BRAHMESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Section 491, Criminal P. C. and also under Article 226, Constitution of India, made on behalf of one Brahmeshwar Prasad through and by his brother Rudreshwar Prasad. This detenu was a teacher in the Naugachia High English School. He was arrested on 3rd March 1949 under Section 161, Criminal P. C., and lodged in the Bhagalpur Camp Jail where he has been in custody ever since. On 13th March, there was a detention order under Act V [5] of 1947. That Act having been declared ultra vires and having been replaced by an Ordinance, there was a fresh detention order under the Ordinance on 6th June. That Ordinance in turn, was declared-ultra vires by this Court, and was replaced by Ordinance IV [4] of 1949, under which a fresh order was made and served on 6th July. On 6th December, the present application was preferred. A rule was issued, and 16th January was fixed for hearing. It eventually came up on 18th January, this Court having in the meanwhile held that the provisions in the Ordinance for reference to an Advisory Council and report by that Council, were mandatory, and non-compliance would make the detention illegal. The Government Advocate, however, stated that a fresh detention order had been passed under Sub-section (1) (a) of Section 2, Bihar Maintenance of Public Order Act (Bihar Act in [3] of 1950), which had replaced the Ordinance on 4th January 1960, and he asked for a fresh adjournment to prove that order. He was given an adjournment for seven days, and it has been established that in facts a fresh detention order under Act in [3] of 1960 was passed on 16th January, and was served on 16th.

(2.) By the time the matter once more came up for hearing, the New Indian Constitution had come into force, and Mr. Basanta Chandra Ghose on behalf of the petitioner asked that the application should be treated as one also under Article 326 of the Constitution, and contended that Act III [3] of 1960, at least in so far as it related to detention, had become void on 26th January i960, as being repugnant to certain of the provisions prescribing fundamental rights in Pact III of the Constitution, and consequently the detention, being under a void Act, had since the 26th January become illegal.

(3.) Article 13 (1) of the Constitution provides: