1949 (11) TMI 19 - Other - Indian Laws

Issues Involved:
1. Competency of the Provincial Government to extend the Bihar Maintenance of Public Order Act.
2. Validity of the Ordinance promulgated by the Governor under Section 88 of the Government of India Act.
3. Repugnancy between the Ordinance and existing laws, specifically the Criminal Procedure Code.
4. Bona fides of the Governor in promulgating the Ordinance.
5. Validity of Sections 23, 24, and the proviso to Section 4(1) of the Ordinance.

Issue-wise Detailed Analysis:

1. Competency of the Provincial Government to extend the Bihar Maintenance of Public Order Act:
The appellants were initially detained under the Bihar Maintenance of Public Order Act, 1947, which was extended by the Provincial Government under the proviso to Section 1(3) of the Act. This extension was challenged and held ultra vires by the Federal Court in Jatindra Nath Gupta v. The Province of Bihar and Others, as it amounted to a delegation of legislative function to an outside authority. Consequently, the extension and the Bihar Act V of 1949, which purported to amend the earlier Act, were declared void and inoperative.

2. Validity of the Ordinance promulgated by the Governor under Section 88 of the Government of India Act:
The appellants contended that the Ordinance under which they were detained was promulgated in contravention of Section 88 of the Government of India Act, making it void and inoperative. The Court held that the Governor's satisfaction regarding the necessity of the Ordinance was not justiciable. The Governor alone must be satisfied about the existence of circumstances necessitating the promulgation of the Ordinance, and this satisfaction was expressed in the preamble of the Ordinance.

3. Repugnancy between the Ordinance and existing laws, specifically the Criminal Procedure Code:
The appellants argued that the Ordinance conflicted with provisions of the Criminal Procedure Code, creating new offences and thus required the Governor-General's instructions under Section 88(1) of the Government of India Act. The Court examined whether the Ordinance dealt with matters in the Provincial or Concurrent List and found that it fell entirely within Items (1) and (2) of the Provincial List, concerning public order and preventive detention. The Court concluded that there was no repugnancy between the Ordinance and existing laws, as the Ordinance's provisions were ancillary to maintaining public order, a matter within the Provincial Legislature's competence.

4. Bona fides of the Governor in promulgating the Ordinance:
The appellants questioned the bona fides of the Governor in promulgating the Ordinance. The Court found no material to support this contention, noting that the Ordinance was promulgated following the Federal Court's declaration of the earlier Act's invalidity. The steps taken by the Governor were deemed necessary and not mala fide.

5. Validity of Sections 23, 24, and the proviso to Section 4(1) of the Ordinance:
The appellants challenged the legality of Sections 23, 24, and the proviso to Section 4(1) of the Ordinance. Section 23, which repealed the earlier invalid Acts and Ordinances, was considered superfluous but did not affect the Ordinance's validity. Section 24, a saving provision for actions under the previous Ordinance, was deemed irrelevant to the present case as the appellants' detention was not justified under the old Ordinance. The proviso to Section 4(1), which allowed non-disclosure of grounds for detention if against public interest, was argued to render preventive detention arbitrary. The Court held that preventive detention for public order was within the Provincial Legislature's competence, and the proviso did not make the Ordinance invalid.

Conclusion:
The appeals were dismissed as the Court found no substantial error of law or procedural irregularity leading to a miscarriage of justice. The Ordinance was upheld as valid and within the Provincial Legislature's competence, and the appellants' contentions were rejected.

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