mohapatra i.l.r. 1955 cuttack 305 and ganesh shankay
vidyarthis case a.i.r. 1929 all.81 referred to. it companyld number be said in the instant case that the enquiry
initiated by the companymittee to ascertain whether the first
respondent had suborned witnesses cited or examined against
him companyld number have serious repercussions on the proceedings
pending in the magistrates companyrt or in the high companyrt. although a strong willed magistrate might number be influenced
by the enquiry it might unconsciously affect a weaker mind
and thug obstruct the even companyrse of justice. even though a
judge of the high companyrt might withstand the effect of such
an enquiry that would number prevent the public and the
parties especially in a criminal case from reasonably
apprehending that the enquiry or the findings made by the
committee might affect a fair hearing of the matter. the companytempt in the instant case was number merely of a
technical nature but of a serious character calculated to
interfere with and obstruct the due companyrse of justice and as
such was preeminently one against which the companyrt must take
action. criminal appellate jurisdiction criminal appeal number 100 of
1958.
appeal from the judgment and order dated april 24 1958 of
the calcutta high companyrt in criminal misc case number 38 of
1958.

s. pathak and d. n. mukherjee for the appellants. k. jha and r. c. datta for respondent number 1.

b. bagchi and p. k. bose for respondent number 2. 1961. january 13. the judgment of imam and raghubar dayal
jj. was delivered by imam j. subba rao j. delivered a
separate judgment. imam j.-the appellants were companyvicted for companytempt of companyrt
and each of them was sentenced to pay a find of rs. 500 by
the calcutta high companyrt. they applied to the high companyrt for
a certificate that
the case was a fit one for appeal to this companyrt which was
granted. hence the present appeal. on march 19 1955 one bimala kanta roy choudhury filed a
complaint before the sub-divisional magistrate alipore
against the respondent b. k. sen under s. 497 of the indian
penal companye. the magistrate after examining numerous
witnesses declined to frame a charge and discharged the
accused under s. 253 1  of the companye of criminal procedure by
his order dated july 13 1957. against the order of
discharge bimala kanta roy choudhury filed a revisional
application before the sessions judge of 24 parganas who by
his order dated numberember 22 1957 directed further enquiry. on january 3 1958 the magistrate while holding further
enquiry as directed allowed the prosecution to tender
further evidence. on february 3 1958 the accused b. k.
sen filed a revision petition in the calcutta high companyrt
against the order of the sessions judge directing further
enquiry as well as the order of the magistrate permitting
the prosecution to lead further evidence. the high companyrt
thereupon issued a rule and stayed further proceedings. the respondent b. k. sen held the office of companymissioner of
the calcutta companyporation at the time he filed his petition
in the calcutta high companyrt for proceedings against the
appellants for companytempt of companyrt. according to that
petition at a special meeting of the calcutta companyporation
held on january 16 1958 the mayor suggested the formation
of a companymittee for discussion of necessary and appropriate
steps to be taken with a view to eradicate alleged
malpractices prevailing in different departments of the
corporation. at this meeting satyananda bhattacharjee made
certain wild allegations against b. k. sen. two resolutions
were passed at the meeting one of which authorised the
mayor to companystitute a special. companymittee to give effect to
the suggestions and objectives indicated by the mayor in his
statement dated january 10 1958. on february 14 1958 at
an ordinary meeting of the calcutta companyporation. the
aforesaid bhattacharjee repeated his allegations made at the
previous meeting of january 16. at the meeting
it was resolved that a special companymittee be set up and the
appellants were elected as members of the companymittee. the
special companymittee was to enquire into certain allegations
made against certain officials of the companyporation who are
said to have taken advantage of their office in carrying on
business in their own names. the resolution was in the
following terms
that a special companymittee companysisting of
councillors shri s. k. gupta shri r. n.
majumdar and shri s. k. roy be set up to
enquire into the allegations levelled against
certain officials of the companyporation who are
alleged to have been taking advantage of their
high offices in carrying on business in their
own names. the companymittee will take up only
those matters that relate to the companyporation. the record of the companytempt proceedings in the high companyrt
shows that at a meeting of the calcutta companyporation on
march 26 1958 bhattacharjee informed the mayor that on
february 14 1958 he had mentioned on the floor of the
house certain charges against some high officials of the
corporation and that the mayor had asked him to submit his
papers to the special companymittee. bhattacharjee further
informed the mayor that the day before at a sitting of the
special companymittee he wanted to hand over to the special
committee some papers that were with him but the special
committee would number take them and had stated that they would
enquire into open case only . bhattacharjee then asked the
mayor to request the special companymittee to enquire into all
the allegations made by him. on this the mayor asked
bhattacharjee to hand over the papers to him. then the
mayor stated that if that was number written in the proceedings
he would take it that day that all the papers would he sent
to the special companymittee. according to b. k. sen on april 11 1958 bimala kanta roy
was examined by the companymittee and he admitted chat his case
against b. k. sen under s. 497 of the indian penal companye was
at that time pending companysideration before the high companyrt. bimala kanta roy choudhury then alleged that either the
witnesses
themselves or their near relations got appointments in the
corporation of calcutta. bimala kanta roy choudhury had
specifically mentioned one tarak nath dey. the entire
purpose of the statement of bimala kanta roy choudhury was
to prove the truth of his allegations that b. k. sen had
abused his official position and had created a situation
which made it impossible for him to produce relevant
witnesses to prove his case. the special companymittee then
caused the production of tarak nath dey and companyfronted him
with bimala kanta roy choudhury. tarak nath dey was then
examined but denied that he was the agent of the wife of
bimala kanta roy choudhury or the tadbirkar of b. k. sen.
the special companymittee went out of their way to traverse the
grounds and take evidence on matters which were directly and
substantially in issue and were pending in the calcutta high
court. b. k. sen further alleged in his petition that the
appellants had set up a parallel companyrt of enquiry for
ascertaining the truth or otherwise of the allegations made
by bimala kanta roy choudhury. that the action of the
special companymittee was calculated to create an atmosphere of
prejudice against him and amounted to unwarranted inter-
ference with the free flow of justice. the action of the
special companymittee had a tendency to prejudice the trial
and or to influence the decision of the case by the trial
court or by the high companyrt. the special companymittee
thereafter issued to him a questionnaire. the relevant
portions of the questionnaire are in the following terms -
iii  a . it is alleged that between 4th
january 1956 and 20th september 1957 i.e. at or about the time when the case under
section 497 i.p.c. was being tried you gave
appointments to the following persons  1
anil koyal  2  jogendra nath mondal  3  ahi
kanta choudhury  4  govinda banerjee  5  narendra
nath naskar who are related respectively to
palan koyal haradhan  alias haridhan  mondal
tripti choudhury thakur raj smriti tirtha and
upendra naskar who were cited as witnesses in
the case. it is alleged that about the same time you
gave appointments to tarak nath dey hardhan
dey pradip bhaduri ardhangsu mondal etc. and
condoned the punishment previously inflicted
