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PATNA HIGH COURT
Meredith, Sinha and Sarjoo Prasad JJ.
Ratan Roy
Versus
State Of Bihar
Criminal Miscellaneous No. 103 of 1950 ;
Decided On : MARCH 14, 1950
The petitioner, Ratan Roy, was detained under an order dated 19th January 1950, made under the provisions of Bihar Act III [3] of 1950. The court held that the detention provisions of Act III [3] of 1950 had become void from 26th January 1950, on the coming into force of the New Constitution. However, on the following day, an Ordinance (Bihar ordinance No. II [2] of 1950--The Bihar Preventive Detention Ordinance, 1950) was made and promulgated by the Governor of Bihar under el. (1) of Article 213 of the Constitution, and a fresh detention order was made under this Ordinance on 16th and served on the petitioner the same day. The court examined the arguments presented by the petitioner's counsel, Mr. Basanta Chandra Ghosh, and the arguments presented by the government advocate. The court held that the Ordinance was not void and that the detention of the petitioner was legal under the order made under this Ordinance.
Fact of the Case:
The petitioner, Ratan Roy, was detained under an order dated 19th January 1950, made under the provisions of Bihar Act III [3] of 1950. The court held that the detention provisions of Act III [3] of 1950 had become void from 26th January 1950, on the coming into force of the New Constitution. However, on the following day, an Ordinance (Bihar ordinance No. II [2] of 1950--The Bihar Preventive Detention Ordinance, 1950) was made and promulgated by the Governor of Bihar under el. (1) of Article 213 of the Constitution, and a fresh detention order was made under this Ordinance on 16th and served on the petitioner the same day.
Finding of the Court:
The court held that the Ordinance was not void and that the detention of the petitioner was legal under the order made under this Ordinance.
Issues: 1. Whether the Ordinance was void? 2. Whether the detention of the petitioner was legal under the order made under this Ordinance?
Ratio Decidendi: 1. The court held that the Ordinance was not void because: - The Ordinance was made in accordance with the terms of Article 22 (4), and not in accordance with the terms of Article 22 (4) unmodified by the President's Order. - The Ordinance was not unreasonable and void because it provided for detention, not in reasonable circumstances but when the Government was satisfied, and the Government may be either reasonably or unreasonably satisfied. - The Ordinance did not curtail personal liberty but only additional rights of citizens on the pre-supposition that they are legally at large. - The Ordinance was not repugnant to the Criminal Procedure Code because: - Sections 60 and 61 were overridden by the provisions of the constitution itself, which abrogate these safeguards in the case of a person detained under a law for preventive detention. - There was no repugnancy between the ordinance and Sections 60 and 61. - The Ordinance contained no provision for arrest of persons to be detained, but this did not make the Ordinance repugnant to the Criminal Procedure Code. - The provisions of the Ordinance creating offences were severable from the portions providing for detention. - The Ordinance was not invalid or void so long as the Governor was satisfied, however mistakenly, that the circumstances required such provisions, and said so. - The preamble to the Ordinance, though not in the ideal form, made it clear that the Governor was satisfied of the necessity of immediate action to provide for preventive detention in connection with the public safety and maintenance of public order in the State of Bihar. 2. The court held that the detention of the petitioner was legal under the order made under this Ordinance because: - The Ordinance was not void. - The order was properly authenticated. - There was nothing in the case sufficient to establish any bad faith on the part of Government.
Final Decision: The court ordered the immediate release of the petitioner.
Meredith, J.
1. This rule has been issued upon an application under Article 226 of the Constitution of India for a writ of habsas corpus in favour of one Ratan Roy, who was in detention under an order dated 19th January 1950, made under the provisions of Bihar Act III [3] of 1950. This Bench held recently in the case of Brahme-shwar Prasad, (on. Misc. No. 977 of 1949, decided on 14th February 1950) : (A. I. R. (37) 1950 Pat 265) that the detention provisions of Act III [3] of 1950 had become void from 26th January 1950, on the coming into force of the New Con-stitution. Consequently, if the matter had rested there, we would, without more, have had to pass an order for the release of the petitioner. But it appears that on the day following that judgment, namely, 16th February 1950, an Ordinance (Bihar ordinance No. II [2] of 1950--The Bihar Preventive Detention Ordinance, 1950) was made and promulgated by the Governor of Bihar under el. (1) of Article 213 of the Constitution, and a fresh detention order was made under this Ordinance on 16th and served on the petitioner the same day.
2. Mr. Basanta Chandra Ghosh on behalf of the petitioner objected that the promulgation of the Ordinance had not been established before us on the ground that he, and, he said, some other subscribers to the Gazette, had not received the Gazette notification. But the Bihar Gazette (Extraordinary) of 15th February containing the Ordinance has been placed before us and it has, therefore, been properly proved under Section 78, Evidence Act Whether or not all the subscribers received their copies can make no difference.
3. The position, therefore, is that we have to examine whether the detention of the petitioner is legal under the order made under this Ordinance. It is satisfactory to note that the Ordinance does not contain the various objectionable features which we pointed out in Act III [3] of 1950 and held were inconsistent with the provisions of Article 22 of the Constitution. Under this Ordinance, no person is to be detain-ed for a longer period than three months unless an Advisory Board has reported, before the expiration of that period, that there is, in its opinion, sufficient cause for such detention. The Government is to place the case before the Advisory Board within six weeks of the date of detention, and the Board is to report to the Government within ten weeks of the date of detention. The Government cannot ignore that report, but must pass orders in accordance there with. The provision preventing the Court from calling for and examining the report is gone and the provision that the detention shall not become illegal by failure adequately to communi-cate the grounds has disappeared. Nevertheless Mr. Ghosh has very strenuously attacked both the Ordinance and the order thereunder on a number of grounds. We have been sensible of the immense responsibility resting upon us in making first interpretations of the new constitution and deciding points of first impression, and we have, therefore, examined the arguments on both sides with the utmost care and anxiety.
4. Mr. Ghoshs arguments fall under three heads: (A) those directed to showing that the Ordinance is void; (B) those directed to showing, that the order is illegal; and (C) those directed to showing that both the Ordinance and the order have been made in bad faith as devices to circumvent the order of this Court and to deprive the petitioner of the fundamental rights guaranteed by the constitution. I shall deal with these heads of argument one by one.
5. (A)--(1). An Order of the President under-Clause (7) of Article 32 of the Constitution, made and issued on 26th January 1950, by the President, was placed before us in Brahmeswar Prasads case: (A.I.R. (37) 1950 pat. 265) and is in the following terms:
"MINISTRY OF LAW New Delhi, 26th January 1950
No. C. O, 8--The following Order made by the President is published for general information: THE PREVENTIVE DETENSION (EXTENSION OP DU
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