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Case Number

Criminal Miscellaneous no. 885 of 1949

Advocates

B.C Ghosh and D.K Sinha, for the petitioner.
Government Advocate, for the opposite-party.

Judges

Das
Sarjoo Prasad, JJ.

Acts

provisions of the Bihar Act III of 1950 (The Bihar Maintenance of Public Order Act, 1953), hereinafter called the Act
Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950). Most of the relevant provisions of this Act
provisions of sub-sections (4) and (5) of section 4 of the Public Order Ordinance, 1949. These provisions
provisions of sub-section (4) and sub-section (5) of section 4 of the Public Order Ordinance
section 26 of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950).
provisions of sub-sections (4) and (5) of section 5 of Act III of 1950
provisions of the Ordinance of 1949 and Act III of 1950
provisions in the Bihar and Orissa General Clauses Act.
section 2(1)(a) of the Bihar Maintenance of Public Order
provisions of the Ordinance of 1949:Section 2(1)(a)
sub-section (4) of section 4 of the Public Order
section 491 of the Code of Criminal Procedure
provisions of section 5 of this Act of 1950
clause (a) of sub-section (1) of section 2
section 342 of the Lunacy Act, 1890,
section 5 of the Trustee Act, 1850,
section 26.K.DApplication allowed.
Interpretation Act, 1889, s. 38(2).
section 26 of Act III of 1950
26 of Bihar Act III of 1950
sub-section (2) of section 4
sub-section (5) of section 4
sub-section (1) of section 3
sub-section (3) of section 4
sub-section (3) of section 5
sub-section (1) of section 4
section (5) of section 4

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Smart Summary

Judgment Summary — Sarjoo Prasad, J. (with concurrence by Das, J.)

Factual and Procedural Background

This is an application under section 491 of the Code of Criminal Procedure challenging an order of detention said to have been made by the Province of Bihar under section 2(1)(a) of the Bihar Maintenance of Public Order Ordinance, 1949 ("the Ordinance of 1949").

Key chronological facts given in the opinion:

An order of detention was passed on 2 July 1949; a copy was served on the applicant on 5 July 1949.
A copy of the grounds of detention, purporting to be dated 22 July 1949, was served on the applicant on 25 July 1949.
A representation by the detenu was made and the matter was referred to the Advisory Council under sub‑section (3) of section 4 of the Ordinance on 24 September 1949; records were received by the Chairman of the Advisory Council on 25 September 1949.
The Government Advocate suggested the Advisory Council had called for further information; the Court directed an affidavit from the Crown on this point, but none was ultimately filed. The Court therefore proceeded on the assumption that the Advisory Council did not call for further information and received no further materials from the Provincial Government.

The petition contended the detention was illegal. Two principal objections by the petitioner were argued: (1) that the grounds of detention were vague and indefinite; and (2) that there had been no compliance with the mandatory provisions of the Bihar Maintenance of Public Order Act (Act III of 1950) as interpreted in relation to proceedings begun under the Ordinance of 1949.

Legal Issues Presented

Whether the grounds of detention communicated to the petitioner were so vague or insufficient as to render the detention illegal.
Whether proceedings under the Bihar Maintenance of Public Order Ordinance, 1949 which were pending at the time the Bihar Maintenance of Public Order Act (Act III of 1950) came into force are to be treated as continued under the Act (section 26 of the Act) and, if so, whether the differing procedural time‑limits in the Act operate retrospectively so as to invalidate the detention.
Whether the procedural steps required by sub‑sections (4) and (5) of section 4 of the Ordinance (and their counterparts in the Act) are mandatory such that failure to secure a report from the Advisory Council within the required time renders detention illegal.

Arguments of the Parties

Petitioner's Arguments (Mr. Ghosh)

The grounds for detention are vague and indefinite, and therefore inadequate to permit an effective representation.
The detention is illegal because there was no compliance with the mandatory provisions of Act III of 1950 (the Bihar Maintenance of Public Order Act), particularly the time limits and procedures in section 5 of that Act; in other words, section 26 of the Act cannot be used to apply the Act's stricter time limits retrospectively to proceedings begun under the Ordinance.

Crown / Government Advocate's Arguments

It was suggested that the Advisory Council had called for further information from the Provincial Government in connection with the representation; the Crown was asked to file an affidavit giving particulars and dates but ultimately did not file such an affidavit.
The Government Advocate contended that section 26 of the Act should be read to deem orders passed under the Ordinance to have been passed under the Act as from 4 January 1950 (the date the Act came into force), effectively treating proceedings as continued under the Act from that date.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lakshmi Narain Das v. Province of Bihar (Federal Court)	The Federal Court held that the proviso to sub‑section (1) of section 4 (that defects, vagueness or insufficiency in the communication of grounds does not invalidate the order or detention) is valid.	The Court relied on this authority to reject the petitioner's submission that vagueness of the grounds rendered the detention unlawful; the proviso protects detention despite non‑disclosure of sources and non‑specificity unless further particulars were requested and refused.
Tabarak Khan v. Province of Bihar, Criminal Misc. No. 784 of 1949 (Division Bench, 23 Dec 1949)	Division Bench held that the proviso to sub‑section (1) of section 4 (as above) is valid.	Used as supporting authority alongside Lakshmi Narain Das to uphold the view that insufficiency or vagueness of grounds (without request for particulars) did not invalidate the detention.
Criminal Miscellaneous Nos. 854 & 870 of 1949 (this Bench)	The Bench had held that sub‑section (4) and sub‑section (5) of section 4 of the Public Order Ordinance were not merely directory but mandatory and integral to the scheme of the Ordinance.	The Court relied on this prior ruling to conclude that failure by the Advisory Council to submit a report (and consequent failure by the Provincial Government to confirm/modify/cancel) meant the mandatory procedure was not complied with and the detention therefore became illegal.
Kay v. Goodwin (1830, 6 Bing. 576)	Statement by Tindal, C.J.: the effect of repealing a statute (without express savings) is to "obliterate it" as if it had never been passed; it remains valid only for completed actions prosecuted and concluded while it existed.	The Court invoked this principle to explain the ordinary effect of repeal and to emphasise that savings in a repealing provision must be read to avoid inconsistency and not to revive or give fresh commencement to things not in force.
In Re R. (1906, 1 Ch. 730) (Collins, M.R.)	Where a repealing clause is followed by a saving clause, the two enactments must be read so far as possible to co‑exist; a saving will preserve jurisdiction created by the repealed Act only insofar as there is no inconsistency.	The Court applied this principle to interpret section 26 of the Act: the repealing and saving provisions must be read together so that proceedings properly pending can be continued under the Act but inconsistent changes (for example, different time‑limits) cannot be imposed retrospectively to invalidate completed or pending acts that could not conform to the new regime.

Court's Reasoning and Analysis

The Court's analysis proceeded in two main stages corresponding to the petitioner's two primary contentions.

1. Vagueness of Grounds

The Court examined the grounds of detention and concluded they were "specific and definite" as communicated to the petitioner. The opinion notes:

The grounds did not disclose sources of information but the Ordinance does not obligate the Provincial Government to disclose sources.
If the petitioner found the grounds inadequate he could have asked for further particulars; no such request (and refusal) was shown.
The proviso to sub‑section (1) of section 4 of the Ordinance protects detention from being declared invalid solely because of defects, vagueness or insufficiency of the communication of grounds; the Federal Court and a Division Bench of this Court have upheld that proviso.

On this issue the Court found no merit in the petitioner's challenge. The Court also observed that the Advisory Council mechanism exists to scrutinise the adequacy of grounds and that proper functioning of that body would address many such complaints.

2. Effect of Repeal and Section 26 of Act III of 1950 — Time‑limits and Pending Proceedings

The Court then considered the more difficult question of how the repeal of the Ordinance by Act III of 1950 and the saving clause in section 26 of the Act affected proceedings already commenced under the Ordinance.

The Court first set out the material differences between the Ordinance and the Act (notably differing time‑limits for communication of grounds, period allowed for representation, time within which the Provincial Government must place materials before the Advisory Council, and the Advisory Council's period for reporting). The Act fixes specific shorter or otherwise different periods (for example, the Advisory Council must submit its report within twelve weeks under the Act, whereas the Ordinance provided three weeks from receipt of materials or further information from the Provincial Government).

Two extreme interpretations were considered and rejected:

The petitioner's argument that section 26 of the Act operates to substitute the Act's time‑limits retrospectively for proceedings begun under the Ordinance would have the anomalous effect of rendering previously lawful actions unlawful because compliance with the Act's new time limits was impossible prior to its commencement.
The Crown's argument that section 26 deems orders made under the Ordinance to have been made under the Act as of 4 January 1950 (thereby giving them a new starting date) was also rejected as too wide and legally fictional (it would, for example, extend final orders by six months ipso facto and require assuming that confirmation or modification occurred on the date the Act came into force).

Applying established principles on repeal and savings (cited authorities), the Court held that the repealing and saving provisions must be read to avoid inconsistency and to give effect to legislative intent. The correct reading adopted by the Court was:

Proceedings, orders and acts properly commenced and pending under the Ordinance may be continued and treated as having been commenced under the Act, but only to the extent they can coherently be so continued without creating inconsistency.
If a final order (within the meaning of sub‑section (5) of section 4 of the Ordinance) had already been passed under the Ordinance before repeal, that order would take effect as provided under the Ordinance (i.e., with its original duration), and would be saved.
If no final order had been passed and no proceedings were properly pending (for example because required steps by the Advisory Council and Provincial Government were not taken), there would be nothing validly pending that could be continued or saved under section 26 of the Act.

Factual application to the present case:

The matter was referred to the Advisory Council on 24 September 1949 and records were received on 25 September 1949. There is no evidence that the Advisory Council called for further information or submitted its report as required by sub‑section (4) of section 4 of the Ordinance.
Under the Ordinance the Advisory Council was required to submit its report within three weeks of receipt of materials (i.e., by mid‑October 1949). No report was submitted; nothing further occurred; no final order was passed by the Provincial Government under sub‑section (5).
Because the Advisory Council failed to submit a report, the Provincial Government could not take the final step of confirming, modifying or cancelling the order; the Court relied on its earlier view in Criminal Misc. Nos. 854 & 870 of 1949 that the relevant provisions are mandatory and integral to the Ordinance's scheme.
Consequently, as no valid final order had been made and no proceedings were validly pending on 4 January 1950 that could be saved and continued under section 26, the detention became illegal by reason of the mandatory non‑compliance with sub‑sections (4) and (5) of section 4 of the Ordinance.

Das, J., concurring, added that section 26 does not revive anything not in force at the date of repeal and emphasised the distinction between past closed transactions (which are saved from obliteration) and pending proceedings (which can only be continued if validly pending).

Holding and Implications

Holding: The application was allowed and the petitioner was ordered to be released forthwith. The Court held that the detention of the petitioner was illegal because of failure to comply with the mandatory provisions of sub‑sections (4) and (5) of section 4 of the Bihar Maintenance of Public Order Ordinance, 1949; there being no valid pending proceedings that could be saved by section 26 of Act III of 1950, the repeal and saving provisions did not validate the detention.

Implications (as stated or deduced from the opinion text):

The Court emphasised that the proviso to sub‑section (1) of section 4 of the Ordinance (that defects or vagueness in grounds do not of themselves invalidate detention) has been upheld by higher and coordinate authorities and thus inadequacy of particulars will not automatically render detention unlawful unless there is a demonstrated refusal to provide requested particulars.
The Court clarified the correct approach to a repeal with a saving clause: repealing and saving provisions must be read together so as to avoid inconsistency; only validly pending proceedings at the time of repeal may be continued under the new Act — the new Act's time‑limits cannot be applied retrospectively to acts which could not have complied with them prior to the Act's coming into force.
Direct consequence for the parties: immediate release of the petitioner. The Court did not purport to lay down a novel general rule beyond applying existing principles about repeal and savings and confirming the mandatory character of the Ordinance's procedural provisions (as previously held by this Bench). The decision resolves the petitioner's detention on the specific factual and procedural grounds described above.

Order: Application allowed; petitioner released forthwith.

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Sunirmal Dutta v. Province Of Bihar

Sarjoo Prasad, J.:— This application under section 491 of the Code of Criminal Procedure relates to an order of detention passed against the applicant by the Province of Bihar purporting to be under section 2(1)(a) of the Bihar Maintenance of Public Order (no. 2) Ordinance, 1949. (For the sake of brevity we shall hereafter call this Ordinance as the Ordinance of 1949). The order of detention in this case was passed on the 2nd of July, 1949, and a copy of the order was served on the applicant on the 5th of July, 1949. On the 25th of July, 1949, a copy of the grounds on which the detention order was made which purports to be dated the 22nd of July, 1949, was served on the applicant. It is not quite clear from the record as to when a representation was made by the applicant against the order in question; but we are informed that such a representation was made and the matter was referred to the Advisory Council constituted under sub-section (3) of section 4 of the Ordinance of 1949 on the 24th of September, 1949, and the records were received by the Chairman of the said Advisory Council on the 25th of September, 1949. Thus far the facts are admitted. At one stage it was suggested by the learned Government Advocate appearing for the Crown that the Advisory Council had called for further information from the Provincial Government in connection with the representation made by the detenu. We, therefore, directed that an affidavit should be filed on behalf of the Crown giving full particulars and the date on which the materials were called for and the date on which the materials and further information were received by the Advisory Council. We accordingly adjourned the hearing of this application to enable the learned Government Advocate to file the affidavit required. The learned Government Advocate, however, finally submitted that he was unable to file any such affidavit. The result is that we have to assume for the purposes of this case, in the absence of and definite information on the point, that the Advisory Council after the reference had been made to it did not call for any further information from the Provincial Government or receive any such further materials, or information from the Provincial Government, and the case will now have to be decided upon the facts as we have stated above.

Mr. Ghosh appearing for the petitioner, in so far as I have been able to understand his argument, has raised two points in support of his claim that the detention of the petitioner is illegal. He says firstly: (1) that the grounds for detention are vague and indefinite and (2) that there being no compliance with the mandatory provisions of the Bihar Act III of 1950 (The Bihar Maintenance of Public Order Act, 1953), hereinafter called the Act of 1950.

It would be convenient to deal with his arguments seriatim. I propose, therefore, to take up his first argument based upon the vagueness or insufficiency of the grounds of detention communicated to the petitioner. We have had the advantage of examining the grounds, and we are not satisfied that there is any substance in the complaint of the petitioner. We consider that the grounds stated are specific and definite. It is true that they do not disclose the source from which informations are derived, but in my opinion it is not obligatory on the Provincial Government to disclose the source of their information. It was open to the petitioner, if he felt any difficulty in making his representation on account of any supposed vagueness to ask for further particulars. It is not suggested that the petitioner in this case ever did ask for such particulars and was refused. That being so, there is evidently no merit in this objection. Even if there had been any insufficiency or vagueness in view of the proviso to sub-section (1) of section 4 of the Ordinance of 1949, it is not open to us to hold that the order of detention is illegal, unlawful or improper on this account. The proviso has since been held by their Lordships of the Federal Court to be valid, [see Lakshmi Narain Das v. Province of Bihar(1)]. The matter was again examined by a Division Bench of this Court in Tabarak Khan… v. Province Of Bihar…Opposite Party., Criminal Miscellaneous no. 784 of 1949, decided on the 23rd of December, 1949, where again it was held that the proviso was valid. In any case the clarity or inadequacy of the grounds is largely a matter for consideration by the Advisory Council and the Ordinance itself provides a machinery to scrutinize the basis of the grounds of detention. There is no doubt that if that machinery of the Advisory Council functions properly, many of the grievances which are ventilated in Court will find their adequate consideration at the hands of the Advisory Council. I, therefore, see no substance in this contention urged on behalf of the petitioner. If the grounds of detention are correct, and we have no reasons to think otherwise, they disclose that the conduct of the petitioner constitutes a menace to the State and is prejudicial to public safety. The Provincial Government may have, therefore, ample justification for his detention. As, however, we have decided to set the petitioner at liberty for reasons given here below, due to unfortunate non-compliance by the authorities with the mandatory provisions of the law as it then stood or as it stands at present, we hope that the petitioner will utilise his liberty for the benefit of and in the service of the State and prove himself a worthy and responsible citizen of his country.

The consideration of the second point urged on behalf of the petitioner has presented no small difficulty in so far as it involves interpretation of section 26 of Act III of 1950. In order to appreciate the point involved and before turning to the provisions of the Act of 1950, it would be useful to refer in this connection to some of the relevant provisions of the Ordinance of 1949:

Section 2(1)(a) of the Ordinance in question provides that the Provincial Government with a view to preventing a person from acting in any manner prejudicial to the public safety and the maintenance of public order may make an order directing that he be detained”.

Section 4(1) of the Ordinance provides, inter alia that where an order in respect of any person under clause (a) of sub-section (1) of section 2, is made, the authority making the order should, “as soon as may be after the order is made, communicate to the person affected thereby the “grounds on which the order has been made against him and such other particulars as are in the opinion of such authority sufficient to enable him to make, if he wishes, a representation against the order”, which representation may be made by the person concerned within fifteen days of the receipt of such communication. There is a proviso to the said sub-section (1) of section 4 which states that neither the order nor the detention of the said person thereunder will be invalid or unlawful or improper on the ground of any defect, vagueness or insufficiency of the communication made to such person under this section. I had occasion to refer to the proviso in considering the first point urged for the petitioner. In sub-section (2) of section 4 of the Ordinance it is further provided that after the receipt of the representation, or in case no representation is received after the expiry of the period fixed therefor, the Provincial Government shall within three months of the order, place before the Advisory Council constituted under sub-section (3), the grounds on which the order has been made and the representation, if any, made by the person concerned together with any other relevant material which the Provincial Government may consider necessary. Sub-section (4) of section 4 then provides that the

“Advisory Council shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Provincial Government or from the person concerned, as it may deem necessary, submit, within three weeks of its receiving the materials, and further information, a report to the Provincial Government.”

Then under sub-section (5) of section 4 of the Ordinance the Provincial Government after considering the report of the Advisory Council, may confirm, modify or cancel the order made under clause (a) of sub-section (1) of section 2.

Now, after this order contemplated by sub-section (5) of section 4 has been made, section 3(1) of the said Ordinance provides that an order made under clause (a) of sub-section (1) of section 2 shall be in force for a period not exceeding six months from the date on which it is confirmed or modified under sub-section (5) of section 4 though it would be open to the Provincial Government at any time within the expiry of that period to revoke the order in question.

It is quite clear, therefore, that in this particular case although the proceedings in respect of this detenu had reached up to the stage of making a reference to the Advisory Council as contemplated by sub-section (2) of section 4, the Advisory Council has neither called for further information nor submitted its report as contemplated by sub-section (4) of section 4 of the Ordinance; and, therefore, no final order has been or could be passed by the Provincial Government which under section 3 of the Ordinance could take effect for a period not exceeding six months from the date on which it is made as provided by section (5) of section 4 of the said Ordinance.

This Ordinance was subsequently replaced by an Act of the Provincial Legislature which is the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950). Most of the relevant provisions of this Act are identically the same as the provisions of the Ordinance of 1949:

Section 2 of the Act is exactly in the same terms as section 2 of the Ordinance. In other words, this Act also authorises the Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public, safety and the maintenance of the public order, it is necessary to detain him in custody to direct such detention. Section 4 of the Act is in the same terms as section 3 of the Ordinance; while section 5 of the Act contains similar provisions as section 4 of the Ordinance with this difference that the various provisions as to the period during which the grounds are to be communicated or the representation is to be made, or the matter is to be referred to the Advisory Council and the report is to be submitted by the Council have been altered. It is necessary to mention this difference as to the various periods separately, because Mr. Ghosh has sought to rest his argument on that basis.

Section 5 of the Act provides inter alia that the authority making the order under clause (a) of sub-section (1) of section 2 shall communicate to the person affected by the order the grounds on which the order has been made against him within fifteen days of the date on which the order is served on him. It would appear that in the Ordinance of 1949 there was no such period given, and the only provision was that the grounds had to be communicated as soon as may be after the order is made. Again under the Act of 1950 after the communication of the grounds the detenu has been allowed to make a representation within ten days of the receipt of such communication; whereas in the Ordinance of 1949 the period allowed for making such a representation was fifteen days from the receipt of the communication of the grounds. Then again sub-section (2) of section 5 of the Act of 1950 provides inter alia that after the receipt of the representation by the detenu, the Provincial Government shall, within six weeks of the service of the order on the person in respect of whom it is made, place before the Advisory Council constituted under sub-section (3) the grounds on which the order has been made and the representation made by the person concerned together with any other relevant material which the Provincial Government may consider necessary. This period we shall notice was three months under the Ordinance of 1949. Under sub-section (4) of section 5 of the Act of 1950 the Advisory Council shall, after considering the materials, place before it and, if necessary, after calling for such further information from the Provincial Government or from the person concerned, submit a report to the Provincial Government within twelve weeks of the date of the service of the order on the person in respect of whom it is made. The period for submission of a report by the Advisory Council under the Ordinance of 1949 was very much different. It provided for submission of a report, as we have seen above, within three weeks of its receiving the materials or further information from the Provincial Government.

The above alterations as to the various time-factors are material and significant. The fixation of the period under the Act of 1950 for submission of a report by the Advisory Council within twelve weeks of the date of the service of the order on the person affected is distinctly an improvement upon the provisions of the Ordinance where there was no time fixed within which the Advisory Council could either call for information or the Provincial Government could be compelled to submit such information or materials. No argument has, however, been addressed to us as to the effect of such a vague provision upon the validity or invalidity of the Ordinance of 1949. We, therefore, as at present advised, have to confine ourselves to the bearing of these provisions on the submissions made at the Bar.

