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1948 DIGILAW 40 (ALL)

Shyam Behari Shastri v. Rex

1948-04-12

WANCHOO

body1948
JUDGMENT Wanchoo, J. - These are two applications u/s 491 of the Code of Criminal Procedure by Shiva Swarup Misra and Shyam Behari Shastri against orders of detention u/s 3(1)(a) of the United Provinces Maintenance of Public Order (Temporary) Act No. IV of 1947 passed by the District Magistrate of Pilibhit. I propose to dispose of these two applications by the same judgment as the points raised by them are common. It was stated by the learned Government Advocate on the 9th of April, 1948 that Shiva Swarup Misra has been released. But Mr. Khare, on behalf of Shiva Swarup Misra, stated that his instructions were that no such release had taken place. Under those circumstances, I shall deal with the case of Shiva Swarup Misra also on the footing that he has not been released. 2. Shiva Swarup Misra was detained by an order of the District Magistrate of Pilibhit dated the 4th of February, 1948. This order related to Shiva Swarup Misra as well as to a large number of other persons and was in the following terms:- The following persons are hereby ordered to be detained u/s 3(1)(a) of the U.P. Maintenance of Public Order (Temporary) Act, 1947. Police officers concerned are directed to take immediate action to give effect to the above order. 3. Then followed the list of persons to whom the order was to apply. This list contains the name of Shiva Swarup Misra. 4. Shyam Behari Shastri was detained under an order, dated the 7th of February, 1948. The original order of that date has not been produced in spite of my having given a weeks' further time on the 2nd of April, 1948. On the 9th of April, 1948 the learned Government Advocate produced one original order along with a letter that he had received from the District Magistrate of Pilibhit. That letter mentions that there was an order, dated the 7th of February, 1948 on a list supplied by the police. The letter also says that that order was being sent, but somehow or the other, it has not been produced. I shall, however, assume, for the purposes of these cases, that that order was also in the same terms as the order of the 4th of February, 1948, and applied to a large number of persons mentioned in the list. 5. I shall, however, assume, for the purposes of these cases, that that order was also in the same terms as the order of the 4th of February, 1948, and applied to a large number of persons mentioned in the list. 5. These two orders do not mention the period for which the two applicants had been detained. It appears that on the 20th of February, 1948, a letter was sent by the District Magistrate of Pilibhit to the Superintendent, District Jail Pilibhit to the following effect:- The detention period of all the persons detained u/s 3(1)(a) of the Maintenance of Public Order (Temporary) Act, 1947 is hereby extended to 15 days more. 6. Thereafter on the 5th of March, 1948 the Superintendent District Jail, Pilibhit enquired from the District Magistrate as to how much longer the detenus should be kept in jail as the period was expiring on the 6th of March, 1948. On this, the following reply, dated the 5th of March, 1948 was sent to the Superintendent of the Jail:- Has the honour to inform him that under G.O. No. A-3797-XXV/CX, dated August, 1947 and under Clause (a) of Sub-section (1) of Section 3 of the U.P. Maintenance of Public Order (Temporary) Act, 1947, the orders made under the above Act shall, unless revoked earlier, remain in force for six months from the date of such order, as prescribed in Section 4 of the said Act. 7. On the same day, another order was passed in the following terms:- The detenu is ordered to be detained for six months u/s 3(1)(a) of the U.P. Maintenance of Public Order Act, 1947 read with notification No. A-3797-XXV-CX, dated August, 1947. 8. This last order of the 5th of March, 1948 was exactly in the same terms with respect to both the applications. 9. The main contention, on behalf of the applicants, is that the first order detaining the applicants whether passed on the 4th of the 7th of February, 1948 could only, in law, be in force for fifteen days in view of the provisions of Section 3, Sub-section (2) of the U.P. Act No. IV of 1947. This period was extended by District Magistrate of Pilibhit on the 20th of February, 1948 for another fifteen days. Thereafter there was, what amounted to another extention, on the 5th March, 1948. This period was extended by District Magistrate of Pilibhit on the 20th of February, 1948 for another fifteen days. Thereafter there was, what amounted to another extention, on the 5th March, 1948. It has, therefore, been urged that in view of the authority of this Court in the case of Syed Zamir Qasim, there could be no extension on the 5th of March, 1948 and, therefore, the applicants are now being improperly detained and should be released. 10. The contention, on behalf of the Crown, is that as the first order, whether dated the 4th or the 7th of February, 1948 did not mention the period for which the detenus were detained, the provisions of Section 4 of the Act would apply and the order would be deemed to be in force for six months unless revoked earlier. It is further contended that as there has been no revocation, the applicants could be properly detained for six months after the orders, dated the 4th of February, 1948 and the 7th of February, 1948. 