DHRUVARAJSING VISHWANATHSING Vs. STATE

JUDGEMENT

(1.) THIS is a petition filed by one Talukdarsing Ramsumersing Kshatriya, the uncle of the dtenu Dhruvarajsing Vishwanathsing, under Section 491 of the Criminal Procedure Code, 1898, for an order that the dtenu who is at present detained in the Worli Temporary Prison be brought in person before this Court to be dealt with according to law and that he be set at liberty on the ground that the arrest of the dtenu effected on April 10, 1945, and the subsequent detention of him was invalid and improper and was without lawful authority.

(2.) THE petitioner has urged in his petition that the dtenu is a rent farmer (collector) of the Right Honourable Dr. M. R. Jayakar and has been in such employ since 1933, that the dtenu is a member of the Hindu Maha Sabha, that the house of the dtenu was searched by the police on April 10, 1945, but nothing incriminating was found from the said place by the police, that the dtenu was to the petitioner's knowledge and belief not taking any part in the political movement and was a very peaceful and. respectable person spending a peaceful life in the employ of the Right Honourable Dr. M. R. Jayakar and had not taken part in any prejudicial activities at any time, that the dtenu had during his employment as aforesaid not gone to his native place Jaunpur, U. P. , for the last many years except for a month or two to enjoy vacation and had not been to Jaunpur, U. P. , since 1942 except for about four or five weeks in connection with his wedding which took place sometime in November, 1943. THE petitioner submitted that the detention of the dtenu under Rule 129 of the Defence of India Rules, 1939, was not bona fide and was illegal, ultra vires and beyond the powers conferred by Rule 129 or any other rule of the Defence of India Rules, that no order under Clause (a) or (b) of Sub-rule (1) of Rule 129 of the Defence of India Rules was served on the dtenu and therefore his detention was in any event illegal and without lawful authority. THE petitioner further submitted that the said arrest was unlawful inasmuch as the police-officer arresting the dtenu had not satisfied himself that the dtenu was likely to act in a manner prejudicial to the public safety, the defence of India or to the efficient prosecution of war, that the said police-officer had not carried out any personal investigation and had acted merely on instructions received by him and that therefore no question of his being satisfied as required by Rule 129 about the conduct of the dtenu could possibly arise. THE petitioner further submitted that the application of Rule 129 to the present case was misconceived and improper.

(3.) IN his affidavit dated April 23, 1945, Balaram had stated that he was attending to the matter relating to the dtenu and the facts relating to the case and arrest were within his personal knowledge and that he had been authorised and directed by the Commissioner of Police, Bombay, to make that affidavit. He stated that the dtenu Was properly arrested under orders issued by the Commissioner of Police, Bombay, under Rule 129 of the Defence of INdia Rules, as he was reasonably suspected of having acted in a manner prejudicial to the public safety and the efficient prosecution of war, that the information on which he was arrested had been considered carefully by the Commissioner and by himself and that it was under his orders that the dtenu was arrested. IN this affidavit Balaram Shamrao Kothare mixed up the part which he took in the consideration of the case of the dtenu with that taken by the Commissioner of Police. He identified himself with the Commissioner of Police under whom he was working as the Superintendent of Police, Special Branch I, C. I. D. , and in more places than one in this affidavit it appears that the Commissioner of Police as well as himself inquired into the case of the dtenu and directed his arrest under Rule 129, that both the Commissioner of Police and himself suspected the dtenu of having acted in a manner prejudicial to the public safety or to the efficient prosecution of war. He also stated that the information received and considered by the Commissioner of Police and himself led both of them to the reasonable conclusion that the dtenu had acted and was acting in the manner aforesaid. He further stated that the information received by the Police could not be disclosed as it was of a secret nature and it was against the public interest to disclose the same. He submitted that the arrest and detention could not be challenged and were valid in law and that the dtenu would be dealt with according to law. He finally submitted that the arrest was made on careful consideration, on proper materials and should not be disturbed. After I had granted leave to the petitioner to file his affidavit in rejoinder dated April 24, 1945, Balaram made a further affidavit in rejoinder dated May 1, 1945, wherein he pointed out that para. 2 of the petitioner's affidavit in rejoinder contained various allegations which were not included in the petition. With reference to those new allegations he submitted that the information upon which action was taken against the dtenu was confidential and was a State secret and could not be disclosed. He submitted that the allegations were therefore otherwise irrelevant and were made merely as an attempt to draw information which was confidential and that therefore he was advised that there were no facts which were either necessary or proper to reply. He reiterated that the information upon which the police authorities acted could not be disclosed and repeated that the Commissioner of Police and he had considered the matter on the materials before them and they reasonably suspected him of having acted and acting in a manner prejudicial to the public safety or to the efficient prosecution) of war.