I have already pointed out that the Ordinance has since been repealed by the Act of 1950 which came into operation on January 4, 1950, as published in the Bihar Gazette, Extraordinary of that date. The date 4th of January, 1950 on which the Act of 1950 came into force is very material. The repealing provision in the Act is section 26 which provides in sub-section (1) that “The Bihar Maintenance of Public Order (no. 2) Ordinance, 1949, is hereby repealed”. In sub-section (2) at the same time it adds a saving clause and says:

“All proceedings commenced, officers appointed or authorised, rules and orders made, sentences passed or acts ordered or done, in exercise of any jurisdiction or power conferred by or under the provisions of the said Ordinance, shall be continued and be deemed to have been respectively commenced, appointed or authorised, made, passed, ordered or done under this Act and any enactment or document referring to any of the said provisions shall be construed to refer to this Act or to the corresponding provision thereof.”

It is the interpretation of this section of the Act which has caused some difficulty. We have seen from the above that section 26 of the Act of 1950 does not contain only a repealing clause but also a saving clause.

Mr. Ghosh on behalf of the applicant contends that the detention of the applicant is illegal inasmuch as it did not comply with the mandatory provisions, of Act III of 1950. He says that the effect of sub-section (2) of section 26 of the Act is that the order passed under the Ordinance of 1949 would be deemed to have been passed under this Act of 1950, and inasmuch as there was no compliance with the mandatory provisions of section 5 of this Act of 1950 in regard to the communication of the grounds, or the reference to the Advisory Council within the period allowed by the Act, the order of detention cannot be sustained. If this argument of Mr. Ghosh is accepted, it would lead to most anomalous consequences. I have already shown above that the various periods for steps to be taken under the Ordinance of 1949 and the Act of 1950 differ. Mr. Ghosh contends that in view of section 26 of the Act of 1950 in effect the periods given in the Act of 1950 should be substituted for the periods given in the Ordinance of 1949, and then it should. Be examined from that point of view whether there has been compliance with the law by the authorities concerned. I do not understand how this argument can be justified on any principle, unless Mr. Ghosh thinks that the Act of 1950 is in the nature of a declaratory statute and, therefore, retrospective, which on the plain terms of section 26 it is not. His argument, if pressed to its logical sequence, would come to this that even if the provisions of the Ordinance of 1949 may have been duly complied with before Act III of 1950 came into force and the detention may have been consequently legal, yet when this Act III of 1950 came into operation, the detention would be rendered illegal because, according to him, steps were not taken in compliance with the provisions of this Act. It is obvious that the law as it then stood under the Ordinance provided for different time-factors, and these changes in regard to the time-factors were introduced only when Act III of 1950 came into operation. It would be, therefore, impossible to hold that the detention would be illegal merely because steps were not taken, and, as I have said, could not be taken for obvious reasons in accordance with Act III of 1950.

The question then is as to what is the real effect of section 26 of Act III of 1950 which is both a repealing section as well as a saving provision in regard to the proceedings commenced, orders made or acts done under the Ordinance which has since been repealed. It has been contended by the learned Government Advocate for the Crown that the effect of section 26 is that the order of detention passed under the Ordinance of 1949 would be deemed to have been passed under the Act of 1950 as from the date on which the Act came into force; in other words, from the 4th of January, 1950. This contention, in my opinion, is equally too wide to merit acceptance. The effect of this argument would be that according to the learned Government Advocate the order of detention would be deemed to have been passed on the 4th of January, 1950. This argument involves various difficulties. One obvious difficulty is that if this argument is accepted, a final order passed under the Ordinance, as contemplated by sub-section (1) of section 3 of the Ordinance which may be about to expire at or about the period when this Act came into force will get ipso facto a further extension of about six months from the 4th of January, 1950, and we will have to assume by some sort of legal fiction that on the 4th of January, 1950, the date on which this Act came into operation not only that the original order detaining the detenu had been passed on that date but also the subsequent order as confirmed or modified by the Provincial Government was passed simultaneously on the same date. It is, therefore, impossible for us to accept either of the two contentions advanced by the applicant or on behalf of the Crown.

I have said already that section 26 of Act III of 1950 is both a repealing section as well as a saving section in respect of the previous legislation, i.e, the Ordinance of 1949. It has to be observed that section 26 of the Act appears to have been copied word for word from section 24 of the Ordinance ignoring the fact that in section 5 of the Act which corresponded to section 4 of the Ordinance various changes had been introduced in regard to the time-factors, and, therefore, those changes were obviously inconsistent with the provisions of the repealed Ordinance. At page 295 of Copies on Statute Law, 4th Edition, it is stated:

“The effect of a repeal without any express savings is thus stated by Tindal, C.J, in Kay v. Goodwin (1830, 6 Bing. 576), where he says: “I take the effect of repealing a staute to be to obliterate it as completely from the records of the Parliament as if it had never been passed: and it must be considered as a, law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law”.

