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Dr. D.S. Parchure Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1951CriLJ670
AppellantDr. D.S. Parchure
RespondentThe State
Cases ReferredBombay v. Ahmedbhai Umarbhai
Excerpt:
- - who sentenced him to six months simple imprisionment & recommended him a special class. it is now very well settled that marginal note to the section of an act cannot be referred to for the purpose of construing the act. the wording of the section clearly implies that the govt. the order was clearly illegal & contravention of any illegal order cannot be held to be offence......made then the suba could not have passed an order asking dr. parchure not to enter the limits of dist, gird.9. on behalf of the state, a notfn. no. 18, indore dated 22-4-1949 published in the government gazette of madhya bharat 30-1-1949 is placed before me to show that an order was made by the govt. investing the dist. mag. with the powers conferred over the govt. in this notification so far as it is relevant for our purpose the following extract is all that should be considered:it is also notified for public information that under section 11, of the aforesaid maintenance of public order act, the govt have also been pleased to delegate to the subas for their respective dist. all powers & duties a conferred or imposed on the govt. under the said act except the power of imposing.....
Judgment:
ORDER

Chaturvedi, J.

1. Two revision petns, one on behalf of Dr. D. S. Parchure No. 43 of 1950, & another, on behalf of the State No. 52 of 1950 have come to this Ct. against an order of the learned Ses. J. dated 7-3-1950.

2. Briefly the facts are that on 29-10-1949 the Dist. Mag. Gwalior passed an order prohibiting Dr. Parchure to be within the limits of Gwalior District until further order. The order waft served on Dr. Parchure on 30-10-1949 at Dhar under Section 3 (1)(b), Madhya Bharat Maintenance of Public Order Act VII [7] of 1949. On 4-12-49, Dr. Parchure applied to the Dist. Mag. that he desired to enter the District of Gird & he should be permitted. He did not receive any reply & on 7 13 49 Dr. Parchure entered the District Gird, Gwalior at Panihar within the limits of District Gird. Immediately he was put under arrest & was prosecuted under Section 3 Sub-clause 7, Maintenance of Public Order Act. He was convicted by the Addl. Dist. Mag. who sentenced him to six months simple imprisionment & recommended him a special class. Against this order Dr. Parchure preferred an appeal to Seas. J. Gwalior. The Ses. Ct. allowed the appeal & reduced the sentence of imprisonment to one already undergone. He also ordered his removal to a place outside the Dist. of Gird.

3. Against this order a revision has been preferred by the Govt. praying for enhancement of the sentence. Dr. Parchure has preferred a revision raising several law points & contending that the order of conviction was illegal, Both agree that the order of the learned Sess. J. for removal of Dr. Parchure outside the limits of Gwalior district is wrong, I agree that this part of the order is erroneous & should be set aside.

4. Learned counsel for Dr. Parchure contends that if a person contravenes an order made under the provision of Section 3 then the Police cannot prosecute him but under Sub-clause (4) they should remove him from such area or place. In my opinion, this contention is without substance. Powers of the Police in Sub-sections (4) & (7) are coextensive. The Police is authorised to remove any person from a prohibited area or place. At the same time, he can be prosecuted under Sub-clause (7) & he shall be punishable with imprisonment to a term which may extend to one year or with fine or with both etc The prosecution was, therefore, not improper.

5. The next contention of Mr. Inamdar is rather important. Mr. Inamdar contends that the Suba Gird had no power to pass an order asking Dr. Parchure not to enter the Dist. of Gird. According to him it is the Govt.'s power. I think he is right that it is primarily the Madhya Bharat Govt. that is empowered to make an order under that section. Any other officer or authority exercising power under that rule has to derive his power from the Madhya Bharat Govt.'s order made under Section 11. Maintenance of Public Order Act that is the sole channel provided by that Act for the delegation of the Madhya Bharat Govt's power to any officer or authority subordinate to it.

6. It was observed by Lopes L.J. in The Queen v. County Court Judge of Essex and Clarke (1887) 18 Q.B.D. 704 at p. 708 that in the Base of an Act which creates a new jurisdiction, new procedure, new forms & new remedies, the procedure, forms & remedies there prescribed must be followed.

