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Har Prasad Singh Vs. District Magistrate - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1949All403; 1949CriLJ657
AppellantHar Prasad Singh
RespondentDistrict Magistrate
Excerpt:
- - you also told the poor classes that there was no hope for them from the present government and that they should be ready for revolution. for these reasons he has been criticising the government, but in good faith. reading the grounds under section 5 with the order under section 3, it would appear that the district magistrate was satisfied that the applicant was so inciting. it is also a well-known practice that statutory rules, regulations and notifications are issued by the government in this country not under the signature of governor personally but under the signature of the secretaries to the government. the longstanding practice in this country of the issue of statutory rules under the signature of the secretaries is well-known......the delegation has been validly made under section 11 of the above act. section 11 provides:the provincial government may, by order, direct that any power or duty, which is conferred or imposed on the provincial government under this act shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority, not being an officer or authority subordinate to the central government.in pursuance of this provision notification no. a-3797-xxv/c.x. dated 1st august 1947 was issued by the provincial government in the' following terms:in exercise of the powers conferred by section 11, u.p. maintenance of public order (temporary) act, 1947 (iv [4] of 1947), the governor is hereby pleased to direct that the powers.....
Judgment:
ORDER

Bind Basni Prasad, J.

1. This is an application under Section 491, Criminal P.C., by one Har Prasad Singh of Ghazipur. By the order, dated 13th August 1948, the District Magistrate in exercise of the powers delegated to him under Section 11, U.P. Maintenance of Public Order (Temporary) Act, 1947, directed the detention of the applicant for a period of six months. He purported to act under Clause (a) of Sub-section (1) of Section 3 of the Act. The grounds communicated to him under Section 5 of the Act wore as follows:

You along with several others have been preaching class hatred and inciting the kisans, mazdoors and others against zamindars, capitalists, police, patwaris and further that you have been carrying on false propaganda against the present Government by telling people that the Government is in the hands of the zamindars and capitalists and that the present scarcity of food, clothings and other articles is due to the policy followed by the present Government. You also told the poor classes that there was no hope for them from the present Government and that they should be ready for revolution. Lastly you have been inciting the kisans to take the law into their own hands and use violence and that in furtherance of this unlawful object you delivered speeches on the following dates and place. As a result of these regular preachings of hatred and violence against certain classes of the Indian Union and against the Government established by law, actual violence in certain police circles of the district has been noticeable and it is certain that if you had not been detained under Section 3 (1) (a), U.P. Maintenance of Public Order Act, there was bound to be a general disorder and violence and so, in the interest of the public safety and maintenance of public order, it was found necessary to detain you for a period of six months.

The dates and the particulars of the activities were at the foot of the above grounds.

2. In the affidavit filed by the applicant he states that he is a member of the communist party of India and works amongst the peasants and agricultural labourers of the district of, Ghazipur. He adds that the present policy and measures of the Congress Government tend to benefit the landlords and capitalists and are responsible for the prevailing scarcity in food, clothing and shelter. For these reasons he has been criticising the Government, but in good faith. He challenges the order of detention, firstly on the basis that the grounds of detention communicated to him are vague indefinite and false and have been invented mala fide by the District Magistrate for the purpose of pleasing the Congress Members of the Provincial Legislative Assembly. He denies having made speeches and having incited the kisans to take law into their own hands and to use violence. Secondly he contends that the detention is illegal since the power to detain under Section 3 (1) (a), U.P. Maintenance of Public Order Act, was not validly delegated to the District Magistrate by to Governor.

3. So far as the plea of vagueness and indefiniteness is concerned there is absolutely no force in it. The full particulars have been given in the grounds. The date and all necessary particulars to enable the detenu to make an effective representation are there. If the order was legal, we cannot go into the question of fact on the basis of which the order was passed. We are not sitting in appeal against the order. We have to examine only its legality. Nor is there any force in the plea of mala fide. The applicant admits preaching against the policy of the Government. He only denies having incited the kisans to take law in their own hands and to use violence. Reading the grounds under Section 5 with the order under Section 3, it would appear that the District Magistrate was satisfied that the applicant was so inciting. We cannot question his satisfaction. The only point which requires consideration is whether or not the delegation has been validly made under Section 11 of the above Act. Section 11 provides:

The Provincial Government may, by order, direct that any power or duty, which is conferred or imposed on the Provincial Government under this Act shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority, not being an officer or authority subordinate to the Central Government.

