Skip to content


Sheo NaraIn Jafa Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1948All422
AppellantSheo NaraIn Jafa
RespondentRex
Cases ReferredGauri Nandan Upadhya v. Rex Reported
Excerpt:
- - it further appears that the very next day the applicant submitted a representation to the district magistrate, but this apparently failed to produce any effect. the argument is that the legislature by providing in section 3(2) of the act that the district magistrate within his jurisdiction could order the detention of a person for a period not exceeding fifteen days clearly expressed the intention that the district magistrate was not to detain a person longer than fifteen days. if, however, the provincial government, under the authority conferred upon it by section 11 of the act choose to authorise a district magistrate or district magistrates to exercise powers of detention for periods longer than fifteen days, the district magistrate, like any other officer who may be vested with..........being wrongfully detained in the district jail, gonda, under an order of detention, passed by the district magistrate of budaun, dated 5th february 1948. this application was received by this court by post. it is supported by an affidavit. it purports to have been verified by the superintendent, district jail, gonda. the applicant prayed that he might be allowed to argue the application personally as he is a lawyer of 33 years standing is date was fixed and notice of the date of hearing was given to the government advocate. a counter affidavit was filed by the learned government advocate. it is sworn to by harbans singh, head constable p.s. sarai nau, budaun. in it inter alia it is asserted that paragraph 2 of the affidavit filed by the applicant is a lie. in paragraph 2 of the counter.....
Judgment:
ORDER

Walli Ullah, J.

1. This is an application by Shiva Narain Jafa under Section 491, Criminal P.C. It is alleged by the applicant that he is being wrongfully detained in the District Jail, Gonda, under an order of detention, passed by the District Magistrate of Budaun, dated 5th February 1948. This application was received by this Court by post. It is supported by an affidavit. It purports to have been verified by the Superintendent, District Jail, Gonda. The applicant prayed that he might be allowed to argue the application personally as he is a lawyer of 33 years standing is date was fixed and notice of the date of hearing was given to the Government Advocate. A counter affidavit was filed by the learned Government Advocate. It is sworn to by Harbans Singh, head constable P.S. Sarai Nau, Budaun. In it inter alia it is asserted that paragraph 2 of the affidavit filed by the applicant is a lie. In paragraph 2 of the counter affidavit it is asserted that the applicant's communal activities disturbing the peace of Budaun are notorious. He has been inciting the Hindus to loot the Musalmans and kill them and in consequence some murders have occurred. In paragraph 3 it is further alleged that the applicant has founded a militant institution for conversion of all castes to Sikhism and has been inciting the converted (persons) to commit open violence on a section of people disturbing the peaceful conditions, disrupting the communal harmony and ultimately ending in murders.

2. At the date of hearing of this application Shiva Narain Jafa appeared in person and he was also represented by Mr. Prem Mohan Lal Verma, Advocate of this Court. The Government Advocate appeared for the Crown and he produced the original order of detention detaining the applicant for a period of six months passed on 5th February 1948, by the District Magistrate under Section 3(1)(a), U.P. Maintenance of Public Order (Temporary) Act, 1947. He has also filed the original order under Section 5 of the Act whereby the grounds and other particulars on which the order of detention is based were served upon the applicant on 6th February 1948.

3. Mr. Prem Mohan Lal for the applicant has raised various contentions challenging the validity of the order of detention. Shiva Narain Jafa, who is an advocate of a very long standing at the Bar, has also addressed me with a view to supplementing the arguments of his learned counsel. I have also heard the learned Government Advocate for the Crown.

4. It appears that the District Magistrate of Budaun passed the order of detention of the applicant on 5th February 1948 and during the night between the 6th and. 6th February 1948, the applicant was arrested at his own house at Budaun and taken to the District Jail early in the morning. On 6th February, a notice under Section 5 of the Act was served upon him in Jail. It further appears that the very next day the applicant submitted a representation to the District Magistrate, but this apparently failed to produce any effect. Thereafter he appears to have been transferred to Gonda where he is detained at present.

5. Learned Counsel for the applicant has contended that the delegation of authority by the Provincial Government under Section 11 of the Act was ultra vires inasmuch as by reason of this delegation the District Magistrate became armed with the power of detaining a person for a period longer than fifteen days. The argument is that the Legislature by providing in Section 3(2) of the Act that the District Magistrate within his jurisdiction could order the detention of a person for a period not exceeding fifteen days clearly expressed the intention that the District Magistrate was not to detain a person longer than fifteen days. This argument of the learned counsel, in my judgment, has no substance. It is true that the intention of the Legislature as expressed in Section 3(2), is that the District Magistrate, within his own district, may order the detention of a person for a period not exceeding fifteen days. This power is conferred upon the District Magistrate as such. This very Act provides in Section 11, for the delegation of powers and duties by the Provincial Government. If the Provincial Government in exercise of its powers under Section 11, authorise a District Magistrate to detain a person for six months, it cannot be seriously argued that the Legislature never intended that the District Magistrate, even under the delegated authority from the Provincial Government, could not order the detention of a person for a period longer than fifteen days. The position, to my mind, is quite simple. Every District Magistrate in the United Provinces, as such, possesses the power of detaining a person for a period not exceeding fifteen days. If, however, the Provincial Government, under the authority conferred upon it by Section 11 of the Act choose to authorise a District Magistrate or District Magistrates to exercise powers of detention for periods longer than fifteen days, the District Magistrate, like any other officer who may be vested with such powers, exercises the power of detention beyond fifteen days as a persona designata and not in his capacity as a District Magistrate as such. In other words, the District Magistrate after the delegation of authority by the Provincial Government under Section 11, has a dual capacity. As District Magistrate he has the power conferred upon him directly by the Legislature under Section 3 (2) of the Act, As the officer authorised by the Provincial Government under Section 11, the District Magistrate possesses the delegated authority of the Provincial Government to detain a person for a period of six months. In view of the provisions of Section 3(2) and Section 11, I do not see how it is possible to argue that the Legislature intended that the District Magistrate should not in any event be armed with powers of detention for a period longer than fifteen days.

