Keshav Nilkanth Joglekar vs The Commissioner Of Police, Greater...

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 17 September, 1956

Coram: Venkatarama Ayyar, B.P. Sinha

In the matter of Keshav Nilkanth Joglekar versus The Commissioner of Police, Greater … the Supreme Court of India delivered a judgment on 17 September 1956, authored by Justice B P Sinha. The petitioners filed applications under article 32 of the Constitution seeking writs in the nature of habeas corpus, asserting that their liberty had been unlawfully restrained. The factual backdrop arose from orders issued by the Commissioner of Police, Bombay, on 13 January 1956 pursuant to section 3(2) of the Preventive Detention Act IV of 1950, hereinafter referred to as “the Act”. Those orders directed that the petitioners be detained, and consequently they were taken into custody on 16 January 1956. The formal grounds for their detention were prepared on 19 January 1956 and communicated to the petitioners on the following day, 20 January 1956. Thereafter, on 21 January 1956, the Commissioner reported the existence of the order and its supporting grounds to the State Government, a report which the State Government approved on 23 January 1956. The petitioners contended before the Court that the Commissioner, upon passing the detention order on 13 January 1956, was statutorily obligated under section 3(3) of the Act to report that fact to the State Government “forthwith”. They argued that the delay until 21 January 1956 breached the statutory requirement, rendering the detention illegal. Consequently, the central issue for determination was the interpretation of the term “forthwith” as used in section 3(3) of the Act and whether the Commissioner’s report satisfied the requisite immediacy.

The Court observed that the word “forthwith” possesses a flexible and elastic import, and that its literal meaning might suggest an action to be performed immediately, without any lapse of time, or, as some American authorities propose, at the same moment as the related act. Nonetheless, prevailing American jurisprudence does not uniformly endorse this strict construction. The Court quoted from Corpus Juris, volume 26, page 998, which stated that although the term has sometimes received a strict interpretation, it is ordinarily not to be confined rigidly; rather, it should be given a liberal or reasonable construction, taking into account the nature of the act and the circumstances of the case. Turning to English law, the Court noted a long line of decisions interpreting “forthwith” in statutes, rules, and contracts, consistently favoring a liberal approach. As early as 1767, Lord Hardwicke, speaking in Rex v. Francis [Cun. 165; 94 E.R. 1129, 1133], equated “forthwith” with “immediately” and emphasized that the term does not exclude intermediate acts or a reasonable period of time. The Court therefore concluded that “forthwith” should be understood in a flexible, context‑sensitive manner rather than as mandating an instantaneous report, and it indicated that this interpretative principle would guide its determination of whether the Commissioner’s report complied with the statutory requirement.

Judges held that the word “immediately” possessed a very loose signification and did not necessarily require that the money be taken away in the presence of Cox. They explained that the term, either in its ordinary use or in its grammatical construction, did not exclude any intermediate acts or any period of time. The judges further stated that it was more necessary and proper in the present case to consider the legal meaning of the word rather than its colloquial sense. In that legal sense, the term was not understood to exclude any intervening acts or time. The judges also referred to the Statute Hue and Cry, 27 Eliz. c. 13, s. 11, where the words “with as much convenient speed as may be” were employed. They noted that all earlier precedents had treated those words as equivalent to “immediate,” as can be seen in the legal textbooks. Finally, the judges mentioned the writs of habeas corpus that were issued by this Court and were most frequently required to be returned “immediately.” In the context of those writs, the word was never meant to exclude any intermediate acts or time; it merely meant that the writ should be acted upon with convenient speed.