11. In reply, it has been contended, on behalf of the applicants, that as the orders dated the 4th and the 7th of February, 1948 did not specify that they were being passed under the delegated authority and also did not specify the period for which they had been passed, they should be considered to be in force only for fifteen days u/s 3, Sub-section (2) of the U.P. Act No. IV of 1947 and no more. 12. The main question, therefore, for decision in this case is whether the orders of the 4th of February and of the 7th of February, 1948, which I have presumed to be in the same terms as the order of the 4th of February, 1948, can be presumed to be orders under the authority delegated to the District Magistrate u/s 11 of the Act or are orders which were passed by him under the authority he had u/s 3, Sub-section (2) of the U.P. Act No. IV of 1947. Incidentally, I may mention that the order of the 4th of February, 1948 does not, in terms, say that the District Magistrate was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony, it was necessary to detain him. Incidentally, I may mention that the order of the 4th of February, 1948 does not, in terms, say that the District Magistrate was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony, it was necessary to detain him. I do not, however, propose to decide, for the purposes of these cases whether an order passed u/s 3, Sub-section (1)(a) should show on the face of it, that the authority passing the order was satisfied as required by Section (Sic)(1) and whether in case the order does not say so, on the face of it, it can be said to be a legal order, it will be enough for the purpose of the present cases to consider the main point that has been raised on behalf of the applicants, namely, that the orders, dated the 4th and 7th of February, 1948 could only be deemed to be orders under the powers of the District Magistrate u/s 3, Sub-section (2) and, therefore, could not be in force for more than fifteen days. 13. The scheme of Act IV of 1947 is that the Provincial Government can detain a person u/s 3(1)(a) and, in that case, the order of the Provincial Government by virtue of Section 4 of the Act will be in force for six months unless revoked earlier. The Act also provides, u/s 3, Sub-section (4), that the District Magistrate, may, within his jurisdiction, exercise the power conferred by Clause (a) of Sub-Section 3 and an order so made by him shall be valid for a period not exceeding fifteen days. This provision was obviously made in order that the District Magistrate may be able, in a suitable case, to take action at once pending the orders of the Provincial Government. The Act also provides in Section 11 that the Provincial Government may delegate its own power under the Act on any officer subordinate to it. The Provincial Government did, by virtue of this, delegate its power u/s 3(1)(a) to District Magistrates in the month of August, 1947. This delegation, however, did not and could not abrogate the power of the District Magistrate u/s 3, Sub-section (2). The Provincial Government did, by virtue of this, delegate its power u/s 3(1)(a) to District Magistrates in the month of August, 1947. This delegation, however, did not and could not abrogate the power of the District Magistrate u/s 3, Sub-section (2). After this delegation, therefore, a District Magistrate had two powers: (1) the original power conferred on him by the Act to detain a person for fifteen days u/s 3(2) read with Section 3(1)(a) of the Act and (2) a delegated power conferred upon him by the Provincial Government u/s 3(1)(a) read with Section 4 for a period of six months. 14. It has been urged, on behalf of the applicants, that as the District Magistrate had two different powers, one conferred upon him by the Act and the other by delegation by the Provincial Government, it was necessary, if the District Magistrate wanted to Act under the delegated powers, that he should specify that he was acting under the delegated powers. If he did not so specify, it should be presumed that he was acting under the original power conferred on him by the Act for detaining a person for fifteen days only. I am of opinion, that this argument on behalf of the applicants, is sound. When an officer has two powers of the same kind, one of which is more restricted than the other, it is his duty to specify, whenever he takes action, as to which power he is exercising, whether the one conferred upon him by the Act or the other conferred upon him by delegation. A District Magistrate can specify this in two ways he can, while passing the order u/s 3(1)(a), say specifically that he is acting under the power delegated to him u/s 11. In that case, if he does not mention the period for which a person is being detained, the provision of Section 4 will apply and the detention would be for a period of Six months. In the second place, he may specify the power that he was using by necessary implication. In that case, if he does not mention the period for which a person is being detained, the provision of Section 4 will apply and the detention would be for a period of Six months. In the second place, he may specify the power that he was using by necessary implication. If for example without specifying the notification which gave him the delegated authority, he specifies the period for which a person is detained and that period is more than fifteen days, it will be obvious that he was acting under the delegated authority, for the authority conferred on him under the Act did not authorise him to detain a person for more than fifteen days. But where, as in the present cases, the District Magistrate neither specifies