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State Vs. Harishankar Chaturbhuj and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1953CriLJ41
AppellantState
RespondentHarishankar Chaturbhuj and ors.
Cases ReferredEmperor v. Sibnath Banerji
Excerpt:
- - 17. the order whereof the legality was challenged in that case was said to be bad in as much as it did not purport to be made by the governor-general-in-council nor was it expressed to be so made though it was signed by one of the secretaries to the government......the learned judge made the following observations in rejecting the argument advanced by the learned government advocate.in the case before me no order has been produced directing the subas to exercise the powers of the government as required in section 11. the notification published in the gazette is something different from an order or a direction to the subas; and is also not in substantial compliance with the requirements prescribed in section 11 of the maintenance of public order act. what is required is only an order or direction to the subas, not a notification to the public about delegation of powers.10. in that case the then suba of district gird gwalior was examined as a witness and he admitted that he did not receive any order or direction from the government under.....
Judgment:

Kaul, C.J.

1. This is an appeal preferred on behalf of the State against an order of acquittal passed by the learned City Magistrate, Lashkar.

2. The material facts are as follows:

On 9.8.1950 the District Magistrate Gird Gwalior made an order under Section 7(i) of the Maintenance of Public Order Act prohibiting all persons, among other things from taking out or participating in any procession, making speeches or shouting any political or party slogans within a certain area till 16.8.1950. This order was proclaimed by loud speakers and other means. On 16.8.1950, this order was renewed and extended to 31.8.1950. The three respondents Harishankar, Ravi Dutta and Bhikamehand were prosecuted for contravention of this order and they were alleged to have taken out a procession and held a meeting within the prohibited area on 26.8.1950. The learned Magistrate has not recorded a clear finding on the question whether the order referred to above was actually contravened by any or all of the respondents named above. He however took the view that the Suba Gird was not clothed with the legal authority to make the order with the contravention of which the respondents were charged. In doing so, he followed the decision of a learned Judge of this Court in - 'Dr. D.S. Parchure v. State' Cri Revn No. 43 of 1950. In view of the conclusion arrived at by him as to the legality of the order whereof a contravention was said to have been committed, he acquitted the respondents.

3. The sole question for consideration which therefore arises is whether the District Magistrate Gird Gwalior had the legal authority to make the order of 9.8.1950.

4. Under Section 7 of the Maintenance of Public Order Act (No. 7 of 1949) the Government may:

For the purpose of securing public safety, public order or supplies and services essential to the life of the community by general or special order prohibit, restrict or impose conditions upon the holding of processions, meetings or assemblies by any person, class of persons or organizations. (2) Any contravention of an order made under this section shall be punishable with imprisonment which may extend to one year or with fine or with both.

5. Section 11 of the Act runs as follows:

The Government may by order direct that any power or duty which is conferred or imposed on the Government, not being the power of imposing collective fines under Section 6, shall, in such circumstances and under such conditions, if any, as may be specified in that direction, be exercised or discharged by any officer or authority specifically mentioned in that direction.

6. The case for the prosecution was that by Notification No. 18 dated 22.4.1949 published in the Madhya Bharat Government Gazette dated 30.4.1949 the Government had by order directed that all the powers and duties conferred or imposed on it under the Maintenance of Public Order Act except the power of imposing collective fines under Section 6 and the powers under Section 10 of the Act shall be exercised by the Subas in their respective Districts. It was contended on behalf Of the respondents that the notification relied upon by the prosecution was not sufficient in Law to clothe the District Magistrate Gird Gwalior with the powers that the Government purported to delegate to him.

7. The notification in question reads as follows:

(Police Section).

NOTIFICATION.

No. 18, Indore dated the 22nd April 1949. In continuation of this office Notification No. 8, dated the 19tn January 1949, the Government have been further p.eased to direct that the powers of the District Magistrate under the United State of Gwalior, Indore and Malwa (Madhya Bharat) Maintenance of Public Order Act, Samvat 2005 (No. 7 of 1949), and the United State of Gwalior, Indore and Malwa (Madhya Bharat) Prohibition of Associations Dangerous to the Public Peace Act, Samvat 2005 (No. 19 of 1949), shall be exercised solely by the Subas in their respective districts. It is also notified for the public information that under Section 11 of the aforesaid Maintenance of Public Order Act the Government have also been pleased to delegate to the Subas for their respective Districts all powers and duties conferred or imposed on the Government under the said Act except the power of imposing collective fines under Section 6 and the powers under Section 10 of the Act.