6. Next it is argued by the learned Counsel for the applicant that to allow a District Magistrate to operate under the delegated authority from the Provincial Government would be tantamount to circumventing indirectly that is, authorising the District Magistrate to detain a person for more than 15 days. It is contended in effect that the expression 'any officer or authority,' in Section 11 of the Act must be interpreted so as to exclude the District Magistrate from its scope. It seems to me, however, that the expression 'any officer or authority' is general and to limit it to any particular class of officers or authority would be to restrict the scope of Section 11 unduly for which there is no justification whatsoever.

7. Next it has been contended that the Officer or authority to whom any power or duty of the Provincial Government may be delegated under Section 11 must not be an officer or authority subordinate to the Central Government. The section does undoubtedly make a provision to that effect. The question, however, is whether a District Magistrate in a province is an officer subordinate to the Central Government. The contention of the learned Counsel is that the District Magistrate is undoubtedly subordinate to the Provincial Government but the Provincial Government itself being subordinate to the Central Government, the District Magistrate must be deemed to be an officer subordinate to the Central Government. Further learned Counsel maintains that if the expression 'any officer or authority' in Section 11 were meant to include District Magistrates as well for purposes of Section 3 (1)(a) it should have been so provided expressly in Section 11. In my opinion, there is no substance in any of these contentions. The District Magistrate is an officer appointed by the Provincial Government under Section 10, Criminal P.C. Obviously, the appointment as well as the removal of a District Magistrate rests with the Provincial Government concerned. In this connection, learned Counsel has placed some reliance on the case in Afzlur Rahman v. Emperor . The question raised in the case, however, was whether certain police officers who could be dismissed by the Deputy Inspector General of Police could be said to be public servants who were not 'removable from office save by or with the sanction 'of the Provincial Government or some higher authority....' I do not find any principle laid down in this case which would be helpful in determining the question whether the District Magistrate in a province as such is or is not an officer subordinate to the Central Government. In view of the fact that the District Magistrate is an officer appointed by the Provincial Government under Section 10, Criminal P.C., it seems to me clear that he is an officer subordinate to the Provincial Government. Thamere fact that the Provincial Government itself is subordinate to the Central Government would not, to my mind, alter the position of the District Magistrate. His appointment and dismissal or removal rest entirely with the Provincial Government. Learned counsel has not been able to cite any authority in support of his proposition that simply because the Provincial Government to which a District Magistrate is subordinate is in a portion of subordination to the Central Government, the result is that the District Magistrate is himself an officer 'subordinate to the Central Government' within the meaning of that expression in Section 11 of the Act. I may add here that learned Counsel has, in this connection, invited my attention to Section 96B(2), Government of India Act, 1919, and the rules made thereunder for classification of officers by the Secretary of State. It seems to me, however, that in the first place, the present position has to be considered with reference to the Constitution Act of 1935 and not the earlier Government of India Act, 1919. In the second place, the mere fact that the District Magistrate of Budaun happens to belong to the Indian Civil Service makes no difference so far as his position as the District Magistrate is concerned. He assumes the position of a District Magistrate by reason of his appointment made by the Provincial Government under Section 10, Criminal P.C. A reference to the rules and authorities for the classification of Civil Services in India, whether Central or Provincial is, to my mind, beside the point.

8. Lastly, I may mention a point which was faintly urged by the learned Counsel for the applicant in the course of his arguments. It was argued that the extension of the U.P. Maintenance of Public Order (Temporary) Act, 1947, by means of a resolution to that effect passed by the two houses of the Legislature was not legal. The Act has, therefore, ceased to be in force and the detention of the applicants under Section 3 (1) of the Act is illegal. Following my judgment in Cri. Misc. case No. 222 of Gauri Nandan Upadhya v. Rex Reported in ('48) 35 A.I.R. 1948 All. 606, I am of opinion that the provisions of Sub-section (4) of Section 1 relating to the extension of the Act were intra vires the powers of the Provincial Legislature. In the present case, a resolution of both the houses of the Provincial-Legislature for extending the Act for a further period of one year commencing on 28-2-1948, has been passed and notification No. A. 1332 xxv-cx to that effect has appeared in the U.P. Government Gazette Extra-ordinary dated 17-3-1948. The resolution of both the houses of Legislature for extension of the Act having been passed the Act is still in force and the order of detention passed under Section 3(1)(a) of the Act has the sanction of law.

9. In the course of arguments by the learned counsel for the applicant a good deal of emphasis was laid on the allegations of fact made against the applicant and the counter charges made by the applicant against the district authorities of Budaun. All that need be said here is that there are serious allegations against the applicant and similarly there are serious counter allegations made by the applicant against the district authorities. It was, however, for the District Magistrate to exercise his discretion on the materials placed before him whether or not he was satisfied that it was necessary to pass the order of detention against the applicant. If he came to the conclusion that there were sufficient reasons and materials justifying an order of detention as has been repeatedly held by this Court, it is not for this Court to look into the question of sufficiency or otherwise of the materials on which the order of detention is based.

10. In the end, I am satisfied that the order of detention passed against the applicant under which he is being detained at present has complied with the requirements of the U.P. Maintenance of Public Order (Temporary) Act of 1947.

11. The result is that the application is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //