Leonard Stone, Kt., C.J.
1. We have before us six petitions, under Section 491 of the Criminal Procedure Code, presented on behalf of six persons, who are under detention at the Ahmedabad Central Jail, alleging that the detenus are unlawfully detained, and praying for an order of this Court for their discharge. It is not suggested that the detained persons have committed any offence or that there is any question of their standing their trial, but the justification for the detentions, urged on behalf of Government, is, that in each case, an order has been made by the District Magistrate of Ahmedabad, pursuant to the power given in that behalf by Section 46B of the Bombay District Police Act, 1890. This section as also Sections 46A, 46C and 46D are new, having been introduced by the Bombay District Police (Amendment) Act, 1946, which came into operation on September 30, 1946. Section 46B gives to a District Magistrate certain formidable powers, exercisable within his District after the Provincial Government have declared a proclamation of emergency in any part of the District, on being satisfied, that the public peace or tranquillity in the district or in any part thereof is disturbed, or is likely to be disturbed, in consequence of a conflict between different communities or sections thereof or gangs or factions. Such a proclamation is valid for one month unless revoked, but may be renewed before its expiry. A proclamation of emergency was declared on September 30, 1946, in respect of the City of Ahmedabad, and has been renewed from time to time. The powers conferred on the District Magistrate are contained in Sub-section 46B(3), which is as follows:-
After the Provincial Government has under Sub-section (1) issued a proclamation of emergency, the Magistrate of the district, whenever it appears to him that the presence, movements or acts of any person in the district is or are causing or calculated to cause danger or alarm, or that a reasonable suspicion exists that designs calculated to disturb public peace or tranquillity are entertained by such person, may-
(i) by an order, in writing duly served on him or beat of drum or otherwise, as he thinks fit, direct such person :
(a) so to conduct himself as the Magistrate shall deem necessary in order to prevent the disturbance of the peace or
(b) to remove himself outside the Province or to such place within the Province and by such route, and within such time, as the Magistrate shall prescribe; or
(ii) by an order in writing direct that he be detained for a period not exceeding fifteen days at a time.
2. This sub-section is followed by two provisos the importance of which is very great. The first proviso is in these terms:
Provided that the total period of detention shall not without the order of the Provincial Government in any case exceed two months,
And the second proviso is:-
Provided further that any order made under this section shall cease to have effect on the proclamation of emergency ceasing to operate.
3. By Sub-section (4) a Magistrate, who has made such orders, shall forthwith submit to the Provincial Government a copy of every order of detention made under Sub-section (3) together mith the grounds on which it is made. Sub-section (5) provided for the manner of detention of the person against whom an order has been made.
4. The facts, as appearing from the affirmed petitions and the affidavits filed in their support, and from the orders which have been made, show that in each ease the person detained has been detained in prison from a date anterior to September 30, 1946, that is to say before the new sections became operative and before the proclamation of emergency was declared under it. In the case of five of the detenus, they were detained formerly under Ordinance III of 1944 which ceased to have operative effect on September 30, 1946, and in the sixth case, that is to say, Application No. 31 of 1946, the case of Mahomedbhai Nabibhai, he was arrested on September 18, 1946, in a general round-up, but having been lawfully arrested he was not brought up before a Magistrate according to law. In each case, therefore, the limit of two months came to an end on November 30, 1946, and presumably, in order to deal with that situation, Government passed in the case of each of these six detenus the following order dated November 27, 1946 :-
In exercise of the power conferred by the first proviso to Clause (ii) of Sub-section (3) of Section 46B of the Bombay District Police Act 1890 (Bombay Act IV of 1890), the Government of Bombay is pleased to direct that the order of the District Magistrate, Ahmedabad, dated the 30th September, 1946, directing the detention of the person known as (and then is filled up the name of the particular detenu) shall continue in force until further orders. By order of the Governor of Bombay.
And then follows the signature of the Assistant Secretary of the Government of Bombny, Home Department (Political).
5. That form of order was challenged in the Court of Criminal Appeal of this High Court on December 6, 1946, In re Navnitlal Hiralal Gandhi, (1946) 49 Bom. L.R. 386 on the ground that it is the District Magistrate in whom the Legislature has vested the discretion and the responsibility to make these detention orders, and not Government. In the judgment delivered on that occasion, I said (p. 390) :
The Government Pleader would have us read this proviso (that is to say the first proviso limiting the period to two months without an extension order of Government) as giving the ministerial function of Government as well as the District Magistrate authority to make detention orders, but no part of Section 46B gives the Provincial Government any such power. The responsibility for making detention orders is exclusively vested in the District Magistrate, and Government's powers are limited to enlarging the maximum period of two months, in which the District Magistrate can, in any particular case, make detention orders which are themselves only valid for fifteen days.