In the case of Reg. v. The Justices of Worcester, the question concerned the meaning of the word “forthwith” in section 50 of 6 Will. IV. Justice Coleridge observed that the word “forthwith” should not receive a strict construction in the same way as “immediately.” He explained that the provision required whatever followed under the section to be performed without any unreasonable delay. Accordingly, the word “forthwith” in that provision was to be understood as meaning prompt performance. Later, the meaning of “immediately” was examined in Thompson v. Gibson. Lord Abinger, C.B., held that the term was not to be interpreted literally. He stated that, if the acts of Parliament could be read literally in a manner consistent with common sense and justice, that would be proper, but the literal sense could not be applied here. He argued that the phrase “immediately afterwards” should be understood, in line with common sense and the principles of justice, as requiring performance within a reasonable time—one that would prevent the intrusion of intervening facts that might affect the judge’s mind. The judge clarified that the interpretation did not demand execution at the very instant, nor within a few minutes, but rather within a reasonable period that safeguarded the integrity of the judicial process.

The Court noted that Alderson, B., in agreeing with the earlier opinion, expressly endorsed the decision of Lord Hardwicke in Rex v. Francis (Cun. 165 : 94 E.R. 1129, 1133). The Court explained that this case adopted a construction of the word “immediately” which was later followed in Page v. Pearce ([1841] 8 M. & W. 677 (678) : 151 E.R. 1211 (1212)). In that decision Lord Abinger, C. B., observed that it had already been decided, and necessarily so, that the statutory phrase “immediately afterwards” could not be given a literal meaning. He added that once the literal construction was abandoned, the only appropriate alternative was to interpret the phrase as meaning “within a reasonable time.”

In the case of The Queen v. The Justices of Berkshire [(1878‑79) 4 Q.B.D. 469 (471)], the issue concerned the meaning of the term “forthwith” in section 52 of the 35 & 36 Vict., Chapter 94. Cockburn, C. J., was quoted as saying that the question was substantially one of fact and that it was impossible to lay down a hard‑and‑fast rule for the meaning of “immediately” in every circumstance. He explained that “forthwith” and “immediately” carried the same force, were stronger than the expression “within a reasonable time,” and implied prompt, vigorous action without any delay. Whether such prompt action had actually taken place, he said, was a factual determination based on the particular circumstances of each case.

The Court further observed that the same interpretation of “forthwith” had been applied in contractual contexts. In Hudson and others v. Hill and others [[1874] 43 L.J. C.P. 273 (280)], a charter‑party case, the judgment at page 280 described “forthwith” as meaning “without unreasonable delay.” The judgment explained that the distinction between an undertaking to act “forthwith” and an undertaking to act within a specified time was familiar to anyone versed in the law, and that to act “forthwith” meant to act as soon as it was reasonably convenient.

In Reg. v. Price (8 Moore P.C. 203 : 14 E.R. 78), the Privy Council held that the word “forthwith” in a bail‑bond context meant that the required act should be performed within a reasonable time after the service of notice. On the basis of these authorities, the Court concluded that an act required to be done “forthwith” is deemed to have been performed correctly when it is carried out with all reasonable dispatch and without any avoidable delay.

Nevertheless, the Court recorded the argument put forward by Mr N. C. Chatterjee. He contended that the view expressed in the earlier decisions regarding the meaning of “forthwith” had been abandoned by later case law. According to his submission, the current law requires that when one act is required to be performed “forthwith” in relation to another, the proper inquiry is not whether the act was done within a reasonable time, but whether it was performed so closely upon the other act that the two together constitute one continuous act. Mr Chatterjee relied on the decision in Re Muscovitch [[1939] 1 A.E.R. 135] and its affirmation in Re Muscovitch [[1988] 4 A.E.R. 570] to support this position.

The Court noted that the decision in Re Muscovitch concerned rule 132 of the Bankruptcy Rules, which provided that “Upon entering an appeal, a …” (the quotation being truncated in the source). The Court indicated that this rule required the appellant to forthwith send a copy of the notice of appeal to the registrar of the court from which the appeal was taken, and that the factual findings in that case would be relevant to the present discussion of the meaning of “forthwith.”

