Judgment

VENKATARAMA AYYAR J. - These are petitions filed under Art. 32 of the Constitution for the issue of writs in the nature of habeas corpus. They arise on the same facts and raise the same questions.

2. On 13-1-1956 the Commissioner of Police, Bombay, passed orders under S.3(2), Preventive Detention Act, 4 of 1950 (hereinafter referred to as the Act), directing the detention of the present Petitioners, and pursuant thereto, they were actually arrested on 16- 1-1956. The grounds on which the orders were made were formulated on 19-1-1956, and communicated to the petitioners the next day. On 21-1-1956 the Commr. reported the fact of the order and the grounds therefor to the State Government, 30 which approved of the same on 23-1-1956.

3. The Contention of the petitioners before us is that when the Commr. passed the orders for detention on 13-1-1956, it was his duty under S. 3(3) to report that fact forthwith to the State Govt., and as he did not do so until 21-1-1956, he had acted in contravention of the statute, and that the detention was therefore illegal. That raises the question as to what "forthwith" in S.3(3) of the Act signifies, and whether on the facts the report was made "forthwith", within the meaning of that word in that sub-section.

4. The word "forthwith", it has been observed, is of elastic import. In its literal sense, it might be construed as meaning that the act to be performed forthwith in relation to another should follow it automatically without any interval of time or, as held in some of the American authorities, should be performed at one and the same time as the other. But even in America, the preponderance of judicial opinion does not favour this, construction. In Corpus Juris, Volume 26, Page 998 the position is thus stated:

"Although the term has received a strict construction, ordinarily it is not to be strictly construed, but should receive a liberal or reasonable construction. Some regard must be had to the nature of the act or thing to be performed and the circumstances of the case."

5. In England, there is a long catena of decisions interpreting the word "forthwith" occurring in statutes, rules and contracts, and their trend has been to construe it liberally. AS early as 1767, discussing the meaning of the word immediately - and the word "forthwith" has been held to have the same significance - Lord Hardwicke observed in Rex v. Francis (1735) Cun 165: 49 ER 1129 at p. 1133 (A)

"But then the word immediately, is strongly insisted on, as a word which excludes all mesne acts and time; and therefore that this taking away the money must necessarily be in the presence of Cox. But all the nine Judges held this word immediately , to be of so 1oose a signification, and not to imply necessarily, that the money was taken away in Cox s presence. For this word does neither in its use and application, nor in its grammatical construction, exclude all mesne acts or time ....... But it is more necessary and proper in this case, to consider the signification of this word in the legal way. And it is plain, that in this acceptation, it is not understood to exclude mesne acts or time .....

And on the Statute Hue and Cry, 27 Eliz.c.13, S.11, where the words with as much convenient speed as may be, are made use of all the precedents have expressed these words, by the word immediate, as may be seen in the books. The last case which I shall mention on this point, is that of the writs of habeas corpus, issuing out of this Court which are most frequently made returnable immediately, and in this case the word is never understood either to exclude mesne acts or time, but only means, with convenient speed ......"

6. In Reg. v. The Justice of Worcester (1839) 7 Dowl P C 789 at p,791: 54 R R 902 at P.903 (B), where the question was as to the meaning of the word forthwith in S.50 of 6 Will. IV, Coloridge, J. observed:

"I agree that this word forthwith is not to receive a strict construction like the word immediately , so that whatever follows, must be done immediately after that which has been done before. By referring to S. 50, it seems that whatever is to be done under it, ought to be done without any unreasonable delay. I think that the word forthwith there used, must he considered as having that meaning."

7. The meaning of the word immediately came up for consideration in Thompson V. Gibson (1841) 8M & W 282: 151 E R 1045 at p.1047 holding that it was not to be constructed literally, Lord Abinger C.B. observed:

"If they (acts of Parliament) could he construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, upon this act of Parliament, that it was the intention of the legislature that not a single moment s interval should take place before the granting of the certificate. I should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretan; we are therefore to see how, consistently with common sense and the principles of justice, the words immediately afterwards are to be construed.

If they do not mean that it is to be done the very instant afterwards, do they mean within ten minutes, or a quarter of an hour, afterwards? I think we should interpret them to mean, within Such reasonable time as will exclude the danger of intervening facts operating upon the mind of the judge, so as to disturb the impression made upon it by the evidence in the cause."

In agreeing with this opinion, Alderson B. expressly approved of the decision of Lord Hardwicke in Rex v. Francis (A). This construction of the word immediately was adopted in Page v. Pearce (1841) 8 M & W.677. at p. 678 : 151 E R 1211 at p. 1212 (D), Lord Abinger C.B. observing:

"It has already been decided, and necessarily so, that the words immediately afterwards in the statute, cannot be construed literally, and if you abandon the literal construction of the words, what can you substitute but within a reasonable time?....."

In the Queen V. Justices of Berkshire (1879) 4 Q. B. D. 469 at p. 471 (E), where the point was as to the meaning of "forthwith" in S. 52 of 35 & 36 Vict, Chapter 94, Cockburn C. J. observed:

"The question is substantially one of fact. It is impossible to lay down any hard and fast rules as what is the meaning of the word immediately in all cases. The words forthwith and immediately have the same meaning. They are stronger than the expression within a reasonable time , and imply prompt, vigorous action, without any delay, and whether there has been such action in a question of fact, having regard to the circumstances of the particular case".

The same construction has been put on the word "forthwith" occurring in contracts. In Hudson v. Hill, (1874) 43 L J C P 273 at p. 280 (F) which was a case of charterparty, it was observed at page 280:

"Forthwith" means without unreasonable delay. The difference between undertaking to do something forthwith and within a specified time is familiar to everyone conversant with law. To do a thing forthwith is to do it as soon as is reasonably convenient".

In Reg. v. Price, (1853-54) 8 Moo P C 203: 14 E R 78 (G), it was held by the Privy Council that the word forthwith in a bail bond meant within a reasonable time from the service of notice. On these authorities, it may taken, an act which is to be done forthwith must be, held to have been so done, when it is done with all reasonable despatch and without avoidable delay.

8. But it is argued by Mr. N. C. Chatterijee that the view taken in the above decisions, as to the meaning of the word "forthwith" has been abandoned in the later decisions, and that under the law as it stands, when an act has to he performed forthwith in relation to another, what has to be decided is not whether it was done within a reasonable time, but whether it was done so closely upon the other as to form together one, continuous act. He relied in support of this opinion on the decision in Re Muscovitch (1939) 1939-1 All E R 135 (H), affirming that in Re Muscovitch (1938) 1938-4 All E R 570 (I). That was a decision on Rule 132 of the Bankruptcy Rules, which provided that "Upon entering an appeal, a copy of the notice of appeal shall forthwith be sent by the appellant to the registrar of the court appealed from."

The facts were that the appeal was lodged in time on 25-10-1938 but the notice was served on 28-10-1938, and it was found that there was "no satisfactory reason or no reason at all, why there was any delay in the matter" (Re Muscovitch) (I). On that, it was held that the requisition that "the notice shall forthwith be sent" was not satisfied. This is authority only for the position that when an act is done after an interval of time and there is no explanation forth coming for the delay, it cannot be held to have been done "forthwith". This is made clear by Sir Wilfrid Greene M.R. in the following passage in (1939)1939-1 All E R 135 at p. 139 (H):

"Having regard to the construction which was put upon the word forthwith which is peremptory, and admits of no inter7al of time between the entry of the appeal and the sending of the appeal and the sending of the notice save such as may be imposed by circumstances which can not be avoided, I find it impossible in the present case to say that the notice was sent forthwith within the meaning of the rule".

Reliance is also placed for the petitioners on the decisions in EX parte Lamb: In re Sountham (1881) 19 Ch. D. 169 (J) which was followed in Re Muscovitch (H). There, construing the word "forthwith" in Rule 144 of the Bankruptcy Rules, 1870, which corresponds to Rule 132, which was the subject of interpretation in Re Muscovitch (H), Jessel M.R. observed at page 173:

"I think that the word forthwith must be constructed according to the circumstances in which it is used. Where, as in Hyde v. Watts, (1843) 12 M. & W. 254 (K), there is a convenant to insure a man s life there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done "forthwith" can be done without delay, it ought to be so done".

In that case also, the learned Judges found that the delay was not explained. And the observation of Lush L.J. in the same case was that "the word forthwith has not a fixed and an absolute meaning; it must be constructed with reference to the objects of the rule and the circumstances of the case". There is nothing in the decisions in (1939) 1939-1 All E R 135 (H) and (1881) Ch. D 169(J) which can be considered as marking a departure from the construction put on the word forthwith in the earlier authorities that it meant only that the act should be performed with reasonable speed and expedition, and that any delay in the matter should he satisfactorily explained.

9. It is argued for the petitioners that even if the construction put on the word forthwith in the above decisions is accepted as correct, it must, in any event, yield to any contrary intention expressed in the statute and that the provisions of the Act afforded clear indication of such an intention

It is contended that the legislature while providing in S.7 that the grounds should be communicated to the detenu "as soon as may be" has enacted that the report under S. 3(3) should be sent "forthwith", that the use of two different expressions in the two sections is a clear indication that they do not mean the same thing, that as the words "as soon as may be" import that the act might be performed in a reasonable time, the word "forthwith" which is more peremptory must be construed as excluding it.

The decisions in Emperor v. Phuchai I L R 50 All 909 and in K. U. Kulkarni v. Ganpat, I L R (1952) Bom 287 were quoted in support of the position that when two different expressions are used in different parts of the same clause or section, they should be constructed as used in different senses.

