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TMI Blog1945 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal applicants, eight are called as Respondents in the present appeal, but their Lordships were informed that two of the Respondents had been released, namely, Narendra Nath Sen Gupta, Respondent No. 4, on a date before the judgment of the Federal Court, and Bijoy Singh Nahar, Respondent No. 2, after the judgment of the Federal Court. The remaining six Respondents, with whom this appeal is now concerned, are under detention by virtue of orders made under Bengal Regulation III of 1818. 3. Having regard to the known and well-settled principle of the English law that a discharge, or an order directing discharge, under a writ of habeas corpus is final and not subject to appeal, and the importance of preserving safeguards of the liberty of the subject, their Lordships asked for arguments of counsel on the competency in the present case, of the appeals by the Crown from the High Court to the Federal Court, which might equally affect the competency of the further appeal to this Board. It is sufficient to refer to the decision of the House of Lords in Cox v. Hakes 15 App. Cas. 506 where the law of England on this matter is fully dealt with. 4. In the present case, the appeals hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a statute precludes all enquiry into the object of the statute or the mischief which it was intended to remedy 15 App. Cas. 517. In their Lordships' opinion, the condition of the law of habeas corpus in India, and the purpose and express words of Section 205 of the Government of India Act, 1935, afford a contrast to the condition of the English law and the object and general terms of Section 19 of the Judicature Act of 1873. The history of the matter is shortly stated by Sir George Rankin, then Chief Justice, in his admirable judgment in Girindra Nath Banerjee v. Birendra Nath Pal I.L.R.(1927) 54 Cal. 727 from which the following quotation may be made: I proceed therefore to enquire whether according to the law in India as it now stands there is or is not power in the High Court to grant the writ of habeas corpus at common law independently of Section 491 of the Criminal Procedure Code. Now in 1870 in the case of Ameer Khan (1870) 6 B.L.R. 392 Norman J. held that the High Court could issue the habeas corpus outside the original jurisdiction to the Superintendent of the Jail at Alipore. In 1872 the Code of Criminal Procedure (Act X of 1872) was enacted which gave the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. I observe that it has been stated in certain cases that if there is to be any question of the abolition of this right then the Legislature must say so in the most specific terms. Whether that be a correct view in a matter of procedure of this kind need not be discussed for the Legislature has used the most specific terms ; and it is plain that the Indian Legislature never intended that the Courts in giving relief of this character should for any of the purposes mentioned in Section 491 be at liberty to act under it or under the old procedure I. L. R. 54 C. 749-51 . In the recent case of Matthen v. District Magistrate, Trivandrum (1939) L. R. 66 I. A. 222this judgment was approved by the Board, and it was held that, in cases covered by Section 491, the power to issue a common law writ of habeas corpus in British India had been taken away by legislation, and the powers conferred by Section 491 substituted therefor. The present applications were under Section 491. Under Section 404 of the Code of Criminal Procedure no appeal lies from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. There is no provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed on April 24, 1943, two days after the decision of the Federal Court in Keshav Talpade v. King Emperor 1943 F.C.R. 49. under which. it was held, reversing the decision of the Bombay High Court refusing to make an order under Section 491 for release of the applicants, that r. 26 of the Defence of India Rules was ultra vires, and was not warranted by the Defence of India Act, 1939. 11. On April 28, 1943, the Governor-General made and promulgated Ordinance No. XIV. of 1943 under Section 72 of the Ninth Schedule to the Government of India Act, 1935. By Section 2 of the Ordinance a new clause was substituted for Clause (x) of Section 2, Sub-Section 2, of the Defence of India Act, 1939. Section 3 of the Ordinance provided that no order heretofore made against any person under r. 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2 of the Defence of India Act, 1939. The amendment effected by Section 2 of the Ordinance remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood since 1940, is as follows:- 26.-(1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas, or the efficient prosecution of the war it is necessary so to do, may make an order (a)............ (b) directing that he be detained. In Talpade's case [1943] F.C.R. 49 the judgment of the Federal Court was delivered by Gywer C. J., who first dealt with the main argument of the Appellant, which had been rejected by the High Court, and proceeded:- We therefore, reject the main argument addressed to us on behalf of the Appellant, and, if there were nothing more in the appeal, we should dismiss it without further discussion. There is, however, another aspect of the case, which was not argued until the Court itself drew the attention of counsel to it; for it seemed to us that it was open to question whether r. 26 itself in its present form was within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that r. 26 was made in conformity with the powers conferred by Sub-Section 1 of Section 2 of the Defence of India Act. It is, accordingly, unnecessary for their Lordships to consider whether r. 26 was not also within paras, (v) and (x) of Sub-Section 2 of Section 2, contrary to the opinion of the Federal Court, and their lordships express no opinion on the matter. As already stated, their Lordships are also relieved from any consideration of Ordinance XIV. of 1943. 17. As regards the remaining questions, counsel for the Crown stated them under two main heads, viz., first, whether the orders of detention can be questioned in view of the provisions of Section 59, Sub-Section 2, of the Government of India Act and Section 16 of the Defence of India Act, and secondly, assuming that they can be so questioned, whether there were materials on which the courts below could properly decide that the orders were not made in conformity with r. 26. The order for detention of Respondent No. 1, which is typical of the other cases, is as follows:- Calcutta, October 27, 1942. Whereas the person known as Sibnath Banerji, M.L.A., son of late Dwariknath Banerji of 3/1 Kali Banerji Lane, Howrah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. 20. In the opinion of their Lordships, the contention of the Crown goes too far, as the Sub-section only relates bo one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of the Federal Court, viz., It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, has been directed under Sub-section (4) to be exercised or discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority, not being (except in the case of a Chief Commissioner's Province) an officer authority subordinate to the Central Government. 