The passing of a fresh order of detention during the pendency of an application questioning the validity of a prior order of detention cannot constitute contempt of Court, even though it happened to be an illegal order, if it was passed bona fide and without knowledge of the imminence of another application to be made questioning the validity thereof.

Judgement

JAGANNADHA DAS, C. J. :- This is a proceeding in contempt against Sri Somanath Mohapatra, I.A.S., Secretary to the Government of Orissa, Home Department. The circumstances under which this proceeding was initiated have been started in our judgment in - Shyamaghana Ray v. State, Cr. Misc. Nos.195, 196, 200, 202, 204, and 207 of 1951, dated 26th February 1952, and need not be recapitulated in detail. Briefly stated, they are as follows :

One Govind Pradhan was under detention by an order of the local Government the validity of which was challenged before this court. This Court by its order dated 28th November 1951, directed his release. On the 27th November 1951, another order of detention enuring for three months, that is till the 27th February 1952, was passed by the District Magistrate, Ganjam. Having been re-arrested thereunder, he applied to this Court again challenging the validity of the fresh order of detention. That application which was Cr, Misc. Petn No.189/51, was heard by this Court on 5-12-51, and judgment was reserved on that date. It was delivered on 13-12-51 at about 10-30 a.m. when the Court commenced its sittings for the day. At the time when that judgment was delivered, a press report of a decision given by the Supreme Court which was said to have a bearing on the validity of the order of detention, with reference to a formal defect therein, not argued before us at the hearing of the application, was brought to our notice. Consequently, while dismissing the application, we reserved liberty to the applicant to come up with another application on that ground, if he considered it necessary on getting an authorised copy of the judgment of the Supreme Court. It happened, however, that the Court itself received a certified copy of the said judgment of the Supreme Court in - Makhan Singh Tarsikka v. State of Punjab, (AIR 1952 SC 27) in the course of that very day. The Court accordingly sent for the advocates on both sides at about 2 p.m. when it reassembled after the midday interval, and passed on the judgment to them for their perusal. Thereupon, a fresh application was made on behalf of the detenu challenging the legality of the detention order of the District Magistrate dated 27th November 1951, on account of the formal defect therein, viz., that the initial order of detention itself fixed the period of detention as three months, before the sufficiency of the cause for detention was referred to the Advisory Board and their report thereon was received, a procedure which has been held to be illegal and to be by itself sufficient to invalidate the legality of the detention, by the Supreme Court in its latest judgment whose certified copy was just then received. This application was moved before us on that very date, that is, on 13-12-51, at about 4 p.m. when the court was about to rise for the day. The application was numbered as Cr. Misc. Petn. No.195/51 and the Court thereupon passed the following order dated 13-12-51 :

"Presented in Court. This petition will be taken as admitted, and will come up for final hearing tomorrow. The Government Advocate has received notice in Court."

It was brought to the notice of the Court during the further stages of the hearing of this fresh application that on that very date, that is, on 13-12-51, the prior order of detention dated 27-11-51 was revoked and that a fresh order of detention dated 13-12-51 was passed. The detenu when he came to know about it, filed another application dated 17-12-51 challenging the validity of this fresh order, as having been made mala fide. This fresh application was numbered as Cr. Misc. Petn 202/ 51. Both the applications, viz., Cr. Misc. No.195 and 202 of 1951, were taken up together and were adjourned from time to time. They came up for final hearing only in February 1952, and we passed an order dated 26th February 1952, holding that the fresh order of detention passed on 13th December 1951, was illegal and invalid. The mala fides of both