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TMI Blog1945 (1) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... was delayed till February, 1944, and in the meanwhile, Ordinance III of 1944 was promulgated on January 15, 1944. The application was dismissed by the High Court; but, on appeal, this Court held that the new Ordinance (Ordinance No. III of 1944) did not take away the power of the High Court to deal with the matter and accordingly remitted the case to the High Court with a direction that the petition be restored to the file and disposed of in due course of law. The order of this Court was passed on May 23, 1944. On July 3, 1944, the Governor of Bihar passed two orders, Nos. 3928-C and 3929-C. By the first, he cancelled the order of detention dated March 19, 1942, and by the-second, he directed the detention of the appellant on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e connected with defence" was a subject specified in entry No. 1 in List I, but it was urged that it could not be assumed that the prosecution of the war was necessarily a matter of defence and that the war may in certain circumstances be a war of aggression or conquest. We are of the opinion that there is no force in this contention. The reference to "to the efficient prosecution of the war " in the Ordinance as well as in the Order of detention must be understood in the light of the circumstances in which the Ordinance came to be passed. The language of Clause 3 of the Ordinance is only a repetition of the language of Section 2(i) of the Defence of India Act and that Act begins; by referring to the proclamation of the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (2) of Clause 11. It was contended on the authority of Chester v. Bateson (1920) 1 K.B. 829 that such a provision could not be said to be for the peace and good government of British India and could not therefore be held to be authorised by Section 72 of the Ninth Schedule to the Constitution Act, It is unnecessary for the decision of this case to deal with this question even if it were open to the Court to examine the correctness of the decision of the Governor General as to the requirements of any particular situation. 4. With the leave of the Court, a number of contentions relating to other aspects of the case were urged before us. As we are of the opinion that there is no substance in any of these contentions, they may be briefly de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohn Anderson (1942) A.C. 206 and Green v. Secretary of State, for Home Affairs (1942) A.C. 284 establish that the burden of substantiating these pleas lies on the detenue. In the words of Viscount Maugham, once the order is proved or admitted, "it must be taken prima facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State (here, the Governor) was complied with." As regards proof of the orders, we find nothing in the proclamation under Section 93 to exclude the application of Section 59(2) of the Constitution Act or Clause 10(3) of the Ordinance. The proclamation suspends only so much of Section 59 as requires "consultation with the ministers.&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attempt to fish for information that might be turned to some account by the detenue. To permit such a device would practically be to allow the rule as to the onus of proof to be circumvented. 5. It was next contended that the very fact of the cancellation of the order of March 19, 1942, by the order of July 3, 1944, and the passing of a fresh order of detention on July 3, 1944, showed mala fides. It was said that the orders of July 3, 1944, were passed pending the further hearing before the High Court, in order to burke an enquiry into the circumstances connected with the order of March, 1942. We are unable to draw any such inference from the sequence of these orders. Reports of the decisions of this Court and of the High Courts show t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t examinable by the Courts. There is equally no force in the contention that no order of detention can be passed against a person who is already under detention. The decision of the Patna High Court in Kamla Kant Azad v. King Emperor (1943-44) I.L.R. 23 Pat. 252 cannot be understood as laying down any such proposition as a general proposition of law. The learned Judges seem to have drawn an inference of fact from the circumstances of the case that the order then in question was not one made in the bona fide exercise of the Governor's powers. 7. It was finally contended that as the previous order of this Court directed an enquiry into the validity of the detention under the order of March 19, 1942, the decision of the High Court must be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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