Makhan Singh Tarsikka vs The State Of Punjab

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

Court: supreme-court

Case Number: Criminal Appeal No. 80 of 1963

Decision Date: 11 October 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, Raghubar Dayal

In the matter titled Makhan Singh Tarsikka versus The State of Punjab, a judgment was delivered by the Supreme Court of India on 11 October 1963. The opinion was authored by Justice P B Gajendragadkar, and the bench comprised Justices P B Gajendragadkar, K N Wanchoo, J C Shah and Raghubar Dayal. The petitioner was Makhan Singh Tarsikka and the respondent was the State of Punjab. The judgment bears the citation 1964 AIR 1120 and 1964 SCR (4) 932, with additional citator references including D 1964 SC1128 (5), E 1967 SC 241 (5,8), RF 1967 SC1797 (5), F 1973 SC 897 (6), D 1975 SC 90 (5,7,8) and RF 1986 SC2177 (32). The operative statutory provision was the Defence of India Rules 1962, specifically Rules 30(1) and 30(1)(b), which relate to the validity of a detention order when the person is already in jail custody.

The headnote of the case records that on 20 November 1962 a detention order was issued against the appellant under Rule 30(1)(b) of the Defence of India Rules 1962. This order was served on 21 November 1962 while the appellant was already in jail custody as an under‑trial prisoner pending a criminal trial. The appellant had been arrested on 25 October 1962 in connection with that criminal case and remained in detention thereafter. The President declared an emergency on 26 October 1962. During his period of custody the appellant was permitted to meet with friends, and approximately nine individuals interviewed him between 3 November and 19 November 1962. The respondent alleged that, during these interviews, the appellant encouraged the interviewees to undertake prejudicial activities. In response, the appellant filed a writ petition in the High Court challenging the validity of the detention order. The High Court dismissed the petition, holding that the appellant had not demonstrated that his detention was illegal.

The Supreme Court set out its holdings as follows. First, it observed that the decision in Rameshwar Shaw v. District Magistrate, Burdhwan, (1964) 4 S C R 921 is applicable, because the framework of Rule 30(1) is not fundamentally different from the scheme of section 3(1)(a) of the Preventive Detention Act, and this similarity does not alter the construction of Rule 30(1)(b). Second, the Court acknowledged that the range of orders that may be issued under Rule 30(1) of the Defence of India Rules is broader than the sole detention order contemplated under section 3(1) of the Preventive Detention Act, yet it concluded that the operative portion of Rule 30(1) remains substantially similar to section 3(1) of the Act. Third, the Court clarified that Rule 30(1)(b), like section 3(1)(a) of the Act, requires that an order be made only where it can be shown that, but for the detention, the person would be able to carry out a prejudicial activity of the type specified in Rule 30(1). On a plain construction of Rule 30(1)(b), the Court held that the order permits detention only where the person would otherwise be free to engage in the prejudicial activity, a condition that was not satisfied in the present case because the appellant was already in custody at the relevant time.

According to the Court, a detention order under Rule 30(1)(b) can be served only on a person who would otherwise be at liberty and therefore capable of carrying out the prejudicial activity described in the rule. In the instant case the appellant could not be described as free because he was already detained in jail at the time the order was purportedly served. The Court observed that serving a detention order on someone who is already in custodial confinement amounts to what may be described as a “double detention.” Such a situation is not contemplated by either section 3(1)(a) of the Preventive Detention Act or by Rule 30(1)(b) of the Defence of India Rules, and consequently it is unnecessary and lies outside the scope of those provisions. The Court further explained that, when an authority seeks to detain a person under Rule 30(1)(b), it must demonstrate that at the moment the detention order is served the individual was free to engage in the prejudicial conduct and that only his detention could prevent that conduct. Because the appellant was already in jail custody, the service of the detention order on him was held to be invalid. The Court noted that the judgment in Emperor v. Mool Chand, A.I.R. 1948 All 288, did not apply, and it referred to the authorities Dayanand Modi v. State of Bihar, I.L.R. 30 Pat. 630 and Meledath Bharathan Malyali v. Commissioner of Police, I.L.R. 1950 Bom. 438.

The Court then addressed the broader principle that it cannot be stated as an absolute rule that a detention order is invalid merely because the person is already in jail while an investigation related to alleged offences is ongoing. It cited the decision in Rameshwar Shaw, which held that, as a matter of abstract legal theory, a detention order may be validly made against a person who is already in custody. However, the Court emphasized that the validity of such an order in any particular case must be assessed in light of the specific and material facts. In the present case, the Court concluded that the mere fact of the appellant’s incarceration did not render the making of the detention order invalid; rather, the invalidity arose from the improper service of the order while he was already detained. The Court clarified that in Rameshwar Shaw the petitioner was released because he had been served with a detention order while in jail, not because the order itself was unlawful. The Court further held that a plea of malafide cannot be introduced for the first time in a petition for special leave, as such a plea must be raised through proper pleadings at the trial stage to give the respondent an opportunity to answer. Accordingly, the Court set aside the detention order against the appellant on the ground that its service was invalid and fell outside the ambit of the Rules.

