BIRAM CHAND versus STATE OF UTTAR PRADESH.&.ORS.

Citation: [1974] 3 S.C.R. 813 · Decided: 28-03-1974 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Case Allowed

Judgment (excerpt)

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BIRAM CHAND 
v. 
STATE OF UTTAR PRADESH _&ORS. 
1\--larch 28. 1974 · 
[H. R. KHANNA AND P. K. GOSWAMI, JJ.] 
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813 
Jt.laintellance of lntemal Security Act, 1971, S. 3 (I)(a) (iii)-Detention when 
prosemtion is. pending on the same facts-Validity. 
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The petitioner was detained by an order of the District Magistrate, Varanasi, 
U.P. under Sec. 3(1) (a)(iii) of the Maintenance of Internal Security Act, 1971, 
with a view to preventing hjm from acting ·in any manner ,prejudicial to the 
maintenance of supplies and services essential to the community. 
Un the questions, whether, when some ot the gmunds furntshed by the detain· 
ing authority form the subject-matter of trial rn criminal cases which are still 
mb-judice, the detention would be valid, and whether tbe detenu can be said to 
be reasonably able to make an effective representation against those grounds : 
HELD : (a) In the case of preventive detention the grounds must be clear 
and de.Jinlt~ to enable.the detenu to make a real and effective representation to 
the Government to establish his. innocence. 
[818 q 
(b) Being faced with a criminal prosecution in a . trial which is pending 
against him,_ although, the detenu has not got a proper and reasonable opportu-
nity in accordance with law to make an effective . representation against the 
in1pugned order of detention covered by the said pr~ding, because, by dis· 
clt>sing his defence and cet1ain facts Jte would be- handicapped in defending him-
self in the criminal court. [818 B-DJ 
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(c) On_ the question. whether i~ is open to the detaining authority to choose 
tw_o parallel. proceedings against the detenu held that the fact that the ground of 
detention could be a subject matter of criminal p~ecution is not enough to 
\·itiate a detention- order if the detaining authority does not choose to prosecute 
him but only passes an order of detention. in accordance wtth law. The choke 
of the- authority. concerned for the, mode of tackling the illegal activity cannot 
per se be illegal and the order of detention is to be judged on its merits. The 
position however will 1.1~ entirely different if the authority concerned makes an 
order of. det~ntion, uni!er, the Act and also prosecutes. him in a criminal case on 
the self-same facts.· Tbe detaining authority cannot take recourse to two parallel 
and simultaneou~ proceedings nor can take recourse to a wound which is the 
subject matter of a criminal trial: [818 D-G] 
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(dJ Under the Act. the. decision of the authorities is subj~c~ive one and if 
one of the !,'fOUnds. is non-existent or irrelevant' or is not available under the Jaw 
the entire detention order will· f:l.ll since it is not possible to ·predicate as to 
whether the de[aining aut!J.ority would have m;ufe an order of detention even in 
tJ:e absence of the non-ex.istent or, irrelevant ground [819 C·E] 
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(e) Although the aim and object of the order of detention would be laudable 
and the antecedents of a detenu be extremely reproachable, yel, it is essential that 
if it is desired to detain a person without trial, .the auth01it1es concerned should 
conform to the requirements of' the Jaw. The shady antecedents of the detenu 
cannot provide. a JUStification for:· non-t.:ompliance with the mandatory provisions. 
The scope of the inquiry in the case of preventive detention bast:d upon subjec-
tive satisfaction being necessarily narrow und limited; the scrutiny of the comt 
has to he even stricter than in a normal case of puni!ive trial. [819 E·FJ 
In the present case, if the District Magistrate had not at all taken recourse to 
the facts of the criminal cases pending against the detenu in Bihar in coming to 
a conclusion about. his reasonable satisfaction for making the order of detention 
the matter would have been different. 
But it is clear that the District Magistrate 
has been influenced by the existence of the criminal nrosecutions in Bihar and 
he has chosen those J:rOtl!lds to furnish as aids to his satisfaction in order to make 
814 
SUPREME COURT REPORTS 
[1974] 3 S.C.R. 
an _orde! of _detention. The gro':'nds wit~ reference to the pending crin1inal prose· 
CUh~?ns 10 Bihar could not provide a valid basis for making the order of detention 
particularly because those cases are ·pending trial in Bihar and in view of the 
decision of the Patna High Court in connection with one of them. Hence the 
detention order is invalid. [8 t,9 A-C] 
Mo

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