BHUTNATH GHOSH Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) These applications are under Section 491, Criminal P.C., by Bhutnath Ghosh and 59 others who allege that they are illegally and improperly detained under Section 2 (1), Bihar Maintenance of Public Order Ordinance (ordinance IV [4] of 1949).

(2.) The material facts are not controverted. The applicants had at first been arrested under the Bihar Maintenance of Public Order Act, 1947. Section 1 (3) of the Act provided that it shall remain in force for a period of one year from the date of its commencement. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolution of the two Houses of Legislature of the Province, and further gave the Provincial Government the power of modification, if any, of the Act, The Federal Court decided by their judgment dated 28th May 1949, Jatindra Nath v. Province of Bihar, (A.I.R. (36) 1949 F. C. 175), that the proviso was ultra vires of the Provincial Legislature and the extension of the Act beyond one year was invalid. The Federal Court also held that Bihar Act, V [5] of 1949 was infructuous, as the Bihar Maintenance of Public Order Act of 1947, which it sought to amend, had come to an end when the first year expired on 3rd June 1949. The Governor of Bihar promulgated ordinance II [2] of 1949. On 21st June 1949, this Ordinance was declared ultra vires and invalid by a judgment of this Court. On the next date, that is on 22nd June 1949 the Governor of Bihar promulgated ordinance IV [4] of 1949 which re-enacted in substance, the provisions of ordinance II [2] of 1949 which it purported to repeal. It is not disputed that the applicants have been served with fresh orders by the Provincial Government under Section 2 (1) of the new Ordinance.

(3.) The validity of the detention is challenged in these proceedings on the ground that the Governor of Bihar in promulgating the Ordinance has exceeded his legislative competence. It is, therefore, necessary to examine the terms of the Ordinance and compare them with the sections of the Constitution Act. At the outset, the Ordinance recites that the Governor of Bihar is satisfied that circumstances exist which render it necessary for him to take immediate action to provide for preventive detention and certain cognate matters in connection with the public safety and maintenance of order. Section 2 empowers the Provincial Government to make orders for detention or otherwise of persons with a view to preventing them from acting in a prejudicial manner, Section 3 enacts that the order under Section 2, Sub-section (1), shall be in force for a period not exceeding six months from the date from which it is confirmed or modified under Sub-section (5) of Section 4. Section 4 requires that the grounds of the order of detention and such particulars as may be deemed sufficient by the Provincial Government should be disclosed to the persons affected as soon as may be after the order is made. Section 4 (2) provides that, after the receipt of the representation, the Provincial Government shall place before Advisory Council the grounds on which the order had been made and the representation made by the person affected. Sub-section (3) requires the Provincial Government to constitute an Advisory Council. The Advisory Council is required to submit a report to the Provincial Government who may confirm, modify or cancel the order made under Section 2 (1). Section 5 provides for imposition of collective fines on the inhabitants of any area in certain circumstances. Section 6 relates to control of public processions, meetings and assemblies. Sections 7 and 8 empower the Provincial Government to impose censorship and to prohibit sale or distribution of prejudicial documents. Section 9 refers to requisition of property, Section 10 to unlawful drilling, Section 11 to wearing of unofficial uniforms. Section 13 enables the Provincial Government to notify a "protected place". Section 14 makes it an offence for any person to force entry into a protected place. Section 21 enables any police officer to arrest without warrant any person who is reasonably suspected of having committed an offence punishable under the Ordinance. Section 22 empowers the Provincial Government, by notification, to declare that the offence under the Ordinance should be tried summarily under Section 260, Criminal P. C. Section 23 purports to repeal the Bihar Maintenance of Public Order Act, 1947 as amended by the Bihar Maintenance of Public Order (Amendment) Act, 1948 and the Bihar Maintenance of Public Order Ordinance (ordinance II [2] of 1949).