TMI Blog1945 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... f them are within the class of persons to which either Rule 26 of the Defence of India Rules or Clause 3 of Ordinance III of 1944 applies. All the four petitioners are now detained under Clause 3 of Ordinance III of 1944 which is as follows: The Central Government or the Provincial Government, if satisfied with respect to any particular person that with a view to preventing 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…. (b) directing that he be detained. Sub-clause 10(1) of the Ordinance provides: No order made under this Ordinance, and no order having effect by virtue of Section 6 as if it had been made under this Ordinance, shall be called in question in any Court, and no Court shall have power to make any order under Section 491 of the Code of Criminal Procedure, 1898 (V of 1898), in respect of any order made under or having effect under this Ordinance, or in respect of any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to Sub-clause 10(1) of Ordinance III of 1944 the only method of escape is to show that the alleged order is in fact no order at all. 4. Petitioner Gajanan Krishna Yalgi was arrested on March 14, 1943, under Rule 129 of the Defence of India Rules. From November 2, 1943, until August 7, 1944, he was tried in respect of ten different cases involving criminal charges against him. Seven of these cases were discharged or withdrawn for want of evidence and in respect of these cases he! was not called upon to defend himself, in the remaining three cases he was acquitted after trial. On July 15, 1944, he was acquitted on what in point of time was the ninth case for which he was tried. In the remaining tenth case he had been allowed bail, so that on his acquittal in the ninth case he was released from prison and went home. Bail in the tenth case had been granted about one week previous to his acquittal in the ninth case ; but no one has been able to inform this Court whether the granting of that bail was opposed by the police or not. On July 17, he was again arrested under Rule 129 of the Defence of India Rules and on August 7, 1944, he was acquitted in respect of the tenth c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar Trimbak Kulkarni, the history leading up to the detention orders in their cases is similar. On January 24, 1943, a bomb exploded in the Capitol Cinema, Poona. Chavan and Kulkarni were arrested on March 20, 1943, under Rule 129 of the Defence of India Rules and Pardeshi was arrested on March 24, 1943, under the same rule. On May 18, 1943, these three petitioners and other persons were brought before a Magistrate and charged Under Section 302 of the Indian Penal Code with murder. They were all three acquitted of this charge on February 29, 1944, and on the same day Pardeshi was arrested by order of the District Magistrate, Poona, under Rule 129. As to Chavan and Kulkarni they remained in custody by reason of the fact that there was another criminal case pending against them with regard to a conspiracy. On March 6, an order for their detention was made and on March 7, the charges in the conspiracy case against them were withdrawn. On April 19, 1944, an order for the detention of Pardeshi under Clause 3 of Ordinance No. III of 1944 was made. On May 29, 1944, the Provincial Government appealed against the order of acquittal of February 29, 1944, of all the three petitioners and on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 3 of the Restriction and Detention Ordinance 1944. Before the said order was made, His Excellency the Governor of Bombay considered the case of the petitioner on March 15, 1945, and His Excellency was of the opinion that the said order of detention should be made against the petitioner under Section 3 of the Restriction and Detention Ordinance. 6. It, therefore, appears that in the case of all the four petitioners an order for detention has been made against them under Clause 3 of Ordinance III of 1944. All the four orders are regular in point of form and in each case the appropriate officer of Government has made an affidavit saying that before the order was made His Excellency considered the case of each of the petitioners and was of the opinion that an order for detention ought to be made. 7. Whatever may have been the circumstances relative to the detention of the petitioners in the past, it is now clear that the orders under which they are now detained have been made after consideration by His Excellency personally. There is no evidence of, nor is there any justification for, any allegation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as urged on behalf of the petitioner that having elected to prosecute the petitioner in a Court of law, the Provincial Government cannot have again recourse to the provisions of Rule 26 of the Defence of India Rules or Section 3 of Ordinance III of 1944 to keep him in detention, after the prosecution has failed ; and that an order for such detention is not bona fide, and, therefore, cannot be regarded as a valid order. 10. It is a fallacy to say that the right to prosecute a person under the ordinary criminal law and the right to detain him under the Defence of India Rules or the Ordinance are mutually exclusive. If a person, who is really dangerous to public safety and maintenance of public odder, commit an offence, Government would certainly be justified to prosecute him for the offence first, and if for want of sufficient evidence, the prosecution fails, it would none the less be necessary to keep him in detention for the sake of public safety and maintenance of public order. If Mr. Jahagirdar's argument be accepted, it would be risky for Government to prosecute such a man, lest the power of detention would be lost in case of his discharge or acquittal. The standard of ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Liversidge's case Viscount Maugham observed (p. 234): In my opinion, the well known presumption omnia esse rite acta applies to this order, and, accordingly, assuming the order to be 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 was complied with. 13. In the words of Zafrulla Khan J., there is no doubt that the presumption attaching to an order regular on the face of it is only a rebuttable presumption, but the burden of rebutting it lies very heavily on the party seeking to challenge the order. 14. As I have already pointed out, the mere fact that the materials placed before a criminal Court were found insufficient to establish guilt beyond doubt cannot deter Government from looking at those materials from a different angle and come to an honest conclusion that it is sufficient to justify detention. Moreover, Government is not bound to disclose all the materials on which such a conclusion was reached. In fact the Secretary to Government, Home Department, has stated in his affidavit that he has been advised not to disclose those ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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