The judgment was rendered by Justice Gajendragadkar on October 11, 1963, after counsel B. R. G. K. Achar appeared for the respondent. The Court considered the appeal filed by Makhan Singh Tarsikka, whose habeas‑corpus petition had been rejected by the Punjab High Court, and who therefore sought relief by way of special leave. The factual background recorded by the Court showed that on 22 October 1962 an FIR was lodged at the Jandiala Police Station alleging that offences punishable under sections 307, 324, 364 and 367 of the Indian Penal Code had been committed by several persons, including the appellant. Following the registration of the FIR, investigative proceedings were instituted and the appellant was taken into custody on 25 October 1962. The very next day, 26 October 1962, a proclamation of emergency was issued by the President of India. On 1 November 1962 the appellant was placed under judicial custody before the Sub‑Divisional Magistrate of Amritsar. While he remained in jail, the appellant permitted interviews with his acquaintances; between 3 November and 19 November 1962 a total of nine individuals were reported to have conversed with him. Subsequently, on 20 November 1962 an order of detention was issued against the appellant pursuant to Rule 30(1)(b) of the Defence of India Rules, 1962 (the “Rules”). That order was served on 21 November 1962 and the appellant was transferred to the jail at Hissar. He was later returned to Amritsar on 30 January 1963 and, on 9 February 1963, he filed the present writ petition challenging his detention. In the petition the appellant principally contended that the grounds set out in the detention order were “very vague, concocted and totally false.” The detention order itself asserted that the appellant was being held because he was “indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by urging people not to contribute to the National Defence Fund.” The order further explained that, in view of those alleged activities, it was deemed necessary to detain him in order to prevent the continuation of such prejudicial conduct. On 4 March 1963 the appellant filed an additional affidavit in which he argued that the very fact that he had been confined prior to the declaration of emergency on 26 October 1962, as well as the contemporaneous Chinese invasion, demonstrated that the accusations against him were fabricated and unfounded. By lodging this supplementary affidavit the appellant sought to introduce a further ground supporting his earlier claim that the detention grounds were false and concocted. Thereafter, on 6 March 1963 the appellant submitted a third affidavit stating that his political activities as a member of the Legislative Assembly were disliked “by the High‑ups.” He referred to several starred questions that he had raised in the Punjab Legislative Assembly, asserting that those questions exposed the “naked corruption of the ruling high‑ups.” The appellant used these additional allegations to further challenge the legality of his detention before the Punjab High Court.

The appellant asserted that the ruling high‑ups were engaged in naked corruption, a claim he expressed after describing how the Jandiala police had become enraged because, at his request, the Punjab High Court had appointed the Sessions Judge of Amritsar to conduct an inquiry into matters concerning the village of Ramana Chak. He further contended that the Senior Superintendent of Police, Amritsar, who was a close relative of the ruling chief, also bore a hostile attitude toward him. On the basis of these additional grounds, the appellant sought to challenge the legality of his detention before the Punjab High Court. The State of Punjab responded by filing counter‑affidavits that contested the appellant’s allegations. One of the respondent’s affidavits disclosed that the appellant had conducted nine interviews with other inmates between 3 November and 19 November 1962, and that, according to information received by the respondent, during those interviews the appellant encouraged the visitors to engage in prejudicial activities. The respondent’s affidavits also denied the other accusations advanced in the appellant’s three affidavits. Before the High Court, the appellant argued that his detention order had been passed mala fide, asserting that he had been arrested on 25 October 1962, and therefore it would be irrational to allege that he had participated in the prejudicial activities cited in the order. He further contended that, because a criminal case under section 307 of the Indian Penal Code was pending against him at the relevant time, the detaining authority could not lawfully detain him under Rule 30(1)(b) of the Rules. The judge hearing the habeas corpus petition dismissed both of these contentions, finding that the appellant had not demonstrated that his detention was illegal, and consequently dismissed the writ petition. Counsel for the appellant, identified as Mr. Garg in the record, then argued that the service of the detention order on 21 November 1962 was unlawful, relying on the recent Supreme Court decision in Rameshwar Shaw v. District Magistrate, Burdwan & Another. He highlighted that the wording of section 3(1) of the Preventive Detention Act, 1960, as interpreted in Rameshwar Shaw, closely mirrors the language of Rule 30(1) that governed the present appeal, and he maintained that the precedent fully supports his position that serving a detention order on a person already in custody falls outside the scope of Rule 30(1).

The Court found the argument that a detention order cannot be validly served while the person is already in jail custody to be well‑founded and therefore worthy of acceptance. In Rameshwar Shaw the Court examined section 3(1) of the Preventive Detention Act, 1960 and held that the provision necessarily assumes that a person who is to be detained must be free to act in a prejudicial manner if he is not detained; consequently, before an order of detention can be properly served, the authority must demonstrate that the individual would be capable of committing a prejudicial act at the relevant time. The Court observed that when a person is already in jail custody, it is unreasonable to presume that his freedom from detention would enable him to engage in any prejudicial conduct, and therefore an order of detention served on such a person cannot be valid. The effect of the decision, therefore, is that an order of detention is invalid where the detained individual is already in jail and it is not rational to predict any prejudicial activity should the order not be served. The Court also addressed the separate question of whether an authority may pass a detention order against a person who is in jail custody. It held that, as a matter of abstract legal principle, section 3(1)(a) does not forbid the authority from issuing a detention order while the person is already detained or in jail. However, the Court added that the factual circumstances surrounding the making of the order may differ and that such differences can affect the application of the principle permitting a detention order against a person in jail. Emphasising the importance of the proximity of time, the Court concluded that the question of whether a detention order may be passed against someone already in custody must be decided on the facts of each individual case. Accordingly, in Rameshwar Shaw the applicant’s petition was allowed and he was ordered to be released on the ground that the service of the detention order while he was in jail was invalid. Counsel for the petitioner, Mr Garg, relied on this authority to support his contention that the service of the present detention order against the appellant while he was in jail is likewise invalid. The Deputy Advocate‑General appearing for the respondent attempted to argue that the decision in Rameshwar Shaw should not apply because the scheme of Rule 30(1) differs fundamentally from the scheme of section 3(1) of the Act. He nevertheless conceded that the operative portion of Rule 30(1) is substantially similar to the provision of section 3(1). Rule 30(1) provides that the Central Government …

The provision authorises the Union Government or the State Government, when satisfied that a particular individual, if allowed to act, might prejudice the defence of India, civil defence, public safety, the maintenance of public order, India’s relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations, or the maintenance of supplies and services essential to the life of the community, may issue an order to prevent such conduct. The provision sets out eight separate clauses that delineate the categories of orders that may be issued under Rule 30(1). Clause (b) is the clause that deals with detention, and it is the clause that is the focus of this appeal. The argument presented is that the existence of the eight clauses demonstrates that the appropriate authority is not limited to ordering detention alone; it may also issue a variety of other orders.

Under clause (a), the authority may direct a person to leave India in a manner, at a time and by a route specified in the order, and may also prohibit that person from returning to India. Clause (c) authorises the authority to impose restrictions that prohibit the person from entering any area or place that is specified in the order. Clause (d) envisions a form of internment of the person within a particular area that is identified in the order. Under clause (e), the movements of the person may be regulated by requiring the person to report his whereabouts, to notify his movements, or to do both, in the manner prescribed by the clause.

Clause (f) permits the authority to impose restrictions on the employment or business carried on by the person; this clause is cited in the decision reported in (1) [1964] 4 S.C.R. 918. Clause (g) allows the authority to impose restrictions on the possession or use by the person of any articles that are mentioned in the order. Clause (h) is a general clause that empowers the authority to make any other order that regulates the conduct of the person in any particular manner that may be specified in the order.

From this enumeration it is clear that the nature and scope of orders that may be validly passed under Rule 30(1) are considerably broader than the single order of detention that may be made under section 3(1) of the Act. The issue that must be addressed, however, is whether this broader spectrum of possible orders influences the interpretation of the operative provisions of Rule 30(1) as they relate specifically to detention. In the Court’s view, the answer must be negative. Rule 30(1)(b), like section 3(1)(a), explicitly requires that an order of detention may be made only when it is shown that, but for the imposition of that detention, the individual concerned would be able to carry out a prejudicial activity of the type described in Rule 30(1). In other words, one of the essential conditions precedent to the validity of a detention order is the demonstration that, absent the detention, the person would be free to engage in the prohibited activity.

The condition attached to the service of an order authorized under Rule 30(1)(b) is that, if such order is not served on the individual, that person would remain free and would be able to pursue the prejudicial activity identified in the rule. The existence of other categories of orders that may be issued against a person under Rule 36(1) does not modify the fundamental requirement for a valid service contemplated by Rule 30(1)(b); that requirement remains that, without service of the order, the prejudicial activity could continue. Consequently, on a plain reading of Rule 30(1)(b), the order permitted by that provision may be served on a person who would otherwise be free to carry out the prejudicial activity. In the present case, such freedom cannot be ascribed to the appellant because he was already in jail at the relevant time. Accordingly, the distinction drawn by the Deputy Advocate‑General between the provisions of Rule 30(1)(b) and Section 3(1)(a) does not affect the interpretation of the rule. Serving a detention order on a person who is already in custody effectively creates what may be described as “a double detention,” a situation that neither Section 3(1)(a) nor Rule 30(1)(b) intends; it is unnecessary and lies outside the scope of both provisions. The Deputy Advocate‑General also argued that an under‑trial prisoner, who is entitled under the rules to interview friends or relatives, could potentially send messages and continue his prejudicial activities indirectly, and that only a detention under Rule 30(1)(b) could prevent this. That argument was not found persuasive. Rule 13 of the Punjab Detention Rules, 1950, permits a detainee to interview a close relative, while Rule 19 mandates that all interviews be conducted unless the Deputy Inspector‑General of the Criminal Investigation Department, acting through an officer appointed by the Superintendent of Police of the district, directs otherwise. Rule 19 further empowers that officer to halt the interview if the conversation turns to any undesirable subject. It was contended that, unlike an ordinary under‑trial prisoner, the appellant was required by Rule 19 to conduct interviews in the presence of a police officer, and therefore, to stop him from using such interviews to further his prejudicial activities while he remained in jail, a detention order under Rule 30(1)(b) had to be issued and served on him. The Court observed that if the restriction envisaged by Rule 19 was intended to apply to the appellant, the same objective could have been achieved under Rule 30(1) by regulating his conduct while he was in jail, without resorting to a second detention.

In this case, the Court observed that if the restriction contemplated by Rule 30(1) was meant to be imposed on the appellant, the same purpose could have been achieved by regulating his conduct while he remained an under‑trial prisoner in jail. The Court noted that Rule 30(1)(h) empowers the appropriate authority to prescribe any particular conduct to be regulated in the order, and therefore there was no difficulty in holding that, had the respondent believed that the appellant was engaged in prejudicial activities from within the jail, an order could have been issued under Rule 30(1)(h) to curb such conduct. Consequently, the Court rejected the submission that the scheme of Rule 30(1) is fundamentally different from the scheme of section 3(1)(a) of the Act and that this difference should affect the construction of the operative portion of Rule 30(1)(b). The Court explained that, where an authority wishes to detain a person under Rule 30(1)(b), it must demonstrate that, at the time the detention order is served, the person is free to continue the prejudicial activities and that such activities can be prevented only by placing the person in detention. Because the order of detention was served on the appellant while he was already in jail custody, the Court concluded that the service was invalid, as the statutory condition requiring freedom to act was not satisfied.

The Court further referred to two earlier decisions for guidance. In Emperor v. Mool Chand & Ors. (1), the Allahabad High Court held that the mere fact that a person had already been arrested does not render a subsequent detention order mala‑fide; the judgment stated that being first arrested under ordinary law and later detained under the Uttar Pradesh Maintenance of Public Order (Temporary) Act does not, by itself, prove improper motive. The court emphasized that the party alleging mala‑fides must produce specific circumstances from which such improper intent can be inferred, and that an allegation alone that the detention followed an arrest under the Criminal Procedure Code is insufficient to establish mala‑fides. The present Court found that this precedent did not assist the respondent because it did not address the validity of serving a detention order on a person already in custody. The Court also examined Dayanand Modi v. State of Bihar (2), where the issue was whether a person could be detained while a criminal prosecution against him was still pending. The Patna High Court, in that case, rejected the extreme proposition that the State must await the conclusion of a criminal trial before exercising its detention powers, and held that the State retains authority to detain even when prosecution is ongoing. The Court indicated that this decision likewise did not bear on the construction of Rule 30(1)(b) or on the effect of serving a detention order on a person already in jail custody.

