Case Note & Summary
The matter arose from a criminal writ petition filed by the detenu under Article 226 of the Constitution of India challenging the order of preventive detention dated 21-10-2004 passed by the Commissioner of Police, Nashik, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The background involved multiple criminal complaints between 2002 and 2004 against the detenu and his associates, including charges under the Indian Penal Code and the Bombay Police Act. The detenu was acquitted in one case, trials were pending in others, and preventive action under Section 110 of the Code of Criminal Procedure had been initiated. On 16-08-2004 and 18-08-2004, anonymous complaints were received about the detenu's criminal activities, followed by three in-camera statements recorded on 13-09-2004 regarding extortion, threats, and intimidation. Based on these materials, the detaining authority passed the detention order, which was executed immediately. The detenu made a representation on 08-11-2004, and the Advisory Board meeting was scheduled for 19-11-2004. The present petition was filed on 22-11-2004. The primary legal issue was whether the Marathi translation of the grounds of detention adequately informed the detenu of his right to make representation to the State Government under Article 22(5) of the Constitution. The petitioner contended that being a Maharashtrian with education up to VIIth standard in Marathi medium, he was not well versed in English, and the Marathi version did not correctly state his right, depriving him of the earliest opportunity to make an effective representation. Reliance was placed on Kamleshkumar Ishwardas Patel v. Union of India, K. Mohanan v. State of Kerala, and decisions of the Bombay High Court in Ramchandra Pawar v. R.H. Mendonca and Leena Lawrence Lewis v. M.N. Singh. The respondents argued that the essence of the right was conveyed through the translation, the detenu did make a representation, and no prejudice was caused. They relied on Wasi Uddin Ahmed v. District Magistrate, Aligarh and Amar Rathod v. State of Maharashtra. The court analyzed the English and Marathi texts of paragraphs 7, 8, and 10 of the grounds. While noting that the Marathi translation for paragraph 8 did not contain the exact word 'adhikar' for 'right', it underlined that the translation clearly communicated the availability of an opportunity to make representation with the designation and address of the authority. The court referred to the rule that liberty cannot be curtailed unjustly and that the detenu must be informed of his rights in a manner that ensures effective exercise thereof. However, the judgment text is incomplete, and the final decision or ratio is not ascertainable from the extract provided.
Headnote
A) Constitutional Law - Preventive Detention - Right to Representation - Constitution of India, Article 22(5) - The detenu challenged the detention order on the ground that the Marathi translation of the grounds of detention did not correctly convey his right to make representation to the State Government, as required under Article 22(5). The court examined the translations and observed that although the literal Marathi word 'adhikar' for 'right' was omitted, the translation clearly indicated the availability of an opportunity to make representation. The court, relying on Kamleshkumar Ishwardas Patel v. Union of India, JT 1995 (3) SC 639 and K. Mohanan v. State of Kerala, (2000) 10 SCC 222, emphasized that the detenu must be effectively apprised of his fundamental right in a language known to him, but the essence of the right must be conveyed to enable effective representation (Paras 3-10).
Issue of Consideration
Whether the failure to provide an accurate Marathi translation of the right to make representation under Article 22(5) of the Constitution vitiates the order of preventive detention under the Maharashtra Prevention of Dangerous Activities Act, 1981.
Law Points
- Article 22(5) mandates effective communication of right to representation
- detenu must be informed of right to make representation to detaining authority
- state government
- and advisory board
- failure to inform in a language known to detenu results in denial of right
- preventive detention under Maharashtra Prevention of Dangerous Activities Act
- 1981
- Marathi translation must convey right accurately
- reliance on Kamleshkumar Patel and K. Mohanan cases
Case Details
2005 LawText (BOM) (03) 73
Criminal Writ Petition No.2369 of 2004
R.M.S. Khandeparkar, P.V. Kakade
Shri U.N. Tripathi, Shri D.S. Mhaispurkar
Shri Himansu Roy, Commissioner of Police, Nashik and Others
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India challenging a preventive detention order passed under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981.