The rule required that “a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from.” In the case of Re Muscovitch, the appeal was filed within the prescribed period on 25‑10‑1938, but the notice of appeal was not served until 28‑10‑1938. The court observed that there was “no satisfactory reason or no reason at all, why there was any delay in the matter” (Re Muscovitch [[1938] 4 A.E.R. 570]). Consequently, the court held that the condition that “the notice shall forthwith be sent” had not been satisfied. This authority was cited only to show that when an act is performed after a lapse of time and the party fails to provide an explanation for the delay, the act cannot be said to have been done “forthwith”. Sir Wilfrid Greene, M. R., clarified this point in Re Muscovitch [[1939] 1 A.E.R. 135] at page 139, stating: “Having regard to the construction which was put upon the word ‘forthwith’ which is peremptory, and admits of no interval of time between the entry of the appeal and the sending of the notice save such as may be imposed by circumstances which cannot be avoided. I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule.”

Further reliance was placed by the petitioners on the decision in Ex parte Lamb; In re Southam [[1881‑82] 19 Ch. D. 169], a decision that was subsequently followed in Re Muscovitch [[1939] 1 A.E.R. 135]. In that case, the Court was interpreting the word “forthwith” in rule 144 of the Bankruptcy Rules 1870, which corresponded to rule 132, the same rule examined in Re Muscovitch. Jessel, M. R., observed at page 173 that “the word ‘forthwith’ must be construed according to the circumstances in which it is used. Where, as in Hyde v. Watts [12 M & W. 254], there is a covenant to insure a man’s life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done ‘forthwith’ can be done without delay, it ought to be so done.” The learned judges in that case also found that the delay was not explained. Lush, L. J., added that “the word ‘forthwith’ has not a fixed and an absolute meaning; it must be construed with reference to the objects of the rule and the circumstances of the case.” Accordingly, the decisions in Re Muscovitch and Ex parte Lamb; In re Southam do not depart from the earlier construction that “forthwith” requires the act to be performed with reasonable speed and expedition and that any delay must be satisfactorily explained. The petitioners argued this point further.

The petitioners argued that even if the earlier authorities’ interpretation of the word “forthwith” were accepted, that meaning must yield to any contrary intention expressly set out in the statute. They contended that the legislature, by providing in section 7 that the grounds should be communicated to the detenu “as soon as may be,” had simultaneously intended that the report required under section 3(3) be sent “forthwith.” According to the petitioners, the use of two different expressions in the two sections clearly indicated that the terms did not carry the same meaning. Because “as soon as may be” suggests that the act may be performed within a reasonable time, they argued that the more peremptory term “forthwith” must be understood as excluding any reasonable‑time allowance. The petitioners relied on the decisions in Emperor v. Phuchai and K. U. Kulkarni v. Ganpat Teli, invoking the principle that when distinct expressions appear in different parts of the same provision, they should be construed to have different senses.

The Court agreed that “forthwith” in section 3(3) could not be equated with “as soon as may be” in section 7 and that the former expression is indeed more peremptory than the latter. The Court explained that the distinction lies in the nature of the time limits each provision imposes. Section 7 allows the authority a reasonable period, convenient under the circumstances, to send the communication of grounds to the detenu. In contrast, section 3(3) permits only the period during which the authority could not, through no fault of its own, send the report. Accordingly, the inquiry under section 7 is whether the time taken to communicate the grounds is reasonably necessary, whereas the inquiry under section 3(3) is whether the report was sent at the earliest possible moment and whether any lapse between the date of the order and the date of the report could have been avoided.

The petitioners further argued that because section 7 mandates that communication be made not later than five days from the date of the order, and because section 3(3) is more peremptory, the period permissible under section 3(3) could not exceed five days. They pointed out that in the present cases the reports were sent eight days after the order, and therefore could not be deemed “forthwith.” The Court observed that this argument conflated two separate requirements of section 7. The five‑day period specified in section 7 is an absolute deadline, independent of the indeterminate period denoted by “as soon as may be,” which varies according to the facts and circumstances of each case. Thus, the five‑day limit does not govern the meaning of “forthwith,” nor does the statutory ceiling of twelve days for State approval under section 3(3) translate into the meaning of “forthwith.”

