USHA DURGAPARSAD BAKHALE Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) The petitioner in this case is the wife of one Durgaprasad Prasan-nakumar Bakhale. The respondent is the Commissioner of Police, Bombay. The petition states that the respondent got the said Durgaprasad Prasannakumar Bakhale arrested on September 9, 1947, when the house of the said Durgaprasad was searched, but nothing objectionable was found by the police in the house. Nevertheless the respondent detained the said Durgaprasad at the Esplanade police lock-up and on September 11, 1947, the said Durgraprasad was served with a notice dated September 11, 1947, under Section 3 of the Bombay Public Security Measures Act of 1947 and that he has now been detained at the Worli Temporary Prison under Order No. 486 of 1947 purporting to have been issued by the respondent under the said Act. The notice dated September 11, 1947, which was served on Durgaprasad reads as follows : That you have instigated and actively helped by providing funds to suspect Laxman and his accomplices for the purpose of stabbing Muslims in Kamatipura area and are concerned in stabbing incidents, bomb throwing incidents in Kamatipura area either as an instigator, active helper or actual perpetrator or financier and are thereby acting in a manner prejudicial to the public safety and the peace of Greater Bombay.

(2.) The petitioner denies all these allegations and sets out the activities useful and innocent in which her husband was engaged. In paragraph 5 of the petition it is stated that it appears that Durgaprasad was arrested in consequence of a statement made by the suspect Laxman. The petitioner submits that the statement of the accused person Laxman cannot justify the respondent in taking action against Durgaprasad under the Bombay Public Security Measures Act and she submits that the order was made on incorrect facts and false information. In paragraph 8 of the petition it is submitted that the order made against Durgaprasad by the respondent was illegal, void and of no legal effect and that the same was not made bona fide in proper exercise of his duty by the respondent. The petitioner prays that the respondent may be ordered to produce Durgaprasad before this Court (which has accordingly been done) and that Durgaprasad be set at liberty.

(3.) To-day (November 20, 1947), the matter has been argued by Mr. M. N. Talpade on behalf of the petitioner. The first point that he made was that the order of the Government of Bombay published in the Bombay Government Gazette on April 26, 1947, delegating the power under Section 2, Sub-sections (1), (2) and (4), to the Commissioner of Police, Bombay, is not a proper order. He relies on Section 21 of the Bombay Public Security Measures Act of 1947 which provides as follows: The Provincial Government may by order direct that any power or duty, which is conferred or imposed on the Provincial Government, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised or discharged by any officer or authority subordinate to it, not lower in rank than a Deputy Commissioner of Police in Greater Bombay, or the District Magistrate, or Additional District Magistrate elsewhere. Section 2 (1) says: The Provincial Government may, if it is satisfied that any person is acting in a manner prejudicial to the public safety, the maintenance of public order, or the tranquillity of the Province or any part thereof, make an order directing that he be detained etc.