that he is acting under the Notification giving him the delegated authority, nor mentions the period for which the detention is made, such period being more than fifteen days, it cannot, in my opinion be presumed that he is necessarily acting under the delegated authority and not under the original authority given to him u/s 3, Sub-section (2). This is a very drastic Act severely curtailing the liberties of the subject and in such circumstances, if there is any doubt whether the order of the District Magistrate is under his original authority u/s 3, Sub-section (2) or under the delegated authority, the benefit of that doubt should be given to the detenue and the order should be interpreted in favour of the detenue and should be held to be an order under the powers conferred on the District Magistrate u/s 3, Sub-section (2) of the Act. It has been urged that the order shows that it was passed u/s 3, Sub-section (1)(a) and should, therefore, be held to be an order under the delegated authority. But this argument loses sight of the fact that even an order u/s 3, Sub-section (2) has to be passed u/s 3, Sub-section (1)(a) and Section 3 Sub-section (2) merely mentions the period for which that order would be in force just as Section 4 mentions the period for which the order passed by the Provincial Government u/s 3, Sub-section (1)(a) shall remain in force. I am, therefore, of opinion that the orders passed on the 4th of February, 1948 detaining Shiva Swarup Misra and on the 7th of February, 1943 detaining Shyam Behari Shastri must he held to have been passed by the District Magistrate under the powers ha possessed u/s 3, Sub-section (2) and not under the delegated power granted to him by the Provincial Government u/s 11. 15. That the orders were so interpreted even by the District Magistrate of Pilibhit is clear from the fact that on the 20th of February 1948, the successor of the District Magistrate who had passed the original orders, passed a general order extending the period of detention of all the detenus confined in the District Jail of Pilibhit for another fifteen days. It was only on the 5th of March, 1948 that it seems to have dawned on the District Magistrate of Pilibhit that the original orders passed on the 4th and the 7th of February, 1948 were valid for six months. Even so, he was not quite sure of the position and, therefore, passed another order on the 5th of March, 1943 in which he said that the two applicants were ordered to be detained for six months. 16. The position, therefore, is that the applicants were detained by orders of the 4th and 7th of February, 1948 for a period of fifteen days. Their detention was extended by an order passed on the 20th of February, 1948 for another fifteen days. Now it is possible for a District Magistrate who in the first instance, acts under the powers conferred on him by the Act u/s 3, Sub-section (2) to extend the period under the authority delegated to him u/s 11 in the same manner as the Provincial Government could always extend detention beyond the period of fifteen days for which a District Magistrate might have detained a person under his powers u/s 3, Sub-section (2) of the Act. Therefore, so far as the detention of the applicants for another fifteen days after the 20th of February, 1948 is concerned, it would not be improper, provided, of course, the District Magistrate can pass an order like the one, dated the 20th of February, 1948. Therefore, so far as the detention of the applicants for another fifteen days after the 20th of February, 1948 is concerned, it would not be improper, provided, of course, the District Magistrate can pass an order like the one, dated the 20th of February, 1948. But the further detention of the applicants by another order of the 5th of March, 1948 would be illegal in view of the authority of this Court in the case of Syed Zamir Qasim. Therefore, the detention of the applicants after the 6th of March, 1948 must be held to be illegal and improper. I may add that the explanatory letter sent by the District Magistrate of Pilibhit to the Superintendent of the District Jail Pilibhit on the 5th of March 1948 in which he said that the orders were in force for six months by virtue of the delegated authority of the District Magistrate is of no value in this case for I have held that the orders passed on the 4th and 7th of February 1948 cannot be said to be orders under delegated authority and could only be valid for fifteen days as orders passed by the District Magistrate under his powers u/s 3 Sub-section (2) of the Act. Under these circumstances the applicants are now being illegally detained and are entitled to release. 17. Before I leave these cases I should like to point out that the letter dated the 20th of February quoted by me above and the order dated the 5th of March, 1948 also quoted above are really very slip-shod orders which are not contemplated by the Act. When a District Magistrate uses the rather drastic powers which this Act has given to him it is expected that he will apply his mind to each individual case and should not make extensions in the manner in which he attended the detention in these cases on the 20th of February 1948. But even if I were to accept these orders as orders which could be properly passed under this Act, the position would be that the detention of the applicants after the 6th of March 1948 is illegal and improper and they are entitled to release. I, therefore, allow these two applications and order that Shiva Swarup Misra and Shyam Behari Shastri be released at once.