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Kishorimal and ors. Vs. the Crown - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan
Decided On
Judge
Reported in1950CriLJ90
AppellantKishorimal and ors.
RespondentThe Crown
Cases ReferredMooichand and Ors v. Emperor A.I.R.
Excerpt:
.....commissioner's endorsement dated 26th july 1918 is however as good as a formal order, though i think strictly speaking a separate formal order under section 3(4) should have been passed. but though there is no substance in the contention that the detention is bad on account of the absence of a formal order, i am of opinion that for another reason which is far more vital and important the present detention of these nine men is wrong and improper......by the nine detenus who have been detained in the ajmer central jail under the provisions of the punjab public safety act, 1917, which was applied to this province by government of india notification no- 8/6/48-jndioial i dated 1st may 198. all the nine applications were heard together as the arguments advanced were based on a common ground, and so all the applications are now being dealt with by this order.2. it is common ground that detenus ismail, bhanwerlal and hiralal were arrested on 28th june 1948 by the police acting under s 151, cri-minal p.c., on certain information received by them about the alleged activities of these three persona. on the same day, i. e. 28th june 1948, it is also common ground that the detenus named kesrimal, misnlal, daulat rom, kan-hayalal and magni bam.....
Judgment:
ORDER

Nagarkar, J.C.

1. These nine habeas corpus applications Under Section 491, Criminal P.C. are by the nine detenus who have been detained in the Ajmer Central Jail under the provisions of the Punjab Public Safety Act, 1917, which was applied to this Province by Government of India Notification No- 8/6/48-Jndioial I dated 1st May 198. All the nine applications were heard together as the arguments advanced were based on a common ground, and so all the applications are now being dealt with by this order.

2. It is common ground that detenus Ismail, Bhanwerlal and Hiralal were arrested on 28th June 1948 by the police acting under S 151, Cri-minal P.C., on certain information received by them about the alleged activities of these three persona. On the same day, i. e. 28th June 1948, it is also common ground that the detenus named Kesrimal, Misnlal, Daulat Rom, Kan-hayalal and Magni Bam were arrested by the police Under Section 161 Criminal P.C. The detenu Puran was arrested on 3rd July 1948 also Under Section 151, Criminal P.C. After their arrest all the above detenus were sent to the Ajmer Central Jail for being detained there and the arresta were reported to the local authorities. On 29th June 1948 the District Magistrate, Ajmer. Merwara, passed a formal order Under Section 8(1), Punjab Public Safety Act, stating that the detention of the detenus Ismail, Bhanwerlal, Hiralal, Kesri, mal, Doulatram,'Kanhiyalal and Mangiram, already arrested Under Section 151, Criminal P.C. and placnd in custody, 'may be deemed to be arrested under Section 3(1), Punjab Publicf Safety Act 1947,' as made applicable to this province. A similar order was passed by the Distriot Magistrate Ajmer Merwara in respect of the detenu Puran on 6th July 1948.

3. The first point taken up before me on fcehalf of these nine detenus in these applications is that as the initial order of arrest was not passed under the provisions of Section 3 (1), Punjab Public Safety Act, 1947, therefore their detention is wrong and illegal, and so the detenus should be set at liberty. But I think there is no substance in this argument for though it is true that the original arrest of the detenus was not under the provisions of the Punjab Public Safety Act. 1947, it. is clear that by the District Magistrate's order dated 29th June 1948, and 6th July 1918, the detention of these detenus with effect from the above two datea was) Under Section 3 (1), Punjab Public Safety Act. Since the detenus were already in custody there was no need to physioally re-arrest them under the provisions of the Puniab Public Safety Act and place them under custody again. At the most it can be said if the authorities had decided to act in a techniaal manner, they would at the most have for-mally released the nine detenus and re-arrested them on the authority of an order from the Dis. tirot Magistrate, Ajmer Merwara, under the Punjab Public Safety Act, and then placed them in the custody of the Central Jail. But in these habeas corpus applications I am not concerned with the original order of detention, but with the order of detention passed by the District Magistrate on 2uth June 1948, and 6th July 1948, for it is these orders the legality of which is relevant for the pure at the present applications. In support of this view, reference may here be made to the case of Mooichand and Ors v. Emperor A.I.R. (35) 1918 ALL. 281 : 49 Cr.L.J. 352 wherein a similar point arose and was decided by the Allahabad High Court, Following that deviation I am of the view that there is no substance in the contention that if the initial detention is wrong and unauthorized it follows that the subsequent detention, though regularized and brought within the purview of the provisions of the Punjab Public Safety Act, must also be held to be wrong and illegal.

4. it was also argued that the Punjab Public Safety Act, 1947, is ultra vires as the Provincial Governors ceased to exercise any discretionary powers Under Section 93, Government of India Act, by the passing of the Indian Independence Act, 1947. It was contended that since the Punjab Pubii6 Safety Act, 1947, cannot be legally enforced if any of the two present provinces of the Punjab or in this province, it was wrong-and illegal to arrest the nine detenus under the Provisions of an Act which has ceased to be a lawful enactment. But so far as these nine applications are concerned, I do not think it is necessary to enter into a discussion as to the legality or otherwise of the Punjab Public Safety, Act, 1947, because I think the subsequent detention of these nine detenus for an indefinite period in excess of the initial period of one month is wrong and illegal, and for that reason they are entitled to be released from custody. I therefore do not propose to discuss- the legal issue raised in these applications as I do not think it will be profitable to do so for the purposes of these applications.

5. Coming to the detention of these nine detenus Under Section 8 (4), Punjab Public Safety Act, assuming for the purposs of these applications that the above Act is a valid piece of legislation, I do not think their prosent dentention beyond the initial period of one month is legal and valid. The original period of one month expired in the case of all nine detenus some time in the last week of July 1948. This position is admitted by the Special Public Prosecutor. From the papers that have been produced for my perusal it appears a report was made by the police to the Distriot Magistrate, Ajmer-Merwara (Mr. Darga Prasad), on or about 24th July 1948 recommending to him that all these nine detenus may be detained in custody by the Provincial Government until further orders Under Section 3 (4), Punjab Public Safety Act. On receipt of this police report, the District Magistrate, Ajmer-Merwaram sent the papers to the Chief Commissioner, Ajmer-Merwara, with a recommendation that the Provincial Government may detain all the nine detenus in custody until further orders. On 17th July 1948, the permanent Chief Commissioner, Ajmer-Merwara (Mr. Shanker Prasad) was transferred from the Province, and the District Magistrate (Mr. Durga Prasad) assumed the duties of Chief Commissioner, AjmerMerwara, in addition to his duties as District Magistrate, Ajmer-Mer-wara. The District Magistrate's recommendation to the Chief Commissioner (the Provincial Government) dated 24th July 1948 was therefore in effect his own recommendation as District Magistrate made to himself in hia capacity as Chief Commissioner (Provincial Government). And on 26th July 1948 Mr. Durga Prasad as Trovineial Government accepted his own recommendation made by him as District Magistrate to himself as Chief Commissioner, and he then passed an order authorizing the continu-anoe of the nine detenus' detention until further orders. No separate formal order Under Section 3 (4) in the name of the Provincial Government (i.e., the Chief Commissioner Ajmer-Merwara), was however passed. The Chief Commissioner's endorsement dated 26th July 1918 is however as good as a formal order, though I think strictly speaking a separate formal order Under Section 3(4) should have been passed. But though there is no substance in the contention that the detention is bad on account of the absence of a formal order, I am of opinion that for another reason which is far more vital and important the present detention of these nine men is wrong and improper. I think the unusual and anomalous procedure followed in these nine cases whereby the same individual acted in the dual capacity of District Magistrate and Provincial Government Under Section (3)(1) and (8)(4), Punjab Public Safety Act, cannot be condoned as in my humble judgment such a procedure is not envisaged by the Act. Nor does it appear to be in keeping with the spirit underlying this enactment. I do not think the Legislature could have meant to condone or bring about the anomalous position which has unfortunately arisen in the case of these nine men who have been deprived of their liberty by a procedure whereby the Chief Commissioner himself, by merely accepting his own recommendation to himself, has ordered that the detenus should remain in custody until further orders. It is clear to me that by providing the safeguard contained in Section 3(4), Punjab Public Safety Act, the Legislature intended that the recommendation or report of the original arresting authority should come under the examination and scrutiny of a higher authority i.e., the Provincial Government. And it is obvious to me that the benefit of this salutary safeguard has been denied to these nine detenus by the District Magistrate acting in a dual capacity. He no doubt acted in compliance with the letter of the law since from 17th July 1948 he has assumed in addition to his own duties, as District Magistrate, the duties of the Provincial Government. But he certainly did not act in the spirit of the law and the further detention ordered by him came lamentably near a violation of the maxim memo debit sees Judein propria sua causa (No man can be Judge in his own cause). I am therefore of opinion that though the Chief Commissioner, Ajmer-Merwara's order dated 24th July 1948 complies with the verbal requirements cl Section 8 (4), Punjab Public Safety Act, it violates the spirit and the principle underlying the safeguard provided in this section. Since the order dated 26th July 1948 violates a very elementary rule of natural equity, I do not consider that order to be a valid and proper one. That being so the detention of these nine men beyond a period of one month is wrong and improper, and so they must be released and set at liberty.

6. I accordingly allow these applications and direct that all the nine detenus be released from custody forthwith. An order in these terms will accordingly be sent to the Central Jail.


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