Holding

Section 110 of the CrPC cannot be used to detain a person without specific, concrete facts, and the petitioner's detention under it is unconstitutional.

Summary

Gopalana Chari, a 71‑year‑old inmate, filed a writ petition under Article 32 alleging illegal detention under Section 110 of the Criminal Procedure Code. He claimed he was taken from his home at night, held for ten days without trial, and labeled a "habitual" thief despite no conviction. The Court examined whether the preventive detention provision, with its vague terms such as "habitual", "dangerous" and "desperate", complies with the constitutional guarantees of personal liberty under Articles 21, 14 and 19. Relying on Maneka Gandhi and other precedents, the Court held that Section 110 must be read down to require specific factual basis and procedural fairness. It found the petitioner's detention unconstitutional and ordered his release on bond, directing the trial magistrate to drop the proceedings. The judgment also warned against the misuse of preventive detention against the poor and elderly.

Issues considered

Whether the application of Section 110 of the Criminal Procedure Code to the petitioner violates Article 21 (and Articles 14, 19, 22) of the Constitution.
Whether the terms "habitual", "dangerous", "desperate" in Section 110 require specific factual substantiation before preventive detention can be justified.
Whether the petitioner’s continued detention without a conviction is lawful.

Legislation cited

Code of Criminal Procedure, 1973s. 110

Subjects

preventive detentionSection 110 CrPCpersonal libertyArticle 21habitual offenderprocedural fairnesshuman rightswrit petitionSupreme Court

Judgment

·.'..
"

GOPALANA CHARI A
v.
,}'
STA TE OF KERALA
November 12, 1980
rv. R. KR1sHNA IYER; R. s. PATHAK AND o. CH1NNAPPA REoov, )JJ n
Code of Criminal Procedure-Section 110-Scope of-Court must \insist
on specificity ofi facts. .
In a letter addressed to one of the Judges of this Court (V. R. Krishna
Iyer, J.) the petitioner complained that he had been illegally detained under
section I IO, Cr. P. C. In response to this· Court's notiee the Superintendent
of Sub-Jail stated that the petitioner was "a well known ·.habitual prisoner"
c
of the Kerala State and was known as "thief Go pal an".
. . ~ .
In his reply the detenu stated that bemg unable ,to see ot hear because
of liis extreme old age of 71 years he was staying in his house ,in his· native
place and that one night a policeman took him from his house ·in a van to
the police station saying that he had to inquire something from him and after
putting him in the lock up for 10 days produced °tJim before the Court as a D
person having been arrest~d the previous night. He further stated that the,
charge against him was th'at on the night patrol one night a policema~ found
him hiding in a verandah of a shop and that on being asked hi> name and
.t1ddress he gave one name first and .another name a little later and that on
inquiry it was found that he was an ex-criminal not to be let free. .
Allowing the petition. E
HELD : In the interests of justice proceedings against the petitioner mtist
be dropped.' Section 110 cannot b~ permitted .to pick up the homeless and
the' have-nots as it did under British subjeetioi:i beeau$e today to be poor is
not a crime in this country. [1274 Fl
Article 21 insists that no man shall be deprived of his life or personal
liberty except according. to the procedure established by law. ln Maneka F
Gandhi v. Union of India (1978] l SCC 248 this Court in clearest terffis
strengthened tl:e rule of law v,is-a-vi,s the personal liberty by insisting on the
procedure contemplated by Art. 21 having to be fair and reasonable not
vagarious, vague and arbitrary. (1274 G]
The constitutional survival of section 110 depends on ·its obedience to
A;·t. 21. Words of wide. import, vague amplitude and far too generalised to G"
be safe in the hands of the Police cannof be constitutionalised in. tiie. context
of Art. 21 unless re~d d~wn to be as a fair and reas-Onable leg/sl~tio~ with
:reverence for human rights. A glance at section 110 shows that on'ly a narrow
signification can be attached to. the. words in ;clauses (a) to . (g) "namely "by
habit ,a robber", "by habit a receiver of stole.~ p~operty"; -"habit~ally protect~
or harbours thieves", "habitually ~coiiirriits ;9r' attempts to coininit .or.. abets
tii'e commission of ......... " "is 'so desperate'. an'.d dangerous as 'tci 'tender his ff
being at large without security hazardous to the community". Expressions
like these cannot be flung in the face, of· a. man with faxity of semantics. The
Court must insist on specificity .of''.f~t~ · and · be ;atisfied 'that" ~ne swallow
1272 SUPREME COURT REPORTS l1981] 1 S.C.R.

