TMI Blog1945 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ased, 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 this further appeal to this Board. It is sufficient to refer to the decision of the House of Lords in Cox v. Hakes (1890) 15 App. Cas. 506 where the law of England on this matter is fully dealt with. 4. In the present case, the appeals have proceeded under Sections 205 and 208 of the Government of India Act, 1935. Section 205 provides as follows:- 205. (1) An appeal shall l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition 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. Birendm Nath Pal (1927) I.L.R. 54 Cal. 727 from which the following quotation may be made (p. 749): 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 Jaw independently of Section 491 of the Criminal Procedure Code. Now in 1870 in the case of In the matter of Ameer Khan (1870) 6 Ben. L.R. 392 Mr. Justice Norman held that the High Court could issue the Habeas Carpus outside the orginal jurisdiction to the Superintendent of the jail at Ali-pore, In 1872 the Code of Criminal Procedure (Act X of 1872) was enacted which gave the right to European British subjects detained in custody whether within the limits of the High Court's original jurisdiction or outside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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. In the recent case of Matthen v. District Mupstrate, Trivandrum (1939) L.R. 66 I.A. 222: s.c. 41 Bom. L.R. 1119 this judgment was approved by the Board, and it was held that, in cases covered by a 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 Criminal Procedure Code 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 provision in the Code for an appeal from an order made under Section 491; there is no conviction or acquittal in such proceedings, and Section 417, which taken al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the decision of the Bombay High Court refusing to make an order under Section 491 for release of the applicants, that Rule 26 of the Defence of India Rules was ultra vires, and was not warranted by the Defence of India Act, 1939. 10. On April 28, 1943, the Governor General made and promulgated Ordinance No. XIV of 1943 under Section 72 of the Ninth Schedule of the Government of India Act, 1935. By Section 2 of the Ordinance a new clause was substituted for Clause (x) of Section 2(2) of the Defence of India Act, 1939. Section 3 of the Ordinance provided: that no order heretofore made against any person under Rule 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 removed the grounds on which the Federal Court had pronounced Rule 26 to be ultra vires. The terms of Rule 26 were not altered by the Ordinance. 11. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of a 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; 13. In Talpmie's case the judgment of the Federal Court was delivered by Gwyer C.J. who first dealt with the main argument of the appellant, which had been rejected by the High Court, and proceeded (p. 61): 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 rule 26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be hold void arid inoperative, either in whole or in part; and orders made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also within paragraphs (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. 16. 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(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 Rule 26. 17. The order for detention of respondent No. 1, which is typical of the other cases, is as follows:-- Calcutta, the 27th October, 1942. Whereas the person known as Shibnath Banerjee, M.L.A., son of late Dwariknath Banerjee of 3|1 Kali Banerjee Lane, Howrah, is detained in the Howrah Jail under the provision in rule 129 of the Defence of India Rules; And whereas the Governor is satisfied that, with a view to preventing the said person from act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 21. In the opinion of their Lordships, the contention of the Crown goes too far, as the sub-section only, relates to 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 the order will place a difficult burden on the detenue to produce admissible) evidence sufficient to establish even a prima facie case that the recital is not accurate. On this point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 or authority subordinate to the Central Government. 24. 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. 25. Their Lordships are of opinion that the learned Chief Justice was right. 26. 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 or 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.-(I) The executive authority of a Province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him, but nothing in this section shall prevent the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appears) to him likely to involve, any special responsibility of the Governor. (5) In the discharge of his functions under Sub-sections (2), (3) and (4) of this section the Governor shall act in his discretion after consultation with his ministers. 27. 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 Rule 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 order of the Governor of Bengal; and under Rule 13 save in cases of special authorisation, every order or instrument of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovincial 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 construe 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(43al) 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. 30. 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 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(2) of the Defence of India Act. The respondents were enabled to raise the question as to 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 1, 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 the routine order, and criticise adversely the whole procedure. The learned Chief Justice agreed with the majority as to the cases which were subject to the routine order; he disagreed as to the necessity for the personal satisfaction of the Governor, holding that the procedure authorised by Section 49 was available to the Governor, but he held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 26, and equally rendered any order under Rule 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 Rule 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 Rule 129 of the Defence of India Rules on 20th October, ,1942. On 27th October, 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under Rule 26(1) (b) of the Defence of India Rules. On receipt of fuller materials the case was later submitted for consideration of the Honourable Home Minister.. Bengal, from whom no order directing withdrawal or modification of the order of detention was received. 36. Their Lordships a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l -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 9. 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. 40. Accordingly, their Lordships agree with the Chief Justice of the Federal Court that the orders of detention in the cases of respondents Nos. 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 Rule 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 which are before the Board in this appeal. 41. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed as respects respondents Nos. 3, 6, 7 and 8, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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