EMPEROR Vs. RAYANGOUDA LINGANGOUDA PATIL

JUDGEMENT

(1.) These two appeals arise out of the acquittal by a jury of Belgaum of two persons tried at separate trials for the breach of an order purporting to have been passed under Rule 26(5-B) (b) of the Defence of India Rules, 1989, by the District Magistrate of Belgaum. The order in respect of which the trials have been held was dated September 6, 1942, and in each case the order directed the accused to present himself before the District Superintendent of Police by a certain date. On August 15, 1942, Rule 26(5-B) had been amended so as to include a provision for an order being issued against a person whose detention had already been ordered to present himself before some named person on penalty of seven years rigorous imprisonment for breach of the order. The powers of the Government of Bombay under Rule 26 were delegated to all District Magistrates by the Government of Bombay on December 19, 1941, and by virtue of that order of delegation the District Magistrate acting under Rule 26(1) had passed an order of detention against both these accused persons.

(2.) It is to be noted that at the time of the delegation of the powers of Government to District Magistrates under Rule 26, Rule 26(5-B) did not stand in its present form It included no rule in terms giving power to order any person to appear before a named person and still less did it include any penalty for the breach of such an order. But in passing orders against these two persons to present themselves before the District Superintendent of Police, the District Magistrate on September 6, 1942, purported to act under Sub-rule (5-B)(b), which in fact had not in terms been delegated to him and was enacted only on August 15, 1942. The learned Sessions Judge of Belgaum therefore directed the jury that the District Magistrate had no jurisdiction by virtue of the powers delegated to him to pass the order of September 6, 1942, for the breach of which the accused were being prosecuted ; and he directed the jury to return a verdict of acquittal, which the jury accordingly did. At the same time he directed the jury that, by reason of the procedure prescribed by Rule 119 for bringing orders against individuals to the notice of the individuals affected by the orders, it could not be said that the two persons against whom the orders were passed had ever had notice of the orders, and that there was in those cases no evidence from any other source that they had in fact knowledge of the orders. On that ground also he directed the jury to return a verdict of acquittal. In these appeals the only question in issue is the legality of these two directions.

(3.) The form of the argument on behalf of the accused which found favour with the learned Sessions Judge was that, although it is a recognised principle of law that authority given by a statute to do certain things authorises the doing not only of all things absolutely necessary for its execution but of all things reasonably necessary, still in the present case it could not be held that the order of September 6, 1942, directing these persons to appear before the District Superintendent of Police was an indispensable incident of the order that they should be detained, which order was outstanding against them and they were believed to have evaded. On behalf of the Crown the learned Advocate General has repeated to us the view taken by the prosecution before the learned Sessions Judge that the order of September 6, 1942, was in fact incidental and a necessary incident of the power of the District Magistrate to order detention. If a District Magistrate is given power to order detention, we are not disposed to disagree that he must also have power to enforce his order, and a supplementary order directing the person concerned to present himself before the District Superintendent of Police would no doubt be an ordinary incident of the power to detain. But the difficulty in accepting the argument as a justification for setting aside the order of acquittal in these cases is that the District Magistrate has not purported in terms to be acting by way of enforcement of the order of detention. What his order shows is that it is passed under Rule 26(5-B)(b), which carries with it a certain specified penalty for breach; and it is for the breach of that specific order passed in terms under Rule 26(5-B)(b) that the accused were being tried and the charge made it clear that they were being tried for the commission of an offence under that particular rule [r. 26(5-B)(b).]. It follows that, unless the District Magistrate had power to issue an order under Rule 26(5-B)(b) carrying with it the specified penalty for breach of the rule, the trial under that rule would be an illegality.