ORDER

Wanchoo, J. - This is an application by Daya Shanker Malaviya u/s 491, Criminal P.C. It appears that Daya Shanker Malaviya was arrested on 27-1-1948 in pursuance of an order passed by the District Magistrate of Allahabad u/s 3(1)(a), U.P. Maintenance of Public Order (Temporary) Act 4[iv] of 1947. The reasong for his detention were also explained to him on the day on which he was arrested and a copy thereof was supplied to him and he was informed that he had a right to make a representation to the District Magistrate. So far, there-fore, as the provisions of this Act are concerned, they were strictly complied with. The legality of the detention is, however, attacked on other grounds.

2. It has first been contended that it was not open to the Provincial Government to dele-gate its power u/s 8(1)(a) to the District Magistrate by virtue of Section 11 of the Act, while at the same time retaining the power in itself also. The Notification delegating the power specifically says that the District Magistrate was also being invested with the power which the Provincial Government had u/s 3(1)(a). It is urged, therefore, that as the Provincial Government did not divest itself of the power which it bad delegated to the District Magistrate, the delegation to the District Magistrate was illegal.

3. I have not been able to appreciate this argument. There is nothing in the words of Section 11 of the Act which could lead to the inference that before the Provincial Government can delegate its power u/s 8(1)(a) to the District Magistrates, it must divest itself of that power. I see nothing in the scheme of the Act which could imply that the Provincial Government should divest itself of any power' under the Act before it could confer it on District Magistrates. Learned Counsel for the applicant relied on the following observations of their Lordships of the Privy Council in AIR 1945 156 (Privy Council) :

Their Lordships would also add, on this contention, that Sub-section (5) of Section 2, provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority denned in the sub-section, with a corresponding divestiture or the Governor of any responsibility in the matter, whereas u/s 49(1) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.

4. Sub-section (5) of Section 2, Defence of India Act, also provided for delegation of powers and was more or less, similar in terms to Section 11 of this Act. It is, therefore, argued that this observation of their Lordships of the Pi ivy Council means that the Provincial Government must divest itself of the power u/s 8 before it can be delegated to District Magistrates. This argument is based in my opinion, on a complete misunderstanding of the extract that I have quoted above. Their Lordships, when they said that there was a divestiture of the responsibility of the Governor on delegation, were clearly distinguishing the position where the power of the Governor would be exercised by an officer to whom the delegation had been made u/s 2, Sub-section (5), Defence of India Act, from a case where the power of the Governor would be exercised by an officer subordinate to him u/s 49(1), Government of India Act of 1936. The emphasis here was on the word 'responsibility'. In one case where the power was exercised by an officer to whom H had been delegated, the responsibility would be of that officer to be satisfied, while in the other case though the power may be exercised by a subordinate officer u/s 49(1), Government of India Act, 1935, the responsibility would still be of the Governor. In one case, therefore, he would be divested of the responsibility, while in the other case his responsibility would still be there. But this observation of their Lordships of the Privy Council does not mean that by delegating his power to a subordinate officer, the Governor would be divesting himself of the power to pass