22. The learned Chief Justice disagreed, holding that Sub-section (5) was merely supplementary, and afforded no ground for excluding the ordinary methods by which the Provincial Government's executive business was authorised to be carried on by Chapter II of Part III of the Government of India Act, 1935. 23. Their Lordships are of opinion that the learned Chief Justice was right. 24. It will be remembered that the definition of Provincial Government in Section 3 (43a) of the General Clauses Act refers one to the provisions of the Government of India Act for the action of non-action of the Governor, and this takes one to Chapter II of Part III, which is headed The Provincial Executive-The Governor. The material sections are as follows: 49. (1) The executive authority of a Province ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to which the Governor is by or under this Act required to act in his discretion. (4) The rules shall include provisions requiring ministers and secretaries to Government to transmit to the Governor all such information with respect to the business of the Provincial Government as may be specified in the rules, or as the Governor may otherwise require to be so transmitted, and in particular requiring a minister to bring to the notice of the Governor, and the appropriate secretary to bring to the notice of the minister concerned and of the Governor, any matter under consideration by him which involves, or appear to him likely to involve, any special responsibility of the Governor. (5) In the discharge of his functions under sub-ss.(2), (3) and (4) of this section the Governor shall act in his discretion after consultation with his ministers. 25. Rules of Business have been framed by the Governor of Bengal under Section 59, under which it is not disputed that questions of detention fall to be transacted in the Home Department. Under r. 12 all orders or instruments made or executed by or on behalf of the Government of Bengal are to be expressed to be made by or by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with the exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of Provincial administration. Their Lordships construe Sub-Section 2 of Section 49 as providing an extensible limit and not a maximum limit, and the provisions of Sub-Section 2 of Section 124 as affording a means of such extension. But, further, their Lordships cnstrue the incorporation of the General Clauses Act both in the Defence of India Act, and in the Defence of India Rules, with its reference in Section 3 (43a) to the provisions of Part III. of the Act of 1935 as to the acting or non-acting of the Provincial Governor, as necessarily embodying the relevant provisions of Chapter II. of Part III. including in particular Section 49. 28. It is for the same reasons that their Lordships are unable to accept the Respondents' contention, also agreed to by the majority Judges in the Federal Court, that the provision of Sub-Section 5 of Section 2 of the Defence of India Act provides the only means by which the Governor can relieve himself of a strictly personal function. Their Lordships would also add, on this contention, that Sub-Section 5 of Section 2 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There remain the criticisms on the manner in which the individual cases of detention have been dealt with: The six cases with which this appeal is concerned are the cases of Respondents Nos. 1, 3, 5, 6, 7 and 8. In view of the opinions already expressed by their Lordships, the orders for detention in each of these cases must be taken as ex facie regular and proper, and it follows, as already stated, that there is a heavy burden on the Respondents to displace the presumption enacted by Section 16, Sub-Section 2, of the Defence of India Act. The Respondents were enabled to raise the question whether the Governor was bound to give his personal consideration to the matter by reason of the Crown's admission that he had not in fact done so in any of these cases. They were also able to raise a question as to the so-called routine order of October 1st, 1942, because of Mr. Porter's admission in his affidavit. The majority of the Federal Court held all the detention orders to be bad because of the first of these admissions, though they also deal with i the routine order, and criticize adversely the whole procedure. The learned Chief Justice agreed with the majority as to the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spected of being so connected, orders of detention under r. 26, sub-r. l(b), should at once be issued as a matter of course, subject to review by Government on receipt of further details to be supplied in each case by the Intelligence Branch. That clearly meant the substitution of the recommendation by the police in place of the satisfaction of the Governor prescribed by r. 26, and equally rendered any order under r. 26 in conformity with the Home Minister's direction, to which their Lordships have already referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of r. 26. Their Lordships now turn to the cases before them, to which the routine order applied and they quote the statement of Mr. Porter with regard to the first of these two cases, that of Respondent No. 1, 10. Sibnath Banerji: He was arrested by the Police under r. 129 of the Defence of India) Rules on October 20, 1942. On October 27, 1942, considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under r. 26, sub-r. 1(b), of the Defence of India Rules. On receipt of fuller materials the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para. 6 of his affidavit, does not say by whom the case was considered. The order of detention is signed by S.B. Bapat, Deputy Secretary to the Government of Bengal. This is a case typical of the application of the presumption, and, if the Respondents had wished to probe the matter, in case the consideration might have been by someone not qualified as an officer subordinate to the Governor within the terms of Section 49 of the Act of 1935, they should not have let the matter rest there, but proceeded either by counter affidavit or by cross-examination of Mr. Porter on his affidavit. As they did not take such a course the presumption remains undisturbed. 38. Accordingly, their Lordships agree with the Chief Justice of the Federal Court that the orders of detention in the cases of Respondents 3, 6, 7 and 8 were valid, and the appeal of the Crown will be allowed in the case of these four Respondents. Counsel for the Crown stated to their Lordships that, without prejudice to any further action under r. 26 that the Crown may find it expedient or necessary to take, it was not intended that any further action should be taken against these four Respondents under the particular orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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