Basanta Chandra Ghose and Ors. vs Emperor

Spens, C.J.—These are appeals by certain detenus against orders passed by the High Court at Patna dismissing applications filed by them

or on their behalf for their release under Section 491, Criminal P.C. Two of the petitions, from which Criminal Appeals nos. 3 and 5 arise, were

dealt with by one Division Bench, in a judgment which has discussed the contentions urged in support of the petitions. The petitions in the other

two cases were disposed of by two other Benches which have followed that judgment. On behalf of the Crown it was urged before the High Court

that Ordinance 3 of 1944which had been promulgated during the pendency of some of these petitionshad taken away the power of the Court to

pass any order under Section 491, Criminal P.C. in these cases. By way of reply to that argument, the validity of the Ordinance was impugned on

behalf of the detenus; certain contentions as to the constraction and effect of the Ordinance were also advanced. The High Court upheld the

objection raised on behalf of the Crown but granted a certificate under Section 205, Constitution Act. In the main judgment under appeal, the

learned Judges rejected the limited interpretation which counsel for the detenus sought to place on Sections. 6 (2) and 10 of the Ordinance. They

also held that there was nothing to suggest that the Governor of Bihar had not duly passed the orders for detention. Before this Court, the

objection based on the Ordinance has been relied on by the Advocate-General of Bihar and counsel for the appellants have urged several

contentions both in respect of the validity of the Ordinance and in respect of its meaning and effect. It will facilitate the appreciation as well as the

discussion of these arguments to begin with a brief narration of the circumstances that led to the promulgation of the Ordinance.

Immediately after the outbreak of the war, provision was made by an Ordinance (ordinance 5 of 1939) promulgated by the Governor-General

and by rules framed thereunder for the administration taking all necessary measures to ensure the public safety and interest and the defence of

British India. On 29th September 1939, an Act (Defence of India Act 35 of 1939) was passed by the Legislature itself, making necessary

provision in this behalf and the Ordinance was repealed. Section 2 of this Act enabled the Central Government to make rules for securing ''the

defence of British India, the public safety, the maintenance of public order'' etc. Clause 2 of this section contained some further provisions relating

to the rules to be so made. One of the rules framed by the Central Government was Rule 26, Defence of India Rules, enabling certain authorities to

make orders for detention, if they were satisfied with respect to any particular person that it was necessary to make such an order 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, etc.

In Keshav Talpade v. Emeror (''43) 30 A.I.R. 1943 F.C. 1 this Court held that Rule 26, Defence of India Rules, went further than the rule-

making powers conferred by Section 2 of the Act, warranted. As it would have followed from this decision that persons detained at the time under

orders passed on the basis of Rule 26 must be released, the Governor-General promulgated Ordinance 14 of 1943 whose material provisions

were:

Section 2. For Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939 (35 of 1939) the following Clause shall be substituted, and

shall be deemed always to have been substituted, namely: (x) the apprehension and detention in custody of any person whom the authority

empowered by the rules to apprehend or detain as the case may be suspects, on grounds appearing to such authority to be reasonable, of being of

hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence

of British India, 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, or with respect to whom such authority is satisfied that his apprehension and

detention are necessary for the purpose of preventing him from acting in any such prejudicial manner, the prohibition of such person from entering

or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.

Section 3. For the removal of doubts it is hereby enacted that no order heretofore made against any per son under Rule 26, 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,

Defence of India Act, 1939.

The validity and effect of Ordinance 14 of 1943 had to be considered by this Court in Emperor v. Sibnath Banerjee (''43) 30 A.I.R. 1943 F.C.

The Court then indicated certain doubts as to the validity of Section 2 of the Ordinance, as it attempted to change the statute law with

retrospective effect, but it upheld the validity of Section 3, with the result that detention orders theretofore passed could no longer be impugned on

the ground that Rule 26 was not warranted by Section 2, Defence of India Act. The judgment of this Court in Emperor v. Sibnath Banerjee (''43)

30 A.I.R. 1943 F.C. 75 dealt with two other objections raised against the validity of the orders of detention then under consideration and the

objections were upheld, in some instances unanimously and in other cases by a majority. One related to the authority who was to be satisfied as to

the necessity for the detention, viz., whether in the provinces it must be the Governor himself or it may be any person to whom certain classes of

work may be assigned under Section 59, Constitution Act, the other related to the nature and extent of the presumption to be made in favour of

the ''validity and regularity'' of orders for detention that had been passed under the invalid Rule 26. The position taken up on behalf of the Crown in

that case and in other cases before the provincial High Courts was that it was not necessary that the order should be the result of consideration in

each case by the Governor and that every presumption must be made in favour of its validity and regularity.

