SHEARER, J. -
(1.) THIS is an application under Section 491, Criminal P.O., by one Lalwa Gope against whom an order of detention has been made by the Provincial Government under Section 2(1), Biha Maintenance of Public Order Act, 1947. The order states that the ground on which Lalwa Gope is detained is that "Government have good reason to believe that if he is allowed to remain at large be will again indulge in thefts in railways". From what is contained in the earliee part of the order, it appears that the petitioner was "convicted or suspected" in four caS8B of theft in 1946, and in one case of theft in 1917, and that these were thefts committed in running goods trains, the petitioner being a person who is skilled in opening the doors of goods wagons and so effecting an entrance into them and throwing goods carried in them out on to the side of the railway tract from which, subsequently, he and his associates may remove them. The question that arises is, therefore, whether the Legislature has empowered the executive to order the detention of a habitual criminal of this type on the ground that he is a habitual criminal and on no other ground. The law recognises, and has always recognised that for the protection of the public it may be necessary to deprive habitual criminals temporarily of their liberty. The main provisions in the existing criminal law are to be found in Rs. 8, Criminal P. 0. When, hitherto, the Crown has sought to deprive a man of his personal liberty on the ground that he is a habitual criminal, it has been in outmen on it to bring him before a Court of law and to prove that he is in fact a habitual criminal of a certain type or that he is of criminal habits and that his remaining at large is "hazardous to the community". Moreover, even when the Crown ha3 succeeded in establishing titmouse against him, the man is not to be deprived of his liberty if he is in a position to furnish security for his good behaviour to the satisfaction of the Court. And against the order of the Court, either an order demanding security or an order refusing to accept such security as is offered, there is a right of appeal. Has the Legislature swept away every one of these safeguards? In a man, on the ground that he is believed to be a habitual criminal, to be deprived of his liberty on the fiat of a Minister of the Grown, granted, presumably, on the adviae of a civil servant who has before him nothing but the reports of subordinate police officers and such submission in writing as the man himself may be able to make? If the Legislature had intended to put into the hands of the police an additional weapon to enable them to deal with ordinary crime, if it had intended to leave it at the option of the police, either to bring a man, who, they were satisfied, was a habitual criminal, before the Courts, or to obtain from a Minister an order of preventive detention, one would expect it to have made its intention clear by using the most plain and unequivocal language. This, however, it quite certainly, has not done. The Act in which the provision, on which reliance is placed, occurs is not an Act for the preventive detention of habitual criminals. In fact, the expression "habitual criminals" is nowhere to be found in it; it is an Act for the preservation of public order. With that object it enables the Provincial Government to control processions and public meetings, to impose censorship, to prevent unlawful drilling and the wearing in public of uniforms. The provisions enabling the Provincial Government to make orders of preventive detention must be read in the light of these other provisions in the Act. Prima facie, the persons against whom orders of detention were authorised to be made were persons engaged in activities which were likely to lead to public disorder or domestic violence. Clause (e) of Section 2(l) of the Act, that is, the very section which empowers the Provincial Government to make order of detention, empowers it to impose restrictions on an individual "in respect of his activities in relation to the dissemination of news or propagation of opinions." The man there aimed at is quite dearly, not a habitual criminal. Even if the words in the Act, on which reliance is now placed by the Grown, were capable of bearing the construction which is sought to be put on them, I should be disposed to say that, looking to the Act as a whole, it ought, on accepted principles of construction, to be held that the Legislature did not intend to amend or supplement the existing law and to confer on the executive new and novel powers to enable it to deal with ordinary crime. But is there really any ambiguity in the Act itself? Surprising as it may Beem, all that is or can now be, contended, is that in the Act there are half a dozen words which, if isolated and divorced from their con -text, are capable of bearing a meaning which justifies the executive in making an order of detention against a man who, it is satisfied, is a habitual criminal. Section a (l) of the Act empowers the Provincial Government to make an order of detention against a man "with a wiew to preventing him from acting in any manner prejudicial to the public safety and the maintenance of the public order". The order which has been made against the petitioner has been made with a view to preventing him from committing theft in running goods trains. That is, clearly, not an act prejudicial to the maintenance of public order. I do not want, and it is quite unnecessary, to be too technical, and I will assume that the word "and" is to be considered as "or". Is the act which is now sought to be prevented an act "prejudicial to the public safety" ? It is strongly contended by Mr. S. E. Mifcra for the Grown that an act pre -judicial to the public safety must necessarily include an act prejudicial to the -safety of the property of the public as well as an act prejudicial to the personal safety or well -being of the public, I agree, of course, with Mr. Mitra that, when measures are taken to secure the public safety, they will ordinarily be measures to ensure the safety of the property as well as of the lives and liberties of His Majesty's subjects. But it seems to me quite impossible to read the words "public safety" as if they meant "the safety of the goods of individual members of the public" and meant or might mean nothing more. The public safety, as I understand it, means the safety of the community, as a community, which may be threatened either from without by enemy action or from within by internal disorder or domestic violence. Public Safety Acts are a species of legislation familiar to students of history and constitutional law. The English Parliament, unlike the legislatures of some other countries, has, I think I am correct in saying, never passed a statute which has been designated a Public Safety Act. Until the first World War it chose instead to suspend the Habeas Corpus Acts, and, on the termination of the emergency which had made this necessary, to pass an Act of Indemnity. The Suspension Act took away the right to apply for a writ of habeas corpus from any person committed to prison on a warrant signed by a Secretary of State for treason, suspicion of treason or treasonable practices and the subsequent Act of Indemnity relieved the Secretary of State and other persons who had acted under his direction from liability for what was, at the time, and remained an illegal Act. In the first and second World Wars, a somewhat different course, perhaps more effective and certainly ptcduetive of less hardship, was taken, and the executive was empowered to detain persons without trial on one or other of certain specified grounds. In other words," the act of a Secretary of State in committing a man to prison instead of preferring a charge against him and bringing him for trial before a Court of law and the act of the galore in keeping the man indefinitely in custody, both of which were otherwise illegal acts, were legalised ab initial and not, as they had been under the earlier practice, ex -post facto, A similar course was taken in both wars by the Government of India. In Ireland, after the first World War this power of arbitrary arrest and detention was retained by the executive until internal order had been restored and, in India after the second World War it has been retained by the Central and Provincial 'Governments because India is passing through a stage of transition. I do not doubt that the retention of this power is necessary and that, when it has been used, it has frequently been used for the best of reasons, But the executive cannot use a weapon which has been put into its bands for one specific purpose for another and quite different purpose.