(8) The same contention which was raised on behalf of the respondents was urged on behalf of Dr. Parchure in Dr. D.S. Parchure v. State Cri. Rev. No. 43 of 1950. That matter came up for consideration before a learned Judge of this Court and the contention put forward on behalf, of the accused was accepted. Thus, the question before us is whether the view of this notification taken by the learned Judge in Dr. Parchure's case is correct.

9. The learned Judge made the following observations in rejecting the argument advanced by the learned Government Advocate.

In the case before me no order has been produced directing the Subas to exercise the powers of the Government as required in Section 11. The notification published in the Gazette is something different from an order or a direction to the Subas; and is also not in substantial compliance with the requirements prescribed in Section 11 of the Maintenance of Public Order Act. What is required is only an order or direction to the Subas, not a notification to the Public about delegation of powers.

10. In that case the then Suba of District Gird Gwalior was examined as a witness and he admitted that he did not receive any order or direction from the Government under Section 11 of the said Act. He further added that the notification published in the Gazette of 30.4.1949 was the only thing which he had in his mind when he passed the order whereof the legality was challenged.

11. The position in the present case is practically the same. The District Magistrate who made and got proclaimed by the loud speakers and other means the order of 9.8.1950 was examined as a witness in this case. But neither the prosecution nor the defence asked him whether apart from the Notification published in the Gazette of 30.4.1949 he had received any order from the Government investing him with the powers under Section 11 of the Maintenance of Public Order Act.

12. I will therefore consider whether the notification of 30.4.1949 was sufficient in law to clothe the Suba Gird Gwalior with the authority to make the order of 9.8.1950. A reference to Section 11 which has been reproduced earlier, will show that all that is required is that the Government should by order direct that the powers conferred upon it by the Act shall be exercised or discharged by any officer or authority specifically mentioned in that direction. The expressions 'order' and 'direction' are not terms of art and have no technical meaning. They are used in Section 11 in the same sense in which they are used in common parlance. An order is the same thing as a mandate or command and a direction according to Oxford Dictionary is 'an Instruction what to do', 'an order'. It will thus be seen that these words may at times be used as synonymous. The word 'order' brings forth the relation of the person or authority who issues the instructions to the person to whom these are issued more pointedly than the word direction. An order is generally issued by a superior to a subordinate.

The word delegate used in the notification has also no technical meaning. According to Oxford Dictionary it means 'commit authority etc. to'. The Maintenance of Public Order Act does not specify any particular form in which the order referred to in Section 11 is to be made. Therefore, in passing an order such as is contemplated by Section 11 the Government was free to choose its own form and to couch it in any words it considered proper. Nor can I find anything in Section 11 to support a contention which was put forward by the learned Counsel for the respondents that the order contemplated by that Section must be specifically directed to the person who was to exercise the powers mentioned in the section. The opening words of the Section are 'the Government may by order direct'. It does not say 'the Government may by order direct the officer or authority who is to exercise the powers'. It will be sufficient to meet the requirements of the section If the Government indicate with sufficient clearness, so as to leave no room for doubt on the subject, that the powers conferred upon it by the Act shall be exercised by some authority specified by it in the said direction. This would be no more than commitment or delegation of the powers conferred upon it by the Act to some other person and the word delegate used in the Government notification appears to me to be a very appropriate expression to indicate the Government decision, see - Emperor v. Sibnath Banerji A.I.R. 1945 P.C. 156, observations on page 162 column 2.

13. The learned Judge responsible for the decision in - Dr. Parchure's case AIR 1951 Madh-B. 108 referred to the following observation made by him in another case. The - Madhya Bharat Government v. Shri Dube 1949 Madh-B.L.R. 258:

It may be mentioned here that the process of making an order is something different from the expression of it. - J.K. Gas Plant . v. Emperor A.I.R. 1947 F.C. 38. The two are not synonymous. Expression of an order is not sine qua non of making an order. It is, in my opinion, only a record that the order has actually been passed and only connotes the fact of making the public in this way aware of the existence of the order. Therefore, too much importance cannot be given to mere forms of expression if the order is actually passed by the authority empowered by a Statute. Forms of expression, however, do assume importance when the original order is not produced and when the order is required to be authenticated, or, is published in the Gazette. Then it becomes necessary that expression of an order should conform in substance to the statutory requirements.

14. With the greatest respect I am unable to subscribe to the proposition that the process of making an order is 'always' something different from the expression of it. Reference is made by the learned Judge for this dictum to the observations of the learned Chief Justice of the Federal Court in - J.K. Gas Plant . v. Emperor AIR 1917 F.C. 38. Possibly the learned Judge had in mind the following observations of Spens C.J. at page 42 of the report:

It appears to imply that the process of making an order precedes, or is something different from the expression of it.

15. I am clear that the learned Chief Justice did not intend to lay down either a legal proposition or to make a statement of fact which may be universally true. It is easy to conceive of many cases where the making of an order is also the expression thereof and the two processes are simultaneous. This is what is done every day by Judges in making orders in the judicial business transacted by them. The learned Chief Justice made this observation while commenting upon Section 40(1) of Schedule IX of the Government of India Act which ran as follows:

All orders and other proceedings of the Govern-nor General-in-Council shall be expressed to be made by the Governor-General in Council, and shall be signed by a Secretary to the Government of India, or otherwise the Governor-General-in-Council may direct, and when so signed, shall not be called into question in any legal proceeding on the ground that they were not duly made by the Governor-General-in-Council.

16. It was contended with reference to that Section that it was imperative that all orders and proceedings made by the Governor-General-in Council should fulfil three requirements:

1. That they should be made by the Governor-General-in-Council.

2. That they should be expressed to be so made; and

3. That they should be signed by the proper person therein mentioned.

17. The order whereof the legality was challenged in that case was said to be bad in as much as it did not purport to be made by the Governor-General-in-Council nor was it expressed to be so made though it was signed by one of the Secretaries to the Government. The learned Chief Justice observed:

In the first place, it must be noticed, dealing with Sub-section (1) of Section 40 alone, that the provision that all orders of the Governor-General-in-Council are to be expressed to be made by the Governor-Council-in-Council does not define how orders are to be made but only how they are to be expressed. It appears to imply that the process of making an order precedes, or is something different from, the expression of it. It does not say that orders can only be made by 'being', or 'if', expressed to be made by the Governor-General-in-Council etc.

18. In my opinion it is an error to read into this any general proposition of law that the process of making an order is always something different from the expression of it. I do not think that it is necessary for me to stress this point further as it is our every day experience that in most cases an order is made and expressed by one single process.

19. Having thus cleared the ground I will now consider whether the Notification No. 18 dated 22.4.1949 met the requirements of Section 11 and was sufficient in law to clothe the Subas of different districts in Madhya Bharat with the power to make the order under Section 7(1) of the Maintenance of Public Order Act in appropriate circumstances. The relevant portion of the Notification has already been reproduced earlier in this judgment. It is true that it is not specifically directed to any individual. It purports to be a notification published In the Gazette for information of the public. But that should in my opinion be no reason to hold that it does not fulfil the requirements of Section 11. As already stated all that Section 11 requires is:

1. That the Government should by order direct;

2. That any power or duty which is conferred or imposed on it shall be exercised or discharged by any officer or authority; and

3. that such authority or officer should specifically be mentioned in that direction.

