Biren Dutta And Others vs Chief Commissioner Of Tripura

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

Court: Supreme Court of India

Case Number: Criminal Appeal Nos. 87-91 of 1964

Decision Date: 23 July 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, J.C. Shah, N. Rajagopala Ayyangar

In this matter the Supreme Court heard a petition filed by Biren Dutta and several other detainees against the Chief Commissioner of Tripura and another respondent. The petitioners challenged the legality of their continued detention under the Defence of India Rules, 1962, specifically Rules 30(1)(b) and 30A(8). The Administrator of the Union Territory of Tripura had originally issued detention orders against sixty‑eight persons under Rule 30(1)(b). As the authorities released forty‑five of those detainees, they sought to retain the remaining petitioners by invoking Rule 30A(8). The petitioners contended before the Judicial Commissioner, invoking article 226 of the Constitution, that the decision to continue their detention had not been recorded in writing nor communicated to them, and therefore the continuation was void. The Judicial Commissioner dismissed the applications, prompting the petitioners to approach this Court under article 32 of the Constitution. The first review of the detention orders, conducted on 15 February 1963, recorded that the Commissioner decided to cancel the orders for the detainees listed at serial numbers 1, 3, 4, 5, 6, 7, 8, 9, 12 and 13. The respondent argued that, by implication, the order continued the detention of the petitioners and that subsequent orders confirmed that continuation.

The Court held that the order of review did not satisfy the requirements of Rule 30A(8) and therefore the detainees whose liberty was still restrained must be released. The Court explained that a decision to keep a detenu in custody must be set out in a written document that unmistakably states the decision; merely referring to an earlier order is insufficient. Moreover, any later review under the Rule cannot legitimize an illegal detention that persists beyond six months from the date of the original detention order. The decision recorded under Rule 30A(8) is an independent adjudication, and any further confinement is permissible only if that decision is expressly recorded in the manner prescribed. Even assuming, without deciding, that a Rule 30A(8) order might be read to imply a continuation of detention, the Court found that the present circumstances did not fall within such a case. Additionally, while the Court did not determine whether the rule mandates communication of the decision to the detained person, it emphasized that it is just and proper for the decision to be communicated in every instance.

Assuming, though not deciding, that a decision recorded under Rule 30‑A (8) of the Defence of India Rules was not legally required to be communicated to the detenu, the Court observed that it was nevertheless just and proper for such a decision to be communicated to the detenu in every case. The matter before the Court comprised Criminal Appeal Numbers 87 to 91 of 1964, which were taken on special leave from a judgment and order dated 18 January 1964 issued by the Judicial Commissioner’s Court for Tripura in connection with several Habeas Corpus petitions numbered 15, 20, 25, 26, 28 of 1963 and 24 and 27 of 1963. In addition, the Court entertained Writ Petitions numbered 43, 42, 40, 41, 65 and 80 of 1964, all of which were filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the appellants and petitioners included senior advocates appearing on behalf of all respondents, while the Solicitor‑General and other counsel represented the respondents, except for Respondent No 2 in Writ Petition 43 of 1964, who was represented separately. The judgment was delivered on 23 July 1964 by Chief Justice Gajendragadkar. The Court noted that these criminal appeals and writ petitions were heard together as a group because they raised common questions of law. The Court then recounted the historical context, stating that after the Chinese attack on India’s northern border on 8 September 1962, the President issued a proclamation under Article 352 on 26 October 1962, declaring a grave emergency threatening the nation’s security. On the same day, the President promulgated an ordinance, which was later amended by Ordinance No 6 of 1962 on 3 November 1962. Further, the President issued an order under Article 359(1) suspending citizens’ rights to approach any court for enforcement of the rights guaranteed by Articles 21 and 22 for the duration of the emergency proclamation. On 26 October 1962, the Central Government published the Rules framed under the Defence of India Act, hereinafter referred to as “the Rules”. Rule 30 of the Rules was subsequently modified on 6 December 1962 and Rule 30‑A was added. An Act passed on 12 December 1962, through section 48(1), repealed the earlier ordinances, but section 48(2) provided for the continuation of the Rules that had been framed under those ordinances, thereby treating them as Rules framed under the new Act.