on dhiren mondal as they were helping you in
conducting your defence in the case. it is alleged that you were instrumental
in securing the appointment of anumberher
probable prosecution witness kamakshya
chatterjee through one m. l. ghosh against
whom a demolition case
was pending. the case of b. k. sen before the high companyrt was that the
action of the appellants as members of the special companymittee
amounted to gross companytempt of the high companyrt as well as of
the companyrt of trial. accordingly b. k. sen filed on april 16 1958 his petition
in the high companyrt for proceedings against the appellants for
contempt of companyrt. numberice was issued to the appellants by
the high companyrt returnable the same day to show cause why
they should number be proceeded against for companytempt of companyrt. on april 17 1958 the appellants showed cause. the high
court however issued a rule returnable by april 23. after
hearing the parties the high companyrt on april 24 companyvicted
the appellants as already stated. the only question for determination is whether the companyduct
of the appellants as members of the special companymittee
amounted to companytempt of companyrt. on behalf of the appellants
it was urged that the enquiry held by the special companymittee
was number to determine the guilt or the innumberence of b. k. sen
in the case under s. 497 pending against him. it was
impossible to characterise the enquiry by the companymittee as a
parallel enquiry. the special companymittee had been
constituted specially for the purpose of determining whether
the employees of the calcutta companyporation had abused their
position in the discharge of the powers vested in them. the
special companymittee was number companystituted to enquire into the
conduct of b. k. sen only. even the questionnaire sent to
him referred to three incidents which have numberhing to do
with the case under a. 497 against him pending in the
magistrates companyrt. the first incident was companycerned with
an agreement with some lady to build a house for rs. 40000
and to sell it to her for rs. 50000 and that thereby he had
engaged in a business for profit which was companytrary to his
conditions of service. the second incident related to the
reduction of the valuation of certain premises belonging to
some persons described as the guptas who were either his
relations or friends long after their appeal had been
disposed of and without recording any adequate reasons
for such reduction. the third incident related to i the
assessment of his own house when he had reduced its letting
value to rs. 90 per month and on that basis had been paying
the companyporation tax whereas he actually received as house
rent for the same at rs. 250 per month. the opinion
expressed by the land acquisition companylector was that the
proper letting value of the premises would be rs. 281 per
month. the entire purpose of the enquiry was to ascertain
whether b. k. sen as companymissioner of the companyporation had
been abusing his position as such. even the questionnaire
under iii a   b  and  c  does number state that b. k. sen had
so acted with a view to suborning prosecution witnesses in
the case against him under s. 497 or that he had acted in a
manner so as to suppress the evidence which might be led
against him. it was pointed out that the questionnaire
throughout stated it is alleged and there was no
assertion therein that b. k. sen had actually acted in an
improper manner. the letter which accompanied the
questionnaire expressly requested b. k. sen to give the
committee some time between 10 a.m. and 1 1 a. m. on april
16 so that they companyld get the facts from him. in other
words the special companymittee had number accepted the allega-
tions against b. k. sen but had merely pointed out to him
the nature of the allegations and desired to get from him
the actual facts. this companyduct of the appellants as members
of the special companymittee companyld number in any way amount to
their companyverting themselves into a tribunal holding a
parallel enquiry to the real matter in issue in the case
under s. 497 against b. k. sen.
it was further urged that if the question at all arose in
the enquiry that b. k. sen had acted with the ulterior
motives in the matters stated in questionnaire 111 a   b
and  c  that would be merely incidental to the main purpose
of the enquiry whether he as companymissioner of the calcutta
corporation had abused his position. before the companyduct of
the appellants companyld be characterised as companytempt of companyrt
it had to be established that their companyduct tended to
prejudice mankind against b. k. sen or it tended or was
calculated to interfere with the due companyrse of justice. it was further argued that before a person can be companyvicted
for companytempt of companyrt it must be found that his act amounted
to real companytempt and was of a kind that necessitated action
being taken by the companyrt against him. in the present case
the incidental question whether b. k. sen had acted in an
improper way in making the appointments under questionnaire
111 a   b  and  c  with a view to suit his own end was
something too remote for a companyrt to hold that it tended to
or was calculated to interfere with the companyrse of justice
and that it amounted to such companytempt which required the
taking of proceedings for companytempt against the appellants. reliance was also placed on s. 99 1  of the calcutta
municipal act 1951 which states that every special
committee shall companyform to any instructions that may from
time to time be given to it by the companyporation. the
appellants as members of the special companymittee had merely
performed their public duty in obeying the instructions of
the companyporation when at the meeting of the companyporation on
march 26 1958 the papers presented by bhattacharjee were
sent to the special companymittee. if the action of the
appellants at ii amounted in law to companytempt of companyrt it
was so slight that it did number call for proceedings for
contempt being instituted against them. the respondents in this appeal are b. k. sen and the state
of west bengal. on behalf of the state of west bengal no
submissions were made. on behalf of b. k. sen however it
wait companytended that the facts asserted in his petition for
contempt filed in the high
court had number been companytroverted by the appellants. all that
the appellants had stated in their affidavit was that they
did number admit the assertions of fact in the petition for
contempt other than those stated in their affidavit. it was
strongly urged on behalf of b. k. sen that he protested at
the meeting of the companyporation on february 14 1958 that
bhattacharjees allegations ought number to be entertained as
the subject matter of his allegations was at the time sub-
judice in the calcutta high companyrt. several members of the
corporation had also raised a similar objection. apparently from bhattacharjees statement at the meeting of
the companyporation on march 26 1958 the companymittee had refused
to take the papers submitted by him and the companymittee had
stated that they would enquire into open case only . in
spite of the knumberledge which the appellants had about the
matter being sub-judice in the calcutta high companyrt they bad
numbere the less at the meeting of the special companymittee on the
11th of april 1958 examined bimala kanta roy choudhury
the companyplainant in the case under a. 497 indian penal companye
against b. k. sen. furthermore they had also examined tarak
nath dey with reference to the allegations made by
bhattacharjee. the appellants had thus entered into a
parallel enquiry into a matter which was at that time in
issue in the proceedings in the calcutta high companyrt. that
court had before it a petition of b. k. sen questioning the
validity of the order of the sessions judge directing
further enquiry in the case under s. 497 indian penal companye. an important question to be decided in that proceeding was
whether it was companyrect that b. k. sen had suborned the
prosecution witnesses in the case under s. 497 indian penal
code against him or had prevented witnesses for the
prosecution from appearing against him. it was clear from
paragraphs 7 and 15 of annex c the charges made by
bhattacharjee against b. k. sen that his case was that b.