Again at page 298, the passage occurs:

“Where an act confirming jurisdiction is repealed by a later Act containing a saving clause to the effect that the repeal shall not affect any jurisdiction created by the repealed Act, that jurisdiction, in the absence of inconsistency between the two Acts, should be treated as continuing notwithstanding the repeal. The rule is thus stated by Collins, M.R, In Re R. (1906, 1 Ch. 730), which turned on the question whether section 5 of the Trustee Act, 1850, which applied to property held by a criminal lunatic, was wholly repealed by section 342 of the Lunacy Act, 1890, which does not deal directly with criminal lunatics. He said: “There were one or two other cases cited which have an important application to the present case, that is to say, cases where you find in an Act a repealing clause followed by a saving clause. There you have to see how far the two enactments can co-exist”.

It would thus appear that the repealing as well as the saving provisions in section 26 have to be read in such a manner as not to create any incompatibility and to give effect to the intentions of the Act and not so as to defeat its purpose. Bearing in mind that principle, it seems to us that whatever proceedings may have been commenced and orders made and acts done under the Ordinance shall be continued, or deemed to have been passed or done under this Act. Therefore, if a final order within the meaning of sub-section (5) of section 4 of the Ordinance has been already passed, that order will take effect as provided under section 3 of the Ordinance. If no such final orders have been passed, but only proceedings have been commenced or acts done and in so far as they have been properly done under the Ordinance, they shall be continued or deemed to have been done under the Act. We find in this particular case that reference had been properly made to the Advisory Council on the 24th of September, 1949. If after such a reference the proceedings had been duly pending before the Advisory Council, or, in other words, the Advisory Council had called for further information from the Provincial Government, and if the Provincial Government had submitted the materials or were. I contemplating to do so, then when Act III of 1950 came into operation, i.e, on the 4th of January, 1950 the proceedings would have been validly continued.

It is again necessary to recapitulate the procedure laid down under the Ordinance after reference to the Advisory Council. The first is that the Advisory Council, if necessary, may call for further information from the Provincial Government or from the person concerned. The second stage is that the Provincial Government, if called to supply any further information, may do so, but there is no time limit given in the Ordinance for this purpose. Thirdly, where the Provincial Government or the party concerned has furnished the information required where further information is required, then from receipt of such further information or where no such information has been required from the receipt of the materials originally, the Advisory Council shall within three months submit its report. Then the last stage is that the Provincial Government may then confirm, modify or cancel the order after the receipt of the report. Again there is no time limit given within which the Provincial Government is to pass this final order of confirmation. As I have said, if the matter had been duly pending in all these stages or in any one of them as provided by the Ordinance, then on the operation of the Act on the 4th of January, 1950, those proceedings shall be continued and shall be governed by the provisions of this Act. If there are no proceedings pending, then there is nothing to be continued. It is for this reason that we wanted further materials from the learned Government Advocate to satisfy ourselves if there was any proceeding pending: but on the facts as we now find, the only thing which has been done so far is that there was a proper reference to the Advisory Council on the 24th of September, 1949. We take it that there was no further information called for as there is nothing to support that inference. That being so, under the Ordinance of 1949 it was necessary for the Advisory Council to submit its report within three weeks from the date on which the Council received the materials originally, that is, on the 25th of September, 1949. Nothing appears to have happened thereafter, and it is admitted that no reports have been submitted. The result is that there is no proceeding pending. In dealing with Criminal Miscellaneous nos. 854 and 870 of 1949 this Bench pointed out as follows:

“Under sub-section (4) of section 4 of the Public Order Ordinance, the Advisory Council has to submit a report within three weeks of its receiving the materials and further information, if any, be called for to the Provincial Government. On receipt of such report the Provincial Government confirms, modifies or cancels the original order made. The order so confirmed and modified remains in force for a period not exceeding six months from the date of confirmation or modification. If, therefore, the Advisory Council fails to submit a report, then the result is that the Provincial Government is not in a position to confirm, modify or cancel the order. If the Provincial Government is not in a position to confirm or modify the order, then section 3 with regard to the duration of the order becomes infructuous. Therefore, it seems to us that the provisions of sub-section (4) and sub-section (5) of section 4 of the Public Order Ordinance are not merely directory, but mandatory, they being integral parts of the scheme envisaged by the Public Order Ordinance.”