20. We know that the Act does not insist upon the order referred to in Section 11 being made or expressed in any particular form. Nor does the Act prescribe any particular language in which the order must be couched. Reference to Section 11 is specifically made in the Notification published in the Gazette. The marginal note of Section 11 'delegation of powers and duties of Government' is also noteworthy. The Notification also specifically uses the 'delegate' and says that the Government hare also been pleased to delegate to the Subas for their respective districts all powers and duties etc. etc. It cannot be said that this is not an order containing a direction that certain powers of the Government shall be exercised by the Subas in their respective districts. The words 'the Government have also been pleased to delegate to the Subas for their respective districts all powers and duties conferred or imposed upon the Government under the said Act' may without straining the language be paraphrased as follows:

The Government have been pleased to direct that all powers and duties conferred or imposed on it under the Maintenance of Public Order Act are committed to (that is these powers shall be exercised by) the Subas in their respective districts.

21. Thus it is clear that the person or authority to whom the power is delegated is specifically mentioned in the notification. The notification further mentions what powers are delegated to the Subas. This is made abundantly clear by specific reference to Section 11 in the Notification. Two of the throe requirements of the section mentioned above are thus met. The third requirement is that it should be an order. Can it be said that because the extract reproduced from the Gazette of 30.4.1949 does not specifically mention the word 'order' but uses the word 'notification.' it is not a command or direction by the Government which it was the duty of the Subas and all other persons concerned to follow? Such an objection if raised would for obvious reasons be unsustainable.

22. If the Government of Madhya Bharat had published the following in the Gazette:

The Government have been pleased to delegate to the Subas in. their respective districts all powers and duties conferred or imposed upon, us under the said Act except the powers of imposing collective fines under Section 6 and the powers under Section 10 of the Act.

I am sure it could not be said that this was not an order by the Government which fulfilled all the requirements of Section 11 of the Maintenance of Public Order Act. Is it then the addition of the words 'It is also notified for the public information' which changed its character? I see no reason why this should be so. As already shown by me Section 11 does not require that the order contemplated by it should be addressed or directed to any one in particular. This one is addressed to the public in general and because it is so addressed can be no reason to change its character & to make it any the less a direction such as is required by Section 11.

23. It is true that a cursory reading of the extract reproduced from the Gazette may give one the impression that the Government have already passed a separate order under Section 11 and a notification is published in the Gazette informing the public that such an order has been passed. But there is nothing in this extract which would justify us to reject the Deputy Government Advocate's contention that the extract itself should be taken as the order, to which are added a few words informing the public of the same. That it is called a notification and not an order does not in my opinion detract from its value as a command or direction pf the Government which it is the duty of all concerned to comply with.

24. What I have said so far is sufficient to lead to the conclusion that the present appeal must be allowed. Assuming however that the extract reproduced from the Gazette is only a notification (as distinct from the order whereof the existence is necessarily implied in the words 'have been pleased to delegate'). It contains a recital that the Government have been pleased to delegate the powers conferred upon them under the Act to the Subas in their respective districts in the State. Still as observed by the Chief Justice of the Federal Court in - Emperor v. Sibnath Banerji AIR 1943 P.C. 75.

In the normal case the existence of such a recital in a duly authenticated notification will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The-presence of the recital in the notification will place a difficult burden on the accused to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.

25. The above quoted passage was approved by Lord Thankerton in - Emperor v. Sibnath Banerji AIR 1945 P.C. 156 at p. 161.

26. A presumption arises that judicial and official acts have been rightly and regularly done. It is no answer to this argument that the Suba who was examined in this case as a witness did not specifically state that such an order as contemplated toy Section 11 was separately passed. The fact that the Suba was not aware of it cannot displace the presumption which arises in favour of the existence of such an order under Section 114 of the Evidence Act. The presumption is not displaced merely because the accused chose to question the existence of the order.

27. I may state that Mr. Shiv Dayal, Deputy Government Advocate, while maintaining the right of the Government to claim privilege with regard to the proceedings of the Cabinet, offered to show us if we so desired, material which would prove the existence of the order on the basis of which the Notification of 30.4.1949 was published in the Gazette. I will content to base my decision on the grounds already mentioned irrespective of any material which is not on the record.

28. I am for the reasons given above of the opinion that the view taken in - Dr. Parchure's case Cr. Revn. No. 43 of 1950 (Madh-B.) is not correct.

29. The appeal is allowed. The order of acquittal passed by the learned Magistrate is set aside and the case is remanded to the trial Court for disposal in accordance with the law.

30. Shinde J:

I agree.


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