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PETITIONER: AJAIB SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 02/02/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1619            1965 SCR  (2) 845  CITATOR INFO :  D          1969 SC 483  (11)

ACT: Defence of India Act, 1962 (Act 51 of 1962), s. 3(2)(15)(i)- Defence  of  India Rules, 1962 r.  30A-Power  of  Detention- Exercise By whom. Code of Criminal Procedure, 1898 (Act 5 of 1898), ss. 10(1), 10(2)  &  11--Additional District  Magistrate-Invested  with powers  under s. 10(2)-Whether District  Magistrate--Officer Incharge  of  District Magistrate’s  Office-But  absence  of Appointment under s. 10(1)-If District Magistrate.

HEADNOTE: The  Additional  District  Magistrate of  Amritsar  who  was invested  with the powers of a District Magistrate under  s. 10(2)  of  the Code of Criminal Procedure,  1898  was  under instructions  from  the State Government in  charge  of  the office  of  the  District  Magistrate,  when  the   District Magistrate was transferred.  No order appointing him as Dis- trict  Magistrate  as required by s. 10(1) of the  Code  was however  passed.  During the period he was in charge of  the office  of  the  District  Magistrate  he  passed  an  order detaining the appellant under r. 30(1)(b) of the Defence  of India  Rules, 1962.  In appeal by special leave from  Punjab High  Court, it was contended by the appellant, that in  the absence  of  an  order  under  s.  10(1)  of  the  Code  the Additional  District  Magistrate could not be  the  District Magistrate for the purpose of passing an order of  detention under  Defence of India Act and the Rules, and  consequently the  order of detention passed by him was without  authority and liable to be set aside. HELD : The order of detention was not in accordance with the Defence of India Act and Rules and must be set aside, as  he was not then the District Magistrate, but only an Additional District Magistrate. [852 F] The  Defence  of India Act and the Rules  show  unmistakably that  the powers of detention can only be exercised  by  the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank  than

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a District Magistrate.  An Additional District Magistrate is below the rank of a District Magistrate. [849 E-F; 851 H-852 A] Even if an Additional District Magistrate had been appointed with all the powers under the Code and also under any  other law  for  the  time being in force, he  was  still  not  the District  Magistrate unless the Government appointed him  as such under s. 10(1) of the Code of Criminal Procedure.  [850 D-E] Even if an officer was exercising the powers of the District Magistrate  on  there being a vacancy in the office  of  the District Magistrate he was still not the District Magistrate until he was appointed as such under s. 10(1) of the Code of Criminal Procedure. [850 F-G] The instructions could not take the place of a  notification under s.  10(1) of the Code. [851 C-D] 846

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 252  of 1964. Appeal  by special leave from the judgment and  order  dated July 30, 1964 of the Punjab High Court in Criminal Miscella- neous No. 742 of 1962. M.   C. Setalvad, and Naunit Lal, for the appellant. J.   N.  Kaushal, Advocate-General for the State  of  Punjab and R.    N. Sachthey, for the respondents. The Judgment of the Court was delivered by Wanchoo J. This appeal by special leave from the judgment of the Punjab High Court was heard on January 20, 1965.   We then  pronounced  a  short order  allowing  the  appeal  and directing  the  release  of the detenu  and  indicated  that reasons  would  follow later.  We now proceed  to  give  the reasons. The  appellant  was detained under r. 3 0 (1 )  (b)  of  the Defence  of  India  Rules (hereinafter referred  to  as  the Rules)  by  an order passed by Shri Lal Singh  on  June  30, 1964.   That order was passed by Shri Lal Singh as  District Magistrate of Amritsar.  The only point that has been  urged before us on behalf of the detenu is that Shri Lal Singh was not the District Magistrate of Amritsar on June 30, 1964 and therefore  he  had no power to pass the order  of  detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act and the Rules. It is necessary to set out certain facts with respect to the position Shri Lal Singh was occupying on June 30, 1964  when the order of detention was passed.  It appears that Shri  P. N.  Bhalla was the District Magistrate of Amritsar in  April 1964.   He was ordered to be transferred to the  Secretariat by  an  order passed on April 23, 1964.  At that  time  Shri Lall  Singh  was  the  Additional  District  Magistrate   of Amritsar and had been inter alia invested under S. 10 (2) of the  Code of Criminal Procedure (hereinafter referred to  as the Code) with all the powers of a District Magistrate under the Code or under any other law for the time being in  force by  an  order  which  had been passed  on  April  10,  1963. Further when the order of transfer of Shri Bhalla was  made, instructions  were issued that Shri Bhalla should hand  over charge  to Shri Lall Singh, Additional Deputy  Commissioner, Amritsar  who would hold the current charge of the  post  of Deputy  Commissioner,  Amritsar, till  further  orders.   It appears that Shri Bhalla handed over charge of the office of the Deputy Commis-

