TABARAK KHAN Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) This is an application by Tabarak Khan under Section 491, Criminal P. C. complaining that his detention is illegal. Mr. Basanta Chandra Ghosh, who has appeared for the petitioner, has made general arguments, which, according to him, arise not only in this application but in a series of other applications by other detenus, for whom he has also appeared in this Court. It may be mentioned that Mr. Ghosh has represented the case of eleven detenus including the detenu Tabarak Khan. Mr. Bhabanand Mukherji has appeared for the detenu Madhub Chandra Sen in Criminal Miscellaneous No. 780 of 1949. Mr. Baidyanath Prasad No. II has appeared for two detenus, namely, Jagdish Sao in Criminal Miscellaneous No. 813 of 1949, and Musahari Sao in Criminal Miscellaneous No. 848 of 1949. Mr. J. N. Varma has appeared for one detenu Tribeni Choudhury in Criminal Miscellaneous No. 876 of 1949. Mr. Umesh Chandra Prasad has appeared for four detenus, namely, Syed Alley Nabi in Criminal Miscellaneous cases Nos. 829 and 861 of 1949, Chittaranjan Hati in Criminal Miscellaneous No. 862 of 1949, Birendra Nath Das Gupta in Criminal Miscellaneous No. 869 of 1949, and Rajdeo Singh in Criminal Miscellaneous No. 879 of 1949. In the case of nine detenus, no one has appeared for them and their applications in the various criminal miscellaneous cases have been sent to this Court from the Jail. The various advocates other than Mr. Ghosh appearing in their respective cases were asked if they had any further arguments to make then what had been urged by Mr. Ghosh by way of general submissions, and they stated that they had nothing further to add to what Mr. Ghosh had urged by way of general submissions. They have, however, urged the cases of the detenus represented by them regarding the merits of the applications made by them or on their behalf. The case of each detenu will be taken up separately and separate orders will be passed on the merits of their applications. The general submissions made by Mr. Ghosh will be dealt with in the present application of Tabarak Khan in Criminal Miscellaneoua No. 784 of 1949, and the decision with respect to them will be applicable to the cases of the other detenus in the various criminal miscellaneous applications, which were heard after the case of Tabarak Khan.

(2.) The Federal Court in the case of Jatindra Nath v. Province of Bihar, A. I. R. (36) 1949 F. C. 175; (50 Cr. L. J. 897) had declared ultra vires the proviso to Section 1 (3), Bihar Maintenance of Public Order Act of 1947. It has also declared the Bihar Act of 1949, which purported to amend the provisions of Section 1 (3) of the said Act invalid in law inasmuch as the enactment which it purported to amend was not legally in existence when the Bihar Act v of 1949 was passed. Subsequent to this decision of the Federal Court, the Governor of Bihar promulated an ordinance, namely, Bihar Order No. II of 1949, on 3rd June 1919. This Ordinance was declared by this Court to be void and inoperative on 21st of June 1949, as the Legislature of the Province of Bihar though not actually sitting was neither prorogued nor dissolved. Consequently, the Governor could not promulgate an Ordinance under Section 88 (1) , Government of India Act. The Governor of Bihar then promulgated an Ordinance, namely, Bihar Order No. IV of 1949, hereinafter referred to as the Ordinance, on 22nd June 1949. The Ordinance was declared intra vires by this Court and that decision was upheld by the Federal Court in the case of Lakhi Narayan Das v. Province of Bihar: (A. I. R. (37) 1960 F. C. 69) by its judgment dated 28th November 1949.

(3.) The detenu Tabarak Khan was ordered to be detained by the Provincial Government by its order dated 27th June 1949, under the provisions of Section 2 (1) (a) of the Ordinance. The document containing the grounds of detention under Section 4 (1) of the Ordinance is dated 22nd August 1949, and it was served upon Tabarak Khan on 24th August 1949. Such arguments as were made by Mr. Ghosh with reference to the case of Tabarak Khan only will be considered later after the general submissions which have been made by him challenging the validity of the detention not only of Tabarak Khan but of several detenus, whose case he has represented in this Court, have been dealt with. The cases of Tabarak Khan and of many other detenus were heard after the decision of the Federal Court in the case of Lakhi Narayan Das v. Province of Bihar, (A. I. R. (87) 1960 F. C. 69). It was neceasary to await this decision, as it was thought that the decision of the Federal Court would make it clear as to whether the Ordinance was ultra vires or not.