The Court further observed that Mr Mukerjee, who at the relevant time held the position of Administrator of the Union Territory of Tripura, examined the material presented to him in his capacity as Administrator. He concluded that a group of Communists were actively agitating among the tribal population residing in the area and were inciting them against the Government, leading him to form the view that their activities were likely to endanger the security of the State and to conclude

In this case, the Administrator of the Union Territory of Tripura concluded that the activities of a certain group of Communists among the tribal population were likely to endanger the security of the State. Acting on that conclusion, he ordered that sixty‑eight persons be detained under Rule 30(1)(b) and issued the appropriate detention orders. Subsequently, he became satisfied that forty‑five of those sixty‑eight persons no longer required detention, and he consequently ordered their release at various times. This left twenty‑three persons still detained, and the Court’s present consideration is confined to the criminal appeals and writ petitions arising out of the detention of those twenty‑three individuals.

Of the twenty‑three detainees, twelve filed petitions before the Judicial Commissioner of Tripura under Article 226 of the Constitution, contending that the orders under which they remained detained at the time of filing were illegal, that the orders should be set aside, and that they should be released immediately. The Judicial Commissioner heard all twelve applications together and ultimately dismissed them. Against the Commissioner’s decision, criminal appeals numbered 87‑91 of 1964, together with appeals 106 and 107 of 1964, were filed by the detainees, and special leave to appeal was granted by this Court on petitions made by the detainees. Among the appellants, the detainees Mohan Chaudhury and Jagabrata Sen Gupta, who were parties to criminal appeals 87‑91 of 1964, also filed separate criminal appeals numbered 106 and 107 of 1964 in their own names. Thus the group of appeals concerns the cases of the twelve detainees who approached the Judicial Commissioner, and their grievance is that the legal view adopted by the Commissioner on the points of law raised by them is incorrect.

The writ petitions involve the remaining eleven detainees, who have joined the detainees that obtained special leave to appeal, and they argue that the continuance of their detention is invalid and that the same plea they raised before the Judicial Commissioner should have been upheld by him. Consequently, both the criminal appeals and the writ petitions raise common questions of law. Counsel appearing for the appellants and the petitioners, and the solicitor‑general appearing for the respondent, the Chief Commissioner of Tripura, agreed that it would not be necessary to examine the factual matrix of each individual case in order to decide the common legal questions. They submitted that referring to the facts of one representative case would suffice, because the facts in the other cases are exactly similar and there is no material distinction.

Accordingly, the Court will refer to the facts relevant to the detention of one detainee, Biren Dutta, as illustrative. Biren Dutta was detained on 25 December 1962, and a detention order was duly served upon him. The following day, 26 December 1962, he was transferred to Hazaribagh Jail. The respondent’s case is that on 15 February 1963 the case of Biren Dutta was reviewed under the applicable rule.

