JUDGMENT
Govioda Menon, J.
1. The petitioner seeks to revise the order of the learned District-Magistrate of North Arcot passed in Cri. M. P. No. 52 of 1950 in C. C. No. 32 of 1950 holding
that the Court has jurisdiction to take cognizance of the complaint against him and proceed with the enquiry and trial.
2. The petitioner is a detenu in the Central Jail at Vellore, having been confined there under the Madras Maintenance of Public Order Act of 1947. The complaint against him is that in violation of Clauses 6 and 9 of Rule 15, Madras Security Prisoners’ Rules, 1947, he continued to be on hunger strike from 1-11-1949 to 26-11-1949 and thereby committed an offence under Rule17 (2) of the said Rules. Rule 17 (2) contemplates
that:
“If any security prisoner is guilty of a jail offence, which, by reason of his having frequently committed such offences or otherwise, is in the opinion of the Superintendent not adequately punishable by him under the provisions of Sub-rule 1, he may, with the approval of the Government, forward such prisoner to the Court of a Magistrate of the first class or of a Presidency Magistrate, as the case may be, having jurisdiction, and such Magistrate shall thereupon inquire into and try the charge so brought against the security prisoner, and upon conviction, shall sentence him to imprisonment for a term not exceeding one year.”
It is admitted that in this case before the person was forwarded to the Magistrate or before a complaint was filed against him, specific approval of the Government was not obtained for the prosecution, and therefore it is contended that the initiation of the prosecution, without the Government considering the necessity or otherwise of a prosecution and giving their sanction for such a prosecution, is void and inoperative. On the other hand, on behalf of the State, it is contended by the learned Public Prosecutor, that the Memorandum No. 4934 dated 27-6-1949 has given general permission to all the Superintendents of jails for launching such prosecutions against security prisoners who are guilty of such offences and intimate the effect of such prosecutions alone to the Government. The Memorandum referred to is one sent by the Government of Madras to the Inspector General of Prisons, who in his turn, has forwarded it to the Superintendents, The last two sentences of this Memorandum
are as follows:
“If in spite of the warning the detenus go on hunger strikes, they should take action as follows : if the hunger strike is a token one, lasting for a day, the Superintendent should withdraw the privileges of the detenus for a month or 15 days according to their discretion. In other cases of persistent or continuous hanger strikes, they should launch prosecutions against them and should intimate the Government, without delay, as soon as such prosecutions are launched.”
It is contended before us that the instructions issued by the Government to the Inspector General of Prisons are directly and diametrically opposed to Rule 17 (2) and as such, such instructions cannot override or outweigh the efficacy of a statutory rule as Rule 17 (2). The statutory rule lays down that before the prisoner is forwarded to the Court of the Presidency Magistrate or First Class Magistrate for enquiry and trial, approval of the Government for that action should be taken. But the instructions issued by the Government state that in general a carte blanche is given to the Superintendents to launch prosecutions against security prisoners, who are alleged to be guilty of persistent or continuous hunger strikes and after prosecutions are launched the facts of such launching should be intimated to the Government without delay. We have no doubt that the instructions contained in the memorandum go contra to what is contained in the statutory rule and in our opinion, these directions, issued as they are to the Inspector General of Prisons, cannot be said to be formal and general approvals of launching of prosecutions against individual detenus as contemplated in Rule 17 (2). Rule 17 (2) does not contemplate that there must be such a mass approval. Each case, as and when it occurs should be reported to the Government and Government should consider the necessity, expediency or otherwise, of launching prosecutions, separately and thereafter such approval is accorded, can the prosecutions be launched. If that be the true and correct interpretation of Rule 17 (2), in our opinion, the instructions issued are ultra vires and cannot have any legal efficacy. Further the instructions issued by the Government should be in conformity with statutory rules.
3. We are, therefore, of opinion that the prosecution has not been launched properly and as such the Court has no jurisdiction to take cognizance of the complaint. In such circumstances, the proceedings before the District Magistrate are quashed. This order should not be interpreted as preventing a proper application to the Government for approval and any initiation of proceedings after such approval, if the authorities so desire.