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847 sioner  to Shri Lall Singh on the afternoon of May 15,  1964 in  accordance  with the instructions above  mentioned,  and thus Shri Lall Singh was in current charge of the office  of Deputy  Commissioner, Amritsar from May 16, 1964.  No  order appointing  Shri  Lall  Singh  as  District  Magistrate   of Amritsar as required under s. 10 (1) of the Code was passed. But as Shri Lall Singh was already invested as an Additional District  Magistrate  with all the powers  of  the  District Magistrate  under the Code and under any other law  for  the time being in force, he carried on the duties of’ the office of the District Magistrate also.  At the same time it may be noted   that  no  other  officer  was  posted  as   District Magistrate from May 16 till June 30, 1964 when the order  of detention  was  passed.  The new  District  Magistrate  Shri lqbal  Singh  took  over  charge  as  District   Magistrate, Amritsar,  on  July 1, 1964 and’ Shri Lall  Singh  was  then appointed as District Magistrate, Hissar. On  these  facts the contention on behalf of the  detenu  is that  Shri  Lall Singh was not the  District  Magistrate  of Amritsar on June 30, 1964, even though he signed himself  as District  Magistrate when he passed the order of  detention. It is submitted that in the absence of an order under S.  10 (1)  of  the  Code appointing Shri Lall  Singh  as  District Magistrate  of  Amritsar,  he  could  not  be  the  District Magistrate  of Amritsar for the purpose of passing an  order of detention under the Act and the Rules, whatever might  be his powers to carry on the administration of the district as an  Additional District Magistrate and Additional  Collector under  the powers conferred on him by various  notifications of  April 1963.  Consequently the order of detention  passed by him on June 30, 1964, was without authority and liable to be set aside. In  reply,  the learned Advocate General for  the  State  of Punjab  has raised two points.  In the first place he  urges that the notification delegating to all District Magistrates the State Government’s powers to detain persons under r.  30 of  the  Rules is law and relies in this connection  on  the decision of this Court in Jayantilal A mratlal Shodhan v. F. N.   Rana(1).    It  is  further  contended  that   by   the notification  of  April 1963, Shri Lall Singh  was  invested with  an the powers of a District Magistrate under the  Code and  under  any other law for the time being  in  force  and would  therefore have the power to detain persons under  the law  contained in the notification delegating the  power  of detention to all District Magistrates.  In the second  place it is urged that as Shri Lall 1. A.I.R. 1964 S. C. 648. 848 Singh was holding charge of the current duties of the office of  the  Deputy  Commissioner and as no one  else  had  been posted  in  Amritsar  between May 16 and June  30,  1964  as District Magistrate lie was in fact and in law the  District Magistrate of Amritsar. We  do not think it necessary for purposes of this  case  to decide  the  first  point raised  by  the  learned  Advocate General, for we have come to the conclusion that no  officer other than the District Magistrate of a District can pass an order  of detention under r. 30 of the Rules in view of  the provisions of the Act and of the Rules to which we shall now refer.   Section 3(1) of the Act gives power to the  Central Government  by notification in the Official Gazette to  make such  rules  as  appear to it  necessary  or  expedient  for securing the defence of India and civil defence, the  public safety,  the  maintenance of public order or  the  efficient