6. After that judgment, all the detenus, on whom an order in November 27, 1946, form had been made, were unlawfully detained. It seems that their number was 84, because by an order No. S.D. 620, dated December 7, 1946, made by the order of the Governor of Bombay and signed by the Assistant Secretary, Home Department (Political), it was ordered:
In exercise of the powers conferred by the first proviso to Clause (ii) of Sub-section (3) of Section 46B of the Bombay District Police Act, 1890 (Bombay Act IV of 1890), the Government of Bombay is pleased to order that the total period of detention in the case of persons specified in the Schedule hereto annexed shall exceed two months.
84 names are contained in the schedule, including the six persons, whose cases are before us.
7. Various points have been taken before us by counsel who represents the detenus, but the point which has been argued as a preliminary one, and the only question upon which we give any decision in these cases is, that the order of Government of December 7 has placed on the discretion, which the Legislature has entrusted to the District Magistrate, an embargo, so that he is no longer completely free to exercise it. Put in another way, it is said, that the discretion of the District Magistrate is now in fetters. This argument is advanced on the wording of the order of December 7, because, as is pointed out, that order is in mandatory form, and orders that the total period of detention of each of the detenus mentioned in the schedule shall exceed two months. So that, quite apart from the question of the District Magistrate ordering the release of the detenus whose names are mentioned in the schedule, the power which is given to him tinder Sub-section (3) to make an alternative form of order, viz. that the detenu so conducts himself so as to preveat a disturbance or that he removes himself outside the Province has been taken away from the District Magistrate, if he obeys the order of Government, whose servant he is. In my opinion that submission is well founded. Powers which interfere with the liberty of the subject must be precisely exercised, and if they are exceeded, it is the duty of this Court, now, as it ever has been, to safeguard the liberty of the subject and to see in each case that a person detained by an order of this nature is detained under a valid order. In my opinion, the order of Government of December 7 has interfered with the District Magistrate's discretion, and has taken away from him the complete impartiality which he previously had in considering which, if any, of the three alternatives under Section 46B he should exercise.
8. That being so, the detention of all these six persons is unlawful, and it is the duty of this Court to order their immediate release.
9. I agree with the proposed order of release and I also agree in the main with the reasons given by the learned Chief Justice for the order. But I wish to guard myself against being thought to take a too technical view of this matter. What is essential in any orders passed under the new Section 46B for the detention of any person is that they should be passed by the District Magistrate alone in his sole discretion and upon his sole authority and responsibility; and in the present case we have an order of Government which in terms would, if literally interpreted, have the effect of seriously fettering the discretion of the District Magistrate, so that in effect any order for detention passed by the District Magistrate would not really be the order of the District Magistrate at all within the meaning of Section 46B.
10. I am however inclined to accept the argument put forward by the learned Advocate General that the intention of Government in passing the order under criticism cannot have been what the order bears on the face of it, It is a fact that the order was passed after this High Court had delivered a judgment bearing upon these points, in particular upon the necessity for the discretion of the District Magistrate to be exercised; and it is difficult to suppose that an order which was almost certainly passed in consequence of the judgment of this High Court should intentionally go out of its way to ignore one of the principal points made in that judgment. But that is not really the point. Even if we take it that in strict law it would be possible to refuse to give effect to the face value of the order of Government, what we have to consider in this case is the possible effect that the order might have upon the mind of the District Magistrate and the extent to which it might operate as a fetter upon his discretion. I am not prepared to say that in this case the District Magistrate regarded his discretion as being in any way fettered, but that is only because I do not know. It was open to Government,, who were given every opportunity by this Court, to put in such affidavits or other evidence as they required to show that in the circumstances of the case it was not possible for the District Magistrate to have been in any way influenced by the Government order beyond the knowledge that any further orders that he might make would be outside the mischief of the proviso to Section 46B(3) and would be authorised beyond the limit of two months therein provided. But Government have not done anything of the sort, and the result is that we have no materials upon the record by which it is possible for us to say that in fact the District Magistrate was in no way influenced by the order of Government. Since prima facie that order is a complete fetter upon his discretion, I feel bound to hold that there is at any rate some reasonable possibility of the District Magistrate having been so influenced and to that extent having passed an order which was not altogether at his own discretion; and for these reasons I think that the orders under which all these persons are detained must be regarded as being invalid.
11. I agree with the order proposed and I have nothing to add.
12. I agree with the judgment delivered by the learned Chief Justice and I have nothing to add.
13. I agree with the judgment delivered by the learned Chief Justice and I have nothing to add.
Leonard Stone, Kt., C.J.
14. We order the immediate release of all the six persons before us. Counsel for them ask for costs, and they point out that by Sub-section 491(2) of the Criminal Procedure Code this Court has power to frame rules regulating the procedure in cases of habeas corpus, and also, that by Rule 64 of the Appellate Side Rules this Court has framed a rule to this effect:
In disposing of any such rule (i.e. a habeas corpus rule) the Court may in its discretion make an order for the payment by one side or the other of the costs of the rule.
15. We think this is a proper case to order costs and accordingly we order that Government do pay the costs of the rule upon the six petitions.