SIR GULAB SINGH Vs. DISTRICT MAGISTRATE, DEHRA DUN

JUDGEMENT

(1.) THIS is an application under Section 491, Criminal Procedure Code The applicant, Sir Gulab Singh, is the ex -Maharaja, Rewa State. The Rewa State acceded to the Indian Union in August 1947. On 20th May 1948, the Governor -General passed an order addressed to the Superintendent of Police, Dehra Dun. It is an order passed under the provisions of the Bengal State Prisoners Regulation, 1818, as adapted by the Bengal State Prisoners Regulation (Adaptation) Order, 1947, promulgated on 26th August 1947, and directs that Sir Gulab Singh, the applicant, shall be placed under personal restraint at No. 10, Dolialwala, Dehra Dun, and be dealt with in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulations, 1818. In pursuance of this order -the warrant of commitment the applicant is being kept in personal restraint at Dehra Dun. By means of this application, it is prayed that the applicant may be set at liberty inasmuch as his detention is contrary to law.

(2.) IN the application many grounds were set out for attacking the order of detention, but, in the course of arguments, only one main point has been urged. It is to the effect that the new provisions of the Bengal State Prisoners Regulation, 1818, under which the order of detention hag been passed, were introduced into the old Regulation as it stood prior to 15th August 1947, by means of the Bengal State Prisoners Regulation (Adaptation Order), 1947, passed on 26th August 1947. According to the contention of the learned counsel for the applicant, this Adaptation Order made by the Governor -General was a nullity inasmuch as the Governor -General had no power to introduce the relevant provisions into the Regulation on 26th August 1947. It may be noted here that sub sections (3) of Section 491, Criminal Procedure Code, inter alia, provides that nothing in the section applies to persons detained under the Bengal State Prisoners Regulation, 1818. It is obvious, therefore, that if the order of detention of the applicant is covered by the provisions of the Bengal State Prisoners Regulation, this Court will have no power to interfere with it in these proceedings.

(3.) THE crucial question in the case is whether the Bengal State Prisoners Regulation (Adaptation Order), 1947, of 26th August 1947, (hereinafter referred to as the impugned adaptation order) is ultra vires of the powers of the Governor -General. This Adaptation Order purports to have been made