This article is written by Monesh Mehndiratta. The article explains the case of Makhan Singh Tarsikka vs. The State of Punjab (1963). The article deals with a case where a person was served an order of detention while he was already in jail for alleged offences. The same order was challenged along with its service first in the High Court; however, the court dismissed the petition and then the appellant moved to the Supreme Court for the same. 

Introduction 

Have you ever heard that a person who is already in jail has been given another order of detention?

Do you think this is right?

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You all must be wondering whether such an order of detention can be served while a person is already in jail.

Well, the answer is ‘no’. A person cannot be served an order of detention when he is already in jail due to pending criminal proceedings against him in an alleged offence. This was held by the Honourable Supreme Court of India in the present case. The Supreme Court being the guardian of fundamental rights also paves way for justice where there is a grey area or lacuna in law. 

In the present case, the court followed its approach and gave a judgement highlighting the invalidity of such an order. The present article explains the facts of the case, issues involved therein and the judgement of the court, along with the observation of judges. The appellant in the present case was represented by advocates R.K. Garg, S.C. Agarwal, M.K. Ramamurthi and D.P. Singh, while the respondent was represented by the then Senior Deputy Advocate General of Punjab and B.R.G.K. Achar. Let us understand the case in detail. 

Details of the case

Name of the case

Makhan Singh Tarsikka vs. The State of Punjab (1963) 

Citations

1964 AIR 1120, 1964 SCR (4) 932, AIR 1964 Supreme Court 1120, 1964 SCD 201, 1964 SCD 201

Date of judgement 

11th October, 1963

Bench

Justice P.B. Gajendragadkar, Justice K. Subbarao, Justice K.N. Wanchoo, Justice J.C. Shah, Justice Raghubar Dayal

Name of the Petitioner 

Makhan Singh Tarsikka 

Name of the Respondent 

State of Punjab 

Law applied 

Rule 30(1)(b) of the Defence of India Rules, 1962 and Section 3 of the Preventive Detention Act, 1950. 

Brief facts of the case

This appeal by special leave arose from the dismissal of the writ of habeas corpus filed by the appellant in the High Court of Punjab. The facts of the case provide that an FIR was filed at the Jandiala Police Station on 22nd October 1962, alleging that offences have been committed by some people, including the appellant, under Sections 307, 324, 364 and 367 of the Indian Penal Code, 1860. The appellant was arrested on 25th October, 1962 and thereafter an emergency was declared by the then President. The appellant was then transferred to judicial custody in Amritsar and was allowed to be interviewed. He was then interviewed by 9 people. An order of detention was passed against him under Rule 30(1)(b) of the Defence of India Rules, 1962. He was then moved to the jail at Hissar and was again brought back to Amritsar. He challenged the said detention order by filing a writ petition on the ground that it was vague, concocted and false.

According to the said order, the appellant was detained due to him being indulged in activities prejudicial to the defence of the country by spreading propaganda against joining armed forces and civil defence forces and requesting people not to contribute and support the National Defence Fund. The appellant further urged that he was confined before the declaration of emergency and that the allegations against him are false and concocted. Another affidavit was filed by him regarding his political activities as a member of the Legislative Assembly being disliked by the higher authorities. 

These affidavits filed by the appellant were challenged by the respondent, who argued that the appellant, during his interviews in jail, instigated people to commit certain prejudicial activities. On the other hand, the appellant contested that the order against him was malafide and that a criminal case was pending against him at that time and so the detaining authority cannot detain him under Rule 30(1)(b) of the Defence of India Rules, 1962. The learned judge of the High Court rejected the contentions of the appellant and dismissed the writ petition. 

Issues involved in the case

  • Whether the service of an order of detention to the appellant is valid in the present case?
  • Whether the plea of malafide raised by the appellant in the present case will be acceptable by the court?

Contentions of the parties 

Arguments of the appellant 

The following arguments have been put forth by the appellant:

  1. The counsel on behalf of the appellant contested that the service of order in question was illegal and relied on the judgement in the case of Rameshwar Shaw vs. The District Magistrate Burdwan & Another (1963). It was argued that Section 3(1) of the Preventive Detention Act, 1960 and Rule 30(1) of the sail rules are substantially similar and that the said judgement justifies the arguments that service of the order in question when the appellant was already in jail custody is outside the ambit of Rule 30(1). 
  2. The appellant also contended that the making of an order while the appellant is already in jail pursuant to pending proceedings against him is itself invalid and not justified. 
  3. The appellant, while contending that the respondent cannot take two actions at the same time against the appellant under two different statutes, relied on the case of Maledath Bharathan Malyali vs. The Commissioner of Police (1950). The Hon’ble Bombay High Court in this case held that the State cannot pursue both rights at the same time if such rights, i.e., the right to investigate and the right to prosecute a person under ordinary criminal law and to detain under the Preventive Detention Act, 1960, are inconsistent and cannot be exercised together at the same time. 