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conduct of military operations, or for maintaining  supplies and services essential to the life of community.  Section  3 (2)  then  provides  for the making  of  rules  for  various purposes  without prejudice to the generality of the  powers conferred by s. 3 (1), and the 15th clause thereof  provides for   detention.   The  relevant  portion  of  that   clause necessary for our purposes reads thus :-               "(15).  Notwithstanding anything in any  other               law for the time being in force--               (i)   the   apprehension  and   detention   in               custody  of  any  person  whom  the  authority               empowered by the rules to apprehend or  detain               (the  authority empowered to detain not  being               lower   in  rank  than  that  of  a   District               Magistrate), suspects, on grounds appearing to               that  authority to be reasonable, of being  of               hostile origin or having acted, acting,  being               about  to  act  or being likely to  act  in  a               manner prejudicial to the defence of India and               civil defence, the security of the State,  the               public safety or interest, the maintenance  of               public  order, India’s relations with  foreign               States, the maintenance of peaceful conditions               in any part or area of India or the  efficient               conduct   of  military  operations,  or   with               respect  to whom that authority  is  satisfied               that   his  apprehension  and  detention   are               necessary  for the purpose of  preventing  him               from acting in any such prejudicial manner." It would be seen that s. 3 (2) (15) (i) which is the  source of  power  to  detain according to the Rules  to  be  framed thereunder itself 849 lays  down that the authority empowered to detain shall  not be lower in rank than that of a District Magistrate. Then  we came to S. 40 (2) of the Act, which gives power  to the  State Government to delegate its powers to any  officer or  authority subordinate to it.  This power of  delegation, however,  must be read harmoniously with s. 3 (2)  (15)  and therefore  under  S.  40 (2)  the  State  Government  cannot delegate  its power to detain to any officer below the  rank of  a  District  Magistrate.   Rule 30  of  the  Rules  then provides  for  detention and under that rule  the  power  is conferred on the Central Government or the State  Government to  detain any person.  That power of the  State  Government can  however  be delegated under s. 40 (2)  to  any  officer subordinate  to  it.  But as we have already  indicated  the power  of  delegation  must be  read  harmoniously  with  s. 3(2)(15) and therefore the State Government cannot  delegate the power to detain to any officer who is lower in rank than the  District Magistrate.  The position is  further  clearly brought  out  in  r. 30-A which provides  for  review  of  a detention order made by an officer.  It is made clear  there also that the officer shall in no case be lower in rank than a District Magistrate.  The effect of these provisions  thus is  that the power of detention can either be  exercised  by the  State Government or by its delegate who however can  in no  case be lower in rank than a District  Magistrate.   The Act and the Rules therefore show unmistakably that the power of  detention can only be exercised by the State  Government or an officer or authority to whom it might be delegated but who  shall  in  no case be lower in  rank  than  a  District Magistrate. We may in this connection contrast the language of S. 3  (2) of  the Preventive Detention Act, No. 4 of 1950, which  lays

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down that any of the following officers, namely:- (a)  district magistrates, (b)  additional district magistrates specially empowered  in this behalf by the State Government, (c) (d) may  exercise the powers conferred by S. 3 (1) (a) (ii)  and (iii).   If  the intention under the Act and the  Rules  was that  the Additional District Magistrate may  also  exercise the  power of detention conferred thereunder we  would  have found   a  provision  similar  to  that  contained  in   the Preventive Detention Act. 850 Two questions then arise on the view we hold that no officer below  the  rank of a District Magistrate can  exercise  the power  of detention under the Act and the Rules.  The  first is  whether  Shri Lal Singh was the District  Magistrate  of Amritsar  on  June  30, 1964.  Secondly if he  was  not  the District  Magistrate  on that date, could he  as  Additional District Magistrate exercise the power of detention and that would depend upon whether an Additional District  Magistrate is of the same rank as the District Magistrate or below  him in  rank  ?  Now  S. 10 (1) of the  Code  provides  for  the appointment of a District Magistrate and lays down that  "in every  district  outside  the  presidency-towns,  the  State Government  shall appoint, a Magistrate of the first  class, who   shall  be  called  the  District   Magistrate".    The appointment  of  a District Magistrate therefore has  to  be made under S. 10 (1).  Section 10(2) then gives power to the State Government to appoint any Magistrate first class to be an  Additional  District  Magistrate  and  such   Additional District Magistrate shall have all or any of the powers of a District  Magistrate under the Code or under any  other  law for  the  time being in force as the  State  Government  may direct.   But even if an Additional District Magistrate  has been  appointed with all the powers under the Code and  also under any other law for the time being in force, he is still not  the District Magistrate unless the Government  appoints him  as such under S. 10 (1) of the Code.  Further S. 11  of the  Code  envisages the contingency of the  office  of  the District Magistrate becoming vacant.  It provides that where this contingency arises, any officer succeeding  temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District Magistrate.  But even if an  officer  is  exercising  the  powers  of  the   District Magistrate  on  there being a vacancy in the office  of  the District Magistrate he is still not the District  Magistrate until he is appointed as such under s. 10(1) of the Code. We  have  therefore  to  see whether  Shri  Lall  Singh  was appointed as District Magistrate of Amritsar under s. 10 (1) of  the Code.  As to that it is admitted that there  was  no notification  appointing  Shri Lall Singh  as  the  District Magistrate of Amritsar under s. 10(1) of the Code.  All that the Advocate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri  Bhalla who  was the District Magistrate of Amritsar to  the  effect that Shri Bhalla should hand over charge to Shri Lall  Singh who will hold the current 851 charge  of the office of the Deputy Commissioner,  Amritsar. This  means  that  there  was a  temporary  vacancy  on  the transfer  of  Shri Bhalla and Shri  Lall  Singh  temporarily succeeded  to  the  chief executive  administration  of  the