Remedy Sought
The petitioner/detenu sought quashing of the detention order dated 21-10-2004 issued by the Commissioner of Police, Nashik, and his release from preventive custody.
Filing Reason
The detention order was challenged primarily on the ground that the detenu was not informed in Marathi, the language known to him, of his right to make representation under Article 22(5) of the Constitution, thereby depriving him of the earliest opportunity to make an effective representation.
Previous Decisions
The detenu had been acquitted in one criminal case (C.R. No.I-28/2002); trials were pending in other cases; preventive action under Section 110 CrPC had been initiated; after detention, a representation was made on 08-11-2004; Advisory Board meeting was scheduled for 19-11-2004; the writ petition was filed on 22-11-2004.
Issues
Whether the Marathi translation of the grounds of detention adequately and correctly informed the detenu of his right to make representation to the State Government as required under Article 22(5) of the Constitution, and if not, whether such failure vitiates the order of preventive detention.
Submissions/Arguments
Petitioner argued that being a Maharashtrian with education up to VIIth standard in Marathi medium, he was not well versed in English; the Marathi translation of the grounds omitted the exact equivalent of the word 'right' and thus did not properly inform him of his fundamental right to make representation, causing loss of earliest opportunity; relied on Kamleshkumar Ishwardas Patel v. Union of India, JT 1995 (3) SC 639, K. Mohanan v. State of Kerala, (2000) 10 SCC 222, Ramchandra Pawar v. R.H. Mendonca, 2000 Cri.L.J. 2114, and Leena Lawrence Lewis v. M.N. Singh, Criminal Writ Petition No.1011 of 2002.
Respondents contended that the essence of the right was communicated in the Marathi translation, the detenu did make a representation, and no prejudice was caused; the translation clearly indicated the availability of an opportunity to make representation; placed reliance on Wasi Uddin Ahmed v. District Magistrate, Aligarh, 1981 Cri.L.J. 1825 and Amar Rathod v. State of Maharashtra, 2003 All M.R. (Cri.) 1671.
Judgment Excerpts
Under para 7 of the grounds in English, it was informed to the detenu that he had a right to make representation to the detaining authority against the detention should he desire to make such a representation and he should address the same to the Commissioner of Police, Nasik at the given address therein.
The Marathi translation of the grounds for paras 7, 8 and 10 respectively also contained intimation to the detenu about his entitlement to make representation to the authority mentioned therein and at the address given thereunder.
Undoubtedly, the literal translation of the English word 'right' would be 'adhikar' in Marathi. Undoubtedly, such a word is not incorporated as far as para No.8 is concerned i.e. in relation to the representation to the State Government.
Nevertheless, the translation clearly speaks of availability of opportunity to make the representation to the State Government against the detention and discloses the designation and the address of the authority to whom such representation was required to be sent.
The Apex Court in Kamleshkumar Patel’s case (supra), while dealing with the right of the detenu under Article 22(5) of the Constitution of India... has held that a person detained... has a right to make representation to the officer empowered to deal with such representation and such officer is obliged to consider the said representation as expeditiously as possible and failure on his part to do so would result in denial of the right conferred on the person detained to make representation against the order of detention.
Procedural History
Detention order passed on 21-10-2004 under MPDA Act; executed same day; detenu made representation on 08-11-2004; Advisory Board meeting scheduled 19-11-2004; writ petition filed before Bombay High Court on 22-11-2004. Prior criminal complaints from 2002 to 2004 led to registration of offences and preventive action; some trials were pending, and in-camera statements were recorded in September 2004.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981:
- Indian Penal Code, 1860: 307, 504, 506, 34, 337, 323, 325, 143, 147, 148, 427, 324
- Bombay Police Act, 1951: 135
- Code of Criminal Procedure, 1973: 110
- Constitution of India: Article 22(5)
