EMPEROR Vs. GAJANAN KRISHNA YALGI

JUDGEMENT

(1.) WE have before us the petitions of four persons made under Section 491 of the Criminal Procedure Code, 1898, which provides for the codified and restricted form of habeas corpus which applies to India. All the petitioners have been arrested and are detained Under Rules or Ordinances made by virtue of the Defence of India Act, 1929, All four petitioners are persons who have stood their trial on some criminal charge or charges and all of them had been acquitted of those charges by the trial Courts. Mr. Jahagirdar on their behalf urges that the real motive of the detention orders is to punish the accused for crimes which the executive authority thinks they have committed, but in respect of which they have been acquitted by the Courts, and that accordingly the Provincial Government cannot have been satisfied, which, as has now been laid down, means reasonably satisfied that the petitioners or any of 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 the subject of such an order.

(2.) NUMEROUS cases have been brought before the High Courts of India by persons detained under wartime legislation and the same can be said of persons detained in England under similar legislation. In my opinion as a result of the decided cases it is clear that if the order for detention is regular in point of form, an onus is cast on the person detained to show that it is in effect no order "made under or having effect under this Ordinance" either because the mind of the detaining authority has not been applied or because it is no order, having been made by mistake or by mala fides. Unquestionably the onus is a heavy one. As has been pointed out in Rex v. Secretary of State for Home Affairs : Greene Ex parte [1942] 1 L. B. 87, by Lord Justice Mackinnon (p. 108): The power of the Home Secretary to issue a valid order depends on the fulfilment of a condition. The nature of that condition is very material, It is not the existence of an objective fact, for example, that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary, that is, that he has reasonable grounds for believing certain facts to exist, and, by implication, that he honestly entertains that belief If an order asserting the existence of that state of mind and belief, in valid form, has been made, the onus on the applicant of disproving its existence is obviously much more difficult than would be the disproof of an objective fact, for example, that the man is an alien. Evidence of the applicant, that he does not know that there are any persons for the Home Secretary's belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the Home Secretary to explain and justify the assertion of his order. In the present case the appellant does rather more than make those general assertions or denials, and an affidavit in) reply has been filed by the Home Secretary.

(3.) WITH regard to the other three petitioners, they are Baburao v. Chavan, Ramsing Ratansing Pardeshi and Shankar 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 June 12 such appeal was admitted by the High Court 'and a warrant for the arrest of the three petitioners was granted. , Subsequently it appears that the three orders for detention under Clause (3) of Ordinance No. III of 1944 were cancelled. The object of this cancellation has been explained to us by the Advocate General as being for the benefit of the petitioners who were then under arrest by the warrants of the High Court in respect of the appeal which had been preferred by Government, it being pointed out by the Advocate General that under such arrest they were entitled to certain privileges, such as seeing their legal representatives which are without special permission denied to persons detained under the Ordinance. The appeal by Government against the acquittals resulted in such appeal being dismissed without the advocates of the three petitioners being called upon and accordingly on February 13, 1945, all the three petitioners were acquitted and discharged. There is a dispute on the evidence as to whether Mr. Roche, the police-officer in charge of the case, told the petitioners before their acquittal that they would be arrested again if they were acquitted. But in any event what happened was this : after the acquittal by this Court the three petitioners proceeded to take tea in or near the advocates' room on the first floor of this building and they were arrested on leaving the tea room whilst still in this building. Mr. Jahagirdar urged that this arrest was a contempt of Court, on the ground that the Court had ordered their release on their acquittal as the result of the appeal. In my opinion this contention cannot be sustained. The arrest took place under Rule 129 of the Defence of India Rules and not in defiance of the Court's order for their discharge on the capital charge. On February 18, 1945, the District Magistrate of Poona made an order for the detention of the three petitioners under Rule 129 and on March 16, 1945, this was replaced by an order for detention under Clause 3 of Ordinance No. III of 1944. In the case of each of the three petitioners Mr. Drewe, Secretary to Government, Home Department, has made an affidavit. So far as material the affidavits are in similar terms and are as follows: The order under which the petitioner is now under detention was made by the Government of the Province of Bombay on March 16, 1945, in 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.