PRAHALAD PANDA Vs. PROVINCE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Section 491, Criminal P. C., by a friend of one Baishnab Charan Patnaik who has been arrested on 22nd August 1943 and kept in Cuttack Jail, complaining that the said arrest and the jail custody are illegal. For purposes of convenience, the said Baishnab Charan Patnaik may be treated as the petitioner and will be referred to as such in the following.

(2.) THE petitioner was originally detained under Section 2, Orissa Maintenance of Public Order Act, 1948, by an order of the Provincial Government dated 28th October 1948. The said order was due to expire on 38th April 1949. Before its expiry, however, the Provincial Government passed another order of detention against him on 20th April 1949 for a further period of six months, on substantially the same grounds as those on which the first order of detention was made. The validity of this second order of detention was challenged by an application made to this Court in Cr. Misc. Application No. 119/49. This Court being of the view that the second order of detention dated 20th April 1949 was virtually an extension of the period of earlier detention beyond the statutory six months and therefore illegal, directed on 22nd August 1949 the release forthwith of the petitioner reserving to a later date the pronouncement of the reasons for the order. The judgment setting out the reasons was actually delivered on 14th September 1949. It would appear, however, that on the evening of 22nd August 1949 at 6 p. m., when he was brought out of the jail gate on release in pursuance of the orders of this Court, be was arrested by the Sub -Inspector of Lalbag Police Station under Section 151, Criminal P. C. It is stated in the affidavit filed in support of this application that on such arrest by that Sub -Inspector of Police, the petitioner was taken to the police station in the jail motor van which was waiting at the jail gate with a posse of constables and that he was subsequently brought back to the Cuttack Jail on the same night and lodged there. This assertion has not been denied on behalf of the Government. It is further stated to us at the time of the hearing, and is not denied, that on 22nd, an order of the District Magistrate of Cuttack, dated 22nd August 1949, purporting to be under Section 2 (2), Orissa Maintenance of Public Order Act, 1948, was served on the petitioner while in the Police Station, and that the grounds of this order of the District Magistrate were served on the petitioner in jail on 26th August 1949. A copy of the District Magistrate's order dated 22nd and the grounds dated 26th have been furnished to us by the learned Advocate. General appearing for the Government. On 26th August 1949, the present application which is under consideration before us has been Sled in this Court as stated at the outset by a friend of the petitioner making any reference to the District Magistrate's order, presumably in ignorance, of the fact that subsequent to the arrest by the Sub -Inspector on 22nd an order of detention was passed by the District Magistrate and that the grounds thereof were furnished on the 26th. On the 26th itself this Court admitted the application and made the following order :

(3.) IT will be noticed that there are three stages relating to the present custody of the petitioner : (1) The arrest by the Sub -Inspector of Police at 6 P. M. on 22nd; (2) detention under an order of the District Magistrate dated 22nd August 1949 ; (8) detention under an order of the Provincial Government dated 26th August 1949. The application as filed calls in question only the legality of the first step. But in view of what has happened since, it is the legality of the third stage of the present custody that has to be considered if the petitioner is to get any relief. Learned counsel for the petitioner strenuously contended that the arrest of the petitioner by the Sub -Inspector on 22nd and the order of detention of the District Magistrate dated 22nd under which the petitioner was in custody by the date this application was filed were illegal and that the subsequent order of the Government dated 26th which was served on the petitioner on 27th cannot validate the custody which was illegal at the start and that the custody continues to be illegal. He contends, therefore, that all that is necessary for him to show is the illegality of the first two steps stated above. This contention, however, is opposed to the decision of the Federal Court in Basant Chandra v. Emperor, 1945 F. C. R. 81 at p. 90 : (A. I. R. (32) 1945 F. C. 18: 46 Cr. L. J. 569), where their Lordships stated as follows :