Keshav Talpade vs Emperor

Varadachariar, C.J.—At this stage, it does not seem necessary to recapitulate the facts of the case. It is sufficient to state that the appellant

had preferred an appeal to this Court against an order of the High Court at Bombay dismissing his application Under Section 491, Criminal P.C.

The dismissal was based on the view that the Defence of India Act, 1939 and Rule 26 framed thereunder were valid and that the appellant''s

detention under that rule was therefore not illegal or improper. At the hearing of the appeal, this Court agreed with the High Court that legislation

providing for the ""preventive detention"" of persons for reasons of State connected with defence, etc., was within the competence of the Indian

Legislature; but, as regards Rule 26 of the Defence of India Rules, the Court held that it was invalid as going beyond the rule-making power

conferred upon the Central Government by para. (10) of Section 2(2), Defence of India Act. It was further held that where a matter is specifically

covered by any of the paragraphs of Sub-section (2), rules relating to that matter must conform strictly to the conditions laid down in the paragraph

and that it is not permissible to pray in aid the more general language of Sub-section (1) to justify a departure from or disregard of those

conditions. The order of the Court dated 22nd, April 1948, concluded as follows:

The appeal will be allowed and the case remitted to the High Court of Bombay with a direction to the Court to dispose of the appellant''s

application in the light of the observations made in our judgment.

At the further hearing, the High Court by a majority, has referred the case back to this Court, with a request that it

will be so good as to comply with the terms of Section 209(1), Government of India Act, and make a declaration as to the order which is to be

substituted for the order appealed against.

It does not appear from the order of the High Court whether this reference was rendered necessary by any objections or arguments urged on

behalf of the parties. The parties were however notified of the hearing of this reference. The Advocate-General of India has appeared on behalf of

the Government of Bombay. He argues that as the case is pending before this Court on this date, the Court must take note of events that have

happened since 22nd April when its order was made and in particular of the promulgation of ordinance No. 14 of 1948 on 28th April. The

reference is not before us under any provision of law but only out of a desire of the learned Judges of the High Court to be more clearly informed

as to the meaning and effect of our order of 22nd April. This is all that we propose to do and we are entitled to do and our present order will

speak only as on 22nd April 1943.

This Court did not anticipate that the learned Judges would have felt so much difficulty in apprehending the meaning or effect of this Court''s

order having regard to the nature of the proceedings before them. This Court did not direct what final order should be passed in the case, because

it could not be done at that stage. Exception has been taken by the learned Chief Justice to this Court basing its decision on a ""point not pleaded,

argued or decided in the lower Court nor raised in the memorandum of appeal,"" but raised by this Court itself when the respondent was arguing.

As this course deprived the High Court of the opportunity of stating its reasons against the view adopted by this Court and as the reasons given by

this Court seemed to the learned Chief Justice ""unconvincing,"" he has taken ""the opportunity provided by this reference to repair the omission from

the original judgment"" and to put on record the view on which the High Court acted. This Court could not be expected to go back upon its original

judgment at this stage and the remarks of the learned Chief Justice could obviously have not been intended for this Court. This inference is

strengthened by his observation in another part of the judgment, where he reminds himself--and perhaps others too--that the order of this Court

may be the subject of an appeal to His Majesty in Council. We do not therefore pause to consider whether the reasons now recorded by him are

convincing or not, He makes a point that ""there may be difficulty in bringing an effective appeal"" to the Privy Council ""against a mere direction"" of

the kind contained in this Court''s former order. It will be time enough to consider this point when an application is made to this Court for leave to

appeal. The learned Chief Justice also puts in a plea on behalf of counsel who might have been taken by surprise when this Court sprung a new

question upon them in the course of the argument. We should have thought that the Advocate-General of Bombay and the Advocate-General of

India might well be trusted to take care of themselves. We may state that when the question was raised, they did not represent that it took them by

surprise nor did they ask for time to look into the matter further before closing their arguments.

It remains to deal with the criticism that the order passed by this Court does not comply with the requirements of Section 209(1), Constitution

Act. This criticism seems to us to rest on a misapprehension. The use of the word ""shall"" in that sub-section cannot reasonably be construed to

mean that in every case, this Court is under an obligation to declare the judgment, decree or order which is to be substituted for the judgment,

decree or order appealed against. The form of the order to be passed by this Court must necessarily vary according to the circumstances and

requirements of each case. One or two illustrations will help to make this clear. A suit instituted by a public officer or by a citizen against the

Government might be dismissed by the High Court on a particular interpretation of some provision of the Constitution Act. On appeal, this Court

might take a different view. If, as a result of the decision on the preliminary point, the High Court or the trial Court had not recorded findings on

other questions arising in the case or had not even recorded evidence, it would be impossible for this Court to make a declaration as to the

judgment or decree to be substituted for the judgment of the High Court in the sense in which the learned Judges of the Bombay High Court seem

to understand it, namely, in the shape of an executable decree. On the trial of the other issues, there may be a decree for the defendant again,

notwithstanding this Court''s decision in plaintiff''s favour on the preliminary question. In a case of the kind above suggested, the only course open

to this Court would be to remand the case to the High Court for trial of the other issues and it would be hardly fair in those circumstances for this

