ACHINTA KUMAR BHATTACHARJEE Vs. THE STATE

JUDGEMENT

(1.) THIS is a revision application under the provisions of Section 439, Criminal P. C. directed against an appellate judgment passed by the learned Additional Sessions Judge, U. A. D., by which he confirmed the conviction and sentence passed by the trial Court - -a Magistrate of the First Class, Silchar against the petitioner under Section 2(6)(b) of the Assam Maintenance of Public Order Act of 1947 (Act V of 1947). The sentence passed upon the petitioner was twelve months' R. I.

(2.) IT appears that an order of detention against the petitioner was made by the Deputy Commissioner of Cachar on 5 -1 -49. The Deputy Commissioner, Cachar, is also the District Magistrate of Cachar and as District Magistrate, Cachar in virtue of the power delegated to him under Section 9 of the Assam Maintenance of Public Order Act, 1947 read with Section 2(1)(a), he passed the order of detention against the petitioner. In express terms the order of detention was to remain in force for a period of two months, that is to say, it was to lapse on 5th of March, 1949. It appears that on 17 -1 -49 the District Magistrate of Cachar resorted to the provisions of Section 2(6)(a) of the Assam Maintenance of Public Order Act, 1947 and issued a proclamation which was duly published in the Assam Gazette on 20 -1 -49. Mr. Goswami for the State has conceded that this proclamation issued by the District Magistrate on 17 -1 -49 must be disregarded as it was not a proclamation issued in accordance with law. Under Sub -section (6) of Section 2 of the Assam Maintenance of Public Order Act, 1947, if it is intended to take action under Clause (a) of Sub -section (6) of Section 2, it is the Provincial Government who is to make a report in writing of the fact, namely, that the person against whom an order of detention is made has absconded or is concealing himself to a Magistrate of the First Class having jurisdiction. Mr. Goswami concedes that no report was made in this case - by the Provincial Government in writing or otherwise to a Magistrate of the First Class. This date, namely, 17 -1 -49, therefore, must be omitted from consideration altogether.

(3.) MR . Ghose who appears for the applicant contends that on 10 -4 -49, the District Magistrate of Cachar had no jurisdiction to make an order under the provisions of Clause (b) of Sub -section (6) of Section 2 of the said Act; that it was on 10 -4 -49 for the first time, more than a month after the order of detention had lapsed by efflux of time, that the District Magistrate, acting as a delegate of the Provincial Government, had reason to believe that the petitioner in respect of whom the order of detention had been made had absconded or was concealing himself; reason to believe that the petitioner has absconded or is concealing himself must be entertained during the period during which the order was in force, namely, two months from 5 -1 -49, and not after the duration of the order had expired.