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G. Narayanaswami Naidu Vs. the Inspector of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1949)2MLJ337
AppellantG. Narayanaswami Naidu
RespondentThe Inspector of Police and anr.
Excerpt:
- - we have carefully perused the grounds of detention submitted to the provincial government by the district magistrate as well as the government order, dated 8th april, 1948, memorandum, no. even if it is obligatory to make mention of the particular section of the statute, we are far from satisfied that the mention of section 2, sub-section (2) is not apposite......we have carefully perused the grounds of detention submitted to the provincial government by the district magistrate as well as the government order, dated 8th april, 1948, memorandum, no. 334/48-8, and we cannot find any reason to doubt that the action of the provincial government was mala fide.3. it is next contended by mr. pillai that the order of detention has been made by an authority not competent to make it and if that is so, the provisions of madras maintenance of public, order act, 1947, cannot be invoked against the petitioner. reliance is placed upon the circumstances that the government order referred to above does not make mention of the fact that it was issued under the authority and by the order of his excellency the governor, but is signed only by the chief secretary to.....
Judgment:
ORDER

1. The Full Bench : (1949)1MLJ1 has now decided that the powers of this court to interfere under Section 491, Criminal Procedure Code, are strictly confined to the various categories enumerated in the judgment and unless any one of such categories exists, this court cannot interfere with an order of detention made by the Provincial Government. If the petitioner can bring his case within one of these instances, then according to the Full Bench, the detention is not one made in exercise of the powers conferred under the Act or in accordance with the provisions of the Act.

2. Mr. A.K. Pillai contends that the Provincial Government in ordering the detention of the petitioner was actuated by mala fides with the result that the third circumstance mentioned in the judgment of the learned Chief Justice can be invoked in his client's favour and that the petitioner is therefore entitled to be released. For this argument, he placed reliance on the affidavit of Mr. K.G. Sivaswamy, dated the 24th May, 1948, wherein the deponent states that the grounds of detention served on the petitioner are not true to facts. It is pertinent to observe that Mr. Sivaswamy is a permanent resident of Madras having his abode in No. 8, Westcott Road, Madras, and the grounds of detention relate to facts and circumstances which occurred in the Tanjore district and therefore Mr. Sivaswamy could have, had no personal knowledge of what happened in Tanjore. Even if we are to accept the statements contained in that affidavit they amount only to this, that Mr. Sivaswamy believes that the petitioner has not committed any of the acts mentioned in the order of detention. From the mere circumstance that a senior member of the Servants of India Society does not believe that the acts mentioned in the order of detention can be attributed to the petitioner, it cannot be said that the Provincial Government has acted mala fide. We have carefully perused the grounds of detention submitted to the Provincial Government by the District Magistrate as well as the Government Order, dated 8th April, 1948, Memorandum, No. 334/48-8, and we cannot find any reason to doubt that the action of the Provincial Government was mala fide.

3. It is next contended by Mr. Pillai that the order of detention has been made by an authority not competent to make it and if that is so, the provisions of Madras Maintenance of Public, Order Act, 1947, cannot be invoked against the petitioner. Reliance is placed upon the circumstances that the Government Order referred to above does not make mention of the fact that it was issued under the authority and by the order of His Excellency the Governor, but is signed only by the Chief Secretary to Government. According to Section 59 (1) of the Constitution Act, all executive actions of the Government of the Province shall be expressed to be taken in the name of His Excellency the Governor and since on the face of the order of the Government it does not appear that the action was taken in the name of His Excellency the Governor, learned Counsel strenuously contends that the order of detention does not conform to the Act. Even if this is a defect, we are of opinion that it is only one of form and not of substance. In Gas Plant . v. Emperor (1947) 2 M.L.J. 402 : (1947) F.L.J. 71, the Federal Court has decided that where instead of the words ' Governor-General in Council ' a particular order referred to the Central Government, the contention that the order was invalid has to be rejected. The learned Public Prosecutor also, invites our attention to Sub-section (2) of Section 59 of the Constitution Act which states that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called into question on the ground that it is not an order or instrument made or executed by the Governor. He also informs us that there are rules made under this sub-section empowering the Chief Secretary to issue the order on behalf of the Governor. We are not inclined to accept the contention of the learned Counsel for. the petitioner that the Government Order, dated the 8th April, 1948, was not issued by order of His Excellency the Governor as contemplated in Section 59(1) of the Constitution Act. This contention has therefore no force.

4. Another line of attack is that the detention order made by the District Magistrate on 13th March, 1948, is expressed to be made under Section 2(2) of the Madras Maintenance of Public Order Act, 1947, whereas the provision of law applicable is Section 2(1) of the Act. It has to be observed that the District Magistrate was empowered by the Provincial Government to act under Section 15 of the Act which lays down that the Provincial Government may direct that any power or duty conferred or imposed on them 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 subordinate to the Provincial Government. That the District Magistrate of Tanjore was so empowered under Section 15 is not denied and when once that power is given to him, if he takes action under Section 2(1), he has to report under Section 2(2) to the Provincial Government of the action taken by him. The mere circumstance that a wrong section is inserted in the order of detention cannot by itself be taken as leading to the only conclusion that the District Magistrate did not bestow any attention on the action he took, but merely acted or purported to act in a stereotyped fashion as suggested by the learned Counsel for the petitioner. The operative portion of the order makes definite mention that the petitioner was acting in a manner prejudicial to the maintenance of public order and that with a view to preventing him from so doing, it is necessary to detain him. In view of this clear exposition, there is no necessity to make mention of any particular section of the statute. Even if it is obligatory to make mention of the particular section of the statute, we are far from satisfied that the mention of Section 2, Sub-section (2) is not apposite. This objection is overruled.

5. The last contention of the learned Counsel is that the Madras Maintenance of Public Order Act, 1947, came into force on the 12th March, 1947, and was to remain in force for a period of one year thereafter. The petitioner in this case was arrested by order dated the 13th March, 1948, on which date unless the operation of the Act was extended by the Provincial Government, the Act would not have been in force. Since the Act could not have been in force for more than a year, the delegation to the District Magistrate under Section 15 of the Act also could not have endured for more than that period and therefore according to the petitioner at the, time he was arrested, it was done by means of an order which was entirely null and void and without jurisdiction as the District Magistrate had become functus officio by that time. The learned Public Prosecutor has invited our attention to G.O. Ms. No. 446, Public (General), dated 27th February, 1948, printed in Part I, page 168, of the Fort St. George Gazette, dated 2nd March, 1948, by which the operation of the Act was extended by His Excellency the Governor. In view of this order which extended the operation of the Act some days before it had automatically ceased to be in force, it cannot be said that at the time the District Magistrate passed the order, the Act was not in force and moreover it is not disputed that the delegation to the District Magistrate was a very general one which was to enure so long as the Act was to be in force. No materials have been placed before us nor has any attempt been made to substantiate the contention that the District Magistrate when he acted on 13th March, 1948, was doing an act for which he was not given any authority. This contention has also to be rejected. We have not been shown how this order of detention offends against any of the categories mentioned in the judgment of the Full Bench1. In these circumstances, it has to be held that the petitioner was validly and properly detained in accordance with the Madras Maintenance of Public Order Act, 1947, and this court has no jurisdiction to interfere with that order and to release him under Section 491, Criminal Procedure Code. The petition is accordingly dismissed.

6. Mr. A.K. Pillai now states that he did not contend before us that the Act was not in force when the petitioner was arrested. But both of us understood his argument in the way stated in the judgment and the learned Public Prosecutor countered that argument by showing us the Gazette notification. Any way we are making this note in response to Mr. Pillai's request.


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