(2.) THE difficulties of the Crown do not end here. I will assume that I am in error in the construction which I put on Section 2(l) of the Act and that the argument of Mr. s. K. Mitra ought to prevail. In that case I should be com -polled to hold that, if the legislature has, in fact, empowered the executive to detain a man "without trial on the ground that he is a habitual criminal, so much of this Act is ultra vires and void. The Provincial Legislature may en -act a law on the subject of preventive detention '" for reasons connected with the maintenance of public order " and for no other reason whatsoever. That is clear from the first entry in the Provincial list in the seventh schedule to the Government of India Act, The British Par. liament, obviously assumed that, if a bill relating to the preventive detention of habitual criminals was introduced in an Indian Legia -lature, the bill would be a bill to amend or supplement the criminal law, and that a person against whom an order of detention was sought would be brought before a Court and would have an opportunity of defending himself on the charge made against him. It is to be observed that in England the provision which authorises the preventive detention of a habitual criminal on the ground that this is expedient for the protection of the public, (an expression very different from "for securing the public safety " which is to be found in the Defence of the Realm Act) occurs in an Act which may be cited as "the Prevention of Crime Act, 1908." It necessarily follows from this that if the Pro. vincial Government wished to ask the legislature to confer on it the power to detain persons without trial on the ground that they are habitual criminals, it should first have obtained 50 -Cr. L. J, 73 and 71 from the Governor -General an order under s, 101, Government of India Act, assigning this subject, which is not one of the subjects mentioned in the lists in the seventh schedule, which lists are intended to be exhaustive the Provincial Legislature. It is somewhat surprising that, although the Bihar Maintenance of Public Order Act 1947, has been in operation for considerably more than eighteen months, and similar provisions existed throughout the war, the point now raised has not previously come before this Court. Mr. S. K, Mitra invited our attention to the decision of Das and Narayan JJ. in criminal Misc. No, 406 of 1948. Fauzdar Singh, who was the petitioner in that case, was, Mr. Mitra points out, an assooiate of Lalwa Gope, and, although his application was allowed and he was ordered to be released, there are observations in the judgments of both of my learned brothers which suggest that, if the order served on Fauzdar Singh had oontained further and better particulars as to his criminal activities, they would have been disposed to dismiss it. But the point raised before us and argued with great ability by Mr. K. D. Chatterji was not at all raised before them. Still less was it considered and decided.
Before I close this judgment, there are two observations which I wish to make. One is that I appreciate that in consequence of the wrong advice they have received, the police may have obtained orders of detention against certain persons when they might have proceeded against them successfully in the Courts and that the release of such persons may add to their problems. But I am bound to declare the law, and I am the less reluctant to have to do so in this particular case as the petitioner is not a man with a long record of crime behind him, His activities do not seem to have come to the notice of the police until sometime in 1946, and although he is said to have been convioted, he denies this and either the conviction must have been set aside on appeal or the sentence must have been a nominal sentence. The order, which it should not perhaps be necessary to make but which I make as there is an obvious misunderstanding as to the scope of this Act, is that habitual criminals are not, as such, exempt from its provisions. In communal and other disturbances it is notorious that goondas become extremely aotive and that their activities create panic and alarm and add to the prevailing disorder. In such a situation the making of an order of detention against a goonda may well be justified, but it will be justified not on the ground that he is a habitual criminal but on the ground that his detention is necessary in a cricis foe the prevention of public disorder. The application must be allowed. It must be held that the order made againat the petitioner is ultra vires and that he must be released and set at liberty forthwith. Reuben, J.
(3.) I agree, but would reserve my opinion as to whether an Act for the detention without trial of a habitual criminal as such would be ultra vires of the Provincial Legislature or not.;