After his initial detention on 25 December 1962 and his transfer to Hazaribagh Jail on 26 December 1962, Biren Dutta’s case was examined under Rule 30A(8). The reviewing authority decided to maintain his detention on that occasion. The same authority subsequently reviewed his case on 3 July 1963, on 5 September 1963, and on 11 March 1964, and each time concluded that continued detention was appropriate. Before the Judicial Commissioner, Biren Dutta asserted that a formal order of review, as mandated by Rule 30A(8), had neither been issued nor communicated to him. He argued that the rule requires the decision to continue a detainee’s confinement to be reduced to writing and served upon the detainee; consequently, non‑compliance with those two conditions, he claimed, rendered the continuation of his detention legally invalid. The Judicial Commissioner rejected these contentions. He held that a written decision had indeed been prepared, relying on the original file that the respondent had produced before the Commissioner. Because the respondent’s counsel declined to permit the detainee’s counsel to inspect that record, the Commissioner did not give effect to the evidence offered by the detainee’s side. The Commissioner also dismissed the detainee’s allegation that the record might have been fabricated after the fact. Further, the Commissioner noted an affidavit submitted by the respondent showing that, on several occasions, the reviewing authority had ordered the release of some detainees after considering their cases. That circumstance, in the Commissioner’s view, demonstrated that the authority had given due consideration to all detainees and, having released some, was satisfied that detention of the remaining individuals should continue. Although the Commissioner expressed a tentative view that Rule 30A(8) did not unequivocally obligate the authority to place the decision in writing, he found it unnecessary to make a definitive ruling on that point because, in Biren Dutta’s case, a written decision was apparently on file. He also rejected the argument that the rule required the decision to be communicated to the detainee. On the basis of these findings, the Commissioner dismissed the petition filed by Biren Dutta and eleven other detainees, holding that the continuation of their detention was legally justified.

When the same matters were presented before the Supreme Court on 6 May 1964, the Court issued an interim order directing the Chief Secretary of the Tripura Administration to promptly forward the original files relating to the detainees to the Court. The order also required that the Minister, the Secretary, or the Administrator who had reviewed the detainees’ cases and decided to continue their detention file an affidavit in the Court on or before 8 June 1964. The affidavit was to set out all material facts and to indicate whether the decision to continue detention had been duly communicated to each detainee. Consequently, the original files were produced before the Court and additional affidavits were filed. The respondent’s counsel agreed to allow the petitioner’s counsel an opportunity to examine the files, confirming that no claim of privilege would be raised over them. The Court’s subsequent consideration will be based on the minutes recorded in those files.

The Court had earlier ordered that the original files concerning the detained persons be sent promptly to the Court and that the Minister, the Secretary, or the Administrator who reviewed each case and decided to continue detention file an affidavit before 8 June 1964. The affidavit was required to disclose all material facts and to state expressly whether the decision had been duly communicated to the detained individual. In compliance with that order, the original files were produced before the Court and the necessary affidavits were filed. The learned Solicitor‑General expressly admitted that he would permit the counsel for the appellants, Mr Garg, to examine the files, confirming that no claim of privilege would be raised concerning them. Consequently, the Court could consider the substantive points raised by the appellants on the basis of the minutes recorded in those files. The inspection of the files enabled the parties to assess whether the procedural requirements prescribed by the Rules had been observed in each detention case.

Counsel for the appellants argued that the Rules clearly required that the original detention order issued under Rule 30(1)(b) and the later decision to continue detention under Rule 30A(8) be recorded in writing. He further contended that the written decisions must satisfy the procedural safeguards prescribed by Article 166 of the Constitution. Counsel also maintained that Rule 30A(8) obliges the authority to communicate the decision to the detained person. To support this position, he relied upon the decisions of this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay (1) and Bachhittar Singh v. State of Punjab (1). He further referred to observations made by Justice Raghubar Dayal in S. Partap v. State of Punjab (1). The learned Solicitor‑General accepted that both the detention order under Rule 30(1)(b) and the continuation order under Rule 30A(8) must be in writing. However, he disputed the claim that those written orders must obey Article 166. He also rejected the requirement that the decision under Rule 30A(8) be communicated to the detained individual. He cited the Court’s decision in Mohammad Afzal Khan v. State of Jammu and Kashmir (4). He also referred to the Bombay High Court judgment in Pralhad Krishna Kurne v. State of Bombay (1) and the Allahabad High Court judgment in Nandan Singh Bhist v. State of U.P. (6). The Court expressed that it was unnecessary to decide whether the orders under Rule 30(1)(b) and the record of the decision under Rule 30A(8) must conform to Article 166 of the Constitution. The Court further indicated that, in the present group of cases, it was also unnecessary to determine whether the decision recorded under Rule 30A(8) should be communicated to the detained person.

