1. On 24th December 1948, the petitioner Latif Ahamad made an application, to 'this Court alleging that the five person named therein were his relations and that they had been arrested in Indore by the Assistant City Superintendent of Police that day, that the arrests and their detention in custody were illegal and they should, therefore, Under Section 491, Criminal P.C., be set at liberty. The detenus named in the petition had in fact been under detention under the Maintenance of Public Order Ordinance, V  of 1948, since September 1948, and had been ordered to be released by an order of this Court. They were released from custody on 24th December 1948, and were arrested immediately thereafter.
2. The petition was heard on 11th January 1943. The Public Prosecutor appearing for the State produced four documents but did not file any statement in writing explaining their use to meat the petitioner's case. The first document is an affidavit made by Mr. Gappoolal. Assistant Oity Superintendent of Police, Indore. In the affidavit the officer states that the five persons concerned had been arrested by him under orders of the Government transmitted on 24th December 1948. Of these Nazir Mohammad was arrested later, on 6th January 1919, as he was on 24th December 1948, undergoing a sentence of imprisonment. The affidavit is accompanied by a transcript dated 24th December 1948, of a wireless message purporting to be transmitted by the Inspector General of Police from Gwalior to the District Magistrate, Indore Oity, through the senior Deputy Inspector General of Police at Indore. The Inspector General of Police directed that the five persons should be released, rearrested and detained under the Maintenance of Public Order Ordinance till Slat January 1949. The District Magistrate was required to report compliance at once. The District Magistrate directed that copies of the-message should be communicated to the City Superintendent of Police and the Superintendent, Central Jail for compliance. The third document filed is the copy of an order no. 181-C, under the signature of the Chief Secretary to the Government of Maflhya Bharat dated Gwalior, 8th January 1949, transmitted by the District Magistrate, Indore, to the Public Prosecutor. The order rung thus:
Being satisfied that it was necessary to detain the following five persons, with a view to preventing them from doing any of prejudicial to public safety or maintenance of public order, the Government were pleased to order their detention Under Section 3 (1)(a), United State of Gwalior, Indore and ftlalwa (Madhya Bharat) Maintenance of Public Order Ordinance, Samvat 2005, from 24-12-1948 to 21-1-1949 ; (1) Nazit Mohammad b/o Gulam Mohammad, (2) Fazal Mohammad s/o Gulam Mohammad, (3) Bastair Mohammad b/o Gulam Mohammad, (i) Nabi Ahmad b/o J'oaal Mohammad, (5) Sbftti Ahmad a/o Fazal Mohammad.
Sd V. Vishwanathan,
The fourth document is an intimation dated 8th' January 1949, by the Assistant Secretary to the Government to the Legal Remembrancer at Indore that the grounds of detention had been furnished to the detenu through the Superintendent of Jail. This is not pertinent to the legality of the detention of the five persons.
3. These are all the facts on the basis of which the case was argued before the Court. It was urged by the learned Counsel for the petitioner that there was not in force any order made by the Government under 3. 3 (1), Maintenance of Public Order Ordinance, V  of 1948, directing that the five persons be detained and they were not, therefore, liable to be removed to and detained in Central Jail at Indore under sub.s. (5) of the section, A statement in writing was not made on behalf of the Government referring to any specific order made by the Government in pursuance of which the five persons were being detained in the Jail, The wireless communication of the Inspector General of Police to the District Magistrate, Indore City, directing the arrest and detention too obviously is not an order of the Government and it need not be examined further. It is surprising that an order should have been addressed by a Police Officer to a District Magistrate and that' the District Magistrate should have carried it out, A District Magistrate can only act in due course, of law, exercising his own discretion where the law vesta it in him. The order which calls few consideration is' the order dated 8th January 1919, appearing under the signature of the Chief Secretary to the Government set forth above. The Chief Secretary certified on 8th January 1919 that an order of detention in respect of these five persons had been made by the Government. He does not state on which date the order was made and it cannot be presumed that it was on 31th December 1918, when the five persona were arrested and kept under detention. The arrests on and detention since 24th December 1948 should be held to be illegal.
4. The next question is whether, in view of the authentication by the Chief Secretary to the Government, there was a valid order of the Government in existence on 8th January 1919, which would make the detention of these persons legal as from that date. The contention of the learned Counsel for the petitioner was that the order was an invalid one. The order is executive action which should have been expressed to be taken in the name of the Rajpramukh and not having been so expressed it was invalid. The contention is a sound one and should prevail, The covenant entered into by the rulers of the States of which the United State of Gwalior, Indore and Malwa is made up is the Constitution Act of the United State. It was published in the official gazette dated 30th October 1918, Article V of the Covenant reads as follows:
Article V. (1) There shall be a Counsel of Ministers to aid and advice the Rajpramukh in the exercise of his functions except those under Art. VII.
(2) The Ministers shall be chosen by, and shall hold office during the pleasure of, the Rajpramukh,
It corresponds to Section 50, Government of India Act, 1935. What then are the functions of the Rajpramukh? The limbs of a Stats are three in number, the executive, the legislature and the judiciary : see the preamble of the Covenant. Provision for the discharge of legislative functions is made in Art. x. For the discharge of executive functions provision is. made in Art. ix which reads as follows and corresponds in substance to Section 49, Government of India Act, 1935:
Article IX, 'Subject to the provisions of this Covenant and of the Constitution to be framed thereunder the executive authority of the United State shall be authorised by the Rajpramukh either directly or through officers subordinate to him; but the Rajpramukh may from time to time consult the Senior Vice-President, in important matters connected with the administration of the United State. Nothing in this article' shall prevent any competent legislature of the United State from conferring functions upon subordinate authorities, or be deemed to transfer to the Rajpramukh any functions conferred by any exisisting law on any Court, Judge, Officer or local or other authority in a Covenanting State.
This makes it abundantly clear that the constitution of the United State vests the executive authority of the State in the Rajpramukh which may be exercised by him directly or through officers subordinate to him. The executive authority is not to be exercised 'by' a subordinate officer but by the Rajpramukh 'through' a subordinate officer. The significance of it is that the authority is exercised by the Rajpramukh himself or 'through' an accredited agent but not by the subordinate officer in exercised of a delegated power. The responsibility of the action remains that of the Rajpramukh. The next constitutional provision to implement the implications of the provisions of Article IX is to be found in Section 7 of the Ordinance, entitled the Regulations of Government Ordinance made by the Rajpramukh and promulgated by him in the official gazette dated 3rd June 1948. It corresponds in substance to Section 69, Government of India Act 1935. It reads as follows:
Conduot of business of Madhya Bharat Government
(1) All executive action o the Government of Madhya. Bharat shall be expressed to be taken in the name of the Rajpramukh.
(2) Orders and other instruments made or executed in the name of the Rajpramukh shall be authenticated in such manner as may be specified in the rules to be made by the Rajpramukh and the validity of an order at Instrument which is so at Aentioated shall not be called in question on the groom that it is not an Order or Instrument made or executed by the Rajpramukh.
(3) The Rajpramukh shall make rules for the more convenient transaction, of the business of the Madhya Bharat Government, and for the allocation among Ministers of the said business.'
5. Under Art. IX of the Covenant the executive authority of the state is to be exercised by the Rajpramukh alone but he may exercise it himself or through an officer subordinate to him. Provision for the exercise of the executive authority through an officer subordinate to the Rajpramukh may be made by rules made by the Rajpramukh under Sub-section (3) of Section 7 of the Ordinance reproduced above. On the Rajpramukh is imposed the duty of making rules for the more convenient transaction of business of the Government and for the allocation among the ministers of the 'said' business. The words 'business' and 'said business' occurring in this Sub-section have reference to 'all executive action of the Government of Madhya Bharat in Sub-section (1) of the section. By whomsoever executive action is taken, be it by the Rajpramukh him. self or a minister to whom the doing of a specified executive act, e. g,, the power to order detention has been allocated by rules made under Sub-section (3), the action under Sub-section (1) has to be expressed to be taken in the name of the Rajpramukh. To use the words of their Lordships ,of the Privy Council in the case reported in Emperor v. Shib Nath A. I. R. (32) 1915 P.C. 156 at p. 162 : I. L. R. (1946) Kar. P. C. 371, the Rajpramukh remains responsible for the action of bis subordinates taken in his name. The subordinate officer or the minister is not exercising the executive authority of the State as vested in him by law. It is vested in the Rajpramukh who by rules made has declared that the executive authority in respect of specified act9 shall be exercised by him, through specified subordinate officers. And hence executive action of the Government of the State has to be expressed as taken in the name of the Rajpramukh. If an order purporting to be made under sub-b. (i) of Section 8, Maintenance of Public Order Ordinance is not made out in the name of the Rajpramukh it cannot be deemed to be made by the Government of the State. Persons can only be authorised by the Rajpramukh by made to take executive action in his name. When the act is done in the name of the Rajpramukh it becomes an act of the Government but not otherwise. An order made in the name of the Rajpramukh, is an order made by the Rajpramukh, see Sub-section (2) of Section 7. The Rajpramukh is, so far as the exercise of executive authority is concerned, the Government of the United State of Madhya Bharat.
6. There is one objection, however, which though not taken by the learned public prosecutor to the application of Section 7 of the Ordinance, has to be considered. The Ordinance purports to be made by the Rajpramukh in the exercise of the power vested in him by Article X of the Covenant and under it an Ordinance made by the Rajpramukh remains in force for not more than six months from its promulgation. The Ordinance was promulgated on 3rd June 1948, and was, therefore, not in force on 24th December 1948. Sub-section (4) of Section 1 of the Ordinance, however, provides that it shall remain in force until it is repealed by a competent legislature in the State. Thus there is a conflict between the two provisions. In the absence of arguments on the question at the bar, I do not propose to express an opinion on it. the present purpose, I will assume that the Ordinance was not operative on 24th December 1948. We are left with Art. IS of the Covenant. The legal position re-mains the same as explained above. It is the Rajpramukh alone who is empowered to exercise the executive authority of the State. When exercised by an officer subordinate to him it is still exercised by him 'through' another and, therefore, necessarily for and in his name. The necessary implication of Art. ix is there still. Its expression and implementation in Section 7 of the Ordinance disappears. The only material result of the Ordinance having ceased to have the force of law is that a duly authorised officer can no longer authenticate an order made by the Rajpramukh or an officer subordinate to him acting in his name. Subordinate officer can act for and in the name of the Rajpramukh only when so authorised and the fact of authorisation wilt have to be proved.
7. The fact that an order of detention under Sub-section (1) of Section 3 of the Maintenance of Public Order Ordinance made by His Highness the Rajpramukh or an officer subordinate to him acting for and in his name not having been proved, I hold that the detention in custody of the five persons named in the petition is illegal, I direct that they be set at liberty at once.
8. I agree.