EMPEROR Vs. RAYANGOUDA LINGANGOUDA PATIL

JUDGEMENT

(1.) THESE two appeals arise out of the acquittal by a jury of Belgaum of two persons tried at separate trials for the breach of an order purporting to have been passed under Rule 26(5-B)(b) of the Defence of India Rules, 1989, by the District Magistrate of Belgaum. The order in respect of which the trials have been held was dated September 6, 1942, and in each case the order directed the accused to present himself before the District Superintendent of Police by a certain date. On August 15, 1942, Rule 26(5-B) had been amended so as to include a provision for an order being issued against a person whose detention had already been ordered to present himself before some named person on penalty of seven years' rigorous imprisonment for breach of the order. The powers of the Government of Bombay under Rule 26 were delegated to all District Magistrates by the Government of Bombay on December 19, 1941, and by virtue of that order of delegation the District Magistrate acting under Rule 26(1) had passed an order of detention against both these accused persons.

(2.) IT is to be noted that at the time of the delegation of the powers of Government to District Magistrates under Rule 26, Rule 26(5-B) did not stand in its present form IT included no rule in terms giving power to order any person to appear before a named person and still less did it include any penalty for the breach of such an order. But in passing orders against these two persons to present themselves before the District Superintendent of Police, the District Magistrate on September 6, 1942, purported to act under Sub-rule (5-B)(b), which in fact had not in terms been delegated to him and was enacted only on August 15, 1942. The learned Sessions Judge of Belgaum therefore directed the jury that the District Magistrate had no jurisdiction by virtue of the powers delegated to him to pass the order of September 6, 1942, for the breach of which the accused were being prosecuted ; and he directed the jury to return a verdict of acquittal, which the jury accordingly did. At the same time he directed the jury that, by reason of the procedure prescribed by Rule 119 for bringing orders against individuals to the notice of the individuals affected by the orders, it could not be said that the two persons against whom the orders were passed had ever had notice of the orders, and that there was in those cases no evidence from any other source that they had in fact knowledge of the orders. On that ground also he directed the jury to return a verdict of acquittal. In these appeals the only question in issue is the legality of these two directions.

(3.) THE argument is that by reason of Rule 3 of the Defence of India Rules Section 8(1) may be read as providing for a case where any one of the Defence of India Rules repeals and re-enacts with or without modification any provision of the Defence of India Rules, so that a reference in an order passed under the rules to the unrepealed rule must be construed as a reference to the re-enacted rule.