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Nirakar Barik and ors. Vs. Superintendent, Sambalpur Jail - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 155 of 1952
Judge
Reported inAIR1953Ori336; 19(1953)CLT351
ActsOrissa Security Prisoners (Conditions of Detention) Order, 1950; Preventive Detention Act - Sections 4
AppellantNirakar Barik and ors.
RespondentSuperintendent, Sambalpur Jail
Appellant AdvocateV. Pasayat, Adv.
Respondent AdvocateAsst. Govt. Adv.
DispositionRevision allowed
Cases ReferredDebi Prasad v. Emperor
Excerpt:
.....to communicate the provisions of the order to the persons affected by it and until such communication is made there can be no question of prosecuting them for contravention of any of its provisions......of sambalpur. 2. the undisputed facts are that the petitioners at all material times were under detention in sambalpur jail having been detained under the provisions of the preventive detention act, 1950 (act 4 of 1950). they submitted some representations to the government for redress of certain alkged grievances of theirs on 2-7-50 and when these grievances were not redressed they started hunger-strike on 4-7-50 and continued to be on such hunger-strike till 7-8-50. the superintendent of jail then stopped their interviews and subsequently filed a complaint before the sub-divisional magistrate of sambalpur for their prosecution for contravention of clause 39(2) of the said order as he thought that he could not adequately punish them for the offence. 3. the main point urged by mr......
Judgment:

Narasimham, J.

1. This revision petition is against, the appellate judgment of the Sessions Judge of Sambalpur maintaining the conviction of the petitioners for contravention of Clauses 37(9) and 39(2) of the Grissa Security Prisoners (Conditions of Detention) Order, 1950. and the sentence of fine of Rs. 100/- each passed by the Subdivi-sional Magistrate of Sambalpur.

2. The undisputed facts are that the petitioners at all material times were under detention in Sambalpur Jail having been detained under the provisions of the Preventive Detention Act, 1950 (Act 4 of 1950). They submitted some representations to the Government for redress of certain alkged grievances of theirs on 2-7-50 and when these grievances were not redressed they started hunger-strike on 4-7-50 and continued to be on such hunger-strike till 7-8-50. The Superintendent of Jail then stopped their interviews and subsequently filed a complaint before the Sub-divisional Magistrate of Sambalpur for their prosecution for contravention of Clause 39(2) of the said Order as he thought that he could not adequately punish them for the offence.

3. The main point urged by Mr. Pasayat on behalf of the petitioner is that the Orissa Security Prisoners (Conditions of Detention) Order, 1950, was neither published in the Gazette nor communicated to the petitioners and that consequentlv they could not be prosecuted for contravention of any of the provisions of the Order. The said Order was passed by the Provincial Government in exercise of powers conferred on them by Clause (a) of Section 4 of the Preventive Detention Act which is as follows :

'4. Every person in respect of whom a detention order has been made shall be liable--

(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify;'

The parent Act does not lay down any method of publication of an order mace under Section 4 (a) of that Act. From the printed copy of the Order produced before us it appears to be of a confidential nature meant for the guidance of the Superintendents of Jails. It was conceded by the Assistant Government Advocate that the said Order was not published in the Gazette. There is also no evidence in the case to show that the provisions of the Order were explained to the detenus while they were in Jail.

The general maxim that every one is presumed to know law cannot apply with full force in respect of subsidiary legislation as was pointed out in -- 'Johnson v. Sargant & Sons', (1918) 1 KB 101 (A), which has been subsequently followed in several decisions in India (see -- 'L. M. Wakhare v. Emperor', AIR 1945 Nag 159 (B) and -- 'Debi Prasad v. Emperor', AIR 1947 All 191 (C)). Doubtless if the Order had been published in the manner required by law the presumption that every member of the public is presumed to know the said Order may apply and contravention of any of the provisions of the Order may result in successful prosecution. But where, as in this case, the parent Act does not lay down any mode of publication it was clearly the duty of the authorities to communicate the provisions of the Order to the persons affected by it and until such communication is made there can be no question of prosecuting them for contravention of any of its provisions. The petitioners are thus entitled to succeed in this revision on this pure question of law and it is unnecessary to discuss the other questions raised before the lower appellate Court. The conviction and sentence are set aside and the petitioners are acquitted of the offence.

Mohapatra, J.

4. I agree.


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