In the case cited from the Patna High Court, the court considered the effect of Rule 30(1)(b) and the consequence of serving a detention order on a person who was already in jail custody. The High Court did not address the construction of the rule itself; instead, it rejected an extreme argument advanced by the detenu. That argument held that when an offence is alleged, the State Government lacks authority to detain the accused and must instead commence prosecution and await a court decision, or that withdrawing a pending prosecution in certain circumstances would amount to an acquittal and thus strip the State of any power to issue a preventive detention order on the same facts. The Patna High Court dismissed this proposition. The present appeal does not revisit that issue because the present court has already concluded that serving the detention order on the appellant while he remained in jail custody was invalid. Nevertheless, it is useful to note the point raised by counsel for the respondent. Relying on the Full Bench decision of the Bombay High Court in Maledath Bharathan Malyali v. The Commissioner of Police (I.L.R. 1950 Bom. 438), counsel argued that the respondent could not simultaneously pursue two actions against the appellant—one under the ordinary Criminal Procedure Code and another under Rule 30(1)(b). The Bombay High Court appeared to hold that where the facts of a case show the two rights—the right to investigate and prosecute under criminal law and the right to detain under the Preventive Detention Act—are inconsistent, the State may not exercise both at the same time.

Counsel further contended that the very making of the detention order was invalid because, at the time the order was issued, the appropriate authority was aware that the appellant was already in jail custody, rendering the order unjustified and contrary to Rule 30(1). This argument was supported by citing observations made by this Court in the case of Rameshwar Shaw. In that earlier case, the appellant was ordered to be released not on the basis that the detention order itself was invalid, but because the service of the order while the appellant was in jail was deemed invalid. The Court in Rameshwar Shaw did not issue a finding on the validity of the order’s making. Accordingly, the present appeal will adopt the same narrow ground—that the service of the order was invalid—without addressing the broader question of whether the order's creation was lawful. This approach aligns with the earlier reasoning that the defect lay in the manner of service rather than in the substantive authority to issue the order.

The Court noted that the earlier decision had been based solely on the narrow ground that the service of the detention order was invalid, and it indicated that it would adopt the same approach in the present appeal. In order to address the issue of whether the making of the detention order was valid, the Court said it was necessary to examine additional relevant and material facts. Although the appellant was already in jail custody, the Court observed that it was not improbable that the appellant might have applied for bail and could have obtained a bail order. Keeping that possibility in mind, the Court held that the appropriate authority would be justified in issuing a detention order against the appellant, provided that the authority waited until the bail order was served and the appellant was released on bail before serving the detention order. Consequently, the Court said that, as a matter of principle, it would be difficult to state a general rule that a detention order cannot be validly made against a person who is in jail custody merely because an investigation is ongoing with respect to an alleged offence. The Court recalled the earlier judgment in Rameshwar Shaw, where it had held, in abstract legal terms, that a detention order can validly be made against a person in jail custody. The Court added that the validity of the making of the order in any particular case must be determined in light of the relevant and material facts. Since no such facts were placed before the Court in the present case, the Court said it would not be justified in entertaining Mr Garg’s contention that the making of the order was invalid. The Court was informed that, after the criminal case against the appellant was transferred from the jurisdiction of Amritsar to a competent court in Uttar Pradesh, that court allowed the appellant’s application for bail, albeit subject to his continued detention under the impugned order. The Court observed that, because the appropriate authority might have anticipated that the appellant would seek bail and might succeed, the possibility that the authority could validly make a detention order could not be ruled out. Moreover, the Court explained that when a person remains in jail while criminal proceedings are pending, the authority may, in a given situation, consider that the proceedings may conclude shortly and result in acquittal. In such a circumstance, the authority may lawfully issue a detention order, provided the conditions laid down in the applicable rule or statutory provision are satisfied, and may serve that order after the person is acquitted in the criminal case.

The Court then turned to the question of mala fides raised by Mr Garg. It stated that Mr Garg could not be allowed to raise the issue of mala fides in the present appeal because, in the Court’s view, adequate material has

The appellant failed to produce any material to support his plea in the present proceedings. In fact, the allegations of mala fides that the appellant first raised in an affidavit dated 6 March 1963 were deemed far from satisfactory. The case that Mr Garg sought to construct under the heading of mala fides was directed against the Chief Minister of Punjab, yet even the appellant’s third affidavit did not disclose any allegation that could justify the filing of such a plea. Consequently, the Court found that it could not entertain the mala fides plea in this matter. The Court emphasized that a plea of mala fides must be set out in proper pleadings at the trial stage so that the respondent is given an opportunity to meet those allegations. Although Mr Garg attempted to refer the Court to certain averments made by the appellant in his petition for special leave, the Court held that it could not allow a mala fides case to be based on allegations that were introduced for the first time in the special‑leave application. For this reason, the Court expressly refrained from expressing any opinion on the merits of the mala fides plea the appellant had sought to raise. The final result was that the appeal was allowed, the order of detention against the appellant was set aside on the ground that the service of the order was invalid and fell outside the scope of Rule 30(1)(b) of the Rules, and the appellant was directed to be released forthwith. The appeal was therefore allowed.