In Re: K. Rajagopala Rao and Others

Satyanarayana Rao, J.—These eleven applications raise common questions for consideration and also are based on facts which are

common.

On the 30th of January, 10,48, there was a rally of the members of the Rashtria Swayam Sevak Sangh at Vijayawada on which day Mahatma

Gandhi died. On the next day, the 31st January, according to the grounds served on the detenus in these petitions, the petitioners and others

conspired to attack the members of the Rashtria Swayam Sevak Sangh and in the various incidents that occurred that day, some members of that

body were injured and a worker of the municipality was also killed. Some of the petitioners were arrested on the same day while others were

arrested by the police on subsequent dates. A case was registered against 71 accused including the petitioners under various sections of the Indian

Penal Code which was later numbered as P.R.C. No. 1 of 1048 on the file of the Stationary Sub-Magistrate of Vijayawada. The petitioners and

the other accused in the case after arrest were kept in the sub-jail of Vijayawada until 7th April, 1948, when they were transferred for some

reason to the Central Jail, Rajahmundry. On the 10th and nth April, 1948, the District Magistrate of Krishna under the authority delegated to him

u/s 15 of the Madras Maintenance of Public Order Act (Act I of 1947) passed orders of detention against the petitioners and seemed to have also

prepared the grounds of detention on the said dates. The detention orders, however, were not given immediate effect as the applicants were

already in judicial custody. The petitioners moved for bail in the District Court, Krishna, but they were unsuccessful; and thereafter they came up to

this Court and on the 18th May 1948, the petitioners and others were directed to be released by Yahya Ali, J., on bail on their furnishing security

each in his own bond for the sum of Rs. 500 with two sureties for each of the said accused for Rs. 500 for each surety to the satisfaction of the

Stationary Sub-Magistrate of Vijayawada. The applicants in pursuance of this order, furnished the necessary bail and on the 21st May, 1949, they

were released but immediately after their release, at the Central Jail, Rajahmundry, they were arrested in pursuance of the orders of detention

passed earlier by the District Magistrate of Krishna on the 10th and 11th April, 1948.

The District Magistrate forwarded the grounds of detention to the Government on the 1st June, 1948, which were received by the Government

on the next day and the grounds of detention were served on the applicants in June and July, 1948. They immediately submitted, their

representations to the Government in July, 1948, and the Government seems to have taken a long time to send them to the Advisory Council which

they did on the 14th March, 1949. The matter is still pending, it is said, with the Advisory Council, and so no final orders were passed by the

Government. These applications u/s 491 of the Code of Criminal Procedure were filed by the detenus on the 28th February, 1949.

The first contention urged on behalf of the applicants is that as there is a long interval of time between the date of their arrest on the 31st

January, 1948 and the passing of the orders of detention u/s 2(1) of the Act, it could not be said that the District Magistrate could have been

satisfied that these applicants were acting in a manner prejudicial to public safety or maintenance of public order. The chief ground mentioned by

the Government in the grounds served upon the detenus is the activity of these persons on the 31st January, 1948, and the active part alleged to

have been taken by them on that day in the conspiracy to attack the members of the Rashtriya Swayam Sevak Sangh. This activity of theirs, it is

alleged, is not proximate enough to justify an order of detention u/s 2(1) of the Act. The interval, it would be seen, between the occurrence on the

31st January, 1948, and the order of detention is more than 2 months. The ground on which the order of detention was based is certainly within

the purview of the Act and is such as would certainly justify an order of detention u/s 2(1) of the Act. No definite period can be fixed so as to

restrict the activity of the person which would be open for consideration by the detaining authority to pass an order of detention u/s 2 (1) of the

Act; that must vary according to circumstances of each case. The incident and the occurn nee which are complained of, if true, is certainly a serious

one and must have endangered the public peace on that date. The District Magistrate would certainly be within his jurisdiction to pass an order of

detention on a prejudicial activity of that description. Merely because there is an interval of more than two months between the date of the order of

detention and the date on which the offences were committed we cannot hold that the period is unreasonable so as to make the activity remote so

as to preclude the District Magistrate from taking it into his consideration. The delay between the date of receipt of the explanation and the date of

sending the matter to the advisory council has been in a way explained by the District Magistrate and we may also take notice of the fact that

perhaps he was also busy in dealing with the then existing trouble on the Hyderabad border. ?

It was next contended that the order of detention was made with a view to circumvent the order of this court directing the release of the

petitioners on bail. We had occasion to consider cases in which immediately after the order of release on bail was made the detaining authority

proceeded, to pass an order of detention u/s 2(1) with a view to prevent the person concerned from re-gaining his liberty. In such cases no doubt

the action of the detaining authority cannot be justified and in those circumstances it must be presumed to be mala fide; but in these cases the order

of detention was passed by the District Magistrate long before the release of these petitioners was thought of. The order granting bail was passed

by this Court on 18th May, 1948 and the District Magistrate passed the order of detention on the 10th and 11th April, 1948, on the material

which was then available to him. No doubt, as he now explains in the affidavit filed before us, he thought that as the petitioners were already in jail

it was unnecessary to give immediate effect to the orders of detention. When the applicants were released in pursuance of the order of this Court,

the District Magistrate in the interests of public pease gave effect to the orders of detention which were passed by him long ago and got these

applicants re-arrested and detained. We see no justification for inferring that the District Magistrate was actuated by the. motive of circumventing

or nullifying the effect of the order of this Court directing the release of the applicants on bail. He forearmed himself with this order of detention to

give effect to it whenever occasion arose for its use. We see, in the facts of this case, no justification for applying the principle of the cases decided

by us where we held that in certain contingencies the order of detention was mala fide 3 in this case we are perfectly satisfied that the District

Magistrate acted bona fide in the matter.

The third contention that was urged before us was that there was considerable delay on the part of the Government in complying with the

requirements of the Act. In the first place, it was said that the District Magistrate took considerable time in sending the grounds justifying the orders

of detention to the Government. The detention order was passed in April and the grounds were sent to the Government only in June. The grounds

themselves were signed by the District Magistrate on the 10th and 11th April, 1948; apparently he was under the impression that the grounds

should be sent to the Government only after the persons concerned were arrested and the orders of detention were sought to be given effect to.

We do not see anything wrong in this view which the District Magistrate must have taken and though it is obligatory under the Act to send the

grounds forthwith, in the circumstances of this case we think that the delay on the part of the District Magistrate was not unreasonable or was not

justified.

On behalf of the applicants it was suggested that the order of detention was the result of political animosity and was not bona fide. In justification

of this contention reference was made to the grounds themselves which were served on some of the petitioners, particularly on Katragadda

Rajagopal Rao. We do not see any basis for inferring from these grounds that the Government or the District Magistrate was actuated by political

animosity to take action under the Act against these applicants. Further, if the detenus intended to rely upon this as a ground of attack they ought to

have expressly stated so in the affidavit filed in support of these applications so as to give to the Government an opportunity to meet such an

allegation and show, if possible, that their action was justified and was bona fide. We, therefore, think that this contention does not deserve any

serious consideration.

Lastly, an interesting question was raised on behalf of the applicants, namely, that as these applicants were in the Central Jail, Rajahmundry, on

the date on which the orders of detention were passed by the District Magistrate, Krishna, he had no jurisdiction to take action u/s 2(1) of the Act.

u/s 15 of the Madras Maintenance of Public Order Act, 1947, the power to take action u/s 2(1)(a) of the Act was delegated to the District

Magistrates and the Commissioner of Police, Madras. The order of the Government of Madras is contained in G. O. No. Ms. 907, dated 21st

March, 1947. It reads as follows:

In exercise of the powers conferred by Section 15 of the Madras Maintenance of Public Order Act, 1947, Madras Act I of 1947, His Excellency

the Governor of Madras hereby directs that the powers conferred on the Provincial Government by Section 2(1)(a) of the said act shall be

exercised also by all the District Magistrates and the Commissioner of Police, Madras, within their respective jurisdiction.

From this order it is clear that the jurisdiction of the District Magistrate u/s 2(1)(a) of the Act is confined to his ordinary jurisdiction, namely, the

district, while u/s 2(1) of the Act, it is open to the Provincial Government to take action against a person wherever he may be in the presidency.

The jurisdiction of the District Magistrates is confined to their respective jurisdictions. Under the Criminal Procedure Code, ordinarily the

jurisdiction of the District Magistrate is confined to the district. But what is the test on which the jurisdiction to act u/s 2(1) of the Act should be

decided. Section 2(1) of the Act after amendment of 1948 refers to the satisfaction of the detaining authority with respect to the particular persons

that he "" is acting "" or is "" about to act"" or is "" likely to act"" in any manner prejudicial to the public safety or maintenance of public order. The

District Magistrate, therefore, has to be satisfied on this question. The person concerned may be acting, or may be about to act, or is likely to act;

and this must have reference only to the person who is within the jurisdiction of the District Magistrate. If it is a case of acting, the acting as well as

the person who acts must be within the jurisdiction. Even if the activity was outside the jurisdiction but the person is within the jurisdiction of the

District Magistrate, the District Magistrate would have the power to take action u/s 2(1) if the person concerned is about to act or is likely to act in

a manner prejudicial to public safety; he is within the jurisdiction of the District Magistrate. In either case, it seems to be necessary that the person

whose activity is in question must be a person within the jurisdiction of the Magistrate taking action u/s 2(1). This is emphasised also by a reference

to the latter part of the section as the object is to prevent a person by an order of detention from acting in a manner prejudicial to public safety or

the maintenance of public order. The District Magistrate is charged with the duty of maintaining public peace in the district which is in his charge.

The power to make an order of detention with a view to prevent breach of the peace can only be with reference to the area which is in his charge,

that is, the district. From these indications in the section, it is clear that the person whose activity is the basis for the order u/s 2(1) and whose

action is sought to be prevented under the section must be within the jurisdiction of the District Magistrate proposing to take action u/s 2(1) of the

Act.

Applying this interpretation of the section to the facts in these applications it would prima facie seem that the District Magistrate of Krishna had

no jurisdiction to make an order of detention u/s 2 (1) of the Act as on the date when the detention orders were passed these applicants were

actually in the Central Jail, Rajahmundry, East Godavari District. But on a close scrutiny of the facts, it would be seen that this prima facie view of

the case is not sound. Till 7th April, 1948, these applicants were in the sub-jail, Vijayawada, as under-trial prisoners in P. R. C. No. 1 of 1948, on

the file of the Stationary Sub-Magistrate of Vijayawada. The trial of the case did not commence by that date and u/s 344 of the Code of Criminal

Procedure they must have been kept in remand which was being renewed every 15 days by the Magistrate. For some reason the Stationary Sub-

Magistrate instead of keeping these persons in Vijayawada Sub-Jail sent them to the Central Jail, Rajahmundry. They have necessarily to be

brought for further remand after the expiry of the 15 days and therefore they are for all purposes in the judicial custody of the Sub-Magistrate,

Vijayawada, though they were in the Central Jail, Rajahmundry. The applicants at that stage had no freedom of movement of their own and were

subject to the control and direction of the Stationary Sub-Magistrate of Vijayawada. It was open to him (The Stationary Sub-Magistrate,

Vijayawada), to have called them back at Vijayawada in time when he wanted and therefore, practically for all purposes they must be treated to

be persons within the jurisdiction of the Stationary Sub-Magistrate, Vijayawada, on that date. If this is the correct view of the situation on that date

it follows that the District Magistrate had undoubted jurisdiction, to take action u/s 2(1) of the Act. A similar contention was considered by the

Allahabad High Court in Rex v. Tilak(1948) A.L.J. 399, though under a different section. Under the United Province Maintenance of Public Order

Act, the power of extending an order of detention was conferred upon the District Magistrates within, their respective jurisdiction. I that case the

original order of detention was passed by the District Magistrate of Muzaffarnagar and the accused were taken to the Jail at Muzaffarnagar.

Subsequently, they were transferred to the Central Jail at Agra where they continued in custody ever since. Agra was within the jurisdiction of a

different District Magistrate. Notwithstanding the fact that the detenus were in different district, the District Magistrate of Muzaffarnagar passed an

order of extension, exercising the power under the authority that was conferred upon him by the Provincial Government exercising its powers of

delegation. It was there pointed out that the detenu even though he was in another jail was held in that jail under the order of the District Magistrate

of Muzaffarnagar and so he was for all purposes a prisoner of that District Magistrate. The District Magistrate at Muzaffarnagar alone had

jurisdiction to revoke the order before the period fixed in it had expired and he had also the power to extend the period of detention. The principle

behind this decision is that the custody of a person in jail is really the custody of that Magistrate who has the power and the right to give direction

regarding the custody of the prisoner. The physical presence of the person in a different jail would not affect the power of the Magistrate to control

the movements of the person. The Stationary Sub-Magistrate, Vijayawada, in these cases held the judicial custody of these persons and the

custody in the Central Jail, Rajahmundry, was subject to his direction and control. The temporary absence from Vijayawada in such circumstances

under the direction of the Stationary Sub-Magistrate, Vijayawada, cannot affect the power of the District Magistrate to act u/s 2(1) of the Act. We

are therefore of opinion that the District Magistrate of Krishna had authority to take action u/s 2(1) of the Act notwithstanding the temporary

absence of these applicants on the 10th April, 1948, at Rajahmundry.

For all these reasons we think that no case has been made out for interference by this Court with the orders of detention passed by the District

Magistrate, Krishna.

These applications are therefore dismissed.