Bidhan Chandra Biswas Vs. the State of West Bengal - Court Judgment

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- [chandrasekhara aiyar,; vivian bose and; venkatarama ayyar, jj.] per bose, and chandrasekhara aiyar jj. (venkatkrama ayyar j. dissenting). it is well settled that the high court should not set aside an order of acquittal under s. 417 of the code of criminal procedure simply because it differs from the trial court as to the appreciation of the evidence; there must be substantial and compelling reasons for doing so. where the trial court takes a reason. able view of the facts of the case, interference is not justifiable unless there are really strong reasons for holding otherwise. amar singh v. state of punjab ([1953] s.c.r. 418) andsurajpal singh v. state ([1952] s.c.r. 193), referred to. the accused in a criminal case must be given the benefit of every reasonable doubt and, therefore, when he offers a reasonable explanation of his conduct, although he cannot prove it, that explanation should ordinarily be accepted unless the circumstances indicate that it is false. consequently, in a case where an accused person, charged under ss. 302 and 447 of the indian penal code, repudiated his confession at the earliest opportunity as having been made under police threats administered to him at night while in jail custody and there was evidence to show that the police had access to him there, and there was nothing to displace his statement that he was threatened by them, the finding of the sessions judge that the confession was not voluntary in character was fair and reasonable and in the absence of any compelling reason the high court should not have set aside the order of acquittal. as the evidence otherwise was insufficient to warrant a conviction the accused was acquitted. per venkatarama ayyar j. this is not a case in which the supreme court should interfere under art. 136 of the constitution. the constitution by specifically providing for an appeal on facts under art. 134(1) intended to exclude it under art. 136 and like the privy council this court will not function as a further court of appeal on facts in criminal cases. the fact that the appeal in the high court was one against an order of acquittal makes no difference as the powers of an appellate court are the same in all appeals, whether against acquittal or against conviction. pritam singh v. the state ([1950] s.c.r. 453), sheo swarup v. king-emperor ([1934] l.r. 61 i.a. 398) and nur mohammad v. emperor (a.i.r. 1945 p.c. 151), relied on. the expression "compelling reasons" used in surajpal singh's case should be read only in the context of that case and should not be treated as a rigid formula so as to restrict the powers of the court, or the right of appeal conferred on the state by s. 417 of the code or to place a judgment of acquittal in a position of vantage and give the accused a protection which the law does not afford to them. such a formula can be of use only as guiding principle for the appellate courts in deter-mining questions of fact.surajpal singh v. the state ([1952] s.c.r. 193), considered. consequently, the findings arrived at by the high court were not open to review by this court under art. 136 of the constitution and as there was evidence apart from the retracted confession to support the view, it had taken on merits, the appeal must be dismissed. - the advisory board after considering the material placed before it as well as the representation and after hearing the petitioner in person, submitted its report to the state government on july 3, 1971. opinion was expressed by the advisory board that there was sufficient cause for the detention of the petitioner.h.r. khanna, j.1. this is a petition through jail under article 32 of the constitution of india for the issuance of a writ of habeas corpus by bidhan chandra biswas who has been ordered to be detained by the district magistrate, 24 paraganas under section 3 of the west bengal (prevention of violent activities) act, 1970 (president's act no. 19 of 1970).2. according to the order of detention which was passed by the district magistrate on april 3, 1971, the order was made as it was considered necessary to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. the petitioner in pursuance of the detention order was arrested on april 25, 1971 as earlier, according to the affidavit filed on behalf of the respondents, he was found to be absconding. grounds of the detention were served upon the petitioner on the day he was arrested. in the mean while, on april 8, 1971 the district magistrate sent a report to the state government about the passing of the detention order along with the grounds of detention and other necessary particulars. the said report and particulars were considered by the state government and the order of detention was approved on april 13, 1971. the same day the state government submitted a report to the central government along with the grounds of detention and other necessary particulars. on may 24, 1971 the state government placed the case of the petitioner before the advisory board. a representation dated may 31, 1971 was received by the state government from the petitioner on june 4, 1971. the state government considered the representation and rejected the same on july 1, 1971. the representation was also forwarded to the advisory board. the advisory board after considering the material placed before it as well as the representation and after hearing the petitioner in person, submitted its report to the state government on july 3, 1971. opinion was expressed by the advisory board that there was sufficient cause for the detention of the petitioner. by an order dated july 16, 1971 the state government confirmed the detention order.3. the petition has been resisted by the respondents and the affidavit of shri manoranjan dey, assistant secretary, home (special) department, government of west bengal has been filed in opposition to the petition.4. we have heard mr. goswami who has argued the case amicus curiae on behalf of the petitioner and mr. mukherjee on behalf of the respondents and are of the opinion that there is no merit in the petition. mr. goswami has invited our attention to the grounds of detention which were supplied to the petitioner and read as under : -(1) on 1-2-71, at about 10.35 hours, you and some of your associates being armed with daggers and other sharp-cutting weapons made murderous attack on sachindra nath banerji, advocate, bashirhat court, while he was proceeding to basirhat court and thereby created panic, and terror in the locality. shri banerji sustained grievous injuries.(2) on 11-2-71, at about 18.30 hours, you and some of your associates exploded bombs surya kanta park, p.s. basirhat, where an election meeting was in progress and caused injuries to some of the persons and disrupted the meeting. by this act you created considerable panic in the locality which was likely to disturb the public order.it is urged by mr. goswami that reports were lodged with the police in respect of the two incidents mentioned in the grounds of detention. it is urged that the investigating officer after investigating the cases relating to those incidents submitted a report that 'nothing could be had against the petitioner.' the petitioner was, therefore, discharged in those cases. the order of detention, in the circumstances, according to the learned counsel, should be held to be mala fide.5. we find that no ground was taken by the petitioner in the petition under article 32 of the constitution regarding the police reports and his discharge in the two cases. reference was, however, made to these facts in the written arguments which were sent by the petitioner from jail. in our opinion, even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention and the police as a result of the investigation could not procure evidence to sustain the conviction of the petitioner, that fact would not be sufficient to held that the detention order made against the petitioner was mala fide. the matter is indeed concluded by a decision of this court in the case of sahib singh dugal v. union of india : 1966crilj305 . the petitioner in that case was arrested on december 6, 1964 for offences under the official secrets act. on march 11, 1965 the investigating officer made a report to the court to the effect that the petitioner and others involved in that criminal case might be discharged as sufficient evidence for their conviction could not be discovered during the investigation. the magistrate consequently discharged the petitioner and others. immediately after the petitioner came out of the jail, he was served with an order for his detention under rule 30(1)(b) of the defence of india rules. one of the contentions which was advanced on behalf of the petitioner in petition under article 32 of the constitution was that the detention order was mala fide inasmuch as it had been made after the authorities had decided to drop criminal proceedings because of inability to get sufficient evidence to secure convinction. this contention was repelled by this court and it was held that the above circumstance was not sufficient to lead to the inference that the action of the detaining authority was mala fide. this court observed: -we cannot infer merely from the fact that the authorities decided to drop the case under official secrets act and thereafter to order the detention of the petitioners under the rules that the order of detention was mala fide.6. in view of the above, we hold that the order for the detention of the petitioner has not been shown to be mala fide. the petition consequently fails and is dismissed.