Rex v. Daya Shanker Malaviya

Wanchoo, J.:— This is an application by Daya Shanker Malaviya under section 491 of the Code of Criminal Procedure. It appears that Daya Shackar Malaviya was arrested on the 27th of January, 1948, in pursuance of an order passed by the District Magistrate of Allahabad under section 3(1)(a) of the U.P Maintenance of Public Order (Temporary) Act No. IV of 1947. The reasons for his detention were also explained to him on the day on which he was arrested and a copy thereof was supplied to him and he was informed that he had a right to make a representation to the District Magistrate. So far, therefore, as the provisions of this Act are concerned, they were strictly complied with. The legality of the detention is, however, attacked on other grounds.

It has first been contended that it was not open to the Provincial Government to delegate its power under section 3(1)(a) to the District Magistrate by virtue of section 11 of the Act, while at the same the retaining the power in itself also. The notification delegating the power specifically says that the District Magistrate was also being invested with the power which the Provincial Government had under section 3(1)(a). It is urged, therefore, that as the Provincial Government did not divest itself of the power which it had delegated to the District Magistrate, the delegation to the District Magistrate was illegal.

I have not been able to appreciate this argument. There is nothing in the words of section 11 of the Act which could lead to the inference that before the Provincial Government can delegate its power under section 3(1)(a) to the District Magistrates, it must divest itself of that power. I see nothing in the scheme of the Act which could imply that the Provincial Government should divest itself of any power under the Act before it could confer it on District Magistrates. Learned Counsel for the applicant relied on the following observations of their Lordships of the Privy Council in the case of Emperor v. Shibnath Banerji(1).

“Their Lordships would also add, on this contention, that sub-section (5) of section 2 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority defined in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under section 49(1) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.”

Sub-section (5) of section 2 of the Defence of India Act also provided for delegation of powers and was more or less, similar in terms to section 11 of this Act. It is, therefore, argued that this observation of their Lordships of the Privy Council means that the Provincial Government must divest itself of the power under section 3 before it can be delegated to District Magistrates. This argument is based in my opinion, on a complete misunderstanding of the extract that I have quoted above. Their Lordships, when they said that there was a divestiture of the responsibility of the Governor on delegation, were clearly distinguishing the position where the power of the Governor would be exercised by an officer to whom the delegation had been made under section 2, sub-section (5) of the Defence of India Act from a case where the power of the Governor would be exercised by an officer subordinate to him under section 49(1) of the Government of India Act of 1935. The emphasis here was on the word ‘responsibility’. In me case where the power was exercised by an officer to whom it had been delegated, the responsibility would be of that officer to be satisfied, while in the other case, though the power may be exercised by a subordinate officer under section 49(1) of the Government of India Act, 1935, the responsibility would still be of the Governor. In one case therefore, he would be divested, of the responsibility, while in the other case, his responsibility, would still be there. But this observation of their Lordships of the Privy Council does not mean that by delegating his power to a subordinate officer, the Governor would be divesting himself of the power to pass orders. Under these circumstances, the delegation made to the District Magistrate under section 11, in this case, cannot be illegal on the ground that the Provincial Government has also retained the power to pass an order under section 3(1)(a).

The next contention that has been urged is that under section 3(2) of the Act, the Legislature provided that the District Magistrates should have power under section 3(1)(a) to detain a person for fifteen days. It was urged, therefore, that the Provincial Government could not, by delegating its power under section 11, give to the District Magistrates the authority to detain a person for more than fifteen days because it would be inconsistent with the provisions of section 3(2) of the Act. There is no doubt that it is not possible to confer more power under the rules framed under any Act or under any delegation under any Act than is conferred under the Act itself. It is not necessary to cite cases in support of this principle because it is so well established. But, in this case, I do not think that there is any inconsistency between the power delegated to the District Magistrates and the power given to them under section 3(2) of the Act. It is obvious from, the scheme of the Act that the Legislature, intended that the District Magistrates would, by themselves, have power only for detaining a person for fifteen days. But the Legislature further provided by giving the Provincial Government authority to delegate its own power under section 11 that if the Provincial Government thought it fit that any District Magistrate should be invested with its own power of detention for six months, it could give that power to that District Magistrate. Section 11 does not except the delegation of the Provincial Government's power under section 3(1)(a). I do not therefore, see any inconsistency or exceeding of the power granted under the Act in this case. What the Legislature has obviously provided is this. It granted the District Magistrates power of detention under the Act for fifteen days. It also said that the Provincial Government's power of detention for six months could be conferred on the District Magistrates, if the Provincial Government so decided. Therefore, when the Provincial Government decided to do so by virtue of its power of delegation under section 11, the District Magistrates got the authority to detain a person up to six months, as provided in the Notification and there was no question of there being any inconsistency between section 3(2) and the power delegated to the District Magistrate or the District Magistrate being delegated any more power than was contemplated by the Act. The order, therefore, detaining the applicant for three months cannot be illegal on this ground.

The third point that was urged on behalf of the applicant was that Act TV of 1947 was expiring on the 29th of February 1948. The District Magistrate had passed an order detaining the applicant for three months from the 25th of January, 1048. This obviously takes the period of the applicant's detention beyond the 29th of February, 1948 and therefor it is urged that the order is illegal. Section 1, sub-section 4 of the Act, however, provides that it could be extended by a resolution of the Legislature for a further period of one year. The District Magistrate must have had this contingency in mind when he passed the order for three months. This argument has no force now as the period of the Act has been so extended for another period of one year by the Legislature from the 1st of March, 1948. In these circumstances, the order of the District Magistrate is quite in order and the detention of the applicant is proper.

The last point that has been urged is that the District Magistrate was not really satisfied and, in this Connection, reliance was placed on the affidavit in support of the application. The order in question was passed by the District Magistrate and says that the District Magistrate was satisfied. The reasons for the detention of the applicant were also supplied to him under the signature of the District Magistrate. Under these circumstances, I am not prepared to hold that the District Magistrate was not really satisfied.

The application is hereby dismissed.