As I have said, we have to take it that though the representation of the petitioner was sent to the Advisory Council there was no report submitted nor did the Provincial Government call for any report or take any other action in respect of the petitioner, Therefore, the irresistible conclusion is that so far as this petitioner is concerned, there has been a failure to comply with the provisions of sub-sections (4) and (5) of section 4 of the Public Order Ordinance, 1949. These provisions being mandatory, the detention of the petitioner is clearly illegal.

The subsidiary question involved in considering the provisions of the Ordinance of 1949 and Act III of 1950 is about the constitution of the Advisory Council. Under sub-section (3) of section 4 of the Ordinance the Advisory Council constituted was to consist of not less than three persons one of whom was to be its Chairman, and the Chairman and the members of the Council had all to be appointed by the Provincial Government. The Ordinance did not lay down any qualification for the membership of the Advisory Council. The Act, however, provides in sub-section (3) of section 5 that the Provincial Government shall constitute an Advisory Council whenever necessary consisting of not less than three members who are or have been or are qualified to be appointed as Judges of a High Court. It may well be, as we have been informed it was in this case, that a member of the Advisory Council constituted under the Ordinance may not be so qualified, and in that case on the operation of the Act i.e, on the 4th of January, 1950, the Advisory Council constituted under the Ordinance ipso facto stood dissolved: yet nonetheless the reference made to the then existing Council under the law as it was and the steps taken by the Advisory Council in question would be deemed to have been made under the Act. After the operation of the Act the Provincial Government may have to reconstitute an Advisory Council at an early date because the maximum period provided under sub-section (4) of section 5 of the Act for the submission of the report by the Advisory Council is within twelve weeks of the date of the service of the order on the person affected. That being so, if this period expires without any report being submitted by the Advisory Council, the detention would be illegal inasmuch as the provisions of sub-sections (4) and (5) of section 5 of Act III of 1950 appear to us to be mandatory and integral parts of the scheme of the Act for the very same reasons as the corresponding provisions of the Ordinance of 1949 as already decided by us in Criminal Miscellaneous nos. 854 and 870 of 1949. That being so, the detention in this case is illegal and the petitioner is entitled to be set at liberty without any delay.

I would accordingly allow this application and direct that the petitioner be released forthwith.

Das, J.:— I agree that the application should be allowed and the petitioner released.

I wish merely to add a few words about the effect of section 26 of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950). As my learned brother has said, the section repeals the Ordinance of 1949 and contains a saving clause. In England, in Acts passed in or since 1890 certain savings are implied by statute in all cases of express repeal, unless a contrary intention appears in the repealing Act; see the Interpretation Act, 1889, s. 38(2). There are similar provisions in the Bihar and Orissa General Clauses Act. These implied savings relate mainly to transactions past and closed, anything duly done or suffered under the enactment repealed, etc.

Section 26 of Bihar Act III of 1950 refers to some of these implied savings, and then states further that with regard to proceedings commenced under the Ordinance of 1949, they shall be deemed to have been commenced and shall be continued under Bihar Act III of 1950. I think a distinction must be drawn between transactions past and closed, and pending proceedings with regard to past and closed transactions, which are saved, no new date of commencement is given. That is why the interpretation sought to be placed by learned Counsel for the Crown was perhaps, too widely stated. For example, a sentence passed under the Ordinance of 1949 does not commence again on the 4th January, 1950—the date on which Bihar Act III of 1950 came into force. Section 26 merely saves the sentence from, obliteration, but does not give it a fresh commencement. As to pending proceedings—that is, proceedings validly commenced and pending on the date of repeal, they have to be continued under the new Act. Mr. Ghosh canvassed for the other extreme view when he submitted that the new time limits should be applied retrospectively to past acts, which it would be impossible to do. I do not think that is the meaning of section 26.

The reason why the petitioner's present detention is not justified in law is this. Section 26 does not revive anything not in force or existing at the time when the repeal takes effect. In the absence of a report by the Advisory Council and a final order by the Provincial Government, the detention of the petitioner became illegal after the expiry of three weeks from the 25th September, 1949, under the then existing law, that is the Ordinance of 1949. Therefore, on the 4th January, 1950, there was neither any valid final order of detention, nor any legally valid pending proceeding against the petitioner which could be saved and continued under section 26.

K.D

Application allowed.

Sunirmal Dutta v. Province Of Bihar

Judgment Summary — Sarjoo Prasad, J. (with concurrence by Das, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Ghosh)

Crown / Government Advocate's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

1. Vagueness of Grounds

2. Effect of Repeal and Section 26 of Act III of 1950 — Time‑limits and Pending Proceedings

Holding and Implications

Sunirmal Dutta v. Province Of Bihar

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