GAURI NANDAN UPADHYA Vs. REX

JUDGEMENT

(1.) This is an application under Section 491, Criminal P.C., filed by Gauri Nandan Upadhya, praying that he be brought up before this Court and be set at liberty on the ground that his detention is utterly illegal.

(2.) This application was sent by post by the petitioner himself from Central Jail, Banaras, on 18 February 1948. It is stated in it that the applicant is an advocate of this High Court and has been practising as such in Banaras for the last 23 years. It is further stated that on 3 February 1948, after a search of his house, the applicant was arrested and was sent to the District Jail, Banaras, for detention. On 4 February, the applicant submitted from jail an application to the City Magistrate but received! no reply from the latter. On 5 February he made a similar application to the Sessions Judge of Banaras, but again with no result. On "the evening of the 5 February, he was transferred to the Central Jail, Banaras, and was locked up in a solitary cell. On 6 February 1948, the District Magistrate, Banaras, served upon the applicant, in jail, a notice of an order detaining him for a period of two months under Section 5, U.P. Maintenance of Public Order (Temporary) Act, 1947, (U.P. Act IV of 1947). Thereupon the applicant made a representation in writing to the District Magistrate, Banaras. The contents of this representation are all reproduced in extenso in paragraph 7 of the application filed by the applicant. Finding no relief from his representation aforementioned he has moved this Court by means of this application for an order for his release.

(3.) On receipt of this application, notice was issued to the Government Advocate. The learned Government Advocate then filed an affidavit-sworn to by Mr. Brahma Singh, Deputy Superintendent of Police (Intelligence), Banaras, along: with a copy of the order under Section 3 and the original notice under Section 5 of the Act. In the affidavit, inter alia, it was stated that on 2 February, 1948, the District Magistrate, Banaras, after considering the case of the applicant, passed an order of detention for two months under Section 3(1)(a), U.P. Maintenance of Pub, lie Order (Temporary) Act, 1947, and that in consequence of this order the applicant was arrested on 3 February 1948. It is further stated that on 5 February 1948, the grounds on which the order of detention was based were embodied in the notice under Section 5 of the Apt and they were served upon the applicant in jail on 6 February 1948. The affidavit in its last two paragraphs i.e., Nos. 4 and 5, purports to give instances of the activities of the applicant which were alleged to be violent and likely to promote, breach of public peace and disturb communal harmony.