual and highly tense atmosphere, the Commissioner asserted that it was impossible to prepare and submit a report before the day on which it was eventually filed. The Court expressed no reason to reject these statements. The events that unfolded on 16 January and in the days that followed have now become part of historical record. The city of Bombay was engulfed in disorder of a magnitude that ranks among the worst disturbances ever experienced in the country. The Bombay police therefore faced an extremely arduous mission of safeguarding lives and property, and the authorities were compelled to operate under intense pressure to maintain public order. It is evident from the record that the Commissioner did not neglect his duties or remain idle after issuing the detention orders. The delay in filing the report was attributable, not to any fault of the Commissioner, but to circumstances that were largely the result of the petitioners’ own activities. Consequently, the Court accepted the affidavit without hesitation and held that the delay could not have been avoided by the Commissioner and that, once sent, the report was transmitted “forthwith” within the meaning of section 3(3) of the Act. Counsel on behalf of the petitioners, identified as Mr S C Gupta, raised several special contentions in C M P Nos 109 and 110 of 1956. He argued that the original order in C M P No 109 directed the petitioner’s detention in Arthur Road Prison, Bombay, and that a later order detaining him in Nasik Prison was therefore beyond the Commissioner’s jurisdiction. The Commissioner’s affidavit clarified that the petitioner was never ordered to be detained in Arthur Road Prison; rather, he was ordered to be placed in Nasik Road Central Prison, and his temporary holding at Arthur Road Prison was merely for the purpose of arranging his transfer to Nasik. The petitioners also contended that the material on which the detention orders were based, as set out in the communications addressed to them, pertained solely to past activities and could not serve as a basis for future detention. The Court found this argument untenable, observing that predictions about a person’s future conduct must be inferred from existing circumstances, and that a person’s past record often provides the only reliable basis for such inference. Finally, the petitioners claimed that the only allegation against them was that they advocated a hartal, which they asserted was not a sufficient ground for detention. The Court rejected this contention, noting that the charge was not merely advocacy of a hartal but the active instigation of a hartal that caused a complete shutdown of work, commerce and transportation with the intention of fostering lawlessness and disorder, which is a valid ground for detention under section 3(2) of the Act. All of the petitioners’ contentions were therefore found to fail and the petitions were dismissed.
In the final analysis, the Court determined that the petitioners’ submissions did not succeed. The Court found that none of the arguments advanced by the petitioners satisfied the legal requirements necessary to sustain the relief they sought. As a result of this assessment, the Court concluded that the petitioners were unsuccessful in their attempts to obtain the orders they had requested. Accordingly, the Court directed that the petitions filed by the petitioners be dismissed. This dismissal reflected the Court’s view that, given the failure of the petitioners to establish any viable basis for their claims, there was no justification for allowing the petitions to proceed further. The order of dismissal therefore terminated the proceedings initiated by the petitioners, leaving the matters before the Court resolved in the negative for the petitioners.