NEK MOHAMMAD Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) These are twelve petitions under Section 491, Criminals P.C. These twelve petitions have given rise to ten criminal miscellaneous cases, the numbers of which are mentioned at the top of this page. The reason why there are ten cases is that three applications which were received together from the Deputy Commissioner of Ranchi have been numbered as one case (Criminal Miscellaneous Case NO 193 of 1948).

(2.) In respect of each one of these petitioners an order of detention has been passed under Section 2(1), Bihar Maintenance of Public Order Act, 1947 (hereinafter referred to as the Act). The learned Government Advocate appearing on behalf of the Crown has furnished us with copies of the grounds on which the orders of detention were passed. This has reference to Section 4 of the Act. According to the grounds given, the petitioners may be broadly classified under two heads--those against whom it was alleged that they were members of the R.S.S. (Rashtriya Swayamsewak Sangb) and those who were alleged to be members of the Muslim League National Guard. The petitioners who come in the first category are Bbaskar Krishna Rao Zinjarde, Bandu Phanse, Nardeo Gupta, Saahi-dhar Dwivedi, Dr. K.P. Rode, Pandit Tbakur Prasad Tewari and Ramrajib Singh and those in the second category are Nek Mohammad, Nizamuddin Ahmad, Gulam Ashraf, Mohammad Jan and Mohammad Mohiuddin. I may here observe that the organization known as the R.S.S. was declared unlawful under Section 16, Criminal Law Amendment Act, 1908, on 4 February 1948, and the Muslim League National Guard was similarly declared unlawful on 8 February 1948. The petitioners who were alleged to be members of the R.S.S. were arrested between the dates, 5 February 1948 and 8 February 1948. Two of the petitioners, Ramrajib Singh and Sashidhar Dwivedi, appear to have surrendered before the Magistrates concerned on learning that warrants of arrest were pending against them. Ramrajib Singh says that be surrendered on 10 February 1948, and Sashidhar Dwivedi on 6 April 1948. The members's of the Muslim League National Guard were arrested between 9 February 1948, and 17 February 1948. While dealing with the case of each individual petitioner, I shall give further details, such as, the date of arrest, the date on which the order of detention was passed, the date on which the grounds of detention were served and the date on which a representation was made by the petitioner. I propose first to deal with those common points which arise in the case of all the petitioners, and then proceed to discuss the case of each individual petitioner. Though we have heard the cases in three batches, some of the contentions urged by learned Counsel apply equally to all the petitioners. These contentions may be logically divided into three branches: (1) Those relating to the validity of the Act (namely, if the Act. is ultra vires the Provincial Legislature or has ceased to be effective after a certain date); (2) those relating to the interpretation of the different provisions of the Act, particularly Secs.2 and 4; and (3) those relating to the alleged failure of the authority which made the orders of detention to comply with the provisions of the Act, with particular reference to the provisions of Section 4. The contentions in the first category go to the root of the matter, and if upheld, would make the Act invalid and the orders of detention would naturally fall with the Act. The contentions in the other two branches are inter-connected.

(3.) I shall consider these contentions in the order in which I have mentioned them. Learned Counsel for the petitioners has contended before us that the Act is ultra vires the Provincial Legislature as it relates not merely to public order but to public safety. The argument has been developed in the following manner. It is urged that the Provincial Legislature, which under Section 60, Government of India Act, 1935 (as it stood on the relevant date and before 15 August 1947) consisted of His Majesty represented by the Governor and two Chambers, was competent to make laws with respect to any of the matters enumerated in List 2 or List 3 of Schedule 7, respectively known as the Provincial. Legislative List and the Concurrent Legislative List. learned Counsel has drawn our attention to Section 100, Government of India Act, 1935, and has contended that the power to make laws with respect to any of the matters enumerated in the Concurrent Legislative List by the Provincial Legislature was subject to Sub-section (1) of Section 100 and the power to make laws with respect to any of the matters enumerated in the Provincial Legislative List was similarly subject to the first two Sub-sections of Section 100. learned Counsel has then drawn our attention to item 1, Provincial Legislative List which, inter alia, contains the following particulars: Public Order (but not including the use of His Majesty's naval, military or air forces in aid. of the civil power); preventive detention for reasons connected with the maintenance of public order; and persons subjected to such detention. It is pointed out that no such item as public safety occurs in any of the three Legislative Lists, though item 1 of List 1 (Federal Legislative List) refers to preventive detention in British India for reasons of State connected with defence, external affairs, or the discharge of the functions of the Crown in its relations with Indian States. Learned Counsel for the petitioners has then urged that the residual powers of legislation vest in the Governor-General who may, under Section 104, Government of India Act, empower by public notification either the Federal Legislature or the Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists of Schedule 7. It is contended that no action having been taken under Section 104, Government of India Act, it was beyond the competence of the Provincial Legislature to make laws with regard to public safety. learned Counsel has drawn a distinction between public order and public safety. He has suggested that public safety has reference to danger from external aggression and public order to internal commotion or disturbance, and in that view, has contended that if public safety at all comes under any item of the three Legislative Lists, it does so under item 1 of the Federal Legislative List, which mentions, amongst other things, preventive detention in British India for reasons of State connected with defence, external affairs, etc.