Court to dictate to the High Court whether the High Court should itself deal with the case on remand or remit it to the trial Court. The discretion in

that matter naturally belongs to the High Court: vide Civil Procedure Code, Order 41, Rules 23, 24 and 25. Again when an appeal is preferred to

this Court on a constitutional question, the parties are entitled to raise other questions as well, at the hearing of the appeal. It may happen that this

Court takes a different view from that which found favour with the High Court on a point of limitation or res judicata or even on the merits, with the

result that other issues may have to be heard and determined by the High Court. Here, again, it will not be practicable for this Court to make a

declaration which can straightway be embodied by the High Court in an executable decree. The observations made by their Lordships of the

Judicial Committee in Punjab Co-operative Bank v. Commissioner of Income Tax, Lahore (''40) 27 AIR 1940 PC 230 are equally applicable to

the present case. It was there argued that the latter part of Section 205(1), Constitution Act--which provides that it shall be the duty of the High

Court in every case--cast an obligation on the High Court in every case to consider whether or not a constitutional question was involved in the

case and of its own motion to give or to withhold a certificate accordingly. Their Lordships pointed out that the provision was only ""directory"" in

the sense explained in the judgment and that the plain object of the provision should be carried out in cases in which this could reasonably and

conveniently be done and it could not have been intended to impose an obligation on the Court to do so even when that could not be done.

The learned Judges construe the concluding words of Section 209(1), Constitution Act, as placing the High Court merely in the position of an

executing Court"". This seems to us to be an unnecessarily narrow interpretation of the words used. It was no doubt intended that the Federal

Court should make a declaration and not itself pass an executable decree, because it had no machinery for executing its decrees. But it does not

follow that the High Court had only the status of an executing Court, in respect of all matters heard on appeal by the Federal Court.

A few words explaining why the former order of this Court was framed in the terms already set out will also help to explain why even at this

stage this Court is not in a position to pass an order in any substantially different form. Under the English practice, it would appear that on an

application for a writ of habeas corpus, the respondent might state his reasons in justification of the detention, either when showing cause on the

order nisi or when making a return to the writ of habeas corpus: see Halsbury''s Laws of England, vol. IX, paras.1234, 1235 and 1248. When the

justification depends upon the validity of a regulation, the question of its validity may be allowed to be discussed at the hearing of the rule nisi itself:

see per Lord Atkinson in Rex v. Halliday (1917) 1917 AC 260 at p. 274. Section 491, Criminal P.C., empowers the High Court to make rules to

regulate its procedure in dealing with applications under that section; and the rules framed by the Bombay High Court provide for the issue of a rule

nisi ""on a prima facie case."" The respondent is called upon

to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of

the person or persons alleged to be illegally or improperly detained (rule 62).

The next rule says:

On the return day of such rule or any day to which the hearing thereof may be adjourned, if no cause is shown or if cause is shown and disallowed,

the Court shall pass an order that the person or persons improperly detained shall be set at liberty or delivered to the person entitled to custody. It

cause is allowed, the rule shall be discharged.

This seems to suggest that all matters of defence or justification are to be considered at the time cause is shown against the rule nisi. From the

record before this Court, it did not appear that the Bombay Government had filed anything in writing setting forth their objections or their reasons

for the detention of the applicant. So far as could be gathered from the order of the High Court, it seemed to have been argued as a point of law

arising on the application itself, that the rule under which the applicant had been detained was not invalid as contended in the application. At the

time the order of this Court was pronounced on the last occasion, the Advocate-General of Bombay was not before the Court and the Court had

no means of knowing whether the Government of Bombay intended to plead any other ground of defence or justification. On the one hand, this

Court expected that if there were no other defence, the Government of Bombay would take the necessary action without waiting for or insisting on

the issue of the writ, when once Rule 26 had been declared invalid by this Court. They were of course entitled to take steps to question the

correctness of this Court''s decision; but that is a different matter. If, on the other hand, the Government had other grounds to plead, it seemed to

us right that it should be left to the Bombay High Court to decide whether they should be allowed to be urged at the rule nisi stage itself or when

making the return to the writ; and the ambiguity in the Bombay rule pointed out above made such a course all the more necessary, because if this

Court had itself directed the issue of a writ, it might conceivably have implied that no further grounds of justification could be pleaded. After all, the

power to issue a writ in the nature of habeas corpus is a high privilege which the Legislature has entrusted to the High Court and it seemed to us

only fair that the discretion to suggest the most convenient course to be adopted should be left to that Court. Nothing that has since happened has

caused us to change our opinion in this respect. It will be for the High Court to adopt the course it deems most convenient in the circumstances of

the case, in the light of the foregoing observations. It is difficult to take seriously the observation of the learned Chief Justice that he was not

prepared to take the responsibility of making any order in the case except in so far as he was bound to do so Under Section 209, Government of

India Act. In any case, this Court can frame its order only in such terms as the circumstances of the case warrant. The papers will be returned to

the High Court of Bombay.

Rowland, J.

Not having been a party to the former proceedings in this case, I have only to say that I assent to the order proposed.