7. Now Section 11, Madhya Bharat Maintenance of Public Order Act is in the following words:

The Govt. may by order direct that any power or Delegation of power duty which is conferred or ers & duties of Govt. imposed on the Govt. not being the power of Imposing collective fines under Section 6, shall, in such circumstances & under such conditions, it any as may be specified in that direction, be exercised or discharged by an officer or authority specifically mentioned in that direction.

8. Of course the marginal note refers to 'Delegation of powers & duties of Govt.' But after the Privy Council decision in Balraj Kunwar v. Jagtpal Singh, 26 ALL. 393 : 31 I. A. 132 P.C. it is now very well settled that marginal note to the section of an Act cannot be referred to for the purpose of construing the Act. This view has recently been followed by the SC. in Commr. of Income tax Bombay v. Ahmedbhai Umarbhai & Co. : [1950]181ITR472(SC) . I would, therefore, eliminate the marginal note from consideration. Apart from the marginal note if we have a glance on the provision of Section 11 it will be evident that there is no reference to the words 'Delegation of powers & duties' within the section. The wording of the section clearly implies that the Govt. will make an order directing officers mentioned in that direction to exercise the powers & discharge the duties conferred or imposed on the Govt. The question is whether any such order was made or not If no such order was made then the Suba could not have passed an order asking Dr. Parchure not to enter the limits of Dist, Gird.

9. On behalf of the State, a Notfn. No. 18, Indore dated 22-4-1949 published in the Government Gazette of Madhya Bharat 30-1-1949 is placed before me to show that an order was made by the Govt. investing the Dist. Mag. with the powers conferred over the Govt. In this Notification so far as it is relevant for our purpose the following extract is all that should be considered:

It is also notified for public information that under Section 11, of the aforesaid Maintenance of Public Order Act, the Govt have also been pleased to delegate to the Subas for their respective Dist. all powers & duties a conferred or imposed on the Govt. under the said Act except the power of imposing collective tinea under Section 6 & the powers under Section 10 of the Act.

10. From the above notification, it becomes quite dear that the public was informed that Subas will exercise powers conferred on the Govt. But it was not made clear from what date the Subas will exercise this power. A notification for the information of the public is neither an order nor a direction to the Subas. It does not neceesarily imply that the Subas have been, by order, directed to exercise the powers on behalf of the Govt. A notification for the information of the public mentioning the fact of delegation of powers of the Govt. to the Subhas contempletes that Govt. will pass separately an order to the Subas directing them to exercise the powers stated in the notification to have been delegated to them. Till such an order has been made, the Subhas cannot exercise the powers of the Govt. delegated to them by the Govt.

11. It has several times been made dear that expression of an order made should conform in substance to the requirements laid down in a Statute. In this connection I may reproduce para 10 from my judgment published in 1949 M. L. R. 258 at p. 279:

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. (34) 1947 F. C. 38 : 48 Cr. LJ. 886. 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 & 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 & when the order in 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.

12. In the case before me no order has been produced directing the Subas to exercise the power of the Govt. as required in Section 11. The Notification published in the Gazette is something different from an order or a direction to the Subas & is also not in substantial compliance with the requirements prescribed in Section 11, 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. I could have presumed that official acts are regularly performed & that the Subas Gird must have passed an order prohibiting Dr. Parchure from entering the Dist. Gird under some order or direction of the Govt. passed under Section 11, Maintenance of Public Order Act But my difficulty is increased by the fact that Mr. Parab, the then Subba Dist. Gird was produced in the trial Ct. as a prosecution witness & therein be candidly admitted that he did not receive any order or direction from the Govt. under Section 11 of the said Act. The notification published in the Gazette of 30.4.1949 was the only thing that was in his mind when ho passed the above mentioned order.

13. I have already held that the Notification contemplates that an order will be passed directing the Subas to exercise the powers of the Govt. & till such an order has not been made by the Govt. the Subas cannot exercise powers delegated to them.

14. In the view I take the Subha of Gird had no authority to ask Dr. Parchure not to enter the limits of Dist. Gird. The order was clearly illegal & contravention of any illegal order cannot be held to be offence.

15. Mr. Inamdar has raised several other law points in this revision which are not without substance but as his revision succeeds on this point I need not discuss other points.

16. I, therefore, allow the revision of Dr. Parchare & setting aside his conviction sentence & the order passed by the learned Ses. J. I acquit him. The petn of the Govt. is hereby dismissed.


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