YAKUBJI KARIMJI Vs. STATE

JUDGEMENT

(1.) WE have before us six petitions, under Section 491 of the Criminal Procedure Code, presented on behalf of six persons, who are under detention at the Ahmedabad Central Jail, alleging that the detenus are unlawfully detained, and praying for an order of this Court for their discharge. It is not suggested that the detained persons have committed any offence or that there is any question of their standing their trial, but the justification for the detentions, urged on behalf of Government, is, that in each case, an order has been made by the District Magistrate of Ahmedabad, pursuant to the power given in that behalf by Section 46b of the Bombay District Police Act, 1890. This section as also Sections 46a, 46c and 46d are new, having been introduced by the Bombay District Police (Amendment) Act, 1946, which came into operation on September 30, 1946. Section 46b gives to a District Magistrate certain formidable powers, exercisable within his District after the Provincial Government have declared a proclamation of emergency in any part of the District, on being satisfied, that the public peace or tranquillity in the district or in any part thereof is disturbed, or is likely to be disturbed, in consequence of a conflict between different communities or sections thereof or gangs or factions. Such a proclamation is valid for one month unless revoked, but may be renewed before its expiry. A proclamation of emergency was declared on September 30, 1946, in respect of the City of Ahmedabad, and has been renewed from time to time. The powers conferred on the District Magistrate are contained in Sub-section 46b (3), which is as follows : After the Provincial Government has under Sub-section (1) issued a proclamation of emergency, the Magistrate of the district, whenever it appears to him that the presence, movements or acts of any person in the district is or are causing or calculated to cause danger or alarm, or that a reasonable suspicion exists that designs calculated to disturb public peace or tranquillity are entertained by such person, may (i) by an order, in writing duly served on him or beat of drum or otherwise, as he thinks fit, direct such person : (a) so to conduct himself as the Magistrate shall deem necessary in order to prevent the disturbance of the peace or (b) to remove himself outside the Province or to such place within the Province and by such route, and within such time, as the Magistrate shall prescribe; or (ii) by an order in writing direct that he be detained for a period not exceeding fifteen days at a time.

(2.) THIS sub-section is followed by two provisos the importance of which is very great. The first proviso is in these terms: Provided that the total period of detention shall not without the order of the Provincial Government in any case exceed two months, And the second proviso is: Provided further that any order made under this section shall cease to have effect on the proclamation of emergency ceasing to operate.

(3.) THAT form of order was challenged in the Court of Criminal Appeal of this High Court on December 6, 1946, In re Navnitlal Hiralal Gandhi, (1946) 49 Bom. L. R. 386 on the ground that it is the District Magistrate in whom the Legislature has vested the discretion and the responsibility to make these detention orders, and not Government. In the judgment delivered on that occasion, I said (p. 390) : The Government Pleader would have us read this proviso (that is to say the first proviso limiting the period to two months without an extension order of Government) as giving the ministerial function of Government as well as the District Magistrate authority to make detention orders, but no part of Section 46b gives the Provincial Government any such power. The responsibility for making detention orders is exclusively vested in the District Magistrate, and Government's powers are limited to enlarging the maximum period of two months, in which the District Magistrate can, in any particular case, make detention orders which are themselves only valid for fifteen days.