A does not make a summer and a consistent course of conduct convincing enough
to draw the rigorous inference that by confirmed habit which is second nature,
the counter-petitioner is sure to commit the offences mentioned if he is not
kept captive. Preventive sections privative of freedo111, if incautiously proved
by indolent judicial processes, may do deeper injury. They will have the effect
of detention of one who has not been held guilty of a crime and carry with
it the judicial imprimatur, to boot. To• call a man dangerous is itself
B dangerous; to call a man desperate is to affix a desperate adjective to
stigmatise a person as hazardous to the community is itself a judicial hazard
unless compulsive testimony carrying credence is abundantly available. [1275'
G·H, 1276 E-G]
ORIGINAL JuRISDICTION : Writ Petition No. 350 of 1980.
(Under Article 32 of the Constitution)
c
M. M. Abdul Khoder, V. M. Tarkunde arid EMS Enam for the
Petitioner.
V. J. Francis for the Respondent.
The Judgment of the Court was delivered by
D KRISHNA IYER, J._..:.The lament of the petitioner, Gopalanachari,.
a septuagenarian languishing in a Kerala prison, is that in his case
the law has become lawless and justice has fallen as the first casualty,
a lot shared by several other prison-mates. He wrote a letter dated
nil to one of us (Krishna Iyer, J) complaining of illegal detentron
under s. 110 Criminal Procedure Code (for short, the Code) where- .
E
upon the jurisdiction of this Court was invoked and the following
order was made:
Shri M. M. Abdul Kader Senior Advocate with Mr. E. M.
Sadrul Enam, Advocate-on-Record will be appointed as amicus
curiae for the petitioner.
F .Issue Show Cause Notice to the respondent state with a
direction that the State shall furnish the total number of
prisoners in the Sub-Jail Kottayam, who are now kept in custody
under s. 110 Cr. P. C. and give further particulars as to how
long they have, been in prison on this score and whether the
hearing of the ~ases under s. 110 Cr: P. C. rs over. The
G Superintendent of the Jail will further furnish the number
of prisoners in prison who are above seventy years old and
below 25 years.
Copy of the Notice 'will be served on advocate amicw>
curiae as well as on Shri V. J. Francis, Advocate for the State.
H Order will also be issued to the Superintendent of the Jail apart
from the State.
Post the matter on 2nd April, 1980.
GOPALANACHARI v. STATE OF KERALA (Krishna Iyer, J.) '
1273

