PYARE LAL SHARMA Vs. EMPEROR

JUDGEMENT

(1.) This is an application by Pandit Pyare Lal Sharma, a practising Mukhtar at Aliganj in the district of Etah under Section 491, Criminal P.C. It appears that an order was passed by the District Magistrate of Etah on 28-11-1947, under Section 3, Sub- Section (1)(a), U.P. Maintenance of Public Order (Temporary) Act (iv of 1947) for the detention of the applicant for a period of six months. In pursuance of this order, the applicant was arrested on 8-12-1947. At the time of his arrest, the reasons for his detention under Section 5 of the Act were communicated to him. It is clear from the original documents produced on behalf of the Crown that the provisions of the Act were complied with. It was argued on behalf of the applicant that as the District Magistrate had apparently signed the typed forms which are kept prepared, it shows that he did not apply his mind to the case. This argument cannot possibility be accepted. The fact that typed forms are kept prepared and are used whenever necessity arises is no ground for holding that the District Magistrate who signed the order did not consider the matter before passing the order of detention.

(2.) The main contention, however, on behalf of the applicant is two-fold. It has been urged that the Provincial Government may delegate to the District Magistrate the powers or the duties which are conferred on it by this Act, but it could not delegate the discretion of the Provincial Government. It has further been urged that it was not open to the Provincial Government to extend the period for which the District Magistrate may detain a person from fifteen days to six months. In this connection, the relevant portions of Secs.8, 4 and 11 of the Act may be set out. Section 3 provides as follows: (1) The Provincial Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the public safety, or the maintenance of public order or communal harmony it is necessary so to do, may make an order: (a) directing that he be detained. (2) The District Magistrate may, within his jurisdiction, exercise the power conferred by Clause (a) of Sub-section (1) and an order so made by him shall be valid for a period not exceeding fifteen days. Section 4 reads as follows: An order made under Section 3 by the Provincial Government shall, unless revoked earlier, remain in force for a period of six months from the date of such order: Provided that any such revocation shall not prevent the making under Section 3 of a fresh order, to the same effect. Section 11 reads as under: The Provincial Government may, by order, direct that any power or duty, which is conferred or imposed on the Provincial Government under this Act 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 not being an officer or authority subordinate to the Central Government.

(3.) I may also set out the Notification of the Provincial Government delegating the powers to the District Magistrate. It runs as follows: In exercise of the powers conferred by Section 11, U.P. Maintenance of Public Order (Temporary) Act, 1947 (4 [IV] of 1947) the Governor is hereby pleased to direct that the powers exercisable by him. under Clause (a) of Sub-section (1) of Section 3 of the said Act shall also be exercisable by all District Magistrates within their respective districts. An order made under the said clause of the said sub-section by the District Magistrate shall unless revoked earlier, remain in force for a period not exceeding six months from the date of such order, as prescribed in Section 4 of the said Act.