In pursuance of this provision Notification No. A-3797-xxv/c.x. dated 1st August 1947 was issued by the Provincial Government in the' following terms:

In exercise of the powers conferred by Section 11, U.P. Maintenance of Public Order (Temporary) Act, 1947 (IV [4] of 1947), the Governor is hereby pleased to direct that the powers exercisable by him under Clause (a) of Sub-section (1) of Section 3 of the said Act shall also be exercisable by all District Magistrates within their respective districts. An order made under the said clause of the said sub-section by the District Magistrate shall, unless revoked earlier, remain in force for a period not proceeding six months from the date of such order, as prescribed in Section 4 of the said Act. By order R. Dayal Home Secretary to Government, U.P.

4. Learned Counsel for the applicant relies upon Sub-section (43a) of Section 3, General Clauses Act, 1897, which runs as follows:

(43a) 'Provincial Government,' as respects anything done or to be done after commencement of Part III of the Government of India Act, 1935, shall mean : (a) in a Governor's Province, the Governor....

5. By Section 4A, General Clauses Act, 1897, the definition of the term 'Provincial Government' has been made applicable to all Indian laws. The term 'Indian law' is defined in Sub-section (27a) of Section 3 as follows:

'Indian law' shall include any law, ordinance order, bye-law, rule or regulation passed or made at any time by any competent Legislature, authority, or person in British India.

It is clear that the U.P. Maintenance of Public Order (Temporary) Act, 194.7, is an Indian law.

6. It is argued that as the term 'Provincial Government' means the 'Governor' and the order of delegation passed under Section 11 is not signed by the Governor personally, it is an invalid delegation. I am unable to agree with this. Sub-section (2) of Section 59, Government of India Act, 1935, provides:

Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

Sub-section (3) of Section 59 empowers the Governor to make rules for the more convenient transaction of the business of the Provincial Government. Rules have been made accordingly and the Secretaries to the Government have been empowered to authenticate orders made by the Governor. The impugned order on the face of it was passed by the Governor. The only defect alleged in it is that the notice is signed by the Secretary and not by the Governor. When, in accordance with the rules made under Section 59, a Secretary can authenticate an order passed by the Governor, I can see no reason to question its validity on that ground. In fact according to Section 59 (2) the order cannot be called in question on the ground that it was not made or executed by the Governor. Section 11, U.P. Maintenance of Public Order (Temporary) Act, 1947, contemplates the issue of an 'order' for the purpose of delegation of powers.

7. Learned Counsel relies upon the circumstances that Ordinances are signed by the Governor herself, but an Ordinance is quite different from an order. Ordinances are made under Section 88, Government of India Act, 1935, while orders are made under Section 59.

8. Learned Counsel also contends that Section 59 applies only to executive and not to legislative orders. He argues that an order under Section 11, U.P. Maintenance of Public Order Act, is a legislative order. In this connection he relies upon the case of Blackpool Corporation v. Locker (1948) K.B. 349. That ruling is based upon the provisions of other laws and there was no provision before the Court in that case parallel to those contained in Section 59. The word 'order' used in Sub-section (2) of Section 59 is without any adjective and qualification. It refers not only to executive orders but also to orders which may be legislative in their nature. The fact that Section 59 occurs in chap. II the heading of which is 'The Provincial Executive' cannot restrict the word 'order' occurring in Sub-section (2) of Section 59 only to mere executive orders. It is a wall-established principle of interpretation that head-notes of sections and chapters cannot cut down the express meanings of the words occurring in the section. It is also a well-known practice that statutory rules, regulations and notifications are issued by the Government in this country not under the signature of Governor personally but under the signature of the Secretaries to the Government.

9. The important point to be noted is that the delegation under Section 11 of the Act is, according to its terms, to be made 'by order' and it has been so mate. Here I may refer to Moolchand and Ors. v. Bex, Misc. case No. 53 of 1948, decided on 12th January 1948, in which Wanchoo J. held that an order passed under Section 11 U.P. Maintenance of Public Order (Temporary) Act 1947, was an executive order. If it is an executive order then without doubt Sub-section (2) of Section 59, Government of India Act, 1935, applies to it and the fact that it was signed by the Secretary does not invalidate it. To sum up, the position is that an order, whether legislative or executive, can, in view of Section 59 (2), Government of India Act, 1935, be authenticated by the Secretary to the Government. The longstanding practice in this country of the issue of statutory rules under the signature of the Secretaries is well-known. The framers of the Government of India Act, 1935, must have known it. Had a departure from that practice been intended, there would have been a clear provision in it that orders of legislative character could not be authenticated by Secretaries to the Government. An order under Section 11, U.P. Maintenance of Public order (Temporary) Act, 1947, is however of executive nature as held in the case referred to above.

10. I hold that the delegation of powers under Section 8(1)(a) made to the District Magistrate by the Provincial Government in accordance 'with Section 11 of the Act is valid.

11. There is no force in the application and 1 dismiss it.


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