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Pyare Lal Sharma Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All342
AppellantPyare Lal Sharma
RespondentEmperor
Excerpt:
.....power of detention. the provincial government has been given the power, under section 3(1)(a), to detain a person, but that power is to be exercised by the provincial government subject to its being satisfied, for various reasons, that it is necessary to detain the person. when this power of the provincial government under section 3(1)(a) is delegated to the district magistrate, it necessarily follows that the conditions under which the provincial government exercises that power, namely, after being satisfied that it was necessary to detain a person, would also apply to the exercise of that power by the district magistrate. sub-section (2) does not contain the words 'if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the..........the district of etah under section 491, criminal p.c. it appears that an order was passed by the district magistrate of etah on 28-11-1947, under section 3, sub-section (1)(a), u.p. maintenance of public order (temporary) act (iv of 1947) for the detention of the applicant for a period of six months. in pursuance of this order, the applicant was arrested on 8-12-1947. at the time of his arrest, the reasons for his detention under section 5 of the act were communicated to him. it is clear from the original documents produced on behalf of the crown that the provisions of the act were complied with. it was argued on behalf of the applicant that as the district magistrate had apparently signed the typed forms which are kept prepared, it shows that he did not apply his mind to the case......
Judgment:
ORDER

Wanchoo, J.

1. This is an application by Pandit Pyare Lal Sharma, a practising Mukhtar at Aliganj in the district of Etah under Section 491, Criminal P.C. It appears that an order was passed by the District Magistrate of Etah on 28-11-1947, under Section 3, Sub-Section (1)(a), U.P. Maintenance of Public Order (Temporary) Act (iv of 1947) for the detention of the applicant for a period of six months. In pursuance of this order, the applicant was arrested on 8-12-1947. At the time of his arrest, the reasons for his detention under Section 5 of the Act were communicated to him. It is clear from the original documents produced on behalf of the Crown that the provisions of the Act were complied with. It was argued on behalf of the applicant that as the District Magistrate had apparently signed the typed forms which are kept prepared, it shows that he did not apply his mind to the case. This argument cannot possibility be accepted. The fact that typed forms are kept prepared and are used whenever necessity arises is no ground for holding that the District Magistrate who signed the order did not consider the matter before passing the order of detention.

2. The main contention, however, on behalf of the applicant is two-fold. It has been urged that the Provincial Government may delegate to the District Magistrate the powers or the duties which are conferred on it by this Act, but it could not delegate the discretion of the Provincial Government. It has further been urged that it was not open to the Provincial Government to extend the period for which the District Magistrate may detain a person from fifteen days to six months. In this connection, the relevant portions of Sections 8, 4 and 11 of the Act may be set out. Section 3 provides as follows:

(1) The Provincial Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony it is necessary so to do, may make an order:

(a) directing that he be detained.

(2) The District Magistrate may, within his jurisdiction, exercise the power conferred by Clause (a) of Sub-section (1) and an order so made by him shall be valid for a period not exceeding fifteen days.

Section 4 reads as follows:

An order made under Section 3 by the Provincial Government shall, unless revoked earlier, remain in force for a period of six months from the date of such order:

Provided that any such revocation shall not prevent the making under Section 3 of a fresh order, to the same effect.

Section 11 reads as under:

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.

3. I may also set out the Notification of the Provincial Government delegating the powers to the District Magistrate. It runs as follows:

In exercise of the powers conferred by Section 11, U.P. Maintenance of Public Order (Temporary) Act, 1947 (4 [IV] 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 exceeding six months from the date of such order, as prescribed in Section 4 of the said Act.

4. The argument, on behalf of the applicant, is that the Provincial Government may delegate the power conferred on it under Section 3(1)(a) of the Act, but it cannot delegate its function of being satisfied with respect to any person before it exercises the power of detention. I must say at once that I have not been able to appreciate this argument. Nor it is possible to see how the power that is given under Section 3 can be separated from the discretion which it is necessary to exercise before that power can be used. The Provincial Government has been given the power, under Section 3(1)(a), to detain a person, but that power is to be exercised by the Provincial Government subject to its being satisfied, for various reasons, that it is necessary to detain the person. When this power of the Provincial Government under Section 3(1)(a) is delegated to the District Magistrate, it necessarily follows that the conditions under which the Provincial Government exercises that power, namely, after being satisfied that it was necessary to detain a person, would also apply to the exercise of that power by the District Magistrate. The power and the discretion to be used in exercising that power cannot, in my opinion, be separated at all and whoever has the power to detain must also have the discretion to consider whether the detention is necessary. To say that Section 11 of the Act merely delegated the power, without the discretion to determine whether that power should be exercised would be to make this section as to delegation entirely meaningless. Besides, the satisfaction provided for in Section 8 makes it incumbent that the detention should not be ordered arbitrarily. The Provincial Government, therefore, could not pass an arbitrary order under Section 3(1)(a). When, therefore, the power to pass an order under that section was delegated by the Provincial Government to the District Magistrate the same restriction, namely, that the District Magistrate could not pass an arbitrary order applied to the District Magistrate and he was to satisfy himself before passing an order that it was necessary for certain reasons to do so. I am, therefore, of opinion that it is open to the Provincial Government to delegate its power under Section 8(1) of the Act to the District Magistrate and when it did so under Section 11, the discretion that was necessary to be exercised before the power could be exercised, ipso facto went to the District Magistrate, as otherwise there would be no meaning in the delegation. I am also of 1 the opinion that the discretion to exercise the power could not be separated from the power ' and the conferment of the power on the District ' Magistrate necessarily implied that the District Magistrate should consider whether it would be necessary for reasons mentioned in Section 8(1) to detain a person before he passed an order under that section. The order, therefore of the District Magistrate, in this ease, cannot be challenged on the ground that the District Magistrate had no discretion to consider whether the applicant should be detained. As a matter of fact, Sub-section (2) of Section 3 confers the power of detention on the District Magistrate also, subject to this limitation that the period of detention was not to exceed fifteen days. Sub-section (2) does not contain the words 'if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony it is necessary so to do.' But it is obvious that the District Magistrate could not pass an order under Sub-section (2) of Section 3 without being satisfied in the manner mentioned above. These words must obviously have been implied in Sub-section (2) also even though they were not actually used. Similarly, when the power is delegated, the discretion to use that power must necessarily go with it and there is no necessity of a separate conferment of the right to use the discretion.

5. The next point that has been urged is that it is not open to the Provincial Government to extend the period for which the District Magistrate can detain a person from a maximum of fifteen days to any, other period. This argument also cannot, in my opinion be accepted. Section 3(1)(a) gives the power to the Provincial Government to detain a person under certain conditions. It does not mention the period for which the Provincial Government can detain that person and if there was no Section 4 of the Act the Provincial Government could detain a person indefinitely. Section & defines the period for which the Provincial Government can exercise its power under Section 3(1)(a) and limits it to six months. Therefore, Section 8(1) and Section 4 have to be read together as a complete whole giving the power to the Provincial Government and the duration for which it can be exercised. Now under Section 11, the power of the Provincial Government under Section 3(1) was delegated to the District Magistrate. As I have said already, if Section 4 did not exist, the Provincial Government would have a right to detain a person indefinitely. When, therefore, the Provincial Government was dele-1 gating its power to the District Magistrate under, Section 3(1)(a), the restriction of Section 4 which limited the Provincial Government's' power to six months was bound to apply to the powers of the District Magistrate, for the District Magistrate could not have more powers than the Provincial Government. Further, Section 11 itself provides that the Provincial Government when delegating the power may specify the circumstances and the conditions, if any, under which the power would be exercised by the District Magistrate. It was open, under these words, for the Provincial Government to limit the District Magistrate's power to less than six months. But, in any case, when the Provincial Government delegated its power to detention under Section 3(1)(a), the limitation of that power prescribed by Section 4 would apply to the District Magistrate also, if the Provincial Government had not put down any further limitation in the notification under Section 11. In this particular case, the notification which I have quoted above limits the power of the District Magistrate for detention to six months i.e., makes it co-extensive with the provisions of Section 4. I am, therefore, of opinion that when the Provincial Government delegated its power under Section 3(1)(a) to the District Magistrate, the limits of six months which was provided under Section 4 automatically applied to this power which was conferred on the District Magistrate. The Provincial Government could have reduced the limit to less than six months, but as it did not do so in this particular case, the limits of six months provided by Section 4 would apply to the order of the District Magistrate also, a fact which has been made further dear in the notification in question. The District Magistrate, therefore, has the power, under the delegation, to detain a person for a' maximum period of six months.

6. As there is no other defect in the orders, passed under Act No. 4 [IV] of 1947 in relation to the applicants, the application is hereby dismissed.


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