BIDYA CHAUDHARY Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) These applications are under Section 491, Criminal P. C., by Bidya Chaudhary and 57 others who allege that they are illegally and improperly detained under Section 2(1), Bihar Maintenance of Public Order Ordinance (Ord. II [2] of 1949).

(2.) The material facts are not in dispute. The applicants had at first been arrested under Bihar Maintenance of Public Order Act, 1947. Section 1 (3) of that Act provided that it shall remain in force for a period of one year from the date of its commencement. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolution of the two Houses of Legislature of the Province, and further gave the Provincial Government the power of modification, if any, of the Act. The Federal Court decided by their judgment dated 28th May 1949, that the proviso was ultra vires of the Provincial Legislature, and the extension of the Act beyond one year was invalid. The Federal Court also held that Bihar Act V [5] of 1949 was infructuous, as the Bihar Maintenance of Public Order Act of 1947, which it sought to amend, had come to an end when the first year expired. On 3rd June 1949, the Governor of Bihar promulgated ordinance II [2] of 1949, which re-enacted in substance the provisions of Bihar Maintenance of Public Order Act, 1947, and which purported to validate the orders of detection already made. It is the undisputed case that all the applicants have been served with orders of the Provincial Government under Section 2 (1) of the Ordinance.

(3.) The validity of the detention is challenged in these proceedings on the ground that the Governor of Bihar in promulgating the Ordinance in question has exceeded his legislative competence.