Ajaib Singh VS. State Of Punjab

Case Law No.252, Reporting JudgeWanchoo

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Summary

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 a District Magistrate. An Additional District Magistrate is below the rank of a District Magistrate. [849 E-F; 851 H-852

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

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Extract

Ajaib Singh VS. State Of Punjab

PETITIONER: AJAIB SINGH Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 02/02/1965

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.

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 ...

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