PRABHULAL RAMLAL KABRA Vs. EMPEROR

JUDGEMENT

(1.) THIS is an application made by Prabhulal Kabra on behalf of his son Bharatchandra Kabra under Section 491, Criminal P.C. On nth September 1942, Bharatchandra Kabra was arrested and detained as a security prisoner under an order issued by Rao Sahib S.D. Dave, Additional District Magistrate, Raipur, under Rule 26, Defence of India Rules. The order of Rao Sahib Dave runs as follows: Whereas I am satisfied with respect to B.C. Kabra, son of Dr. Prabhulal Kabra, Raipur, that with a view to preventing him from acting in any manner prejudicial to the public safety, the maintenance of public order and the efficient prosecution of the war it is necessary to detain him; Now therefore in exercise of the powers conferred on me by Clause (b) of Sub-rule (1) of Rule 26, Defence of India Rules, read with Political and Military Department Notification No. 411-696/C.P.W., dated 7th April 1942,1 direct that B.C. Kabra son of Prabhulal be detained in the Raipur Jail. In exercise of the powes conferred on me by Sub-rule (5) of Rule 26, Defence of India Rules, read with Political and Military Department Notification No.411-696/C.P.W., dated 7th April 1942, I further direct that the said B.C. Kabra son of Prabhulal shall be detained in accordance with the conditions laid down in the Central Provinces and Berar Detention Order, 1942, as class I prisoner. Dated Raipur, the Sd/- S.B. Dave, 11th September Additional District, Magistrate, 1942. Raipur.

(2.) THE Political and Military Department notification referred to in that order is as follows: No. 411-696C.P.W.--In exercise of the powers conferred by Sub-Section (5) of Section 2, Defence of India Act, 1939 (35 of 1939), the Provincial Government is pleased to direct that the powers under Rules. 6, 9, 15, 18, 19 (2) and (3), 20, 21, 26, 27, 37A, 40, 41, 43, 44, 45, 49, 50, 51, 51A, 51B, 51D, 51E, 51G, 51H, 51I, 52, 53, 54, 55(1), 56, 57, 58,59,59A,59B,76A, 81 except under Clause (aa) of Sub-rule (2) thereof, 83, 85B, 89, 116, 119 and 126, Defence of India Rules, which have either been conferred on the Provincial Government by the said Rules or which, being by the said rules conferred on the Central Government are, by virtue of directions issued by the Central Government under Sub-section (4) of Section 2 of the said Act, to be exercised by the Provincial Government shall be exercisable also by all Commissioners of Divisions, District Magistrates and Sub-Divisional Magistrates in charge of the independent Sub-divisions of Seoni, Damoh, Narsinghpur, Ellichpur, Basim and Khamgaon, within the limits of their respective jurisdictions.

(3.) THE contention raised on behalf of the detenue is that Rao Sahib Dave, Additional District Magistrate, was not competent to issue the order of detention as Political and Military Department Notification No. 411-696-CPW, of 7th April 1942, did not authorise an Additional District Magistrate to exercise the powers of the Provincial Government under Rule 26(5), Defence of India Rules. On behalf of the Crown that contention is countered by reference to the Provincial Government's notification dated 16th March 1942, whereby Rao Sahib Dave, Extra-Assistant Commissioner and Magistrate of the first class, Raipur, was appointed an Additional District Magistrate. That notification is in the following terms: No. 556-492-XIX.--In exercises of the powers conferred by Sub-section (2) of Section 10, Criminal P.C., 1898, (5 of 1898), the Provincial Government is pleased to appoint Rao Sahib S. B. Dave, Extra-Assistant Commissioner and Magistrate of the first class, Raipur, in the Raipur district, to be an Additional District Magistrate, Raipur, and to direct that he shall exercise all the powers of a District Magistrate under the said Code or under any other law for the time being in force.