Prabhulal Ramlal Kabra v. Emperor

1. This is an application made by Prabhulal Kabra on behalf of his son Bharatchandra Kabra under Section 491 of the Cr PC. On 11th September 1942, Bharatchandra Kabra was arrested and detained as a security prisoner under an order issued by Rao Sahib S.D Dave, Additional District Magistrate, Raipur, under B. 26, Defence of India Rules. The order of Rao Sahib Dave runs as follows:

“Whereas I am satisfied with respect to B.C Kabra, son of Dr. Prabhulal Kabra, Raipur, that with a view to preventing him from acting in any manner prejudicial to the public safety, the maintenance of public order and the efficient prosecution of the war it is necessary to detain him;

Now therefore in exercise of the powers conferred on me by cl. (b) of sub-r. (1) of r. 26, Defence of India Rules, read with Political and Military Department Notification No. 411-696.C.P.W, dated 7th April 1942, I direct that B.C Kabra son of Prabhulal be detained in the Raipur Jail.

In exercise of the powers conferred on me by sub-r. (5) of r. 26, Defence of India Rules, read with Political and Military Department Notification No. 411-696.C.P.W, dated 7th April 1942, I further direct that the said B.C Kabra son of Prabhulal shall be detained in accordance with the conditions laid down in the Central Provinces and Berar Detention Order, 1942, as class I prisoner.

Dated Raipur, theSd/- S.B Dave,

11th SeptemberAdditional District, Magistrate,

1942Raipur.”

2. The Political and Military Department notification referred to in that order is as follows:—

“No. 411-696 C.P.W — In exercise of the powers conferred by sub-s. (5) of Section 2 of the Defence of India Act, 1939 (35 of 1939), the Provincial Government is pleased to direct that the powers under Rr. 6, 9, 15, 18, 19(2) and (3), 20, 21, 26, 27, 37A, 40, 41, 43, 44, 45, 49, 50, 51, 51A, 51B, 51D, 51E, 51G, 51H, 511, 52, 53, 54, 55(1), 56, 57, 58, 59, 59A, 59B, 76A, 81 except under cl. (aa) of sub-r. (2) thereof, 83, 85B, 89, 116, 119 and 126, Defence of India Rules, which have either been conferred on the Provincial Government by the said Rules or which, being by the said rules conferred on the Central Government are, by virtue of directions issued by the Central Government under sub-s. (4) of S. 2 of the said Act, to be exercised by the Provincial Government shall be exercisable also by all Commissioners of Divisions, District Magistrates and Sub-Divisional Magistrates in charge of the independent sub-divisions of Seoni, Damoh, Narsinghpur, Ellichpur, Basim and Khamgaon, within the limits of their respective jurisdictions.”

3. It appears from the terms of the above notification that the powers conferred on the Provincial Government to issue an order under r. 26, Defence of India Rules, were made exercisable by all Commissioners of Divisions, District Magistrates and Sub-divisional Officers of certain specified districts which do not include the Raipur district. The contention raised on behalf of the detenue is that Rao Sahib Dave, Additional District Magistrate, was not competent to issue the order of detention as Political and Military Department Notification no. 411-696-CPW, of 7th April 1942, did not authorise an Additional District Magistrate to exercise the powers of the Provincial Government under R. 26(5), Defence of India Rules. On behalf of the Crown that contention is countered by reference to the Provincial Government's notification dated 16th March 1942, whereby Rao Sahib Dave, Extra-Assistant Commissioner and Magistrate of the first class, Raipur, was appointed an Additional District Magistrate. That notification is in the following terms:

“No. 556-492-XIX — In exercises of the powers conferred by sub-s. (2) of Section 10 of the Cr PC, 1898, (5 of 1898), the Provincial Government is pleased to appoint Rao Sahib S.B Dave, Extra-Assistant Commissioner and Magistrate of the first class, Raipur, in the Raipur district, to be an Additional District Magistrate, Raipur, and to direct that he shall exercise all the powers of a District Magistrate under the said Code or under any other law for the time being in force.”

