AI Structured Summary
Not yet generated for this judgment
Judgment
Arunachalam, J.—These three revisions are disposed of together by a common order, since the question involved is identical. In these
criminal revisions, orders sought to be revised have been passed by the District Judge, Madras in Crl.M.P. Nos. 343, 351 and 353 of 1993, when
the petitioners invoked the jurisdiction of the said Court under Sec. 8(8) of the ""Unlawful Activities (Prevention) Act, 1967. Sec. 8(8)of the Act
reads as follows:
Any person aggrieved by a notification issued in respect of a place under sub-section (1) or by an order made under sub- section (3) or sub-
section (4), may, what in thirty days from the date of the notification or order, as the case may be, make an application to the court of the District
Judge within the local limits of whose jurisdiction such notified place is situated:
(a) for the declaration that the place has not been used for the purpose of the unlawful association; or
(b) for setting aside the order made under sub-section (3) or sub-section (4), and on receipt of the application the court of the District Judge shall,
after giving the parties an opportunity of being heard, decide the question.
The need to approach the District Judge, Madras under Sec. 8(8) of the Act arose in view of the notification issued by the Commissioner of
Police on 14.12.1992, which reads as follows:
In exercise of the powers conferred upon me (R. Rajagopalan, I.P.S., Commissioner of Police, Madras City),by the Government of Tamil Nadu,
by order issued in letter No. SS.I/950-4/92, Public (S.C) Department, dated 13th December 1992 read with section B of the Unlawful Activities
(Prevention) Act, 1967 (Central Act 37 of 1967), I hereby notify premises bearing Door No. 43 Ramanujam Street, T. Nagar, Madras-600 017
as a ''place'' used by Vishwa Hindu Parishad which has been declared as ""Unlawful Association"" under notification S.O.900 (e), dated the 10th
December 1992 and published in the Gazette of India Extraordinary, dated the 10th December 1992 under sub-section (3) of section 3 of the
Unlawful Activities (Prevention) Act, 1967 (Central Act 37 of 1967).
In exercise of the powers conferred upon me (R. Rajagopalan, I.P.S. Commissioner of Police, Madras City) by the Government of Tamil Nadu,
by orders issued in letter No. SS.I/950-5/92, Public (S.C) Department, dated 13th December 1992, read with section 8 of the Unlawful Activities
(Prevention) Act, 1967 (Central Act 37 of 1967). I hereby notify premises bearing Door Nos. 1 and 2, M.V. Naidu Street, Panchavadi, Chetput,
Madras 600031, as a ''Place'' used by the Rashtriya Swayamsewak Saangh which has been declared as an ""Unlawful Association"" under
Notification S.O.901 (E), dated the 10th December 1992 and published in the Gazette of India Extraordinary, dated the 10th December, 1992
under sub-section (3) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (Central Act 37 of 1967.)
In pursuance of the said notification, Assistant Commissioner of Police, Madras, on 14.12.1992 inspected the premises Nos. 1 and 2 M.V. Naidu
Street, Panchavadi, Chetpet, Madras-31 as well as premises No. 43 Ramanujam Street, T. Nagar, Madras-17, prepared mahazars noting the
particles found in those premises and thereafter locked and sealed those premises.
In these revisions, Mr. K.A. Panchapagesan, learned counsel appearing on behalf of the petitioners does not challenge the power of the
Commissioner of Police in having notified these premises as places used by Vishwa Hindu Parishad and Rashtirya SwayamSewak Sangh, which
have been declared as unlawful associations, under notifications, referred to by the Commissioner, for, such a challenge has been made in writ
petitions, which are pending before this court. He restricted his contention to the lack of power under the Act for the Commissioner of Police,
Madras or any one acting under his orders to lock and seal the premises, which have been notified by him. On this contention, I have heard Mr. R.
Raghupathy, learned Additional Public Prosecutor. He contended that these criminal revisions are not maintainable, since under S. 9 of the Act, the
Tribunal or the Court of the District Judge, as the case may be, in disposing of any application under S. 8(8) of the Act or under Sec. 7(4) of the
Act shall, so far as may be, follow the procedure laid down in the Code of Civil Procedure, for the investigation of claims and the decision of the
Tribunal or the Court of the District Judge, as the case may be, shall be final. In other words, his contention was that the petitioners ought to have
sought remedy, if they have such remedy, either on the Civil side or under the provisions of the Constitution of India.
Replying to this contention, Mr. K.A. Panchapagesan, petitioners counsel submitted that the District Judge had numbered these petitions filed
before him under S. 8(8) or under sec. 7(4) of the Act as Crl. Miscellaneous Petitions and, therefore, these revisions were filed invoking the
revisional powers of this court under S. 397 and 401 of the Code of Criminal Procedure. He, anyhow, contended that this court can always
exercise the power in the interest of justice to convert the criminal revisions into petitions under Art. 227 of the Constitution of India and dispose
them of in accordance with law.
After having heard both parties, I do not think it necessary to go into the question of jurisdiction and maintainability of these revisions, for, on a
short point these revisions are capable of being disposed of irrespective of the label attached to them as Criminal Revision Petitions under Secs.
397 or 401 of the Code or possible Civil Revision Petitions under Act. 227 of the Constitution of India. When illegality so patent is brought to the
notice of court it will have to act to prevent failure of Justice.
The only power the Commissioner of Police has under S. 8 of the Art, on the basis of a Notification issued under sub-section (5) of S. 8 of the
Act by the Central Government so that he shall proceed to the notified place either by himself through any officer authorised by him in writing in j
this behalf, make a list of all moveable properties (other than wearing-apparel, cooking vessels beds and beddings, tools of artisans, implements of
husbandry, cattle, grain and food stuffs and such other articles as he considers to be of a trivial nature) found in the notified place in the presence of
two respectable witnesses. Further, if, in the opinion of the Commissioner of Police, any articles specified in the list are or may be used for the
purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with his written
orders. Further, under Sec. 8(4) of the Act, the Commissioner of Police may make an order that no person who at the date of the notification was
not a resident in the notified place shall, without the permission of the District Magistrate, enter, or be or in, the notified place; provided that nothing
in this sub-section shall apply to any near relative of any person who was a resident in the notified place at the date of the notification. Sub-section
(5) of S. 8 of the Act will also be relevant. It reads as follows:
Where in pursuance of sub-section (4), any person is granted permission to enter or to be on or in, in the notified place that person shall, while
acting under such permission, comply with such orders for regulating his conduct as may be given by the District Magistrate.
Nowhere under S. 8 of the Act, powers have been vested with the concerned authority to lock or seal the premises as has been done in these
three revisions. That such locking or sealing may not be feasible is very clear from the provisions of sub-sections (4) and (5) of Sec. 8 of the Act,
which I have already referred to. These two sub-sections contemplate continuity of residence of those persons in the premises, subject to
conditions stated therein. Further, it is possible to grant permission to certain persons to enter, or be or in, the notified place and that person, of
course, will have to comply with such orders for regulating his conduct as may be given by the Commissioner of Police.
Learned Additional Public Prosecutor, who was conscious of the lack of provisions under the Act to lock and seal the premises when brought
after discussions with authorities concerned, fairly stated that there is no provision under the Act to lock and seal the premises concerned in these
three revisions.
As stated earlier, the only question argued before me related to the power of the Commissioner of Police, Madras or any one acting under his
orders to lock and seal the premises. When the non existence of such power has been conceded, nothing more is required to allow these revisions,
I am not deciding the maintainability of these revisions under Secs. 397 or 401 of the Code of Criminal Procedure, which shall be considered in
an appropriate case, since lack of power to lock and seal is so patent and it had to be conceded by the State, useful purpose will be served by not
disposing of these revisions merely on the ground of the label attached to them as Criminal Revision cases. I have no hesitation in exercising
powers under Art. 227 of the Constitution of India epically when the petition in all these revisions are entitled to the limited relief prayed for by
them, in relation to locking and sealing of the premises concerned, which have been detailed earlier in this order. Commissioner of Police shall
direct removal of seals and locks put up by the authorised authorities concerned, forthwith, for, such locking and sealing had been done without
any power under the provisions of the Act.
The High Court of Allahabad, while exercising powers of the Civil side in Civil Mis. Writ petition No. 4983 of 1993, by its order dated
15.2.1993, has observed as follows:
Thus this position as boils down is that there exists no order of the District Magistrate, Allahabad, having been passed under sub-section (4) of
Section 8 of the Act and in the absence whereof there is no restriction on the free but peaceful use and occupation of the premises in question. The
seal as has been placed over the lock of the petitioner fixed on the main door is without authority of law and such an action is null and void and the
petitioner instead of seeking relief from this counsel for the petitioner, however, submitted that though the action of the respondents placing seal
over the lock of the petitioner as affixed at the main door of the premises in question is void but the petitioner being the peaceful and law abiding
citizen does not want to run the risk of placing himself in peril in facing the executives authorities, who have demonstrably acted without authority of
law in an arbitrary manner and such he in the interest of justice and fair play, wants authority from this court so to place himself in a safer and
secured zone instead inviting any trouble to himself.
From the material on record, it is established that house No. 8, Clive Road, Civil Lines, Allahabad has been illegally sealed without any authority of
law by police personnel�s in an arbitrary manner. We express our disapproval to the arbitrary and illegal action of the police personnel�s who
were responsible for the said act. We, therefore, permit the petitioner to remove the seal put on the lock of premises in question for its peaceful use
and occupation.
I am in entire agreement with the view ex-pressed by the Allahabad High Court in the afore stated case. I have perused the mahazar prepared
by the authority concerned which, in the end, read as follows:
Then the number of locks used have been mentioned. Since the locking and sealing were done by the authority concerned without sanction in law it
will be their duty now to remove the locks and seals forthwith, for an illegality cannot be afforded to survive any longer to surface.
However, it cannot be gain said that the premises concerned can be used and occupied only for peaceful purposes. These revisions are allowed.