Arguments of the respondent 

The respondent put forth the following arguments in the present case:

  1. The respondent, on the other hand, argued that judgement of the court in the said case is not applicable in the present case. This is because even though the operative portion of said provisions is similar, the schemes of both of them are different. The eight clauses provided in Rule 30(1) provide that the detention can be ordered by authority along with different kinds of orders that can be passed. For example, clause (a) provides that a person can be asked to remove himself from India and can also be prohibited from returning to the country. 
  2. The respondent further argued that in the case of an undertrial prisoner who is entitled to be interviewed, there are chances for such a person to send messages and information indirectly and carry out prejudicial activities. This can only be stopped if such a person is detained under Rule 30(1)(b) of the said rules. Rule 13 of the Punjab Detenus Rules, 1950, allows interview of a detenu by a close relative in the presence of the police office so to prevent the appellant from missing the interviews and carrying out prejudicial activities through them while he is in jail custody, it was necessary to serve the said order of detention. 

Judgement in Makhan Singh Tarsikka vs. The State of Punjab (1963)

Issue wise judgement of the court 

Whether the service of order of detention to the appellant is valid in the present case?

With respect to the order of detention, the court held that the service of the order of detention in the present case is invalid and outside the ambit of Rule 30(1)(b) of the said rules. Hence, it was directed that the appellant be released. 

The Hon’ble Supreme Court of India observed that in the case of Rameshwar Shaw’s case, the court considered the question of whether such an order of detention be made against a person who is already in jail custody. It was held that proximity of time has to be considered and the question can be answered only on the basis of facts and circumstances of the case. The court stated that it must be proved that if such an order of detention is not served on the person, he is likely to indulge in prejudicial activities.

Whether the plea of malafide raised by the appellant in the present case is acceptable by the court?

The court in this case rejected the contentions of the appellant and his plea of malafide on the ground that the plea was against the chief minister of Punjab and could not be proved satisfactorily by the appellant and could not be justified. It was also held that the plea of malafides must be made through proper pleadings at the stage of trial so that it can be met by the respondent. This is the reason the court refused to express any opinion on the merits of such a plea. 

Rationale behind the judgement 

The Hon’ble Supreme Court of India observed that in Rameshwar Shaw’s case, the court considered the question of whether such an order of detention be made against a person who is already in jail custody. It was held that proximity of time has to be considered and the question can be answered only on the basis of facts and circumstances of the case. 

The court in the present case further observed that according to Rule 30(1)(b) of the said rules, an order can be made only where it can be proved that the person concerned is able to carry on prejudicial activities, i.e., he would be free to carry on such activities if the order of detention is not served. However, in the present case, the appellant was already in jail custody and such freedom cannot be predicated here. Thus, the distinction that the respondent tried to make between the rule and Section 3(1)(a) could not be accepted. The court observed that service of such an order of detention on a person who is already in jail custody would lead to double detention, which is outside the ambit of the above provisions and rules. 

The court also rejected the contentions of respondents regarding the difference of scheme in Rule 30(1)(b) and Section 3(1)(a) of the Act. The court also observed that if the authority is willing to detain any person, it must be shown that if the order is not served, the concerned person can carry out prejudicial activities. The court observed that they were told that the criminal case against the appellant that was pending was transferred from Amritsar to a court in Uttar Pradesh and that the court also allowed his bail. So, the appropriate authority might be under an apprehension that the appellant would proceed with the bail application. 

Moreover, when a person is already in jail custody due to pending criminal proceedings, the authority might think that such proceedings would end soon and terminate, leading to the acquittal of the person concerned. In such a situation, the authority can make an order to detain the person if the conditions of detention under the said rules are satisfied and serve the same on the person after he is acquitted in the pending proceedings. The court further discussed the difference between the suspension of right under Article 358 of the Constitution and suspension of enforcement under Article 359 during a proclamation. It was observed that it might seem that the suspension of fundamental rights and suspension of enforceability has the same effect as that of suspension of rights per se, but this is false. In the case of the right to move to court for enforcement which is suspended, the rights still remain alive theoretically. 

Analysis of Makhan Singh Tarsikka vs. The State of Punjab (1963)

In simple words, the case pertains to a situation where a person has been arrested for allegedly committing an offence under different sections and detained in the jail. While he is a detenu in a jail, he is interviewed by some people and then served an order of detention by some other authority under the Defence of India Rules, 1962, for spreading propaganda against the country and inciting people to commit prejudicial activities. This order has been served while he is already in jail. 

The court in this case rightly held the service of such an order invalid. According to the rules and laws in this regard, such an order can be served if certain conditions are fulfilled. However, in this case, the court rightly observed that if this order had to be served, it must have been served after the acquittal of the appellant. Before serving the order, it must be proved that if such an order is served, the person would carry out prejudicial activities. However, in the present case, the appellant upon whom the order was served was already in jail and could not have carried out such activities while being in jail. The service of such an order upon the appellant while he is already in custody is unfair and this has been correctly pointed out by the court and the service of order was held to be invalid. 