4. The question, which arises for determination, is whether Rao Sahib Dave, Additional District Magistrate, Raipur, had power to direct the detention of Bharatchandra Kabra under R. 26(5), Defence of India Rules, read with political and Military Department Notification No. 411-696-CPW, dated 7th April 1942. It is true, Rao Sahib Dave was appointed an Additional District Magistrate and was invested with all the powers of a District Magistrate under the Code of Criminal Procedure or under any other law for the time being in force and it is also true that on the date of the notification the Defence of India Act and the rules were in force, but even the District Magistrate had not been invested by the Provincial Government under Section 2(5) of the Defence of India Act, with powers to enforce any of the rules of the Defence of India Rules on that date. Consequently such powers as the District Magistrate could exercise under any law other than the Code of Criminal Procedure on 16th March 1942, could not at the date include the power to issue an order under R. 26, Defence of India Rules. The learned counsel for the applicant attempted to argue that under the notification, Rao Sahib Dave could exercise only those powers of the District Magistrate under any law other than the Code of Criminal Procedure which the District Magistrate was on that date competent to exercise. But we think that this question is of minor importance as in our opinion the expression “for the time being in force” refers to the period during which the notification is in force. The more important question is: Can the Additional District Magistrate, simply on the strength of the Notification No. 556-492-XIX, dated 16th March 1942, exercise the powers which were conferred not on the Additional District Magistrate but on the District Magistrate by the Political and Military Department Notification of 7th April 1942? In our opinion he could not.

5. By the Notification No. 556-492-XIX of 16th March 1942, Rao Sahib Dave was empowered to exercise all the powers of a District Magistrate under the Code of Criminal Procedure or any other law in force. The expression “under any other law” cannot include r. 26, Defence of India Rules, for the reason that it does not expressly or impliedly authorise the District Magistrate to make an order under that rule. That rule confers power on the Central and Provincial Governments only. It cannot, therefore, be said that the District Magistrate derived his authority from R. 26 since the Notification No. 411-696-CPW, dated 7th April 1942 itself recites that the District Magistrates are empowered by the Provincial Government under Section 2(5) of the Defence of India Act. The order promulgated by that notification was not an order which would fall within the ambit of the definition of “the Indian law” contained in Section 3(27) of the General Clauses Act. Rules, regulations and orders, which are made in exercise of the legislative authority conferred by statutes, are a species of delegated legislation. The Provincial Government's order notified on 7th April 1942 is not a statutory but an administrative or an executive order. The District Magistrate of Raipur derived his power to enforce r. 26, Defence of India Rules, by virtue of this executive order. The fact that he was thereby enabled to exercise the powers of the Provincial Government under the Defence of India Rules does not put him on the footing of an officer or an authority exercising powers directly under the Defence of India Act or its Rules. The order only purported to delegate the authority which the defence of India Rules conferred on the Provincial Government and any order passed by the District Magistrate under r. 26, Defence of India Rules, would, in effect, be an order made by the Provincial Government which enforces R. 26 through the medium of the District Magistrate. The word “law” in “any other law” occurring in Section 10(2) of the Cr PC, is not meant to include an executive order but only legislative enactments, and rules, regulations or orders which have the force of law and consequently the District Magistrate, who acts for the Provincial Government under the powers conferred upon him by the” Provincial Government by an executive order, cannot be regarded as acting under any “law” as such. The case in I.L.R (1937) Mad. 10341 is distinguishable on the ground that the District Magistrate there derived his authority to take action under the Child Marriage Restraint Act by the express terms of S. 8 of that Act and not from any executive order.