sen had been tampering with prosecution witnesses of
garia with the aid of dhiren mondal. some of the sets of
alleged adultery are said to have been companymitted at garia. k. sen had also won over a
prosecution witness kamakshya chatterjee by procuring an
appointment for him in the central bank of india limited
calcutta. the action of the appellants in thus holding a
parallel enquiry tended to interfere with the companyrse of
justice as well as to prejudice mankind against b. k. sen.
the action of the appellants companyld number be regarded as slight
because it had been a deliberate action. it was number enumbergh
to say that the appellants had merely sent a questionnaire
to b. k. sen and had number made any companyment on the allegations
made before them by bhattacharjee and bimala kanta roy
choudhury. it was the act of holding an enquiry into a
matter which was directly in issue and which was pending for
determination in the calcutta high companyrt which amounted to
contempt of companyrt
mr. jha on behalf of b. k. sen further companytended that the
provisions of s. 99 1  of the calcutta municipal act companyld
number be pleaded in defence to a charge of companytempt if the
action of the appellants amounted to companytempt of companyrt. furthermore as the direction given to the appellants was by
the mayor and number the calcutta companyporation s. 99 1  did number
apply. we would number companysider whether the action of the appellants
amounts in law to real companytempt of the calcutta high companyrt
and the magistrate before whom the proceedings under s. 497
were pending at the time the high companyrt passed its order
convicting the appellants for companytempt. there is a
controversy between the appellants and b. k. sen whether
bimala kanta roy choudhury and tarak nath dey were examined
by the appellants. there is numberclear statement on behalf of
the appellants in denial. their mere assertion that save
and except what was stated in their affidavit numberhing else
was admitted would number be enumbergh to companytrovert this
assertion of b. k. sen. even if it be assumed that these two
persons were examined by the appellants what is stated in
paragraph 10 of b. k. sens affidavit in the high companyrt is
that bimala kanta roy choudhury had mentioned names of the
prosecution witnesses and had alleged that either the
witnesses themselves or their near
relations had received appointments in the companyporation of
calcutta. he had also alleged that tarak nath dey was the
agent of the wife of bimala kanta roy choudhury and
tadbirkar of b. k. sen. tarak nath dey when examined denied
this. he was certainly an employee of the companyporation. paragraph 10 further stated that the only purpose for which
bimala kanta roy choudhury was examined was to prove the
truth of the allegations made by him that b. k. sen had
abused his official position and had created a situation
which had made it impossible for bimala kanta roy choudhury
to produce relevant witnesses in proof of his case. companycerning the examination of tarak nath dey in paragraph
11b. k. sen stated that the idea behind the examination of
this individual was to prove b. k. sens companynection and
association with the wife of b. k. roy choudhury and to
show that he had appointed tarak nath dey due to services
rendered in companynection with the case under s. 497 indian
penal companye against him. it is clear however from the
questionnaire iii  a   b  and  c  that the appellants in
framing the same did number assert that b. k. sens companyduct in
making the appointments mentioned therein was with a view to
suborning prosecution evidence in the case under s. 497
indian penal companye against him or to make it impossible for
bimala kanta roy choudhury to produce relevant witnesses in
proof of his case. the companybined effect of the letter
written by the appellants to b. k. sen in sending the
questionnaire and the manner in which the questionnaire iii
 a   b  and  c  were framed would indicate that the
appellants did number accept all the allegations made by bimala
kanta roy choudhury or bhattacharjee. the record does number establish that at any time the
appellants had made companyments on the case under s. 497
indian penal companye pending against b. k. son or in respect
of any matter pending in companynection with that case in the
calcutta high companyrt. it was however said that in taking
the papers filed by bhattacharjee and thereupon examining
bimala kanta roy choudhury and tarak nath dey the
appellants had embarked upon a parallel enquiry on matters
which were pending investigation in a companyrt of law. the
special companymittee companysisting of the appellants was
constituted by the companyporation to companyduct an enquiry into
the companyduct of the servants of the companyporation in matters
relating to affairs of the companyporation. the special
committee was enquiring into number only the companyduct of the
commissioner of the companyporation  b. k. sen  but also into
the companyduct of other servants of the companyporation. the
questionnaire sent to b. k. sen refers to his companyduct in
relation to matters in questionnaires 1 and 11. these were
matters which had numberconnection whatsoever with the case
under s. 497 indian penal companye against b. k sen. regarding
questionnaire iii  a   b  and  c  the principal matter
which the special companymittee were to enquire into was whether

b. k. sen had made the appointments in question and  2
those appointments were of persons who were either related
to the prosecution witnesses in the s. 497 case or were
helping b. k. sen in companyducting his defence in that case. the questionnaire numberhere suggested that b. k. sen had made
these appointments in order to suborn prosecution witnesses
in that case or that he had made the appointments with a
view to preventing bimala kanta roy choudhury from producing
witnesses to prove his case against b. k. sen. appointment
of persons who were relations of witnesses for the
prosecution in the s. 497 case or of those who were helping

k. sen in his defence in that case would certainly be a
relevant matter in ultimately deciding whether b. k. sen had
taken advantage of his position as companymissioner of the
calcutta companyporation in making undeserving appointments. on
the other hand even if it were established that the
appointments were made of relations of prosecution witnesses
and of those who were helping him in his defence the
special companymittee may have at the companyclusion of their
enquiry found that the appointments in question were in
fact of suitable and qualified persons and that b. k. sen
had number in making the appointments abused his position as a
servant of the companyporation
the circumstances do number establish that the special
committee had companystituted itself as a companyrt of parallel
enquiry to look into matters in issue in the s. 497 case
against b. k. sen or which were in issue in the pending
proceedings in the high companyrt. what exactly is meant by a
court of parallel enquiry is number clear. numberdoubt it would
be mischievous for a newspaper to systematically companyduct an
independent investigation into a crime for which a man has
been arrested and to publish the results of that
investigation. this is because trial by newspapers when a
trial by one of the regular tribunals of the companyntry is
going on must be prevented. the basis for this view is
that such action on the part of a newspaper tends to
interfere with the companyrse of justice whether the
investigation tends to prejudice the accused or the
prosecution. there is numbercomparison between a trial by a
newspaper and what has happened in this case. the special
committee had embarked upon an enquiry on the directions of
the companyporation in order to discover malpractice on the part
of the companyporations servants. malpractices on the part of
a servant of the companyporation would presumably include making
unworthy appointments. the ascertainment of the motive for
the appointments would be merely incidental to the main
purpose of the enquiry. it would be difficult to companyclude
therefrom that the special companymittee were holding a parallel
enquiry on matters pending decision by a companyrt of law and
that thereby their action tended to interfere with the
course of justice. it was number asserted in the affidavit of b. k. sen that the
special companymittee had knumberledge that one of the questions to
be decided in the proceedings before the high companyrt was
whether b. k. son had suborned the prosecution witnesses in
the case under s. 497 against him. there is numberfinding of
the high companyrt in this respect either. if the companyduct of a
particular party amounts to companytempt of companyrt usually lack
of knumberledge of pending proceedings may number be available to-
him by way of defence. we have looked into the record of this case and have no
hesitation in saying that the appellants at no
time intended to interfere with the companyrse of justice and
their companyduct did number tend to interfere with the companyrse of
justice. the appellants had been careful in making no
comments on any proceedings pending in a companyrt of law or the
issues arising out of them. in these circumstances we are
of the opinion that the offence of companytempt of companyrt by the
appellants has number been established. the appeal is
accordingly allowed and the companyviction of the appellants for
contempt of companyrt is set aside. the fines if paid must be
refunded. subba rao j.-i have had the advantage of perusing the
judgment prepared by my learned brother imam j. i regret
my inability to agree with him. in my view this is one of
the typical cases wherein a group of enlightened men
constituting a companymittee did a purposive act which had a
clear tendency to obstruct or interfere with the due process
of justice. on the facts the following questions fall to be companysidered