The Court observed that it was not necessary to decide whether the decision recorded under Rule 30A(8) must be communicated to the detainee. It was satisfied, however, that the decision to continue the detention of the detainees, which the respondent asserted had been taken under Rule 30A(8), had not been reduced to writing as required by that Rule, and that no other evidence on the record demonstrated that such a written decision had ever been made. The Court recalled that the parties had agreed that a written order must be issued stating the decision of the appropriate authority after reviewing each detainee’s case and that the order must specify that the detention should be continued. Rule 30A(8) provides that every detention order made by an officer empowered by the Administrator and confirmed by him under clause (b) of sub‑rule (6), as well as every detention order made by the Administrator himself, shall be reviewed at intervals not exceeding six months by the Administrator, who shall then decide whether the order should be continued or cancelled. The issue before the Court was whether the minutes entered in the file and produced by the respondent demonstrated that the respondent had indeed decided to continue the detention of the detainees before the Court. The Court noted that the minutes were undeniably a written record of the respondent’s decision, thereby satisfying the requirement that any decision under Rule 30A(8) be recorded in writing. Nevertheless, the Court required clarification as to whether those minutes showed that the cases of the detainees before the Court had been considered and that a decision to continue their detention had been taken by the respondent on the appropriate occasion. This presented a narrow question of construction of the minutes. The first instance in which the respondent claimed to have reviewed the detainees’ cases was on 15 February 1963, when the respondent issued an order stating: “On review of the detention order in respect of all detainees, CC decided to cancel detention orders in respect of detainees at S. No. 1, 3, 4, 5, 6, 7, 8, 9, 12 and 13.” The Solicitor‑General argued that this order indicated that the appropriate authority had examined the cases of all detainees, had decided to cancel the detention of the listed individuals, and, by implication, had decided to continue the detention of those not listed. The Court acknowledged that the order referred to the review of all detainees and, on its face, permitted the Solicitor‑General to contend that the order implied a decision to continue the detention of the remaining detainees.

The Court noted that the portion of the order appearing on 15 February 1963 suggested that the cases of all sixty‑eight detenues had been examined by the appropriate authority. In this regard, the Court emphasized that when the authority exercised its power under regulation 30A(8), it was required to record its decision in a manner that was clear and unambiguous. The Court observed that because the liberty of a citizen was at stake, any intention to continue the detention of a particular detenue had to be expressed in explicit terms. The Court further explained that even if, in some circumstances, an order issued under regulation 30A(8) could be interpreted as an implied decision to retain certain detenues while releasing others, the present order could not support such an implication. The Court reminded that the order under consideration had been issued on 15 February 1963 and that the six‑month period for review prescribed by regulation 30A(8) would have expired on 25 June 1963. The Court found it quite possible that the authority, prior to the expiry of the six‑month period, had reviewed the matter and concluded that continued detention of the detenues named in the order was not justified; consequently, the authority directed their immediate release before the six‑month deadline. This action, the Court said, demonstrated that the authority had carefully considered the issue and, upon being satisfied that further detention was unnecessary, had ordered prompt release. However, the Court observed that such careful consideration might have been limited to those detenues whose release was ordered at that time. The Court also pointed out that there was no evidence showing that, after 15 February 1963 and before 25 June 1963, the authority had revisited the cases of the remaining detenues and decided that their detention should continue beyond the six‑month term. The Court stressed that a decision recorded under regulation 30A(8) constituted an independent authority to permit further detention for an additional six‑month period. In other words, the original detention order remained valid for six months, and any detention thereafter required a fresh decision under regulation 30A(8). Because of this requirement, the Court could not accept that the memorandum in question implicitly contained a decision to continue the detention of the remaining detenues after the six‑month period had elapsed. The Court acknowledged that the respondent’s additional affidavit claimed that, as a result of the review on 15 February 1963, the detention of certain individuals continued, but the Court held that the authority’s written order, not its presumed intention, was the controlling factor for determining compliance with regulation 30A(8).

