DAYA SHANKER MALAVIYA Vs. EMPEROR

JUDGEMENT

(1.) This is an application by Daya Shanker Malaviya under Section 491, Criminal P.C. It appears that Daya Shanker Malaviya was arrested on 27-1-1948 in pursuance of an order passed by the District Magistrate of Allahabad under Section 3(1)(a), U.P. Maintenance of Public Order (Temporary) Act 4[iv] of 1947. The reasong for his detention were also explained to him on the day on which he was arrested and a copy thereof was supplied to him and he was informed that he had a right to make a representation to the District Magistrate. So far, there-fore, as the provisions of this Act are concerned, they were strictly complied with. The legality of the detention is, however, attacked on other grounds.

(2.) It has first been contended that it was not open to the Provincial Government to dele-gate its power under Section 8(1)(a) to the District Magistrate by virtue of Section 11 of the Act, while at the same time retaining the power in itself also. The Notification delegating the power specifically says that the District Magistrate was also being invested with the power which the Provincial Government had under Section 3(1)(a). It is urged, therefore, that as the Provincial Government did not divest itself of the power which it bad delegated to the District Magistrate, the delegation to the District Magistrate was illegal.

(3.) I have not been able to appreciate this argument. There is nothing in the words of Section 11 of the Act which could lead to the inference that before the Provincial Government can delegate its power under Section 8(1)(a) to the District Magistrates, it must divest itself of that power. I see nothing in the scheme of the Act which could imply that the Provincial Government should divest itself of any power under the Act before it could confer it on District Magistrates. Learned Counsel for the applicant relied on the following observations of their Lordships of the Privy Council in Emperor V/s. Sibnath Banerji : Their Lordships would also add, on this contention, that Sub-section (5) of Section 2, provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority denned in the sub-section, with a corresponding divestiture or the Governor of any responsibility in the matter, whereas under Section 49 (1) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.