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1948 (7) TMI 6 - HC - Indian Laws

Issues Involved:
1. Validity and constitutionality of the Madras Ordinance II of 1948.
2. Jurisdiction and powers of the High Court under Section 491, Criminal Procedure Code (CrPC).
3. Retrospective application of Section 16-A of the Madras Ordinance II of 1948.
4. Grounds for challenging detention orders under the Madras Maintenance of Public Order Act, 1947.

Detailed Analysis:

1. Validity and Constitutionality of the Madras Ordinance II of 1948:
The petitioners contended that the Madras Ordinance II of 1948 was ultra vires because the necessary prerequisites for its validity were not met, specifically the Governor's satisfaction and the instructions from the Governor-General. The Court held that the recitals in the preamble of the Ordinance, which stated that the Governor was satisfied and that the instructions of the Governor-General had been obtained, must be accepted as correct in the absence of any evidence to the contrary. The Court emphasized that the presumption of legality applies to the Ordinance, and the burden of proof lies on the challenger. The Court also noted that the Governor's actions were presumed to be based on the advice of his ministers, and any inquiry into the advice tendered by the ministers was precluded by Section 61(4) of the Government of India Act, 1935.

2. Jurisdiction and Powers of the High Court under Section 491, CrPC:
The Court examined whether Section 16-A of the Madras Ordinance II of 1948, which excluded the application of Section 491, CrPC, to persons detained under the Madras Maintenance of Public Order Act, 1947, was valid. The Court held that Section 16-A did not repeal Section 491, CrPC, but interdicted the High Court from exercising its power under Section 491 in a certain class of cases. The Court referred to the Federal Court's decision in Basanta Chandra Ghose v. King-Emperor, which held that similar provisions did not curtail the High Court's jurisdiction to investigate whether an order of detention was validly made. The Court emphasized that the jurisdiction of the High Court to investigate the validity of detention orders remained unimpaired and unaffected by Section 16-A.

3. Retrospective Application of Section 16-A of the Madras Ordinance II of 1948:
The Court considered whether Section 16-A applied retrospectively to applications filed before the promulgation of the Ordinance. The Court held that there was no express provision or necessary intendment in the Ordinance to make Section 16-A retrospective. The Court applied the principle that a statute should not be construed to have retrospective operation unless its language plainly requires such a construction. Consequently, applications filed before 25th May 1948 were to be dealt with under the provisions of the Madras Maintenance of Public Order Act, 1947, as it stood before the amendment by the Ordinance.

4. Grounds for Challenging Detention Orders under the Madras Maintenance of Public Order Act, 1947:
The Court outlined the grounds on which detention orders could be challenged, drawing from established legal principles and precedents:
- Authenticity of the order: The detenu can disprove the authenticity of the order.
- Good faith: The order must be made in good faith by the officer or authority concerned.
- Application to the person detained: The detenu can show that he is not the person intended to be detained.
- Fraudulent exercise of power: The detenu can prove that the order was a fraudulent exercise of power.
- Lack of satisfaction: The detenu can show that the officer or authority did not apply its mind or was not satisfied as required by the statute.

The Court emphasized that the sufficiency of the material or the reasonableness of the grounds for detention were not matters within the Court's cognizance. The satisfaction required by the statute was that of the government or the empowered authority, not the Court. The Court concluded that once a duly authenticated order of detention was produced, it must be taken prima facie to have been properly made, and the burden of proof lay on the challenger to establish otherwise.

 

 

 

 

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