The Court observed that the statement “Biren Dutta as well as others whose detention orders were not cancelled, continued” was a point of contention. The respondent argued that because the detention orders of certain detenues had been cancelled, it must logically follow that the orders concerning the remaining detenues were intended to remain in force. The Court noted, however, that even if the respondent’s additional affidavit had expressly and unequivocally declared that on 15 February 1963 the authority had decided to continue the detention of the detenues before the Court, such a declaration would not have been given great weight. The reason, the Court explained, is that the substantive issue to be examined was the actual order dated 15 February 1963, not the subjective intention or interpretation of the authority that issued it. Consequently, the matter reduced to the proper construction of that order. After a careful review of the submissions advanced by the Solicitor‑General, the Court concluded that the order could not be said to fulfil the requirements of Rule 30A(8). In particular, the Court was convinced that the order did not contain a written record of a decision by the respondent that the detention of the detenues before the Court should be continued after the expiry of six months from the date of the original detention order. Turning to the subsequent order dated 3 July 1963, the Court found the situation to be even less satisfactory. The record showed that on 15 May 1963 the Superintendent of Police, Tripura, had recommended the release of certain detenues because, in his view, there was no longer any justification for their continued detention. This recommendation was discussed between the Superintendent of Police and the Chief Secretary on 6 June 1963. Thereafter, a conference involving the Chief Minister and the Chief Commissioner resulted in an order issued on 3 July 1963. That order revealed that the authorities had considered only those individuals whose release had been recommended by the Superintendent of Police, a total of twenty‑five detenues. During the discussions between the Chief Minister and the Chief Commissioner, the Chief Minister is reported to have suggested that the twenty‑five detainees might be released in stages rather than all at once. Ultimately, however, the order that the Chief Minister sent and which the Chief Commissioner assented to stipulated that all twenty‑five could be released together on 6 July 1963. In other words, a reading of the Superintendent’s letter of 15 May 1963 together with the minutes of the discussion on 3 July 1963 makes it clear that the only cases examined by the authorities were those of the twenty‑five detenues recommended for release. The Court further noted that it was a matter of common ground that the detenues whose petitions were before the Court were not among those twenty‑five individuals.

It was noted that the detainees whose liberty was being considered were not among the list of twenty‑five detainees previously examined, and therefore no suggestion could be made that, at the relevant time, the cases of any detainees other than those who had already been released were the subject of consideration. Consequently, the Court held that, just as the order dated fifteen February 1963 had been found of no assistance to the respondent, the order issued on three July 1963 was likewise of no assistance, because neither of those orders could be reasonably interpreted as containing a decision of the appropriate authority made under Rule thirty‑A eight to continue the detention of the detainees now before the Court. This finding necessarily implied that the procedural requirement of Rule thirty‑A eight had not been complied with, and that such non‑compliance rendered the continued detention of the detainees legally invalid. The Court further observed that, although the matters had been reviewed subsequently on twenty‑five September 1963 and on eleven March 1964, and although the authority’s decision had in fact been communicated to the detainees, those later communications did not cure the illegality of the detention that had persisted beyond six months from the date of the original detention. The Court had already indicated that it would not entertain the two additional points of law raised by counsel, but before concluding, it emphasized that even assuming the decision recorded by the appropriate authority under section fifty‑one of the Constitution of India, Rule thirty‑A eight, was not legally required to be communicated to the detainee, fairness and justice demanded that such a decision be communicated in every case. If the authority examined the question of whether the detention of a particular detainee should continue and concluded that continuation was justified, there was no justification for withholding that decision from the detainee concerned. The Court noted that, were communication of the decision deemed a legal requirement, failure to communicate would render the detention invalid; however, the Court was not deciding that specific issue in the present proceedings, but merely stressing that fairness required communication. In view of the foregoing conclusions, the Court allowed the appeals and writ petitions and ordered that the detainees concerned be released immediately.