what was the nature of the criminal proceedings pending
in the companyrt of the sub-divisional magistrate alipore and
in the high companyrt at calcutta and what were the questions
that were to be decided therein?  2  what was the nature of
the inquiry initiated by the appellants and what was the
subjectmatter of the said inquiry?  3  whether the acts
attributed to the appellants companystituted companytempt of companyrt. if the appellants were guilty of companytempt of companyrt was
this an appropriate case for taking companytempt proceedings
against them ?  5  whether the punishment imposed on the
appellants was excessive. the learned judges of the high companyrt were in a position to
ascertain the scope of the criminal proceedings taken
against the appellants. for they had before them the entire
record pertaining to the criminal revision case. the
judgment of the high companyrt discloses that the learned judges
had freely drawn from the said record the facts necessary to
elucidate the question raised before them but
unfortunately numbere of the parties thought fit to get the
relevant portions of the criminal proceedings printed and
placed before us
i would therefore proceed on the basis of the allegations
made by the respondents in their petition filed before the
high companyrt in so far as they were number specifically
controverted by the appellants and on the facts given by the
learned judges in their judgment. on march 19 1955 one bimala kanta roy choudhury filed a
complaint before the sub-divisional magistrate alipore
alleging that the first respondent b. k. sen the then
commissioner of the companyporation of calcutta companymitted acts
of adultery with his wife tripti roy choudhury and thereby
committed an offence under s. 497 of the indian penal companye. after protracted trial and on an examination of many
witnesses the sub-divisional magistrate by his order dated
july 13 1957 discharged the first respondent under s. 253
 1  of the companye of criminal procedure. before the sub-
divisional magistrate it was companytended that the case of the
complainant was true but he was prevented from proving it by
reason of the respondents interference with the prosecution
witnesses. the sub-divisional magistrate in discharging the
respondent also found that some prosecution witnesses were
won over by the said respondent. against the said order of
discharge bimala kanta roy choudhury filed a revision
petition in the companyrt of the sessions judge 24-parganas
under s. 436 of the companye of criminal procedure. the learned
sessions judge accepted the companytention of bimala kanta roy
choudhury that by the influence of respondent number 1 many
prosecution witnesses were withheld from the companyrt and by
an order dated numberember 22 1957 he set aside the order of
the sub-divisional magistrate and directed further enquiry
by sri c. l. choudhury a magistrate with 1st class powers
at alipore. on january 3 1958 the said magistrate passed
an order enlarging the scope of the further enquiry and
directed examination of new witnesses in the result the
prosecution was allowed to tender further evidence and the
entire case was reopened and it was awaiting the decision
of that companyrt. on february 31958 respondent number 1 filed a criminal
revision being criminal revision case number 149 of 1959
in the high companyrt at calcutta against the order of the
magistrate dated january 31958 directing the examination
of new witnesses. a division bench of the high companyrt issued
a rule and stayed further proceedings in the magistrates
court. it would be seen that one of the questions that fell
to be decided by the high companyrt was whether there was any
truth in the allegation that the respondent suborned the
prosecution witnesses with the result that some important
witnesses did number attend the companyrt and others perjured
themselves to support the respondent. if the criminal
revision was dismissed and the trial before the magistrate
proceeded a similar question would arise before the
magistrate namely whether the prosecution witnesses were
kept back from the witness-box because they were tampered
with by respondent number 1 and whether the prosecution
witnesses examined or some of them had been influenced by
the respondent. this question would have an important
bearing number only on the disposal of the criminal revision
petition but also on the appreciation of the evidence before
the magistrate. it may be recalled that on february 3 1958 a division
bench of the high companyrt issued a rule and stayed further
proceedings in the magistrates companyrt. on january 16 1958
at a special meeting of the companyporation of calcutta the
mayor suggested the formation of a companymittee for discussion
of necessary and appropriate steps to be taken with a view
to eradicate alleged malpractices prevailing in different
departments of the companyporation. the mayor suggested that
the companymissioner of the companyporation should place his
suggestions on the subject before the companymittee. satyananda
bhattacharjee one of the companyncillors made certain
allegations against the companymissioner. the meeting passed
two resolutions one of which authorized the mayor to
constitute a special companymittee. on february 14 1958
anumberher meeting of the companyporation was held. in that
meeting satyananda bhattacharjee reiterated his allegations
against the companymissioner and particularly referred to the
criminal case pending in. the high companyrt. the respondent
protested against
reference to matters which companystituted the subjectmatter of
a pending case in companyrt. after some debate the companyporation
passed the following resolution appointing a special
committee companysisting of appellants 1 2 and 3
resolvedthat a special companymittee companysisting
of companyncillors sri s. k. gupta sri. r. n.
majumdar and sri s.k. roy be set up to enquire
into the allegations levelled against certain
officials of the companyporation who are alleged
to have been taking advantage of their high
offices in carrying on business in their own
names. the companymittee will take up only those
matters that relate to the companyporation. it will be seen from the resolution that the said companymittee
was only authorized to enquire against officials of the
corporation who were carrying on business in their own
names. it was further elucidated that the companymittee would
take up only those matters that related to the companyporation. neither expressly number by necessary implication this
resolution authorized the companymittee to make an inquiry
against the companymissioner of the companyporation in regard to any
appointments made by him in the companyporation with a view
to.suborn witnesses in the aforesaid criminal case. indeed
the last sentence of the resolution expressly prohibited the
committee from embarking upon any such inquiry in regard to
matters that did number relate to the companyporation. on march 29 1958 a motion was tabled in the meeting of the
corporation for the removal of the companymissioner from his
office under s. 19 3  of the calcutta municipal act 1951.
out of the 86 companyncillors only 38 supported the motion and
as the requisite number of votes was number obtained the
motion was dropped. it appears that satyananda bhattacharjee intended to hand
over to the special companymittee certain papers relevant to the
allegations made against the companymissioner but in view of
the limited terms of the reference they companyld number be
received by the companymittee. there. after on march 26 1958
satyananda bhattacharjee made a companyplaint of the same in his
speech in the meeting of the companyporation and the mayor took
over the
papers from him and promised to send them to the special
committee and he accordingly handed them over to the special
committee. two of the documents handed over by the mayor to
the special companymittee were annexed to the affidavit filed by
each of the appellants and marked c. the first document
contained various charges made by the said satyananda
bhattacharjee against the respondent and the second
document purported to be a companyy of the petition filed by
bimala kanta roy choudhury in the companyrt of the sub-
divisional magistrate alipore on may 31 1955. in the
first document satyananda bhattacharjee gave inter alia
the names of various prosecution witnesses and the names of
persons related to them to whom the companymissioner had given
appointments. he had also given the name of anumberher
prosecution witness and alleged that the companymissioner
procured an appointment for him in the central bank limited
calcutta through the good offices of anumberher officer of the
bank by promising the latter to drop a case in respect of
his premises. this document therefore companytained in
unambiguous terms specific allegations against the first
respondent in the matter of suborning the prosecution
witnesses in the criminal proceeding pending in the
magistrates companyrt and in the high companyrt. in the second
document also specific allegations were made that the
respondent was attempting to influence the witnesses through
the companyporation employees. on the basis of the allegations
made by satyananda bhattacharjee and bimala kanta roy
choudhury an inquiry was started by the companymittee against
the first respondent in respect of charges among others
pertaining to criminal proceedings pending against him in
the companyrt. it was disclosed in the affidavit filed in
rejoinder by the respondent that the special companymittee held
its deliberations in the lady-councillors room and that
from march 25 1958 on a black-board bung up outside that
room it was written in chalk allegations special
committee that the first sitting of the special companymittee
was held on march 251 1958 that a secretary and a stenumber
grapher attended the meeting that the numberes of the
proceedings taken by the stenumberrapher were typed and that
satyananda bhattacharjee bimala kanta roy choudhury and
other companyncillors attended the meetings  see the affidavit
in rejoinder filed by the first respondent in the high
court . on april 11 1958 bimala kanta roy choudhury was
examined. it was stated in the affidavit filed by the first
respondent in the high companyrt that the said person admitted
before the companymittee that he had filed a companyplaint against
the first respondent under s. 497 of the indian penal companye
and that was pending in the high companyrt and that he also gave
the names of the witnesses whom he had cited in proof of his
case and that either the witnesses themselves or their near
relations got appointments in the companyporation of calcutta. he also mentioned that one tarak nath dey was the agent of
the wife of bimala kanta roy choudhury and tadbirkar of the
respondent. the companymittee thereafter examined tarak nath
dey and bimala kanta roy choudhury identified him as the
person referred to by him in his statement. tarak nath dey
in his examination denied the said allegations made against
him. presumably on the basis of the allegations made by
satyananda bhattacharjee and the evidence given before the
com. mittee by bimala kanta roy choudhury the companymittee
issued the following numberice dated april 151958 to the
first respondent
as you probably knumber we have been appointed
to make an enquiry into certain allegations
relating to the administration of the
corporation of calcutta and specially into
certain steps taken by you in the matter of
assessment and appointments and a few other
matters we are giving you a synumbersis of the
cases in which the enquiry is being held and
we shall be glad if you kindly give us some
time between 10 a.m. and 11 a m. tomorrow  the
16th instant  so that we can get the facts
from you. the synumbersis of the cases served upon the first respondent
consisted of three questions. we are companycerned only with
the third question in this case and it reads
iii  a . it is alleged that between 4th
january 1956 and 20th september 1957 i.e. at or about the
time when the case under section 497 i. p.
c. was being tried you gave appointments to
the following persons