Even here we may sta~ that Shri M. M. Abdul Kader, Senior
·Advocate assisted by Shri E. M. Sadrul Enam, Advocate-on-Record,
has rendered help as amicus curiae and enabled the court to set
·human rights iri perspective in a s.110 situation. Shri Tarkunde
T
also, as intervener, has helped the court which, incidentally, streng-
thens the current of participative justice sinte leading members of
the bar and public organisations in the field taking part in the court B
process in the shape of assistance in the cause of justice lends reality
to the democracy of judicial remedies.
The State, in response to the notice, put in a statement that in
the Sub Jail at Kottayam there are as many as 'six prisoners detaihed
under s. 110 of the Code. Apparently, they have been suffering c
incarceration for several months, the petitioner himself having been ·
in Jail from 23-2-1980. It is added by the Superintendent, Sub .Tail
that the petitioner "is well-known habitual prisoner of ·the Kerala
State. . he is known as· 'Kallan Gopalan' " i.e., thief Gopalan. In
pathetic contra~t to this stigmatising generalisation that the petitioner
is a well-known 'habitual' we find the averment in the petiti'on of the D
detainee that he has been falsely implicated without any regard for
human rights. His averments which have not · been specifically
contested may well be extracted:
The case charged against me by the Kottayam Arpukkara
Police in the Ettumanur Court is on night patrol, found hiding
in the varanda of a shop, on asking the name and address: E
'answered the name as Shankunni of Pala; on again question-
ing :mswcred as Krishnan Kutty of Pankunnari and again on
questioning, arrested on doubt as a "K. D." on the Pathanam
· Thitta Police Station and on enquiry it is found that the person
is an ex-criminal and not! to be let free; and for .that, to obtain
F
bail for. two years, this is the charge against the person, submitted·
bY- the Police before the court. ·
·I .am 71 years old. My native place is Pathanamthitta
•· of Kottayam Di-strict. While I was living in my house .having
loss of eyesight and hearing power due to old age, a Police man
known to me earlier, saw me on a road near my house, saying G
that he has to. enquire something, taken me in a van to
Arpukkara Police Station, after putting me in the lock-up for
ten days produced me before the Court after making. the record
as having arrested me on the previous night of producing me
before the Court. ·
But, it is such a position that if the bail alongwith the H
Bond as aforesaid is not furnished for a period of two years,
l have to be inside the Jail for the said period.
'1274 SUPREME COURT REPORTS [1981] 1 S.C.R.
' .
A I submit before your Honour that I have much pain and
agony that without considering that I am 71 years old and have
difficulties due to that, and without seeing or giving remedy
keeping me in the jaH on such a fabricated case.
There is· no indication even in the statement put in by the Superin-
B tendent that there has been any conviction by a criminal courts as yet.
The cases are pending, apparently without any sense of urgency and
oblivious to the fact that for several months the petitioner has been
deprived of his personal liberty even at the advanced age of 70.
If men can be whisked away by the Police and imprisoned for
long months and the court can keep the cases pending without thought
c to the fact tlhat an old man is lying in cellular confinement without
hope of his case being di:sposed of, Art. 21, read with Arts. 14 and
19 of the Constitution, remain symbolic and scriptural rather than
a shield against unjust deprivation: Law is not a mascot but a
defender of the faith. Surely, if law behaves lawlessly, social justice
becomes a judicral h9aX.
D
A closer look at s. 110 of the Code in the setting of peril to
personal liberty thus becomes a necessity in this case. Counsel for
the State, Shri Francis, amicus curiae Shri Abdul Kader and Senior
Advocate Shri Tarkunde, agreed that unless the preventive power
under s. 110 were prevented from pervasive misuse by zealous judi-
E cial vigilance and interpretative strictness, many a poor man, may
be cast into prison by sticking the label of 'habitual' or by using such
frightenrng expressions as 'desperate', 'dangerous' and 'hazardous to
the community'. Law is what the law does, even as freedom is what
freedom does. Going by that test, s. 110 cannot be permitted in
our free Republic to pick up the homeless and the have-nots as it did
when under British subjection because to-day to be poor is not a
crime in thi:s country. George Bernard Shaw, though ignorant of
s. 110, did sardonically comment that "the greatest of evils and the
worst of crimes is poverty".
Article 21 insists that no man shall be deprived of his life or
personal liberty except according to the procedure established by law.
G
In Maneka Gandhi case(1) this Court in clearest terms strengthened
the rule of law visi a vis personal liberty by insisting on the procedure
contemplated by Art. 21 having to be fair and reasonable, not vaga-
rious, vague and arbitrary :
The principle of reasonableness, which legally as well as
philosophically, is an essent!al element of equality or non-
(1) Maneka Gandhi v. Union of India [1978] l SCC 248 at 284 (per
Bhagwati, J.}-[1978] 2 S.C.R. 621 at 674.
\
'GOPALANACHARI
. . ' - . ,'".
v. STATE
,, . . . OF.-KERALA
~ ·' . '.' . .-, ,• ,, (Krishna Iyer, J.) ,_127-5
,_: ......
).