This Court pronounced judgment in Emperor v. Sibnath Banerjee (''43) 30 A.I.R. 1943 F.C. 75 on 31st August 1943; and Ordinance 3 of

1944 was promulgated on 15th January 1944. Roughly the purpose of the Ordinance may be described as three-fold: (i) to confer the power of

detention, etc., by the Ordinance itself instead of by rules framed under the Defence of India Act... see Sections 4 and 5 of the Ordinance; (ii) to

limit the term of detention in the first instance, to provide for the review (by certain authorities) of the order of detention from time to time and to

give opportunity to the detenu to make representation to the executive authorities against the order...vide Sections 7, 8 and 9; and (iii) to enact a

presumption in the Ordinance itself in favour of detention orders to preclude their being questioned in Courts of law and to take away or limit the

power of the High Court to make orders under Section 491, Criminal P.C. in such cases. : vide Sections 6 and 10. As the third set of provisions

are those calling for consideration in these cases, it will be convenient to set them out here, so far as they are material:

(1) No order made before the commencement of this Ordinance under Rule 26, Defence of India Rules, shall after such commencement be

deemed to be invalid or 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 order was made be legally conferred by a rule made under Section 2, Defence of India Ordinance, 1939 (5 of 1939) or under

Section 2, Defence of India Act, 1939 (35 of 1939).

(2) Every such order shall on the commencement of this Ordinance be deemed to have been, and shall have effect as if it had been, made under

this Ordinance, and as if this Ordinance had been in force at the time the order was made:

Provided that Section 7 and Section 9 of this Ordinance ahall apply in relation to any order made under Clause (b) of Sub-rule (1) of Rule 26,

Defence of India Rules, as if that order had been made on the date of the commencement of this Ordinance, and Section 8 of this Ordinance shall

not apply to any such order.

(1) 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, Criminal P.C. (5 of 1898) in respect of

any order made under or having effect under this Ordinance or in respect of any person the subject of such an order.

(2) If at the commencement of this Ordinance there is pending in any Court any proceeding by which the validity of an order having effect by virtue

of Section 6 as if it had been made under this Ordinance is called in question, that proceeding is hereby discharged.

(3) Where an order purports to have been made by any authority in exercise of any power conferred by or under this Ordinance, the Court shall,

within the meaning of the Indian Evidence Act, 1872 (I of 1872), presume that such order was so made by that authority.

It will be noticed that Clause (1) of Section 6 substantially corresponds to Section 3 of ordinance 11 of 1943 but Section 10 goes farther.

Clause (1) of Section 10 purports to deal with two classes of orders(a) orders made under this Ordinance and (b) orders having effect by virtue of

Section 6 as if they had been made under this Ordinance. We are not concerned in this case with any order of the (a) category but only with

orders falling under category (b). Clause (2) of Section 10 is limited to orders under category (b). The words having effect by virtue of Section 6

as if it had been made under this Ordinance, refer us back to Clause (2) of Section 6 which opens with the words ''every such order''. Lengthy

arguments have been advanced before this Court as to the connotation of these words.

The validity of the Ordinance and its relevant provisions was questioned on several grounds. A broad contention was put forward that under

Section 72, Schedule 9, Constitution Act, the Governor-General was not entitled to promulgate an Ordinance bearing upon ""preventive detention

for reasons connected with the maintenance of public order"" because that is exclusively a provincial subject (List II, entry 1). This contention was

founded on the concluding words of Section 72 which subject the ordinance-making power ""to the like restrictions as the power of the Indian

Legislature to make laws"". It was urged that, as the Indian Legislature was not normally entitled to legislate on List II subjects, the fact that by

reason of a proclamation of emergency under Section 102, ""Constitution Act, the powers of the Indian Legislature had for the time being been

enlarged so as to embrace provincial subjects as well, would not widen the scope of the ordinance-making power. We are unable to accept this

contention. The positive provision enabling the Governor-General to promulgate Ordinances is not that contained in Sections. 99 and 100,

Constitution Act, but that contained in the earlier portion of Section 72 itself, and the words ""for the peace and good government of British India

there found have always been held to be words of the widest amplitude. It is true that in the earlier Government of India Acts this provision was

not controlled or restricted by anything like the allocation of certain subjects exclusively to Provincial Legislatures; but so far as the scope of the

expression is concerned, it must in our judgment still continue to have the same wide meaning as before. The latter part of the section no doubt

imports a limitation by reference to the powers of the Indian Legislature. So far as that limitation involves a restriction of the wide scope of the

earlier words, the extent of the restriction must be ascertained not merely in the light of Section 100 but also of Section 102 of the Act of 1935. It

has not been disputed that the Indian Legislature is to-day competent to legislate both upon central subjects and upon provincial subjects. We see

no justification for limiting the ordinance making power even in such circumstances to List I and List III subjects. Another possible answer to the

contention is that during war conditions even ''maintenance of public order'' may reasonably be held to be included in the expression ""preventive

detention in British India for reasons of State connected with Defence"", entry 1 of List I, but it is unnecessary to base our decision on that ground.

It was next urged that the provisions of Section 10 of the Ordinance were beyond the Ordinance-making power, because (a) the emergency

described in the opening paragraph of the Ordinance did not postulate the necessity for such a provision and (b) an Ordinance could not repeal

Section 491, Criminal P.C. as it was suggested Section 10 in effect does. We are of the opinion that there is no substance in these contentions

either. It is not necessary that an Ordinance should set out in detail the nature of the emergency that has led to its promulgation, referring therein to

all the provisions of the proposed Ordinance. Once the Governor-General is of the opinion that an emergency calling for action under Section 72

has arisen, the nature of the provisions required to meet that emergency is left to be decided by the Governor-General. We may, however, point

out that in this case, the preamble refers to the necessity ""to confirm the validity of the past exercise of such powers under Rule 26, Defence of

India Rules."" This recital has relation both to Section 10 and to Section 6 of the Ordinance.

The argument as to the power of the ordinance-making authority to repeal a provision of an independent legislative measure does not call for

determination in this case, because Section 10 does not purport to repeal Section 491, Criminal P.C. It would be too much to maintain that no

Ordinance could contain any provision inconsistent with a provision contained in any Act of the Legislature. Section 491, Criminal P.C. confers a

certain power or jurisdiction on the High Court, and all that Section 10 of the Ordinance does is to interdict the High Court from exercising that

power or jurisdiction in a certain class of cases. It was then said that so viewed the Ordinance interfered with the jurisdiction of the High Court and

this was not permissible because of Section 223, Constitution Act. It was insisted that the ordinance-making authority could not be regarded as

the appropriate Legislature to whom alone the power to affect the jurisdiction and powers of the High Court has been given by that section. There

are two answers to this argument. Section 311 (6), Constitution Act, provides that any reference in the Act to Federal Acts, etc...shall be

construed as including a reference to an Ordinance made by the Governor-Generaletc...If this description could include an Ordinance made by the

Governor-General under Section 72 of Schedule 9, such an Ordinance would also fall within the description ""Act of the appropriate Legislature"" in

Section 223. Should it however be assumed that Section 311 (6) only referred to Ordinances passed under Sections. 42, 43, 88 and 89 of the

Act of 1935, the result would only be that under Section 223 the High Court would continue to have the same jurisdiction and powers ""as

immediately before the commencement of Part III of this Act."" At that time, the jurisdiction and powers of the High Courts were expressly subject

to the Governor-General''s ordinance-making power under Section 72 by reason of a clause to that effect in the Letters Patent.

It was next contended that Sections 6 and 10 of Ordinance 3 were retrospective in their operation and that it was beyond the competence of

the Governor-General to enact a retrospec tive Ordinance. This question is concluded by the decision of this Court in Emperor v. Sibnath

Banerjee (''43) 30 A.I.R. 1943 F.C. 75 Whatever may be said as to the provision in Clause (1) of Section 6 about the ''validity'' of the order of

detention, so much of that section and of Clause (1) of Section 10 as enacts that the order of detention shall not be called in question in any Court

is valid according to that decision.

Clause (2) of Section 10 of the Ordinance was objected to on a different ground. It was said that this was an arrogation of judicial power by a

legislating authority. It was argued that a legislating authority might be competent to enact a law even in such manner as to prejudice the rights of

parties to a pending litigation, and a Court might be obliged to dismiss a proceeding as a result of the application of the law as changed. But, goes

the argument, all that the legislating authority does in such a case is only to pass a law; and the disposal of the particular case still remains the

function of the Court. In the present case, however, Clause (2) of Section 10 does not enact a rule of law and leave it to the Court to apply it to

the decision of cases pending before it; the section straightway discharges all pending proceedings. This objection was sought to be met, on behalf

of the Crown, in two ways. The Advocate-General of India argued thatwhatever may be said of the language employedClause (2) did not go and

was not intended to go further than what Clause (1) provided. If that were so, the scope and effect of Clause (2) must depend upon the

construction that we place on Clause (1). The Advocate-General of Bihar maintained that Clause (2) was valid and within the competence of the

ordinance-making authority to the full extent which its language signified, even if it went further than Clause (1) of that section. With this argument

we are unable to agree.

The distinction between a ''legislative'' act and a ''judicial'' act is well known, though in particular instances it might not be easy to say whether

an act should be held to fall in one category or in the other. The Legislature is only authorised to enact laws. Some of the pending proceedings hit

at by Clause (2) of Section 10 may raise questions of fact and their determination may wholly depend upon questions of fact and not upon any rule

of law, as for instance, when it is alleged that an order of detention was not really the act of the authority by whom it purports to have been made

or that it was a mala fide order or one made by a person who had not been authorised to make it. A direction that such a proceeding is discharged

is clearly a judicial act and not the enactment of a law. This question was discussed at some length in the judgment of this Court in Piare Dusadh v.

Emperor (''44) 31 A.I.R. 1944 F.C. 1. The nature of the provision then considered was essentially different from Clause (2) of Section 10 of the

present Ordinance. As explained in that judgment, the position there was that certain cases had in fact been tried by Tribunals constituted under an

earlier Ordinance and decisions had been pronounced by those Tribunals, but the jurisdiction of those Tribunals was negatived by a decision of this

Court. The later Ordinance provided that those decisions should be treated as decisions of duly constituted Tribunals. Applying the test laid down

in Federal Commissioner of Taxation v. Munro (1926) 38 Com. L.R. 153 this Court held that that did not constitute an exercise of judicial power

by the ordinance-making authority. But here there has been no investigation or decision by any Tribunal which the legislating authority can be

deemed to have given effect to. It is a direct disposal of cases by the Legislature itself.

The learned Judges of the Patna High Court overruled this objection on the authority of a decision of the Supreme Court of the United States

(Calder v. Bull 3 Dallas 386). We were informed by counsel that the report of the case was not available at Patna and they thought that the learned

Judges probably relied on the reference made to it in Philips v. Byre (1870) 6 Q.B. 1. That perhaps explains how the learned Judges happened to

treat that decision as an authority against the appellants'' contention; it is, if anything, an authority in their favour. The Supreme Court was there

called upon to consider the validity of a ""resolution"" passed by the Legislature of Connecticut in 1795, whereby a decree of a Court of Probate

was set aside and a new hearing was directed. The Court recognised that this was a judicial act and not a legislative act; but nevertheless they

upheld the resolution because according to the then Constitution of Connecticut, the body which passed that resolution had judicial powers also

and was competent to grant a new trial. The learned Judges added that they dealt with the question of the validity of ex post facto ""legislation"" only

because counsel for the appellant thought it would be advantageous to his client to ask the Court to deal with the case on the footing that the

resolution was a legislative act; they held against him even on that assumption. This decision has been referred to in Philips v. Eyre (1870) 6 Q. B.

1 only in connexion with the doctrine of ex post facto legislation and not in any discussion of the difference between a judicial act and a legislative

act. The Order-in-Council considered by the Judicial Committee in Abeyesekara v. Jayatilaka (1932) 1932 A.C. 260 contained a provision in the

following terms:

If any such action or legal proceeding has been or shall be instituted, it shall be dismissed and made void, subject to such order as to costs as the

Court may think fit to make.

It will be noticed that this left it to the Court to dismiss the proceeding and left intact the power of the Court to make orders as to costs. The

direction to dismiss must be understood in the light of an earlier provision in the same Order-in-Council which amended the law on which the

proceeding was founded; the dismissal was thus the result of the change in the law and all that the later clause showed was that that change was to

have retrospective effect and govern the rights of parties even in pending proceedings. The decision would be helpful to the Crown here only if and

in so far as the provision in Clause (2) had followed from a change in any rule of law. It must also be remembered that the Judicial Committee was

not dealing with an act of a non-sovereign authority. The order had been enacted by His Majesty-in-Council and the Committee, after a discussion

of the constitutional position in Ceylon, held that it was made ""by virtue of the legislative authority he had reserved to himself"" as sovereign, when

passing the very order on which the plaintiffs'' proceeding was founded.

The Advocate-General of India brought to our notice a section in the Indemnity Act, 1919 (Act 27 of 1919), passed by the Indian Legislature,

which winds up with the words ''and if any such proceeding has been instituted before the passing of this Act, it is hereby discharged.'' Two

observations have to be made in relation to this enactment. For one thing, this concluding provision seems only to follow as the result of the

indemnity enacted by the preceding clause. It is thus consistent with the position now contended for by the Advocate-General of India; but it will

not afford any support to the contention of the Advocate-General of Bihar. In any event, this provision has not been judicially discussed and the

mere fact of such a provision having been enacted in that form once before will not give it a validity which it will not otherwise possess. We think it

right to add that Clause (2) of Section 10 of the present Ordinance bears no analogy to enactments indemnifying public officers. Its effect is to

continue the deprivation of a subject''s liberty and at the same time to deny him the opportunity of showing that his detention is not warranted by

any statute or statutory rule. We are of the opinion that the appeals before us must be dealt with on the footing either that Clause (2) of Section 10

of the Ordinance has no wider operation than Clause (1) or that Clause (2) is void and inopera-tive. Our decision must accordingly turn on the

construction and effect of Clause (1) of Section 10.

Turning now to the question of the interpretation of the relevant provisions of the Ordinance, the first point for determination is: What are the

orders included in the expression ''every such order'' in Clause (2) of Section 6. The operation of Clause (1) of Section 10, in so far as it relates to

the orders classified as category (b) above, will be limited to the orders falling under Clause (2) of Section 6. The same will govern even Clause (2)

of Section 10, if that provision is to be given effect to. On behalf of the detenus, it has been contended that the word ''such'' attracts not merely the

qualification to be found in the opening words of Clause (1) of Section 6, namely, ''order made before the commencement of this Ordinance under

Rule 26, Defence of India Rules'' but a further qualification to be extracted from the reference there contained to the ground of invalidity arising out

of the ultra vires character of Rule 26. On this footing, it was argued that all that Section 10 debars is objection or relief based merely on the

ground that Rule 26, Defence of India Rules, was ultra vires and that the power of the Court to grant relief on other grounds has not been taken

away. The Patna High Court (in the judgment under appeal) and the Calcutta High Court (in Jatindra Gupta v. Emperor Misc. Case No. 236 of

1943 (on High Court file) have not been prepared to adopt this limited construction. The contention is referred to in the judgment of the Lahore

High Court in Baldev Mitter v. Emperor (''44) 31 A.I.R. 1944 Lah. 142 but it was apparently not found necessary in that case to decide the point.

It was suggested on behalf of the appellants that the judgment of the Pull Bench of the Bombay High Court (in Cri. Appln. No. 585 of 1943)

supports them. A careful perusal of the judgment does not convince us that so far as Clause (2) of Section 6 is concerned, the learned Judges have

adopted the construction now contended for by the appellants. In one place they observe ''that it is only orders made valid by Section 6 (1) to

which Section 6 (2) applies and is limited.'' This language may in fact cover all orders passed before the commencement of this Ordinance because

they had all been passed under Rule 26, Defence of India Rules, and they were all tainted with the illegality attaching to that rule, at any rate all the

orders passed before Ordinance 14 of 1943. In another part of the judgment, they say ''only orders valid except for the defect mentioned in Sub-

section (1) were covered by Sub-section (2).'' This is different from saying that Sub-section (2) is limited to orders which are liable to challenge

only on the ground of the invalidity of Rule 26. The learned Judges were emphasising the difference between orders which substantially complied

with Rule 26 and orders which only purported to be made under Rule 26 but did not in substance comply with its requirements. We shall return to

this question when we consider the effect of Section 10.

So far as Section 6 (2) is concerned, we are of the opinion that the limited construction put forward on behalf of the appellants is not its proper

or natural meaning. To begin with, that construction is not in accordance with the ordinary connotation of the word ''such.''. The word ordinarily

attracts only whatever is expressed as qualifying or descriptive of the same subject in the preceding sentence. So viewed, it can only refer to the

words ""made before the commencement of this Ordinance under Rule 26 of the Defence of India Rules,"" because they alone qualify or are

descriptive of the order dealt with in Clause (1) of Section 6. The succeeding words in Clause (1) are enacting words and not descriptive words.

They refer to a possible ground of invalidity and enact that such ground of invalidity shall not furnish a basis for relief. We are unable to hold that as

a matter of grammatical construction those words can be imported into Clause (2). Further, it seems to us that the construction contended for will

not be consistent with the scheme of the Ordinance. As explained already, the Ordinance was promulgated with a view to get over difficulties

arising out of the statutory rules on which the power of detention had depended. The authorities preferred to base it on an independent enactment

and accordingly promulgated the Ordinance. Normally, only orders passed subsequent to the promulgation of the Ordinance could be supported

by the new power. To avoid a situation under which existing orders would be subject to the old Act and rules and only new orders subject to the

new Ordinance, it was thought necessary to enact that even orders that had been passed under the old statutory rules should be deemed to have

been and should have effect as if they had been made under the Ordinance. This explains the dichotomy assumed in Section 10, namely, of orders

made under the Ordinance and orders having effect as if they had been made under the Ordinance. It is scarcely consistent with this scheme to

assume that Clause (2) of Section 6 comprised only some of the orders that had been passed under Rule 26, Defence of undia Rules, and that

other orders passed under that rule were left to stand in a category of their own and continue to be governed by the old rules themselves. It was

also a further part of the scheme of the Ordinance that after its date, orders of detention should ordinarily be in force only for six months unless

continued on further consideration for another period. Section 9 which gives effect to this intention adopts the same dichotomy as Section 10,

classifying the orders into (i) orders made under this Ordinance and (ii) orders deemed under the provisions of Section 6 to have been so made. If

some of the orders made under Rule 26, Defence of India Rules, should be held not to be comprised in Clause (2) of Section 6 the persons

detained under those orders would not be entitled to the benefit of Section 9, a result which does not seem to be consistent with the scheme and

purpose of the Ordinance. Lastly, if Clause (1) of Section 10, in so far as it relates to orders passed before the date of the Ordinance, were to be

limited to orders open to objection only on the ground of the invalidity of Rule 26, Defence of India Rules, the provision would seem to be

redundant because that matter has been specifically provided for in Clause (1) of Section 6. Per contra, it has been suggested that if Clauses (1)

and (2) of Section 10 were applicable to all orders of detention on whatever ground they might be impeached, Clause (1) of Section 6 would have

been unnecessary because the objection to the validity of Rule 26 would also be one of the objections precluded by Section 10. It is difficult to

deny the force of this contention. It is, however, possible that as the corresponding provision in ordinance 14 of 1948 had already been the subject

of a decision of this Court, the authorities deemed it safer to reproduce it as Clause (1) of Section 6 of the new Ordinance in addition to the

general language of Section 10 which had still to run the gauntlet of a challenge in a Court of law. Clause (1) of Section 6 also goes somewhat

further than Section 10 in that it not merely affects the remedy but also enacts that the orders there referred to shall not be deemed to be invalid. A

declaration to that effect was apparently not thought right to make except in a limited class of cases.

The view stated above, as to the scope of Clause (2) of Section 6 will also determine the ambit of the expression ''order having effect by virtue

of Section 6, etc.'' in Section 10 of the Ordinance. But it does not follow from this that the Court can no longer consider the validity of an order

which on the face of it appears or purports to have been passed under Rule 26. It is on this aspect of the case that the judgment of the Bombay

Full Bench is of assistance. We respectfully agree with the learned Judges that the Ordinance does not protect a document which is not really an

''order under Rule 26 though it may appear on its face to be the order of an authorised officer. Clauses (1) and (3) of Section 10 of the Ordinance

have not introduced any new principle of immunity. Except for the reference to Section 491, Criminal P.C., they only reenact Clauses (1) and (2)

of Section 16, Defence of India Act, and they had to be so re-enacted because all future orders of detention would be made under the Ordinance

itself and could not therefore attract the benefit of Section 16, Defence of India Act. The verbal change effected by the omission of the words ''and

signed'' found in Section 16 (2) of the Act is explained by the inappropriateness of that requirement in the case of orders purporting to be passed

by a ''Governor'' because under Section 59,, Constitution Act, such an order is not ''signed'' by the Governor. It is material to note that while

Clause (3) of Section 10 of the Ordinance enacts a presumption in favour of any order purporting to have been made by any authority, etc.,

Clause (1) of Section 10 and Clause (1) of Section 6 which is imported into Clause (2) of Section 6 refer only to an order made and do not

include orders ''purporting to be made''. The same distinction was made in Clauses (1) and (2) of Section 16, Defence of India Act (35 of 1939).

The circumstance that even in the new Ordinance the presumption is laid down in Clause (3) of Section 10 only as a rebuttable presumption is

significant. Such a presumption can be rebutted; but it would be meaningless to allow it to be rebutted if, by reason of Clause (1) of the same

section, the party is not to get any relief even after rebutting the presumption. The addition in Clause (1) of Section 10 of the words which preclude

the exercise of the power under Section 491, Criminal P.C. involves no change in the legal position. That part of the clause in only consequential

upon and must be held to be co-extensive in operation with the preceding part of the clause. Its scope is also limited by the repetition of the words

''any order having effect under this Ordinance''.

In our judgment, no further curtailment of the power of the Court to investigate and interfere with orders for detention has been imposed by

Ordinance 3 of 1944. The Court is and will be still at liberty to investigate whether an order purporting to have been made under Rule 26 and now

deemed to be made under Ordinance 3 or a new order purporting to be made, under ordinance 3 was in fact validly made, in exactly the same

way as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made

on any of the grounds indicated in any of the long line of decisions in England and this country on the subject, other than the ground that Rule 26

was ultra vires, Section 10 of Ordinance 3 will no more prevent it from so finding than Section 16, Defence of India Act, did. Such an invalid

order, though purporting to be an order, will not in fact be an ""order made under this Ordinance"" or having effect by virtue of Section 6 as if made

under this Ordinance at all for the purposes of Section 10.

We are accordingly of the opinion that the learned Judges who pronounced the main judgment (in Criminal Misc. Cases Nos. 60/43 and

204/43)A.I.R. 1945 patna : 23 pat 475 erred in holding that the new Ordinance has taken away the power of the High Court to pass any orders

under Section 491, Criminal P.C. and that the proceedings must be treated as discharged under the provisions of Section 10 (2) of the Ordinance.

The judgments in the other two cases purport to follow this judgment. There are observations in some of the judgments bearing upon what may be

called the merits of the case. But it is difficult to say that the treatment of that aspect of the case is not likely to have been affected by the view

which the learned Judges took as to the deprivation by the Ordinance of the power of the Court to pass any order under Section 491, Criminal

P.C. It seems to us that in these circumstances the only proper course is to allow all the four appeals and to set aside the orders of dismissal

passed by the High Court in all these cases. The cases will be remitted to the High Court with a direction that the petitions be restored to the file

and disposed of in due course of law in the light of the decision above given as to the nature and extent of the Court''s power in the matter.