KAMESHWAR Vs. REX

JUDGEMENT

(1.) This is an application by Kameshwar, R.K. Chaube, Babu Lal Srivastava and Radhey Chopra under Section 491, Criminal P.C., against the orders of detention passed against them under Section 3(1)(a) of U.P. Act, IV of 1947 by the District Magistrate of Allahabad. The orders under Section 3 in each of these cases were passed on 23 March 1948, and the reasons for detention were communicated to the applicants on 1 April 1948. I have gone through the orders under Section 3 and the notices under Section 3 and they, in my opinion, sufficiently comply with the provisions of U.P. Act, IV of 1947. There is, therefore, no reason to hold that the detention is illegal on the ground that there has not been sufficient compliance with the provisions of U.P. Act, IV of 1947.

(2.) The main contention on behalf of the applicants in this case is that U.P. Act, IV of 1947 is ultra vires of the Provincial Legislature inasmuch as it provides for arbitrary detention and not for preventive detention and that the t Provincial Legislature has power to legislate only with respect to preventive detention. This point was raised before this Court in another case in Cri. Misc. No. 630 of Harihranand Saraswati V/s. Supdt. Centraj Jail, Banaris Reportedin and I decided then that the Act was intra vires of the Provincial Legislature as it provided for preventive detention and not for arbitrary detention. It is, therefore, not necessary to repeat the reasons which led me to this conclusion in that case. Learned Counsel has, however, urged some fresh grounds in support of his contention that this is an Act providing for arbitrary detention and as such ultra vires of the powers of the Provincial Legislature. It has been argued that the Act violates a cardinal principle of natural justice namely that the accuser should not also be the judge. This contention is based on that provision of the Act which says that after reasons for detention have been communicated to a detenu, he has a right to make a representation to the authority ordering his detention. It is said that this means that the person ordering the detention is also the person who has been made the judge in this case for considering whether the representation should be allowed or not.

(3.) It seems to me, however, that this argument completely misunderstands the purpose behind preventive detention. There is no question of there being any accuser and any Judge, where a person has been detained for certain reasons as provided in the Act. Under the provisions of the Act an order under Section 3 is passed ex parte by the authority concerned on such information as might have been placed before it, after satisfying itself that there is necessity for the order. Then comes Section 5 of the Act under which the detenu can make a representation. It is then for the authority concerned which had passed that ex parte order to consider that representation and decide, whether the ex parte order which had been passed on the materials supplied to it was rightly passed or not and whether there is any necessity for either revoking or modifying that order. I fail to see why this procedure of an ex parte order followed by a review by the same authority on representation made to it should be considered against natural justice and why the authority passing the order should be called an accuser at one stage and a judge at the other. There are provisions in the Criminal Procedure Code also which provide first for an ex parte order and later for considering whether the ex parte order should be maintained or should be vacated after hearing the party or parties concerned. In this connection I may refer to orders under Section 144, Criminal P.C., where also the authority concerned can pass an ex parte order in the first instance and then on representation made to it review the order.