arbitrarill,ess' pervad~ Article 14 like a brooding . omnipresence A
and the procedure co_ntemplated by Article 21 must answer the
test of reasonableness in . order to be in conformity with
Article 14. It must be "right and jusFand fair'.' and not arbrtrary,
fanciful or oppressive; otherwise, ii would be no procedure at all
and the requirement of Article 21 would n\l.t be satisfi.ed.(1)
B
The principles and procedures are to be applied which, in
. any particular situation or set of circumstances, are right and
just and fair. Natural justice, it has been said, is only "fair play
in action" .. Nor. do we wait for directions from Parliament. The
common law. has abundant riches; there may we find what
Byles, J., called "the justice of the common law".( 2 ). c
Procedural safeguards are the indrspensable essence of
liberty. In fact, the history of personal liberty is largely the
history of procedural safeguards and right to a. hearing has a
human-riiht ring. In India, because of poverty and illiteracy,
the people are unable to protect and defend their rights; observ-
ance of fundamental rights is not regarded as good politics and. D
, · their transgression as bad politics. I sometimes pensively reflect
that people's militant awareness of rights and duties' is a surer
constitutional assurance of governmental respect and response
than the sound and fury of the 'question hour' and the slow and
unsurn delivery of court wrrt .....
E
To sum up, 'procedure' in Article 21 means fair, not formal
procedure. 'Law' is reasonable law, not any enacted piece.__ As
Article 22 specifically spells out the procedural safeguards for
preventive and punitive detention, a law providing for · such
detentions should conform to Article 22. It has been rightly
pointed out that for oth~r rights forming part of personal liberty, F
the procedural safeguards enshrined in Article 21 arc
available.(S)
The constitutional survival of s. 110 certainly depends on its obedi-
ence to Art._ 21, as this Court has expounded. Words of wide import,
vague amplitude and far too_ generalised to be safe in the hands of
the Police cannot be constrtutionalised in the context of Art. 21 unless G
read down to be as a fair .and reasom:i'ble legislation with reverence
for human rights. A glance at s. 110 shows that only a narrow
signification can be attached to the words in clauses (a) to (g), "by·
habit a robber .... '', "by habit a receiver of stolen property .... ",
(1) [1978] 1 sec 248 at 284. -H
(2) Wiseman v. Borneman 1971 AC 297: [1969] 3 All ER 275.
(3) [1978] 1 SCC 248 at 338 (per Krishna Iyer, J.)-[1978] i SCR 621
at 723.
1276 SUPREME COURT REPORTS [1981] 1 S.C.R.

A "habitually protects or harbours thieves• .... ", "habitually commits or
attempts to commit or abets the commission of .... ", "is so desperate
and dangerous as to render his being at large without security hazard-
ous to the community". These expressions, when they become part
of the preventive chapter with potential for deprivation of a man's
personal freedom upto a period of three years, must .be scrutinised
B by the court closely and anxiously. The poor are picked up or
brought up, habitual witnesses swear away their freedom and courts
ritualistically commit them to prison and Art. 21 is for them a
freedom under total eclipse in practice. Courts are guardians of
human rights. The common man looks upon the trial court as the
protector. The poor and the illiterate, who have hardly the capability
c to defend themselves, are nevertheless not 'non-persons', the trial
judges must remember, This Court in Hoskot's case(1) has laid
down the law that a person in prison shall be given legal aid at the
expense of the State by the court assigning counsel. In cases• under
s. 110 of the Code, the exercise is often an idle ritual deprived of
reality although a man's liberty is at stake. We drrect the trial
D
magistrates to discharge their duties, when trying cases under s. 110,
with great responsibility and whenever the counter-petitioner is a
prisoner give hrrn the facility ·of being defended by counsel now that
Art. 21 has been reinforced by Art. 39A. Otherwise the order to
bind over will be bad and void. We have not the slightest doubt that
E expressions like "by habit", "habitual", "desperate", "dangerous",
"hazardous" cannot be flung in the face of a man with laxity of
semantics. The Court must insist on specificity of facts• and be
satisfied that one swallow does not make a summer aild a consistent
course of conduct convincing enough to draw the rigorous inference
that by confirmed habit, which is second nature, the counter-petitioner
F is sure to commit the offences· mentioned if he i:s not kept captive.
Preventive sections privative of freedom, if incautiously proved by
indolent judicial processes, may do deeper injury. They will have
the effect of detention of one who has not been held gui:lty of a crime
and carry with it the judiciar imprimatur, to boot. To call a man
dangerous is itself dangerous; to call a man desperate is to affix a
G desperate adjective to stigmatise a person as hazardous to the com-
munity is itself a judicial hazard unless compulsive testimony carry-
ing credence is abundantly availabre. A sociologist may pardonably
take the view that it is the poor man, the man without political clout
the persoO: 'without economic stami:na, who in practice gets caught in
the coils of s. 110 of the Code, although, we as court, cannot sub-,
H scribe to any such proposition on mere assertion without copious