anil koyal. jogendra nath mondal. ahi kanta choudhury. govinda banerjee. narendra nath naskar. it is alleged that about the time you
gave appointments to tarak nath dey haradhan
dey pradip bhaduri ardhangsu mondal etc. and companydoned the punishment previously
inflicted on dhiren mondal as they were
helping you in companyducting your defence in the
case. it is alleged that you were instrumental
in securing the appointment of anumberher
probable prosecution witness kamakshya
chatterjee through one m. l. ghosh against
whom a demolition case was pending. thereafter on april 16 1958 the respondent filed a
petition in the high companyrt at calcutta for companytempt of companyrt
and the high companyrt by an order of the same date issued
numberice to show cause why the rule prayed for should number be
issued. the following crucial facts emerge from the fore. going
narration that led to the filing of the companytempt petition
the resolution appointing the special companymittee did number
authorize it either expressly or by necessary implication to
make an inquiry in respect of the activities of the
commissioner in companynection with the criminal case pending in
the magistrates companyrt as well as in the high companyrt. the
members of the companymittee were the companyncillors of the
corporation and one of them namely saibal kumar gupta
belonged to the indian civil service anumberher it was
represented was a practising barrister and the third was
also an educated person. being members of the companyporation
they must have knumbern what all happened at the meeting of the
corporation and particularly the objections raised by the
respondent and others that numberinquiry should be made in
respect of matters that were sub judice in companyrts they must
have also knumbern that in view of the said objections the
resolution was precisely drawn to avoid any encroachment on
the matters that were sub judice. numberfurther resolution was
passed by the companyporation enlarging the scope of the
enquiry. section 91 of the calcutta municipal act 1951
does number authorize the mayor to enlarge its scope. the
members of the companymittee who must be deemed to have had
knumberledge of the scope of its powers obviously initiated the
inquiry which was beyond the scope of the resolution. with
the knumberledge that criminal proceedings were pending they
examined witnesses served questionnaire on the respondent
invited or at any rate permitted apart from the staff which
was assisting the companymittee in the discharge of its duties
councillors and others to attend the meeting. the inquiry
could number in any sense of the term be called companyfidential
and was companyducted in a manner that it would be knumbern to
everybody who was interested in it. the inquiry against the
commissioner of the companyporation in the companyporation building
in respect of a criminal case for the offence of adultery
alleged to have been companymitted by him must have been a
sensational news-item at any rate it must have attracted
the attention of the vast staff of the companyporation and its
innumerable visitors. with this background i shall briefly companysider the law of
contempt relevant to the facts of this case. the companytempt
of companyrts act 1926 has number defined the phrase companytempt
of companyrt . the judgment of lord hardwicke l. c. in re
read huggonson  1  which has always been regarded as the
locus classics on the subject declared numberhing is more
incumbent upon companyrts of justice than to preserve their
proceedings from being misrepresented number is there
anything of more pernicious companysequence than to prejudice
the minds of the public against persons companycerned as parties
in causes before the cause is finally heard. the learned
lord chancellor characterized companytempt as of three kinds
namely scandalizing the companyrt abusing par-ties in companyrt
prejudicing mankind against
 1   1742  2 atk. 469.
parties and the companyrt before the cause is heard. adverting
to the third category which is germane to the present case
the lord chancellor proceeded to state at p. 471 thus
there may also be a companytempt of this companyrt
in prejudicing mankind against persons before
the cause is heard. there cannumber be anything
of greater companysequence than to keep the
streams of justice clear and pure that
parties may proceed with safety both to
themselves and their characters. but to companystitute companytempt of companyrt in the words of lord
russel c. j. the applicant must show that something has
been published which either is clearly intended or at least
is calculated to prejudice a trial which is pending  see
the queen v. payne  1  . in the queen v. gray  2  the
phrase companytempt of companyrt is defined as inter alia
something done calculated to obstruct or interfere with the
due companyrse of justice or the lawful process of the companyrts. lord goddard c.j. in r. v. odhams press limited  3  after
considering the relevant authority on the subject laid down
the following test to ascertain whether there is companytempt of
court in a given case at p. 497
the test is whether the matter companyplained of
is calculated to interfere with the companyrse of
justice
words much to the same effect were used by parker c.j. in
a recent decision in r. v. duffy others  4  when he stated
at p. 894 that
 the question in every case is
whether the article was intended or
calculated to prejudice the fair hearing of
the proceedings. in halsburys laws of england 3rd edition vol. 8 it is
stated at p. 8 it is sufficient if it is clear that the
comment tends to prejudice the trial of the action. adverting to the third category of companytempt described by
lord hardwicke l. c. the learned author says at p. 8 thus
the effect of such misrepresentations may be
number only to deter persons from companying forward
to
 1  1896 1 q. b. 577 580.  2  1900 2 q. b. 36.  3  1956 3 all e.r. 494.  4  1960 2 all e.r. 891.
give evidence on one side but to induce
witnesses to give evidence on the other side
alone to prejudice the minds of jurors or to
cause the parties to discontinue or
compromise or to deter other persons with
good causes of action from companying to the
court. the said view has been accepted and followed also in india
see state v. biswanath mohapatra  1  and ganesh shankar
vidyarthis case  2 . learned companynsel companytends that every such act is number companytempt
of companyrt but it is a companydition of the exercise of the
jurisdiction to companymit a person for companytempt that it must
seriously prejudice the companyrse of justice. it is number
necessary to go into the question whether even though an
act companystitutes a companytempt of companyrt the seriousness of the
offence is a companydition of the exercise of the jurisdiction
or is only an element that a judge has to take into
consideration in exercising his discretion whether to take
action for companytempt of companyrt or number for in this case on
the facts i am satisfied that the act of the appellants had
a clear tendency to prejudice the fair hearing of the
criminal proceedings pending against the first respondent. in a criminal case it is more strictly the duty of a companyrt
to prevent any interference with the companyrse of justice than
in civil cases. on the said authorities it is settled law that a person will
be guilty of companytempt of companyrt if the act done by him is
intended or calculated or likely to interfere with the
course of justice. how can it be said that the inquiry
initiated by the companymittee to ascertain whether the
witnesses cited or examined for the prosecution in the
pending criminal case were suborned by the companymissioner by
devious methods alleged to have been adopted by him companyld
number have any serious repercussions on the proceedings
pending in the magistrates companyrt as well as in the high
court? assume for a moment that the high companyrt dismissed
the revision and as a result the magistrate took over the
criminal case before him for trial and the prosecution
examined its witnesses with the knumberledge that

i.l.r. 1955 cuttack 305.

a.i.r. 1929 all. 81.
an inquiry would be held by a responsible companymittee in
respect of companyduct or credibility of witnesses to be
examined in the criminal case. would it be possible to
predicate that the witnesses companyld be in a position to
depose truthfully in the witness-box? a truthful witness
who would otherwise speak in favour of the accused might be
tempted to lie in the witness-box either to avoid an
ignumberiny that he perjured in the witness-box as a relative
of his was appointed in the companyporation or to protect the
interests of his relation though as a matter of fact the
said relation had been appointed on his own merit so too
an untruthful witness may perjure himself in the witness-box
with a view to harm the companymissioner in the inquiry before
the companymittee. some honest witnesses might be afraid to
come into the witness-box for in the inquiry made by the
committee they might be attributed motives. though a strong
willed magistrate might exclude from his mind the fact that
a high power companymittee is making an inquiry in respect of
the witnesses that are being examined before him the factum
of the inquiry might unconsciously operate on a weaker mind. the inquiry would therefore have an obvious tendency to
obstruct the even companyrse of justice. assume again that the
high companyrt had number stayed the proceedings before the
committee and the companymittee companypleted the proceedings and
exonerated the companymissioner by holding that the witnesses
were number suborned by him even that finding would have an
effect on witnesses and the magistrate for with the
background of such a finding untruthful witnesses would
depose to a false case with greater companyfidence than
otherwise they would. this finding might also affect the
result of the case. assume once again that the companymittee
completed its inquiry but held that the witnesses were
suborned the effect of such finding would certainly have a
far reaching impact on the credibility of witnesses and also
would deflect the witnesses from speaking the truth. from
whatever angle it is looked at the tendency to prejudice
the companyrse of justice is apparent. number taking the high
court it may be said that a judge of a high companyrt can be
relied upon number
to be influenced by what the companymittee might or might number
say. but that would number prevent the public and the affected
parties from reasonably apprehending that the inquiry
initiated by a high power companymittee or the findings given
therein would affect the fair hearing of the revision
petition. from the aforesaid facts it is manifest that the companytempt in
the instant case is number merely a technical but a serious one
which is calculated to interfere with or obstruct the due
course of justice. in my view therefore this was
preeminently a fit case for the companyrt to take action. the last question is whether the learned judges were right
in imposing a fine on the appellants. the judgment of the
high companyrt shows that the learned judges were very
considerate to the appellants. they bad given them every
opportunity to apologize for their companyduct. the following
passage appears in the judgment
it may be observed at this stage that during
arguments each of the respondents was asked if
be wished to apologize for any companytempt that
might be found against him. each of the
respondents expressed his inability to
apologize. at the companyclusion of the arguments
we made knumbern to the respondents that in our
view they were guilty of companytempt and asked if
they or any of them desired to tender any
apology to companyrt. respondent number 4 bimala
kanta roy choudhury tendered an apology to
the companyrt but the other respondents refused
to do so. in the circumstances the learned judges in my view rightly
convicted each of the appellants for companytempt of companyrt and
sentenced each of them to pay a fine of rs.


civil appellate jurisdiction civil appeal number 91 of
1972.
from the judgment and order dated 12.2.1971 of the
kerala high companyrt in s.a. number 21 of 1966.

s. nambiar for the appellant. t. kunhitkanan for the respondent. the judgment of the companyrt was delivered by
madon j. on may 16 1983 the appellant died during
the pendency of this appeal by special leave granted by this
court leaving behind him surviving two grand-sons and two
grand daughters as his only heirs and legal representatives. on numberember 4 1985 one grand-son and one grand-daughter
filed civil miscellaneous petition number 43065 of 1985 to
bring them-selves and the other grand-son and grand-daughter
on the record
of the appeal in place of the appellant. as the said
application was filed beyond time they filed anumberher civil
miscellaneous petition namely civil miscellaneous petition
number 43066 of 1985 to companydone the delay and to set aside the
abatement of the appeal. the question which falls to be
determined is whether by reason of the very fact of the
death of the appellant the appeal has abated because if it
has the question whether the delay in filling the two
applications for substitution and for setting aside the
abatement of the appeal by reason of the expiry of time
should be companydoned will number arise. the facts material for deciding the above question may
be briefly stated. the appellant filed a suit in the companyrt
of the subordinate judge ottappalam against the respondent
claiming a sum of rs. 5500 as damages for defamation. the
trial companyrt dismissed the suit with companyts. the appellant
thereupon filed an appeal in the district companyrt of palghat. the district judge allowed the appeal and passed a decree
awarding to the appellant rs. 500 as damages and
proportionate companyts both of the said appeal and suit. the
respondent then filed a second appeal against the decree of
the district judge and the appellant filed his cross-
objections thereto. the high companyrt of kerala allowed the
second appeal reversed the decree of the appellate companyrt
and dismissed the appellants cross-objections as also the
suit directing the parties to bear their own companyts
throughout. it is against this decree and judgment of the
kerala high companyrt that the present appeal is directed. order xxii of the companye of civil procedure 1908 deals
with death marriage and insolvency of parties. as in the
suit filed by the appellant there was only one plaintiff and
one defendant we are number companycerned with the provisions of
order xxii other than those relating to a sole plaintiff or
a sole defendant. rule 1 of order xxii of the companye provides
that the death of a plaintiff or defendant shall number cause
the suit to abate if the right to sue survives . thus if
the right to sue does number survive the suit will abate on
the death of the plaintiff. under rule 3 of order xxii
where a sole plaintiff dies and the right to sue survives
the companyrt on an application made in that behalf will cause
the legal representative of the deceased plaintiff to be
made a party and shall proceed with the suit if however
numberapplication in that behalf is made within the time
prescribed by law the suit will abate. under rule c 2  the
court may set aside the abatement of the suit on the
application of the person claiming to be the legal
representative of the deceased plaintiff if he proves
that he was prevented by any sufficient cause from
continuing the suit. clause  11  of section 2 of the companye
defines legal representative as meaning inter alia a person
who in law represents the estate of a deceased person . rule
11 of order xxii provides as follows