6. The terms of r. 26, Defence of India Rules, are clear to show that it is primarily the Provincial Government that is empowered to make an order under that section. Any other officer or authority exercising power under that rule has to derive his power from the Provincial Government's order made under Section 2(5) of the Defence of India Act. That is the sole channel provided by that Act for the delegation of the Provincial Government's powers to any officer or authority subordinate to it. The Defence of India Act and Rules made thereunder are special laws enacted to meet an emergency and they confer extraordinary and drastic powers on the executive whose acts performed under those powers are not liable to be challenged in any Court of law. Rule 26 confers very wide, almost autocratic, powers on the Provincial Government, and precisely for that reason it is imperative that they must be exercised with a due sense of responsibility and with circumspection by an officer or an authority of a certain status and experience. When the Provincial Government delegates its powers to an officer or authority subordinate to it, it is not unreasonable to assume that it fully considers the fitness of the delegate before passing an order under Section 2(5) of the Defence of India Act. The law, which confers these extensive and absolute powers on the Provincial Government, itself provides the channel through which the power must pass to the delegate. The object of Section 10(2) of the Cr PC, is only to relieve the pressure of work falling on the shoulders of the District Magistrate in the course of the performance of his normal duties under the Code of Criminal Procedure or any other ordinary law. The Additional District Magistrate who is invested with powers of a District Magistrate, does not thereby attain the status of the District Magistrate as sub-s. (3) of section 10 of the Cr PC, itself makes clear: see also, 54 Mad. 943.2 The fact that the Additional District Magistrate may have all the powers of the District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the district who can be a District Magistrate. Any act done or order passed by the Additional District Magistrate exercising the powers of the District Magistrate under the Code of Criminal Procedure or any other ordinary law is liable to review in superior Courts, whereas the powers conferred by Section 2(5) of the Defence of India Act, on the District Magistrate are such that his action under it is, on its merits, not even justifiable. The District Magistrate is an authority in the district who must be contradistinguished from all those officers who are not District Magistrates notwithstanding that there may be an Additional District Magistrate exercising the powers of the District Magistrate. The Provincial Government, when it conferred the power on the District Magistrate under Section 2(5) of the Defence of India Act, conferred the power on the officer actually holding the office of the District Magistrate and on no one else.

7. Section 10(2) of the Cr PC, and Section 2(5) of the Defence of India Act, are quite distinct in their scope and application. The former is concerned with the powers of the District Magistrate under the law and the latter with the powers of the Provincial Government. Section 10(2) cannot be called in aid to confer the powers of the Provincial Government under r. 26, Defence of India Rules, on any officer subordinate to it. It was observed by Lopes L.J, in (1887) 18 Q.B.D 7043 at p. 708 that in the case of an Act which creates a new jurisdiction, a new procedure, new forms and new remedies, the procedure, forms and remedies there prescribed must be followed. The principle underlying these observations applies fully in this case. Section 10(2) of the Cr PC, which authorises Additional District Magistrate to exercise all the powers of a District Magistrate under “any other law,” clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's powers under some special law which enacted that the District Magistrate alone and no other person or authority should be empowered to do a certain act. The matter is obvious when there is an express prohibition but the result is the same when a prohibition is implied. The law which the Defence of India Act and its rules create is a very special law, and when we find the Act saying as it does in S. 2(2), that the rules “may provide for, or may empower any authority to make orders” for all or any of the matters specified, it means that the authorities not empowered to act under the rules have no power to enforce the special provision of the Act. Though the prohibition is not express it is implied. When we turn to R. 26(1) we find that only the Central and Provincial Governments are invested with authority to discharge the special functions which the Act creates. Had the matter rested there, it is obvious that no one else would have been able to act. But S. 2(5) of the Act empowers the Provincial Government to delegate its powers under the Act and rules to any officer or authority it chooses outside a small restricted class.

8. Now, it is evident that this delegation must be a delegation under the Act and for the purposes of the Act. If therefore the delegation is to the District Magistrate, the District Magistrate alone can act. He becomes persona designata and all other persons and authorities are necessarily excluded. On this view, the authentication of the order of detention passed by Rao Sahib Dave by reference to r. 26, Defence of India Rules, and the Political and Military Department notification was erroneous because the power of the Provincial Government under R. 26 was never formally delegated to him under Section 2(5) of the Defence of India Act.

