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HIGH COURT OF ORISSA
Das, C. J. And Panigrahi, J.
SHYAMAGHANA RAY - Appellant
Versus
STATE - Respondent
Criminal Misc. Case 207 Of 1951
Decided On : FEBRUARY 26, 1952
PREVENTIVE DETENTION ACT - Validity of detention orders - Orders passed by Home Secretary - Not valid - Satisfaction of Provincial Government required - Delegation of responsibility not permissible - Rules of Business and Subsidiary Rules - Interpretation.
Fact of the Case:
Three individuals, Govinda Pradhan, Ramachandra Mishra, and Harihara Das, challenged the validity of detention orders issued against them under Section 3 of the Preventive Detention Act, 1950. The orders were purportedly passed by the Provincial Government but were actually signed by the Home Secretary. The petitioners argued that the orders were illegal as they were not passed by the appropriate authority, namely, the Chief Minister, who was in charge of the Home Department.
Finding of the Court:
The Court held that the detention orders were illegal and invalid. It found that the satisfaction of the Provincial Government, which is a prerequisite for a valid detention order under Section 3 of the Preventive Detention Act, was not obtained in this case. The Home Secretary, who passed the orders, did not have the authority to do so, and there was no legal provision for the delegation of this responsibility from the Chief Minister to the Home Secretary.
Issues: 1. Whether the detention orders were passed by the appropriate authority. 2. Whether the Home Secretary had the authority to pass the detention orders. 3. Whether the Rules of Business and Subsidiary Rules authorized the delegation of responsibility from the Chief Minister to the Home Secretary.
Ratio Decidendi: 1. The Court interpreted Article 166 of the Constitution and the Rules of Business made by the Governor to conclude that the satisfaction of the concerned Minister, in this case, the Chief Minister, must be taken to be the satisfaction of the Provincial Government. 2. The Court found that there was no legal provision for the delegation of this responsibility from the Chief Minister to the Home Secretary. 3. The Court held that Rule 2 of the Subsidiary Rules, which was relied upon by the Government to justify the Home Secretary's authority, was subject to the provisions of Rules 6, 8, and 14, which required the submission of cases affecting peace and tranquility to the Governor and the Chief Minister. 4. The Court also noted that the orders were passed during the pendency of a petition challenging the validity of a prior detention order, which raised concerns about mala fides and contempt of court.
Final Decision: The Court quashed the detention orders and directed the release of the petitioners. It also issued a notice to the Home Secretary to show cause why he should not be committed for contempt of court.
DAS, C. J.
( 1 ) THESE are applications for the issue of writs of 'habeas corpus,' Criminal Misc. Nos. 195 and 202 relate to one Govinda Pradhan and challenge the validity of an order of detention against him dated 13-12-1951. Criminal Misc. Nos, 196, 200 and 204 relate to one Ramachandra Mishra and challenge the validity of an order of detention against him dated 15th December, 1951. Criminal Miac. No. 207/51 relates to one Harihara Das and challenges the validity of an order of detention against him dated 13th December, 1951.
( 2 ) THESE three persons have been released by the Court on bail pending the final hearing of these applications for the special reasons stated in the respective orders granting bail. The validity of the orders of detention is challenged mainly on the ground that they are orders passed by an official having absolutely no legal authority to pass any such order, and are therefore illegal.
( 3 ) IN the petition relating to Govinda Pradhan, an affidavit, was filed on 20-12- 51 by one Banamali Jena stating that on 13-12-51, when the detention order against this detenu was passed, the Hon'ble the Chief Minister, who according to his information, had to deal with detention was absent from Cuttack, and was present at Jharsuguda and that therefore the detention order could not have been passed by the Chief Minister. In the petition relating to Ramachandra mishra, an affidavit was filed by his wife, Sabitri Mishra, that to her knowledge and information, the papers were not placed before the Hon'ble the Chief minister who was the Minister in charge of detention and that the order of detention against this detenu dated 15-12-61 was not passed by him and it was consequently illegal. In the application relating to Harihara Das, the petitioner himself states in his petition that the Hon'ble the Chief Minister was absent from Cuttack and was at jharsuguda on the 13th December when the detention order against him was passed. This is also in accordance with the affidavit in the application relating to govinda Pradhan. Thus, the main ground on which the validity of the respective orders of detention are challenged is that the orders of detention though they purport to be on their face, the orders of the Provincial Government have not been passed by the responsible authority concerned, who has the legal authority to act for the Provincial Government. These applications which were filed in the month of December 1951,. e. , more than two months ago were adjourned from time to time at the request of both parties on account of exigencies of elections and with a view to enable the government to ascertain the correct facts and place the same before the Court. When these applications came up before us on 18-2-52, the learned Advocate- general appearing for tine Government stated to us that he was prepared to accept the position that the concerned Minister may not himself have passed these orders; but that he would advance an argument, as a matter of law, that the same would be valid, even if passed by a Secretary to the Government. We declined to hear such hypothetical argument without the necessary facts, and without there being anything before us to show that even a responsible secretary to the Government passed the orders in question. We accordingly directed the Advocate-General to file a statement showing who actually passed the orders now under challenge. That statement has now been filed in the form of a letter addressed by Sri K. Ramamurti,. a. S. , Under-Secretary to government, Home Department, to the Registrar, High Court, Cuttack, of date 20th February 1952. It is as follows:
"sir, with reference to the High Court's order No. 5, dated the 18th february, 1952 in Criminal Misc. Nos. 195, 196, 200, 202, 204 and 207 relating to Govinda Pradhan, Ramachandra Mishra and Harihar das, I am directed to state that; the Secretary of the Home department Government of Orissa, Sri S. N. Mohapatra,. A. S. actually passed the deten
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