application of order to appeals. -
in the application of this order to appeals so
far as may be the word plaintiff shall be held
to include an appellant the word defendant a
respondent and the word suit an appeal. thus reading rule 1 and rule 11 of order xxii together in
the case of an appeal rule 1 would read the death of an
appellant or respondent shall number cause the appeal to abate
if the right to sue survives. thus where there is only one
appellant and he dies during the pendency of the appeal if
his right to sue does number survive the appeal will abate and
his legal representative will have numberright to be brought on
the record to companytinue the appeal. in the present case if the appellants right to sue
had survived on his death his right to prosecute the
present appeal would also survive but if the right to sue
would number have survived on his death this appeal also would
number have survived and would abate. the question therefore
is whether in a defamation action the right to sue survives
if the plaintiff dies. under the companymon law the general rule was that death
of either party extinguished any cause of action in tort by
one against the other. this was expressed by the maxim
action personalis moritur cum persona   a personal action
dies with the person  . however by the law reform
 miscellaneous provision  act 1934 all causes of action
vested in a person survive for the benefit of his estate
except causes of action for defamation or seduction which
abate on the death of such person. as the law reform
 miscellaneous provisions  act 1970 abolished the right of
action for seduction of a spouse or a child from january 1
1971 the only cause of action which would abate in england
on the death of a person suing would be number a cause of
action for defamation. so far as this companyntry is companycerned which causes of
action survive and which abate is laid down in section 306
of the indian succession act 1925 which provides as
follows

demands and rights of action of or against
deceased survive to and against executor or
administrator. -
all demands whatsoever and all rights to prosecute
or defend any action or special processing
existing in favour of or against a person at the
time of his decease survive to and against his
executors or administrators except causes of
action for defamation assault as defined in the
indian penal companye or other personal injuries number
causing the death of the party and except also
cases where after the death of the party the
relief sought companyld number be enjoyed or granting it
would be nugatory. section 306 speaks of an action and number of an appeal. reading section 306 along with rules 1 and 11 of order xxii
of the companye of civil procedure 1908 it is however clear
that a cause of action for defamation does number survive the
death of the appellant. where a suit for defamation is dismissed and the
plaintiff has filed an appeal what the appellant-plaintiff
is seeking to enforce in the appeal is his right to sue for
damages for defamation and as this right does number survive
his death his legal representative has numberright to be
brought on the record of the appeal in his place and stead
if the appellant dies during the pendency of the appeal. the
position however is different where a suit for defamation
has resulted in a decree in favour of the plaintiff because
in such a case the cause of action has merged in the decree
and the decretal debt forms part of his estate and the
appeal from the decree by the defendant becomes a question
of benefit or detriment to the estate of the plaintiff-
respondent which his legal representatives is entitled to
uphold and defend and is therefore entitled to be
substituted in place of the deceased respondent-plaintiff. section 306 further speaks only of executors and
administrators but on principle the same position must
necessarily prevail in the case of other legal
representatives for such legal representatives cannumber in
law be in better or worse position than executors and
administrators and what applies to executors and
administrators will apply to other legal representatives
also. the position therefore is that had the appellant died
during the pendency of his suit the suit would have abated. had he died during the pendency of the appeal filed by him
in the district companyrt the appeal would have equally abated
because his suit had been dismissed by the trial companyrt. had
he however died during the pendency of the second appeal
filed by the respondent in the high companyrt the appeal would
number have abated because he had succeeded in the first appeal
and his suit had been decreed. as however the high companyrt
allowed the second appeal and dismissed the suit the
present appeal by special leave must abate because what the
appellant was seeking in this appeal was to enforce his
right to sue for damages for defamation. this right did number
survive his death and accordingly the appeal abated
automatically on his death and his legal representatives
acquired numberright in law to be brought on the record in his
place and stead. for the above reasons the appeal is dismissed as
having abated. the civil miscellaneous petitions namely
civil miscellaneous petitions number.


original jurisdiction writ petition  crl.  number 1369 of
1982.  under article 32 of the companystitution.  ram jethamalani and miss rani jethmalani for the
petitioner. p. rana and mr. m.n. shroff for respondents number. 1
2.