“We are fortified in the view we take by the observations of the Federal Court made in A.I.R 1943 F.C 754 at page 86. In that case it was urged that the volume and multifariousness of the duties imposed upon the Provincial Government by the Defence of India Rules must necessitate the delegation in many cases by the Provincial Government of its powers to officers subordinate to it and that it must be presumed that this delegation can be effected under its rules of business. The learned Advocate-General of India argued that the operation of sub-s. (5) of Section 2 of the Defence of India Act, was confined to cases of delegation to district officers and that it did not extend to the cases of delegation within the Provincial Secretariat which were governed by the provisions of Section 49(1) read with Section 59(3) of the Constitution Act. Zafrulla Khan and Varadachariar JJ. repelled the argument and held that any delegation (whether it was to district officers or officers of the Secretariat) must be made in accordance with S. 2(5) only. Their Lordships pointed out that the difference between the delegation under the provisions of Section 2(5) of the Defence of India Act, and under rules of business and standing orders framed under Section 59(3) of the Constitution Act, was not a mere matter of form, and stressed the fact that as the Defence of India Rules confer wide and drastic powers, it might reasonably be expected that where a delegation of any of these powers is made under Section 2(5) of the Defence of India Act, care should be taken to ensure that the officers and authorities to whom the delegation is made are selected with due regard to the nature and scope of the powers delegated, which object could not be attained if the delegation is made under rules of business and standing orders as they were presumably framed without any reference to powers the exercise of which might be necessitated by an emergency. Though Spens C.J, differing from his colleagues, accepted the argument of the Advocate-General that such matters as those which are to be dealt with under r. 26 could be dealt with in accordance with rules of business made under Section 59(3) and the powers conferred by Section 49 of the Constitution Act, his Lordship pointed out that Section 2(5) of the Defence of India Act, requires a delegation where matters cannot be dealt with by the Provincial Government in the manner in which it normally deals with its executive business. The executive business which Spens C.J had in mind was, as explained by his Lordship, the executive action of the Government of the Province which is expressed to be taken in the name of the Governor as provided in Section 59(1) of the Constitution Act. As to the delegation of the powers under r. 26, Defence of India Rules, it was conceded on behalf of the Crown that in the case of district officers the delegation could only be in accordance with Section 2(5) of the Defence of India Act. It is pertinent to observe here that the learned Chief Justice did not accede to the contention of the learned Advocate-General of Bengal that the satisfaction required by r. 26, was not a condition precedent to the exercise of the power and emphasised in positive terms that it is a condition to be fulfilled before an order can validly be made.

9. The rule that is deducible from the discussion of the question in the Federal Court's judgment referred to above is that, so far as the district officers (as opposed to the officers in the Secretariat) are concerned, the delegation of powers under r. 26, Defence of India Rules, must be directly through the channel of Section 2(5) of the Defence of India Act, and that condition must be fulfilled before any district officer can make a valid order under r. 26.

10. Our attention was invited to the decision in Misc. Criminal case no. 11 of 1943.5 That case is not in point: the order of the detention there was passed by the Additional District Magistrate after he had been directly invested with powers under Section 2(5) of the Defence of India Act. The case in I.L.R (1943) Nag. 1546 is more in point. In that case, Mr. Farquhar was, by Notification No. 2474-1, dated 15th August 1942, appointed Additional District Magistrate but it was not made clear what powers of the District Magistrate under the Criminal Procedure Code or any other law he was to exercise. Mr. Farquhar issued some orders of detention under Notification No. 411-696-CPW, dated 7th April 1942, which authorised the District Magistrates to exercise the powers of the Provincial Government under R. 26, as Rao Sahib Dave did in the present case. In order to validate Mr. Farquhar's orders issued on 22nd August 1942, the Provincial Government issued a Notification (No. 3213-258-CPW) on 26th August with retrospective effect from 22nd August. Pollock J. doubted if it was possible for the Provincial Government to validate with retrospective effect the orders passed by Mr. Farquhar on the 22nd. The question as it arises here was not directly in issue in that case, and Pollock J.'s opinion was only tentative. Nevertheless, from the stress he laid on the fact that Mr. Farquhar, though an Additional District Magistrate, was not a District Magistrate, it may be inferred that in the learned Judge's opinion none but the officer specially empowered under Section 2(5) of the Defence of India Act, could exercise the power of the Provincial Government under R. 26, Defence of India Rules. One of us (Bose J.) who was a party to that decision dealt with the question whether the provisions other than Section 2(5) of the Defence of India Act, which invest the Additional District Magistrate with the powers of the District Magistrate were enough to enable him to exercise the powers conferred on the District Magistrate under Section 2(5) of the Defence of India Act, and expressed the opinion that the very special and drastic powers under R. 26 can only be exercised by those who are specially authorised. That view now receives support from the decision of the Federal Court of India in the case referred to above. We are, therefore, of the opinion that no power under r. 26, Defence of India Rules, can be exercised by the Additional District Magistrate simply by virtue of the notification under Section 10(2) of the Cr PC, and we hold that Rao Sahib Dave was incompetent to exercise the powers of the Provincial Government under r. 26, Defence of India Rules, and that his order was void and of no effect. Accordingly we order that Bharatchandra Kabra son of Dr. Prabhulal Kabra, Raipur, be set at liberty forthwith.

11. Application allowed.