10. We agree that forthwith in S.3(3) cannot mean the same thing as as soon as may be in S.7, and that the former is more peremptory than the latter. The difference between the two expressions lies, in our opinion, is this that while under S.7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under S. 3 (3) what is allowed is only the period during which he could not, without any fault of his own, send the report.

Under S.7 the question is whether the time taken for communicating the grounds is reasonably requisite. Under S.3 (3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided.

11. It was contended that as S.7 required that the communication should be made not later than 5 days from the date of the order, and as S.3 (3) was more peremptory than S.7 in that it required that the report should be made forthwith, the period allowable under S.3 (3) could not exceed 5 days, and that as in these cases the reports were sent 8 days later, they could not be held to have been sent forthwith. This argument mixes up two different matters contained in S.7. The period of 5 days provided therein is an absolute one and is independent of the period which is permissible under the expression "as soon as may be", which must, its very nature, be indefinite depending on the facts and circumstances of the case.

It will be as erroneous to read 5 days into the period of allowable under the expression "as soon as may be" as to read the 12 days within which the State has to approve the order under S.3 (3) into the period which is allowable under the expression "forthwith". The result then is that the report sent by the Commissioner to the state on 21-1-1956 could be held to have been sent "forthwith" as required by S.3 (3), only if the authority could satisfy us that, in spite of all diligence, it was not in a position to send the report during the period from 13th to 21st January 1956.

12. We must now examine the facts from the above standpoint. The commissioner of Police has filed an affidavit explaining why the reports were not sent till 21st January 1956, though the orders themselves had been made as early as 13th January 1956. Ever since the publication of the proposal to form a State of Maharashtra without the city of Bombay, there had been considerable agitation for the establishment of a Sanyuktha Maharashtra with the city of Bombay included in it. An action committee had been set up on 15-11-1955 for the purpose, and there had been hartal and morchas resulting in outbursts of lawlessness and violence and in the burning of a police chowki.

The final decision on the question was expected to be taken and announced in the middle of January 1956, and the atmosphere was highly surcharged. It was under this situation that the Commissioner decided to take action under S.3 (2) of the Act against the leading spirits of the movement, and passed the present orders for detention against the petitioners on 13-1-1956. In his affidavit, the Commissioner states that he decided first "to locate the persons against whom orders of detention were made by me on 13-1-1956 and after having done so, to arrest all of them simultaneously so that none of them may go underground or abscond or evade execution of the detention orders". Then the affidavit goes onto state:

" It was not possible for me to send the report earlier as the situation in the City of Greater Bombay was tense, pregnant with danger on 13-1-1956, and continued to be so till 16-1-1955 and actual rioting occurred during that night and those riots continued till 22-1-1950. I and my staff were kept extremely busy all throughout in maintaining law and order and simultaneously taking steps to round up miscreants. In this unusual and tense situation, it was not possible to make a report earlier than the day on which it was made."

13. We see no reason for not accepting these statements. What happened on the 16th and the following days are now matters of history. The great city of Bombay was convulsed in disorders, which are among the worst that this country has witnessed. The Bombay police had a most difficult task to perform in securing life and property, and the authorities must have been working at high pressure in maintaining law and order. It is obvious that the Commissioner was not sleeping over the orders, which he had passed or lounging supinely over them.

The delay such as it is, is due to causes not of his making, but to causes to which the activities of the petitioners very largely contributed. We have no hesitation in accepting the affidavit, and we hold that the delay in sending the report could not have been avoided by the Commissioner and that when they were sent by him, they were sent "forthwith" within the meaning of S.3 (3) of the Act.

14. Mr. S. C. Gupta put forward some special contentions on behalf of the petitioners in C. M. Ps. Nos. 109 and 110 of 1956. He contended that as the order originally made against the petitioner in C. M. P. No. 109 of 1956 was that he should be detained in Arthur Road Prison, Bombay, the subsequent order of the Commissioner by which he was detained in Nasik Prison was without jurisdiction.

It is clear from the affidavit of the Commissioner that the petitioner was not ordered to be detained in Arthur Road Prison but in Nasik Road Central Prison, and that he was kept temporarily in Arthur Road prison pending arrangements to transport him to Nasik. It was next contended that the materials on which the orders of detention were made and set out in the communications addressed to the petitioners all related to their past activities, and that they could not constitute grounds for detention in, future. This contention is clearly unfounded.

What a person is likely to do in future can only be a matter of inference from various circumstances, and his past record will be valuable, and often the only record on which it could be made. It was finally contended that what was alleged against the petitioners was only that they advocated hartal, and that was not a ground for making an order of detention. But the charge in these cases was that the petitioners instigated hartal bringing about a complete stoppage of work, business and transport with a view to promote lawlessness and disorder, and that is a ground on which an order could be made under S.3 (2).

15. All the contentions urged by the petitioners therefore fail, and these petitions must be dismissed.

Petitions dismissed.

For Citation : AIR 1957 SC 28