EMPEROR Vs. BAJIRAO YAMANAPPA HATGAR

JUDGEMENT

(1.) THIS is an application under Section 491 of the Criminal Procedure Code. It seems that on May 22, 1942, one Section v. Ghatnatti, Sub-Inspector of Police, was murdered at Kerur. In connection with that offence the applicant was arrested on August 27, 1942, and he along with others was tried by the Sub-Divisional Magistrate, First Class, Southern Division, Bijapur, under Sections 147 and 186 read with Section 149 of the Indian Penal Code. The applicant was released on bail by the Court on October 7, 1942. The trial of the case went on October 9, 10, 14, 15 and 16, 1942, and on May 11, 1943. On all these days the applicant appeared at the trial. Thereafter he absconded. On May 24, 1943, the District Magistrate, Bijapur, issued an order under Rule 26 of the Defence of India Rules for the detention of the applicant in the Belgaum Central Prison for one year from the date of arrest. On January 4,, 1944, a proclamation under Section 87 of the Criminal Procedure Code was issued for the arrest of the applicant, and he ultimately surrendered to the District Superintendent of Police, Bijapur, on April 8, 1944. In the meanwhile, the case against the other accused was disposed of on September 14, 1943, and all of them were acquitted. On June 6, 1944, the District Magistrate, Bijapur, sanctioned the withdrawal of the case against the applicant and an order for his acquittal was made by the Resident Magistrate, First Class, Bijapur, on June 24, 1944. On May 23, 1944, the Government of Bombay issued an order Under Clause (b) of Sub-section (1) of Section 3 of Ordinance III of 1944 for the detention of the applicant, and on November 6, 1944, the Government under Section 9 of the Ordinance directed that the order of May 23, 1944, should continue in force.

(2.) THE applicant has been in detention since April 8, 1944, and his contention is that his detention is illegal and he should be set at liberty. THE applicant is at present detained under an order of the Government of Bombay dated November 6, 1944, and we have to consider whether that order is valid and whether the detention of the applicant under that order is legal. Section 10 of Ordinance III of 1944 provides that no order made under the 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, in respect of any order made under or having effect under the Ordinance, or in! respect of any person the subject of such an order. But it is clear that the jurisdiction of the Court is only taken away provided the order on which the Government is relying is an order" made under the Ordinance. "it must be made by the detaining authority in the proper exercise of its powers. It would not be an order "made under the Ordinance" if it was made merely in the colourable exercise of its powers or if the detaining authority exceeded the powers given to it under the Ordinance. THE detaining authority must satisfy the Court that it has complied with all the rules of procedure laid down in the Ordinance and has observed all the safeguards. THE order must not be made for an ulterior purpose-a purpose which has no connection with the security of the State or the efficient prosecution of the war. THE order must not be intended to override the ordinary powers of the police for the investigation of a crime or to suspend the ordinary criminal tribunals of the land or prevent them from exercising their ordinary jurisdiction. THE powers conferred on the executive under the Ordinance are for the purpose of preventive detention and they are not punitive in their nature. THE executive must not detain a subject in order to punish him for what he has already done but in order to prevent him from doing something which in the opinion of the executive is likely to affect the safety of the State or the efficient prosecution of the war. It is not competent to the Court to inquire into the sufficiency of the materials and the reasonableness of the grounds on which the detaining authority was satisfied that it was necessary to make the order. But if any reasons which influenced the detaining authority in making the order appear on the record, then the Court can scrutinize them in order to see what was the condition of the mind of the detaining authority when it made the order. THEse principles which I have stated clearly emerge from the various decisions of the Federal Court and the High Courts in India which have been cited at the Bar. In Basanta Chandra v. Emperor [1944] A. I. R. F. C. 86 Sir Patrick Spens, Chief Justice, delivering the judgment of the Federal Court, observed (p. 93): 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." And Harries, Chief Justice, in Dilbagh Singh v. Emperor [1944] A. I. R. Lah. 373, in the course of his judgment, said (p. 375): In my judgment Rule 129 cannot be used legally for any purpose, other than that for what it was intended, namely, to ensure inter alias the security of the State and the efficient prosecution of the war. To use it for some entirely different purpose, wholly unconnected with the security of the State or the efficient prosecution of the war, is in my view a misuse of the powers given by that rule and an order passed for such purposes cannot be said to, be an order under Rule 129 of the Defence of India Rules. Further on the learned Chief Justice observed (p. 376): It would in my view be extremely dangerous to hold that the police or the Provincial Government had any right to detain persons Under Rule 129 unless the order was made with the object of making it impossible for the person detained to interfere with matters connected with the defence of India or the efficient prosecution of the war. With respect, I entirely agree with these observations of the learned Chief Justice, and, in our opinion, these observations apply as much to an order made under Ordinance III of 1944 as to an order made under Rule 129 of the Defence of India Rules.

(3.) WITH regard to the order of May 23, 1944, Mr. Drewe in his affidavit says that "there is a note written on May 21, 1944, by His Excellency the Governor's Secretary Mr. Symington that His Excellency agreed to the detention of the applicant. " We have seen this minute, and what the minute says is this: His Excellency agrees to the detention as proposed] pending consideration of use of the Criminal Tribes Act. This minute clearly shows that the Governor was considering the use of the Criminal Tribes Act against the applicant and pending his decision on that question, he agreed to the detention of the applicant under Ordinance III of 1944. Now the considerations which must weigh with the Governor in deciding whether he should use the Criminal Tribes Act against the applicant or not are quite foreign to those which must weigh with him in deciding whether he should detain the applicant Under Section 3 of Ordinance III of 1944. The scope and ambit of the Criminal Tribes Act have no bearing upon the purpose for which the extraordinary powers vested in the executive have to be exercised under Section 3 of the Ordinance. In our opinion this minute of Mr. Symington throws a flood of light on the condition of mind of the detaining authority when it made the order. Its mind was directed not on what it should have been directed to, namely, the question of the security of the State or the efficient prosecution of the war, but it was directed to the more parochial and limited question as to whether the Criminal Tribes Act should be used or not against the applicant-It is unnecessary to emphasize that when wide powers are given to the executive to deprive His Majesty's subjects of their liberty without the intervention of the Courts of law, the detaining authority must consider each case with that care and caution which the exercise' of so tremendous a power should call for. The liberty of the subject is not to be lightly taken away. The satisfaction which the law requires on the part of the detaining authority before a subject can be detained is a reasonable satisfactiona satisfaction not vitiated by any consideration which is foreign to. the scope and object of Ordinance III of 1944. In this case in our opinion it is impossible to hold that the Government of Bombay was. reasonably satisfied that it was necessary to detain the applicant with a view to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order.