Another observation that the court gave was regarding the plea of malafide and the stage when it can be raised. The court, while rejecting the plea of malafide raised by the appellant against the Chief Minister, stated that such a plea must be raised through proper pleadings at the stage of trial. However, in this case, the plea was raised in the present petition before the court and it was not proved satisfactorily by the appellant. The court in the case, following its rightful approach, cleared the confusion between two similar provisions, i.e., Rule 30(1)(b) of the Defence of India Rules, 1962 and Section 3 of the Preventive Detention Act, 1950 and also provided the stage at which the plea of malafide can be raised, which marks the significance of the present case. 

Aftermath of the case

Personal liberty has become the concern of courts and citizens after such incidents similar to the present case raised to a certain level. It was necessary to take up the issue and cover the grey area. The first test case on the issue of personal liberty and detention is the case of A.K. Gopalan v. The State of Madras (1950). The Supreme Court in this case gave a landmark ruling on the concept of personal liberty. The court remarked that by incorporating the expression ‘procedure established by law’, the Constitution has embodied the British concept of personal liberty. 

While comparing English and Indian system of law regarding the remedy of habeas corpus, one of the eminent jurists opined that this remedy remains available in principle to the Detenues though the power of judges is curtailed in the cases of emergency. On the other hand, the power of judges in India in cases of habeas corpus is limited and cut down to emergency level. In case of a proper emergency under Part XVIII of the Indian Constitution, the writ of habeas corpus can be suspended entirely.

In the case of Maneka Gandhi v. Union of India (1978), the Supreme Court overturned the decision in the A.K. Gopalan heldGopalan held that the notion of personal liberty under Article 21 is wider in nature and includes many other rights, some of which are incorporated under Article 19. It was held that any law coming under Article 21 must also satisfy Article 19. Thus, any law or procedure depriving a person of life or liberty would be unfair, unreasonable or arbitrary. The honourable court further in the case of Francis Coralie Mullin v. Union Territory of Delhi (1981) held that any procedure depriving a person of his life or liberty must be reasonable, fair and just and not arbitrary in nature. 

The procedure depriving a person of his fundamental rights, must also conform to the norms of fair play and justice. This was held in the case of Olga Tellis v. Bombay Municipal Corporation (1985). The scope of personal liberty has been expanded from time to time by the courts through different landmark judgements and rulings. This also widened the scope of Article 21 to include rights such as right to privacy, right to live with human dignity, right to livelihood, right to shelter, right to choose partner, right against illegal detention, right to health and medical assistance, etc under its ambit. 

However, during an emergency (national emergency, state emergency or financial emergency), certain fundamental rights can be suspended but not all can be suspended or restricted. For example, Article 20 and 21 cannot be compromised even in cases of emergency. One of the most criticised judgments in this regard was given in the case of ADM Jabalpur v. Shivkant Shukla (1976). The court in this case held that the rights given under Article 21 can be suspended and courts cannot interfere with the detention of people under the Maintenance of Internal Security Act, 1971 (MISA) in cases of emergency. The case was, however, overruled, in the case of K.S. Puttaswamy (Retd.) v. Union of India (2018) where the Supreme Court recognised Right to privacy as a part of fundamental rights under Article 21 of the Constitution..

Conclusion

The above-mentioned judgement rightly pointed out the mistake of the appropriate authority in serving the order of detention on a person who has already been kept in jail custody while the order was served. The appropriate authority took the stance that it was necessary to do so as provided under the above-mentioned rules. However, it did not take into consideration that if done so, it would mean that the appellant would be punished twice. 

The Hon’ble Supreme Court, however, pointed out the lacuna and also highlighted that the Defence of India Rules, 1962 and the Preventive Detention Act, 1950, are different from each other. We all have heard about double jeopardy, which means that no person can be punished twice for an offence. In the present case, the order of allowed would have led to double detention, which would also lead to a violation of fundamental rights of the appellant. Thus, the Supreme Court has been correct in taking this approach while dealing with the present case. 

Frequently Asked Questions (FAQs)

What is the objective of the Preventive Detention Act, 1950?

The objective of the Act is to provide preventive detention to people in certain cases in order to prevent them from committing a crime. 

What are different types of writs?

The 5 different types of writs are:

  • Habeas corpus; 
  • Mandamus;
  • Certiorari;
  • Prohibition; and 
  • Quo-warranto.

When can the writ of habeas corpus be filed?

The writ of habeas corpus can be filed in the following situations:

  • Where a person has been detained illegally;
  • In cases of unlawful arrest;
  • Where imprisonment has been ordered without following the due process;
  • Detention exceeds the period for which it was given. 

References 

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