It would be as erroneous to read the five‑day period provided in section 7 as part of the indefinite period expressed by “as soon as may be,” just as it would be improper to treat the twelve‑day window for State approval under section 3(3) as falling within the period meant by “forthwith.” Accordingly, the report that the Commissioner transmitted to the State on 21‑1‑1956 could be considered to have been sent “forthwith” as required by section 3(3) only if the authority could satisfy the Court that, despite exercising all possible diligence, it was not in a position to dispatch the report during the interval from 13 January to 21 January 1956. The Court then turned to examine the factual circumstances from this standpoint. The Commissioner of Police had filed an affidavit explaining why the required reports had not been sent until 21 January 1956, although the detention orders themselves had been made on 13 January 1956. The affidavit narrated that ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establishment of a Samyuktha Maharashtra that would include Bombay. It stated that an action committee had been constituted on 15‑11‑1955 for this purpose, and that subsequent hartals and morchas had triggered outbursts of lawlessness, violence, and the burning of a police chowki. The affidavit further observed that the final decision on the question of Bombay’s status was expected to be taken and announced in the middle of January 1956, and that the public atmosphere at that time was highly surcharged. In that situation, the Commissioner decided to take action under section 3(2) of the Act against the leading spirits of the movement, and he passed the present orders for detention against the petitioners on 13‑1‑1956. In his affidavit, the Commissioner explained that he first intended to locate the persons against whom detention orders had been made on 13 January 1956 and, after completing that task, to arrest all of them simultaneously so that none might go underground, abscond, or evade execution of the detention orders. He then added that it was not possible for him to send the report earlier because the situation in the City of Greater Bombay was tense, “pregnant with danger,” on 13 January 1956 and continued to be so until 16 January 1956, with actual rioting occurring that night and persisting until 22 January 1956. He further stated that he and his staff were kept extremely busy throughout that period in maintaining law and order and simultaneously taking steps to round up miscreants, and that in this unusual and tense situation it was not feasible to prepare the report before the day on which it was finally made. The Court saw no reason to reject these statements. It noted that the events of 16 January and the subsequent days had become matters of history, and that the great city of Bombay was convulsed by disorders that rank among the worst the country has ever witnessed. The Court observed that the Bombay police had a most difficult task in securing life and property under those extraordinary circumstances.

In the circumstances, the police were required to protect life and property, and the authorities were evidently operating under intense pressure to maintain law and order. The Court observed that the Commissioner had not been idle or negligent regarding the orders he issued; rather, any delay resulted from factors beyond his control, factors to which the petitioners’ activities largely contributed. Consequently, the Court accepted the Commissioner’s affidavit without reservation and concluded that the delay in transmitting the report could not have been avoided by the Commissioner and that, when the report was finally sent, it was dispatched “forthwith” within the meaning of section 3(3) of the Act. Counsel for the petitioners raised several special points in C. M. Ps. Nos. 109 and 110 of 1956. First, counsel argued that the original order in C. M. P. No. 109 of 1956 directed detention at Arthur Road Prison, Bombay, and that the subsequent order placing the petitioner in Nasik Prison was therefore beyond jurisdiction. The Court found, from the Commissioner’s affidavit, that the petitioner had been ordered to be detained in Nasik Road Central Prison and was only temporarily held in Arthur Road Prison pending transfer, disproving the jurisdictional objection. Second, counsel contended that the material on which the detention orders were based related solely to past conduct and could not justify future detention. The Court rejected this, stating that predictions of future conduct must be inferred from past behaviour, which often constitutes the sole evidence available. Third, counsel claimed that the petitioners were merely accused of advocating a hartal, which did not constitute grounds for detention. The Court clarified that the charge was that the petitioners had instigated a hartal that caused a complete cessation of work, trade and transport with the purpose of promoting lawlessness and disorder, a basis that fell within section 3(2) of the Act. Accordingly, the Court held that all the petitioners’ contentions were untenable and ordered the dismissal of the petitions.