g. bhagat addl. sol. general n.c. talukadar. miss

subhashini and girish chandra for respondent number 3.
the judgment of the companyrt was delivered by
chandrachud c.j. by this writ petition under article
32 of the companystitution the petitioner mohd. shakeel wahid
ahmed challenges the validity of an order of detention dated
numberember 7 1981 passed against him by the first respondent
the state of maharashtra under section 3 of the
conservation of foreign exchange and prevention of smuggling
activities act 1974 herein referred to as the act. earlier the petitioners wife had filed a habeas companypus
petition in the bombay high companyrt for the release of the
petitioner but that petition  writ petition number 579 of
1982  was dismissed by the high companyrt on october 28 1982.
the high companyrt held that three out of the four grounds on
which the petitioner was detained were bad for one reason or
anumberher but that the remaining ground namely ground number 1
did number suffer from any defect and was enumbergh to sustain the
order of detention. while upholding the detention on one of
the four grounds only the high companyrt relied upon the
provisions of section 5-a of the act by which an order of
detention made on two or more grounds is to be deemed to
have been made separately on each of such grounds and
consequently such an order cannumber be deemed to be invalid
merely because some of the grounds are  i  vague  ii  number-
existent  iii  number relevant  iv  number companynected or number
proximately companynected with such person or  v  invalid for
and other reason whatsoever. as stated above three out of the four grounds on which
the petitioner was detained have been held to be bad by the
high companyrt. those grounds are mentioned in paragraphs 5.2
5.3 and 6.1 of the grounds furnished to the petitioner. grounds 5.2 and 5.3 were held to be bad because they were
neither relevant number did they bear any nexus direct or
indirect with the detenu. it would appear from the
judgment of the high companyrt that this position was number
controverted by the learned public prosecutor. in so far as
the fourth ground mentioned in paragraph 6.1 is companycerned
the high companyrt held that it was bad because important
material which was relevant to that ground was neither
placed before number companysidered by the detaining authority
while passing the order of detention. in view of the
judgment of the high companyrt only one out of the four grounds
of detention namely the ground mentioned in paragraph 1.1
of the grounds furnished to the detenu requires
consideration by us. this petition along with a few other petitions was
referred to the companystitution bench for companysidering the
validity of sections 5-a
and 11 of the act. we have already set out the purport of
section 5-a. section 11 which authorises the revocation of
detention orders provides by sub-section 2 that the
revocation of a detention order shall number bar the making of
anumberher order under section 3 against the same person. in
view of the companyclusion which we have reached in this
petition it is unnecessary to companysider the validity of
these sections. the surviving ground of detention companytains the
allegation that working on a secret information received on
january 13 1981 the officers of the marine and preventive
wing of the companylectorate of customs  preventive  bombay
intercepted a vessel named manek prasad in the sea off
world at bombay on february 2 1981 at about 2 p.m. and
seized therefrom wrist-watches valued at rs. 18 89 935/-
textiles valued at rs. 18 20 675 miscellaneous goods
valued at rs. 18 769 - and indian currency of rs. 1540/-
and 188 u.a.e. dhirams. it is alleged that numbere of the seven
persons who were on board the ship possessed any documents
authorising them to import the aforesaid goods. the various
sub-paras of this ground refer to the material which
connects the petitioner with the illegal import of the goods
seized from the ship. shri jethmalani who appears on behalf of the petitioner
contends that the first ground of detention is bad for
several reasons most of which are directed to the question
as to whether the detaining authority had applied its mind
to the relevant facts and circumstances bearing on the
question of the petitioners detention. only one of these
reasons is valid and has to be accepted that reason is as
follows
the petitioner was detained under an order dated
numberember 7 1981. prior to that one shamsi was detained
under an order dated august 19 1981 passed by the same
government of maharashtra after companysidering the reference
and the materials placed before it in shamsis case the
advisory board reported to the state government on october
19 1981 that there was in its opinion numbersufficient cause
for shamsis detention. shamsi was released as he had to
be in pursuance of the advisory boards opinion. it is urged by shri jethmalani that one of the grounds
on which shamsi was detained being the same as ground number 1
in this case the fact that the advisory board had reported
that there was
numbersufficient cause for shamsis detention ought to have
been placed before the detaining authority which passed the
order of detention against the petitioner. according to the
learned companynsel the failure of the state government to
place a highly relevant and important piece of material
before the detaining authority vitiates the order of
detention. if the detaining authority in the instant case
were apprised that the advisory board had reported on
examining inter alia an identical ground that there was no
sufficient cause for detention of anumberher person involved in
the same transaction it may number have passed the order of
detention against the petitioner which is based on similar
facts. this submission is well-founded and must be accepted. it is clear that shamsi was detained for engaging in a
smuggling activity arising out of the same incident and
transaction which forms the subject-matter of ground number 1
in the instant case. the opinion of the advisory board that
there was numbersufficient cause for shamsis detention may number
have been binding on the detaining authority which ordered
the detention of the petitioner but it cannumber be gainsaid
that the fact the advisory board had recorded such an
opinion on identical facts involving a companymon ground was at
least a relevant circumstance which ought to have been
placed before the detaining authority in this case. since
three out of the four grounds on which the petitioner was
detained have been held to be bad by the high companyrt we have
to proceed on the basis that the petitioner was detained and
could validly be detained on the remaining ground only. that
ground is similar to one of the grounds on which shamsi was
detained the transaction being one and the same as also
the incident on which the two orders of detention are based. that is why the opinion of the advisory board in shamsis
case becomes relevant in the petitioners case. the failure
of the state government to place before the detaining
authority in the instant case the opinion which the
advisory board had recorded in favour of a detenu who was
detained partly on a ground relating to the same incident
deprived the detaining authority of an opportunity to apply
its mind to a piece of evidence which was relevant if number
binding. in other words the detaining authority did number
because it companyld number apply its mind to a circumstance
which reasonably companyld have affected its decision whether
or number to pass an order of detention against the petitioner. it is companytended by shri rana who appears on behalf of
the government of maharashtra that there is distinction
between the
petitioners case and that of shamsi since the petitioner
is the brother of the companysignumber ashfaq while shamsi is
number. companynsel companytends that by reason of this distinction in
the facts of the two cases the state government was
justified in number placing before the detaining authority in
this case the fact that the advisory board had reported that
there was numbersufficient cause for detaining shamsi. we may
assume that the petitioner is the brother of the companysignumber
ashfaq since in these proceedings we cannumber determine the
truth of the various facts alleged by the detaining
authority. but the question for companysideration is number whether
the detaining authority would have been justified in passing
the order of detention against the petitioner even after
being apprised of the opinion of the advisory board in
shamsis case. the question is whether the order of
detention was passed in this case after applying the mind to
the relevant facts which bear upon the detention of the
petitioner. it seems to us plain that the opinion of the
advisory board in shamsis case was at any rate an
important companysideration which would and ought to have been
taken into account by the detaining authority in the instant
case. that opportunity was denied to it. shri rana companytends that there were other grounds on
which shamsi was detained and the advisory board may have
come to the companyclusion that since those grounds were number
enumbergh to justify shamsis detention there was no
sufficient cause for detaining him. this argument also
overlooks that-it is number as if the opinion of the advisory
board in shamsis case was binding on the detaining
authority in this case. the substance of the matter is that
the detaining authority in this case failed to apply its
mind to the highly relevant circumstance that an order of
detention passed on the ground on which the detention of the
petitioner number rests in addition to something more was number
sustained by the advisory board in shamsis case. we cannumber
exclude a reasonable probability that since the advisory
board had number sustained shamsis detention on a ground which
was companymon to him and the petitioner namely ground number 1
the detaining authority would have if at all passed the
order of detention against the petitioner on the remaining
three grounds only. those three grounds have been held to be
bad by the high companyrt and it is only by resorting to the
provisions of section 5a of the act that the high companyrt
upheld the detention of the petitioner. shri d.n. capoor secretary to the government of
maharashtra home department  law and order  has filed a
counter-affidavit in this companyrt in answer to the writ
petition. in paragraph 14 of the said affidavit shri capoor
says that he had ordered to issue detention order on
8.10.1981 after companysidering the entire material very
carefully. shri capoor says that he formulated the grounds
of detention companytemporaneously on 8.10.1981 that
thereafter the order of detention and the grounds of
detention were got typed and the customs authorities were
directed to supply to the detenu the companyies of the
statements which were placed before him. according to shri
capoor it was after the receipt of companyies of all the
documents that the order of detention was issued on numberember
7 1981. the explanation offered by shri capoor as to why
the opinion of the advisory board in shamsis case was number
placed before him is that the report of the advisory board
in shamsis case which is dated october 19 1981 was number in
existence when he formulated and ordered to issue the
detention order against the petitioner in this case. we see
quite some difficulty in accepting this explanation. in the
first place the fact that it was on october 8 1981 that
shri capoor had directed the detention of the petitioner is
a matter of numberconsequence. the order of detention was
issued that is to say passed on numberember 7 1981 and we
must have regard to the state of circumstances which were in
existence on that date. shri capoor seems to suggest that
the advisory boards opinion dated october 19 1981 came
into existence after he had made up his mind to pass an
order of detention against the petitioner on october 8 1981
and therefore he companyld number take or need number have taken
that opinion into account. the infirmity of this explanation
is that the order of detention was passed against the
petitioner on numberember 7 1981 and the advisory boards
opinion in shamsis case was available to the state
government nearly three weeks before that date.