MOHAMMAD ZAHURAL HUQUE Vs. STATE

JUDGEMENT

(1.) THE petitioner came to Indore from West Pakistan on 4th September 1948, under a permit issued by the Deputy High Commissioner for India in West Pakistan under Ordinance No. 17 of 1948 made by the Governor-General of India Under Section 42, Government of India Act, 1985. In the permit the duration of the visit to India is stated to be for a period of six weeks. The applicant, sot having left Indore on the expiry of the six weeks, was arrested on 6th November 1948, by the Sub-Inspector of Police in charge Sadar Bazar Police Station House in the city of Indore for having contravened the provisions of Section 8 of the Ordinance. On the following day, he was produced before the District Magistrate, Indore City who ordered his release on bail. The District Magistrate is awaiting the police challan. On 9th December 1948, the petitioner made a petition to this Court Under Section 491, Criminal P. C. alleging that his arrest was illegal and that bis bail should be cancelled. He alleged that he was a subject of the Madhya Bharat Government as he owned immovable property situated in Indore.

(2.) THE learned Counsel for the applicant submitted that the arrest was illegal as the Ordinance made and promulgated by the Governor-General of India bad not the force of law in the state of Madhya Bharat. His Highness the Raj-pramukba of the United State of Gwalior, Indore and Malwa States (Madhya Bharat) by an instrument dated 19th July 1948 offered to accede to the Dominion of India, The Instrument of Accession was accepted by the Governor-General of India on 13th September 1948 and Under Section 6, Government of India Act, 1985, the United State of Madhya Bharat should be deemed to have acceded to the Dominion of India on this date. The Instrument of Accession was published in the local official gazette dated 30th october 1948. It is provided by Clause (a) of Sub-section (1) of S. C, Government of India Act, 1935 that a Dominon authority (the Governor. General, the Dominon Legislature, the Federal Courtor any other) shall exercise such function as may be vested in it by or under the Act but subject always to the terms of the Instrument of Accession. In Act. 3 of the Instrument of Accession the Rajpramukh accepts "all matters enumerated in List I and List III of Section vii to the Act as matters in respect on which the Dominion Legislature may make laws for the United State" Thus, it is clear beyond the shadow of a doubt that of the several Dominion Authorities, the United State of Madhya Bharat has accepted the power of the Dominion Legislature only to make laws for it. The Governor-General of India cannot, therefore, exercise in relation to the state the functions vested in him by Section 42, Government of India Act, 1935. He cannot make and promulgate an Ordinance having force in the state of Madhya Bharat. It was urged by the learned Public Prosecutor that Under Section 42, Government of India Act, an Ordinance made and promulgated by the Governor. General shall have the like force of law as an Act passed by the Dominion Legislature, and there-fore, the Ordinance No. 17 of 1948 should be deemed to be an Act of the Dominion Legislature. This simply means that an Ordinance, though not made by the Dominion Legislature shall have force of law; In relation to the United State, the question is which authority has made the law for it. The Dominion Legislature alone has the power under Article 3 of the Instrument of Accession to make laws for the United State. The Ordinance was published for 'general information' and in the official gazette of the United State dated 14th August 1918. This fact can have no bearing on its having the force of law in the state, Under s 1 the Ordinance extends to the whole of India and India as defined in Section 5, Government of India Act, 1935, includes an Indian state acceding to the Dominion of India in the manner provided in the Act. The manner of accession is laid down in B. 6 of the Act as explained above. So far as Ordinances made Under Section 42 of the Act by the Governor-General are concerned, India would include only those acceding states whose rulers have accepted by the Instruments of Accession the authority of the Governor-General of exercise his functions under the Act in relation. to their states. I, for these, reasons, hold that Ordinance no. 17 of 1948 made by the Governor-General of India has not the force of law in the United State of Gwalior, Indore and Malwa states and the arrest of the applicant under it was illegal.

(3.) THE learned Public Prosecutor submitted that the applicant has been released on bail. He was not detained in custody at the time the petition was made and he could not, therefore, invoke B. 491, Criminal P. C. , in his aid. The very same argument was put forward by another learned Public Prosecutor before a full Bench of the Indore High Court in the year 1946 but the contention was overruled by the learned Judges on the authority of the case reported in Sandal Singh v. Dist. Magistrate and Supdt; Dehradun A, I. R. (21) 1934 ALL. 143 : 86 Cr. L. J. 1296. An application was made to the More High court Under Section 461, Indore Criminal P. C. corresponding to Section 491, Criminal P. C. by a per3on arrested under the Indore Extradition Rules and bad been released on bail. The case is reported in 1945 indore Law Bep. 143. I reproduce below the relevant portions from the judgment of the learned Chief Justice appearing a a pp. 153 and 151 of the report: