Kali Prasad Upadhyay and Others vs Emperor

Beevor, J.—These are applications u/s 491, Criminal P. C, by or on behalf of persons who are detained in jail. The Advocate-General has taken a preliminary objection to these applications on the ground that the persons in question were arrested and detained under orders passed under Rule 26, Defence of India Rules, and that such orders have been validated by Ordinance 3 of 1944 and that that Ordinance has taken away the power of this Court to pass any orders u/s 491, Criminal P. C., in respect of such persons. As against the contention of the Advocate-General it has been contended on behalf of the petitioners first that Ordinance 3 of 1944 is invalid and, secondly, that, even if that Ordinance is valid, it does not affect the case of the present petitioners. I will consider first the question of the validity of ordinance 3 of 1944. The first point made by Mr. M. N. Pal, who addressed to us the main argument against the validity of Ordinance 3 of 1944, was that this Ordinance is a ratifying enactment, and he pointed out that it is not possible to ratify an act which is ultra vires of the ratifying body. For this proposition he relied on the decision in Jailal Sahu v. Emperor AIR 1943 Pat. 346 . There can be no quarrel with this proposition, but Mr. M. N. Pal went on to argue that if orders passed before Ordinance 3 of 1944 came into force were void, they could not be ratified by that Ordinance. This, however, does not follow from the proposition just stated. Ordinance 3 of 1944 was passed by the Governor General and he could ratify any act or order of subordinate authorities if he could himself have passed a valid order or Act or Ordinance to the same effect. This proposition will, therefore, not help to determine the validity of Ordinance 3 of 1944. The second point taken by Mr. M. N. Pal is that Ordinance 3 of 1944 is not merely retrospective, but in the words of Zafrulla Khan J. in the decision of the Federal Court in AIR 1943 75 (Federal Court) (and other cases) �retroactive" and, therefore, ultra vires. The particular sections of Ordinance 3 of 1944, which have been attacked on behalf of the petitioners, are Sections 6 and 10 which run as follows:

Validation of orders made under Rule 26, Defence of India Rules.

(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 u/s 2, Defence of India Ordinance, 1939 (5 of 1939) or u/s 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 shall 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.

(3) Nothing in the foregoing provisions of this section shall apply to any such order which has already been cancelled by or in consequence of an order of a competent Court:

Provided that any such cancellation shall not prevent the making under this Ordinance of a fresh order to the same effect as the order cancelled.

Saving as to orders.

(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 u/s 491, Criminal P. C, 1898 (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 (1 of 1872), presume that such order was so made by that authority.

We are not now concerned with Sub-section (3) of Section 6 or with the proviso to Sub-section (2) and it will be convenient to deal separately with the validity of Sub-sections (1) and (2) of Section 6 and Section 10. Section 6, Sub-section (1), is almost a verbatim re-enactment of Section 3 of Ordinance 14 of 1943. It was held by the Federal Court in 24 P. L. T. 3322 that Section 3 of Ordinance 14 of 1943 was not retrospective in such a way as to be invalid, and I consider that that decision shows clearly that Section 6 (1) of Ordinance 3 of 1944 must also be held valid.

As regards Section 6 (2) of Ordinance 3 of 1944, I do not think it is necessary to consider whether this Sub-section could have been challenged as invalid had it merely stated that the orders in question should, on the commencement of this Ordinance, be deemed to have been made under this Ordinance because the Sub-section does not stop there but goes on to provide that such orders shall have effect as if they had been made under this Ordinance and as if this Ordinance had been in force at the time the order was made. This further portion of the Sub-section clearly has regard to the future. During the course of argument we enquired from the lawyers appearing for the petitioners exactly how this portion of Section 6 (2) was "retroactive," and so far as I can ascertain, their argument was that the liberty of individuals is in question and that if the order under which the petitioners have been detained, was originally either void or invalid, then any order, Ordinance or other enactment, which provides that such detention shall be valid for the future, would itself be invalid as an attempt to alter the past. With this contention I cannot agree. In proceedings u/s 491, Criminal P. C, we are concerned not with the past detention of the petitioners but with their present detention and that portion of Section 6 (2) of Ordinance 3 of 1944, which provides that certain orders shall have effect on the commencement of this Ordinance, is not an attempt to alter the past and is valid even if detention prior to this Ordinance under such orders may have been invalid. I, therefore, consider that Section 6 (2) of the Ordinance is valid.

The main attack made on Section 10 of Ordinance 3 of 1944 was not made on the ground that it is what has been called "retroactive," and I see nothing in this section which suggests that it is retrospective in such ft way as to be invalid. It was, however, argued that the provision in Section 10 (2) for discharging certain proceedings was a usurpation of judicial functions in the guise of legislative functions. This argument also appears to me invalid. The case in Phillips v. Eyre (1871) 6 Q. B. 1 was cited before us. Therein an American case, Calder v. Bull 3 Dallas 386, was cited with approval. That American case dealt with an Act of the State of Connecticut passed to set aside a decree of a Court of Probate and grant a new hearing. That Act was held valid. If, therefore, an Act could be passed to set aside a legal decision, I do not consider that there is anything invalid in a legislation discharging certain proceedings pending in a Court. It was further urged that Section 10 of Ordinance 3 of 1944 was invalid on the ground that there was no power to take away the powers of the High Court by an implicit or explicit, total or partial repeal of Section 491, Criminal P. C. It was, however, decided by the Federal Court in AIR 1943 36 (Federal Court) that

under the express terms of Section 223, it is within the power of the Indian Legislature to alter the jurisdiction and powers of the High Court.

It was, however, contended before us that Section 223, Government of India Act, which refers to "the appropriate Legislature," does not give such powers to the Governor-General when legislating by means of Ordinance. This point, however, has been decided by this Court in Jailal Sahu v. Emperor AIR 1943 Pat. 346, a decision which, we were informed, was taken to the Federal Court and there approved. I therefore hold that all grounds urged against the validity of, Ordinance 3 of 1944 must fail. Mr. M. N. Pal wished to urge before us that this Court has powers of interference independently of the Criminal Procedure Code. We held, however, that he was precluded from arguing this point by reason of the decision of the Special Bench of this Court in Sheo Baran Singh v. Emperor A. I. R. 1943 Pat. 24. I now come to the question whether Ordinance 3 of 1944 entirely bars our jurisdiction or whether we can consider the merits of individual cases despite the provisions of that Ordinance. The main argument for the petitioners on this point was conducted by Mr. Baldeva Sahay. He urged that the Crown must prove, first, that there was an order of Government passed under Rule 26, Defence of India Rules, and, secondly, that the Governor had materials on which he could act before passing such an order, and he further urged that there was no presumption that the Governor had any such materials.

Now the first point urged by Mr. Baldeva Sahay is certainly valid and I will consider later whether there are actually in the present cases orders of the Governor under Rule 26, Defence of India Rules. His second point, however, was, in my opinion, expressed too broadly. I think that it must be shown that Government was satisfied that an order under, that section was necessary. with a view to preventing the particular person in question from acting in any of the ways specified in that rule. It was decided by the Federal Court in AIR 1943 75 (Federal Court) that it must be the Governor who is satisfied. I do not think, however, that it is necessary for the Crown to show that the Governor had actually materials on which he was so satisfied. Before considering whether there is any presumption or evidence in the present cases to show that the Governor was satisfied as required by Rule 26, Defence of India Rules, it is necessary to consider whether there is in the present cases any order actually passed under Rule 26, Defence of India Rules. It was contended before us that such an order must be signed by the Governor himself, and admittedly there is not in any of these cases any order signed by the Governor himself. The orders in question are signed by Mr. Y. A. Godbole as Chief Secretary to Government except in the case of Chulhai Gope where the order is signed by Mr. J. W. Houlton as Chief Secretary to Government. u/s 59 (2), Government of India Act, 1935,

orders 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.

By Notification No. 2094A, dated 1st May 1937, (published in the Bihar Gazette, 1937, Part II, p. 321) the following rules were made under that section:

In exercise of the powers conferred by Sub-section (2) of Section 59, Government of India Act, 1935, His Excellency the Governor of Bihar is pleased, after consultation with his Ministers, to make the following rules for the authentication of orders and other instruments made and executed in the name of the Governor:

All orders or instruments made or executed by order or on behalf of the Government of Bihar Shall be expressed to be made by or by order of the Governor of Bihar.

Save in cases where an officer has been specially empowered to sign an order or instrument of the Government of Bihar, every such order or instrument shall be signed by either the Secretary, the Additional Secretary, the Joint Secretary, the Deputy Secretary, the Under-Secretary or the Assistant Secretary to the Government of Bihar and such signatures shall be deemed to be the proper authentication of such order or instrument.

It was argued that neither Section 59, Government of India Act, nor the rules framed u/s 59 (2) of that Act have any application to orders passed under It. 26, Defence of India Rules. In this connexion we were referred to a passage in the judgment of Zafrulla Khan J. in the Federal Court decision 24 P. L. T. 3322, whore after considering Section 49, Government of India Act, and Section 59 (3) of that Act in connexion with Rule 26, Defence of India Rules, it was stated:

The executive action or authority dealt with in Sections 49 and 50 must relate to matters with respect to which the Legislature of the Province has power to make laws.

Now this dictum and the discussion which preceded it were given as an answer to an argument put forward on behalf of the Bengal Government in the case before the Federal Court that the "Provincial Government in Rule 26, Defence of India Rules, meant the Governor or officers subordinate to him." This argument was not accepted by the Federal Court. Section 59 (2), Government of India Act, does not mention either " executive action" or "authority" and Section 59 (2) was not in question in the argument which Zafrulla Khan J. was answering in the above dictum, and there appears to bo no reason to restrict Section 59 (2) to orders and other instruments made and executed as part of the "executive action" of the Provincial Government. In my opinion it is clear that Section 59 (2) applies to all orders and other instruments made and executed in the name of the Governor, whether they fall within the "executive action" of the Provincial Government or not.

The original orders have been produced before us and we can take judicial notice of the signatures of Mr. Godbole and Mr. Houlton tinder Section 57, Evidence Act. This is supported by the decision of the Calcutta High Court in Sheo Baran Singh v. Emperor A. I. R. 1943 Pat. 24 which was a decision under the Government of India Act, 1919, but the same principle applies. I, therefore, hold that the orders in question were actually made by the Provincial Government. It was pointed out however by Spens C. J. in the above Federal Court case AIR 1943 75 (Federal Court) :

In my judgment however Section 59 (2) prohibits a duly authenticated order being called in question on one ground and one ground only, namely, that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the 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 present cases the orders recited that the Governor of Bihar was satisfied in respect to the person in question in each case that with a view to preventing him from acting in a manner prejudicial to the public order it was necessary to make the following order. In ordinary circumstances, in accordance with the dictum of Spens C. J. the accuracy of that recital could be questioned. For the petitioners it is urged that no presumption can be made that the recital is correct. Spens C. J. continued after the passage just quoted:

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.

As against this, we were referred to the Full Bench decision of the Lahore High Court, Harkishan Das v. Emperor A. I. R. 1944 Lah. 33 , where Harries C. J. refused to raise any such presumption. There are passages in his judgment which read by themselves might suggest that he came to the conclusion that no presumption could legally be raised regarding the accuracy of such a recital. Reading his judgment as a whole however I think it is clear that he did not lay down such a broad proposition but held merely that no such presumption could properly be raised in the case before him. It is important to notice that he referred to the fact that the Advocate-General of the Punjab had supported the argument put forward on behalf of the Bengal Government before the Federal Court in AIR 1943 75 (Federal Court) to the effect that the " Provincial Government meant the Governor or officers subordinate to him." This argument shows that the Punjab Government had been taking the view that it was not necessary for the Governor to be personally satisfied of the facts recited in the orders passed under Rule 26, Defence of India Rules. This was obviously a good reason for refusing to raise any presumption that the recitals in the orders passed by the Provincial Government of the Punjab under Rule 26, Defence of India Rules, had any reference to the personal satisfaction of the Governor. It has not, however, been suggested that the Bihar Government ever supported that argument of the Bengal Government or took the view expressed in that argument. I, therefore, see no reason for refusing to raise such a presumption as suggested by Spens C. J. in the case of orders passed by the Bihar Government. This is also supported by a decision of this Court in Criminal Misc. Cases Nos. 57 and othess decided by Varma and Shearer JJ. on 10th January 1944. Kamla Kant Azad v. Emperor Reported in A. I. R. 1944 Pat. 354 Also at the time of the above Federal Court decision the only restriction on the Court''s power to consider the validity of orders passed under Rule 26, Defence of India Rules, was contained in Section 16 (1), Defence of India Act, and Section 3 of Ordinance 14 of 1943. The latter provision is a very limited restriction, and Section 16 (1), Defence of India Act, runs:

No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

In view of the words of Spens C. J. quoted above, this would not prevent the Court from considering whether the condition necessary to the valid making of such an order had been fulfilled. Section 10 of Ordinance 3 of 1944 directs that 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 Section 6 (2) runs

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.

In my opinion, the words "such order" in this Sub-section must mean, by reference to Section 6 (1), "an order made; before the commencement of this Ordinance under Rule 26, Defence of India Rules." In my opinion, this applies to all orders made under Rule 26, Defence of India Rules, whether they were made in exercise of the powers conferred by that rule as mentioned in Section 16, Defence of India Act or not; and in my opinion, therefore, as a result of these provisions of Ordinance 3 of 1944, it is no longer open to us to consider whether the necessary conditions had been fulfilled before the orders were actually passed under Rule 26, Defence of India Rules. In this view of the matter, these proceedings must be treated as discharged under the provisions of Section 10 (2) of Ordinance 3 of 1944. In this view of the matter it is really unnecessary to consider individual cases; but as we permitted the petitioners to show whether they had any evidence to rebut the presumption or evidence that the Governor was satisfied that the orders in question were necessary, I will briefly mention the important points urged in case it might be thought that we have not considered whether the cases called even for any recommendation to Government.

In case No. 372 of 1943 the points urged on behalf of the three persons detained in that case are that they were arrested on a charge of dacoity but no charge in respect of that dacoity was preferred against them as the police reported that the evidence was insufficient. On the date of the police report to that effect they were, however, detained under Rule 129, Defence of India Rules, and later an order under Rule 26, Defence of India Rules, was passed against them. The fact that there was a charge of dacoity against them, of which there was insufficient evidence, would not be sufficient to satisfy any authority of the necessity of making any order under Rule 26. These facts, however, in no way indicate that the Governor had not other materials on which he was satisfied of the necessity of the order.

In case No. 60 there is an affidavit that the person detained is an advocate of this Court and that he was engaged as a defence advocate in several cases against prominent congress men and representatives of the Kisan Sabha and he believed that he was detained for having appeared in these cases. The Advocate-General offered to file a counter-affidavit in this case, but we have found it unnecessary to call on him to file such an affidavit as the facts disclosed in this affidavit do not show that the Governor had no proper materials to satisfy him of the necessity of the order.

In case No. 84 it is alleged that the person detained was arrested for uttering congress slogans in 1941 and was in jail for three months and thereafter did not join any congress movement. A supplementary affidavit was filed in this case which relates only to the fact that the order did not bear the signature of the Governor himself. In this case also the facts disclosed do not show that the Governor had not materials to satisfy him of the necessity of the order.

In case No. 204 the only point urged was that the person detained was arrested on 15th August 1942 under Rule 26, Defence of India Rules, whereas the order under that rule against him was passed on 21st August 1942. Clearly he was not validly arrested under Rule 26 on 15th August 1942 though his arrest may have been valid under Rule 129. These facts, however, do not show that the Governor had no proper materials to satisfy him of the necessity of the order.

In Revision No. 1315 it was alleged that the person detained incurred the displeasure of the police and proceedings against him were taken u/s 110, Criminal P. C, but he was discharged from those proceedings on 4th December 1942. The failure of those proceedings does not show that the Governor had not proper materials to satisfy him of the necessity of the order under Rule 26.

The only other case which calls for special mention is Case No. 258. This was on behalf of three persons detained, Prahlad Roy, Sita Ram Dokania and Baldeo Prasad Marwari. I have ascertained that the case of Sita Ram Dokania was dealt with by Varma and. Shearer JJ. in Cri. Misc. Cases Nos. 57 and others decided on 10th January 1944 Kamla Kant Azad v. Emperor Reported in A. I. R. 1944 Pat. 354 and the order for his detention was found valid. The facts have been somewhat more fully placed before us and the cases of these three detenus are the same. They were, while in Calcutta, charged with an offence u/s 19, Arms Act, but were released in that case by the Chief Presidency Magistrate, Calcutta, on 17th February 1943. They were then detained under it. 26, Defence of India Rules, in Bengal, and according to their own petition, they were transferred to Bihar at their own request made to the Government of Bengal. An order was subsequently passed by the Bihar Government under Rule 26, Defence of India Rules, before these persons were actually received in Bihar. It is obvious that the Bihar Government had received some communication from the Government of Bengal in connexion with these persons before they were brought to Bihar, and there is nothing in the facts alleged by these persons which would suggest that the Governor of Bihar had not materials proper to satisfy him that an order under Rule 26, Defence of India Rules, was necessary against them.

In the remaining cases no special grounds were made out for thinking that the Governor of Bihar had not actually materials to satisfy him of the necessity of the orders passed. I find therefore that none of the persons on behalf of whom these petitions have been filed are entitled to be released and these cases are discharged.

Sinha, J.

I agree.