Sinha, J.:— The Bench consisting of the Chief Justice and Sarjoo Prasad, J. which heard the application for a writ of habeas corpus, having differed on the question whether, in promulgating the Bihar Preventive Detention Ordinance (Bihar Ordinance II of 1950), the Governor had complied with the terms of clause (1) of Article 213 of the Constitution of India, the matter has been placed before me as the third judge. His Lordship the Chief Justice is of the opinion that the conditions laid down in the said Article had not been satisfied, and that, therefore, the Ordinance was void. His Lordship Mr. Justice Sarjoo Prasad, on the other hand, is of the contrary opinion. On all other questions raised on behalf of the petitioner, their Lordships agreed. Hence, the only question which was referred to me is “whether the Ordinance has been validly promulgated”.
Mr. B.C Ghosh, appearing on behalf of the petitioner, expressed his intention of arguing the whole case before me, and not only the particular question on which their Lordships had differed. I stopped him from doing so, and informd the Counsel for the parties that I proposed to hear them only on the question referred to me. Hence, the arguments before me have been confined to the question of the validity of the Ordinance with reference to the Preamble.
The terms of the Preamble to the Ordinance have been quoted in extenso in the judgment of his Lordship the Chief Justice. Hence, it is not necessary to repeat them here. The learned Chief Justice has held that the Preamble is defective in so far as it does not state that, in the Governor's opinion, the circumstances require the Ordinance to be promulgated in the particular terms in which it has actually been made. Sarjoo Prasad, J., on the other hand, has taken the view that the Preamble, read as a whole, was enough to satisfy the conditions laid down in Article 213(1) of the Constitution of India. I have gone through the judgments of their Lordships more than once and in my opinion, the view taken by Sarjoo Prasad, J. is the correct one. In the first place, the Article does not require that the Ordinance to be promulgated by the Governor has to state in so many words that the Governor was satisfied as to a certain state of affairs. In the second place, all the paragraphs of the Preamble read together would show that the Governor was satisfied in terms of Article 213(1) of the Constitution of India. In my opinion, his Lordship the Chief Justice omitted to consider the full force of the word “there fore” in the third paragraph of the Preamble, which word incorporates the matters on which the Governor was satisfied, namely, (1) the existence of circumstances necessitating immediate action and (2) provision for preventive detention leading up to the making of the Ordinance, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India. If the word “therefore” were given its full force, it becomes absolutely clear beyond a shadow of doubt that the Governor was promulgating the Ordinance in question being compelled by the necessity of the circumstances to do so. As I agree generally with the reasons given by his Lordship Mr. Justice Sarjoo Prasad, it is not necessary for me to repeat them over again.
K.D
Rule discharged.