Ol [19781 3 sec 544.
GOPALANACHARI v. STATE OF KERALA (Krishna Iyer, J.) 1277

I
substantiation. Even so, the .court cannot be unmindful of soci3J.
realiti~ and be careful to require strict proof when personal liberty
may possibly be the casuality: After all, the judicial process must
not fail functionally as the protector of personal liberty.
r
Indeed, several commissions, spread over decades, and even
. the Central Law Commission, in some of its reports, drsclosed the
B
presence in our midst of many habitual economic offenders and
chronic corporate Criminals who, perhaps, may not be on the wanted
list of the Police under s. 110 of the Code although their dangerous
activities may prove a hazard to the health and wealth of nation.
"'--- - · Referring to a similar situation in American Society, Ralph Nader in
his introduction to a well documented book titled "America Inc." has c
observed:
In no clearer fashlon has the corporation held the law at
bay than in the latter's paralysis toward the corporate crime
wave. Crime statistics almost wholly ignore corporate or business
crime; there is no list of. the ten most wanted corporations; the
law afford no means of regularly collecting data on corporate D
crime; and much corporate criminal behaviour (such as pollu-
tron) has not been made a crime because of corpoiate opposi-
tion. For example, wilful and knowing violations of. auto, tire,
radition, and gas pipeline safety standards ~re not considered
crimes under the relevant statutes even iE lives are lost ·as a
E'
. result. . The description of an array of corporate crimes rn this
forthright book reveals a legal process requiring courage, not
routine duty, by officials to enforce the laws against such out~
rages. The law is much more comfortable sentencing a tele-
phone coin box !thief to five years than sentencing a billion-
dollar price-fixing e,xecutive to six weeks in jail. In one recount- 'y
ing after another, the authors pile up the evidence towards' one
searing conclusion - that corporate economic, product, and
environmental crimes dwarf other crimes in damage to h'ealth,
safety and property, in confiscation of theft of other people's
monies, and in control of the agencies which are supposed to
stop this crime and fraud. And it all goes on year after year by G
blue-chip corporate recidivists.
Why? It is easy to answer - "power". But that is the
beginning, not the end, of un<lerstanding.(1)
True, American conditions are .different from Indian conditions and
these observations may not have necessary app!Ication to our societal H
situation. The point of Ralph Nader has, however, some.
relevance. .
(1) America, Inc: by Morton Mintz and Jerry S. Cohen, p. 11.

_,..r·
/

.1218 SUPREME COURT REPORTS [1981] I S.C.R.

A Let us allay misuuder>tandings. We are clear in our mind
th at prevention is better than cure, in criminal Jaw as in medicine,
especially when there is judicial supervision. Society cannot be left
at the mercy of predators and bandits who, like wild beas~ prey
upon the weak and the irulocent and become a menace to' peace and
security of society.
B
But personal liberty is a prized·value and that is why we have
insisted not merely upon the Police having to be careful before march-
ing poor people into court' under s. 110 but the Cciurt itself having
to be gravely concerned about using preventive provisions against
helpless persons, not on formal testimony readily produced ·to order ,•
c as we have noticed in a recent case( 1),' but on convincing testimony of
clear and present danger to society. ·
. In the present case, the petitioner has been ioo. Jong· in prison,
and we take it that no circumstances placed before us justify keeping
him longer in custody. The-trial magistrate will, having regard to
D the observations we have made, drop the proceedings in the interests
of justice. The other prisoner above 70 years also should be enlarged
right aW'\Y (Kully Thankappan, U.T. No. 665). We expect any
Government which has any regard for human ·rights not to use s. 110
of the Code, .torturesome fashion, against the weak and. the poor
merely because they belong to the 'have-not' class· and can be 'easily
E . apprehended as 'habitual' this or that or ciangerous or desperate. We
draw the attention of the State Government to the likely misuse of
the preventive provisions and expect it to issue suitable instructions
to the Police minions so that the law will be legitimated by going
•
into action where it must strike and by being kept sheathed where
there is no need for indiscriminate display. With these observations,
F . we direct the rele:;.se of the petitioner and Ku tty Thankappan, U. T.
No. 665 on their own bonds until formal orders are passed by the
trial court in the regular criminal proceedings under• s. 110 of the
Code. · · ·

/
P.B.R. Petition allowed.

(I) Prem Chand v. Union of India. [1981] 1 S.CR. 1262.