KANAI LAL PAUL Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) These are applications under Section 491, Criminal P.C., by persons who are under detention in consequence of orders made against them by the Provincial Government under Rule 2(1)(a), Bihar Maintenance of Public Order Act, 1947. In all these cases the detenus were arrested in the Chota Nagpur Division. A number of questions have been raised affecting the legality of their detention. The first arises by reason of the fact that Chota Nagpur is an area to which Chap. v of part lit, Governmerit of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, applies.

(2.) By Section 1(2), the Bihar Maintenance of Public Order Act is declared to extend to the whole of the Province of Bihar, and Sub-section (3) declares that it shall remain in force for a period of one year from the date of its commencement. To this Sub-section, however, there is the following proviso: Provided that the Provincial Government may, by Notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the Notification. This Act received the assent of the Governor. General on 15 March 1947. The Governor-General's assent was published in the Bihar Gazette (Extra-ordinary) of 16 March 1947. Although Sub-section (2) declares that the Act extends to the whole of the Province of Bihar, its actual operation within the Province of Bihar is limited by Section 92(1), Government of India Act, which provides: .... Notwithstanding anything in this Act, no Act of the Dominion Legislature, or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area unless the Governor, by public Notification, so directs and the Governor, in giving such a direction with respect to any Act, may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit." By Notification No. 900 published in the Bihar Gazette (Extra-ordinary) dated 16 March 1947, the Bihar Maintenance of Public Order Act was extended to Chota Nagpur.

(3.) By Notification No. 8734, dated 11 March 1948, and published in the Bihar Gazette (Extra. ordinary) of that date the Provincial Government, in exercise of the powers conferred by the proviso to Rule 1(3), Bihar Maintenance of Public Order Act, extended its operation for a further period of one year, that is to say, from 16 March 1948 to 15 March 1949. Up to 6 March 1949, no notification had been issued by the Governor under Section 92, Government of India Act, keeping the Act in force in Chota Nagpur after 15 March 1948. In all these eases the order of the Provincial Government for the detention of the petitioners was made in February 1949. There being no notification by the Governor extending the life of the Act in Chota Nagpur beyond 15 March 1948, it was contended that the arrest and detention of the petitioners was illegal.