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district.   As  such he would be entitled  to  exercise  the powers of the District Magistrate under the Code under s.11. Further  as  he had been empowered  as  Additional  District Magistrate  to  exercise powers of the  District  Magistrate under  any other law for the time being in force:, he  would exercise those powers also by virtue of being so authorised. But even though Shri Bhalla may have gone away after handing over  charge  on the afternoon of May, 15,  1964  Shri  Lall Singh  could not and did not become the District  Magistrate of Amritsar in the absence of a notification under s. 10 (1) of  the Code by the State Government.  The  instructions  to which  we have already referred cannot in our  opinion  take the  place  of a notification under s. 10 (1) of  the  Code. Therefore  though Shri Lall Singh may be exercising all  the powers of the District Magistrate by virtue of his being  an Additional District Magistrate under the notification issued in April 1963 and also by virtue of s. 11 of the Code he was not  the District Magistrate of Amritsar in law on June  30, 1964.  It is true that when passing the order he showed  his designation  as District Magistrate and that may be  because Shri  Bhalla who was the District Magistrate had  gone  away and  no other officer had replaced him till June  30,  1964. The  transfer  of Shri Bhalla would not  automatically  make Shri Lall Singh, the District Magistrate of Amritsar, in the absence of a notification under s. 10 (1) of the Code.  When we  say  this  we should not be understood to  mean  that  a notification   appointing   a   District   Magistrate   must necessarily recite in terms that it was being made under  s. 10  of the Code; all that we mean is that there must  be  an order  of  the  State Government appointing  an  officer  as District Magistrate of the district.  In the absence of such an order no officer can claim to be the District  Magistrate of the district.  The instructions which were issued in this case  however  do  not say that Shri  Lal  Singh  was  being appointed  the District Magistrate of the district in  place of  Shri  Bhalla.  If that were so, we would  have  found  a proper  notification  to  that  effect,  published  in   the Gazette.   We, therefore, hold that Shri Lal Singh  was  not the  District Magistrate of Amritsar when he made the  order on June 30, 1964. The   next  question  is  whether  an  Additional   District Magistrate  can  be  said  to be of the  same  rank  as  the District Magistrate.  We are clearly of the opinion that  an Additional District Magis- 852 trate is below the rank of a District Magistrate and  cannot be  said to be of the same rank as the District  Magistrate. We  may  in this connection refer to s. 10(2)  of  the  Code which shows that an Additional District Magistrate need  not necessarily be conferred with all the powers of the District Magistrate  under  the Code or any other law  for  the  time being in force.  He can be an Additional District Magistrate though  he may be exercising only some of the powers of  the District  Magistrate.   Clearly,  therefore,  an  Additional District Magistrate must be an officer below the rank of the District Magistrate.  Further sub-s. (3) of s. 10 bears this out.   That sub-section says that for certain purposes,  the Additional  District  Magistrate  shall  be  deemed  to   be subordinate  to the District Magistrate.  Therefore even  if the Additional District Magistrate is invested with all  the powers of a District Magistrate under the Code or under  any other law for the time being in force he is still below  the District  Magistrate  for certain purposes mentioned  in  s. 10(3)  of  the  Code.  Besides there is  only  one  District Magistrate  in a district and all other magistrates  whether

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they be Magistrates first class or even Additional  District Magistrates  must obviously be below him in rank.  As  s.  3 (2)  (15)  of the Act provides that the power  of  detention cannot  be  exercised by any officer below the rank  of  the District  Magistrate, such power cannot be exercised  by  an Additional  District  Magistrate who is in  our  opinion  an officer below the rank of a District Magistrate.  The  order of the detention passed by Shri Lall Singh on June 30,  1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance  with the Act and the Rules and must be set aside. Appeal allowed. 853