SITAO JHOLIA DHIMAR Vs. EMPEROR

JUDGEMENT

(1.) THIS case and Miscellaneous Criminal cases Nos. 62 and 63 and Or. Rev. No. 460 of 1942 arise on applications made for writs of hebeas corpus to be issued under Section 491, Criminal P.C. The applicants were put on their trial in pursuance of Ordinance 2 of 1942 entitled the Special Criminal Courts Ordinance which was made and promulgated on 2nd January 1942 by the Governor. General in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act of 1935. By Section 1, Sub-section (3) of that Ordinance it was provided that it was to come into force in any Province if the Provincial Government, being satisfied of the existence of any emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official gazette, declared it to be in force in the Province. The words "any disorder within the Province or from" were originally not in the Ordinance but were subsequently inserted by ordinance 42 of 1942 which was made and promulgated by the Governor-General on 19th August 1942. The Ordinance No. 2 of 1942 was declared "to be in force in the Province" by a notification of the Provincial Government Central Provinces, published on 21st August 1942. Thereafter the Special Judges, Specials Magistrates and Review Officer as contemplated in the Ordinance were appointed. The offences alleged in Miscellaneous Criminal Case No. 58 and cri. Rev. No. 460 were committed respectively on 12-8-1942 and 14-8-1942 and the accused were arrested respectively on 17-8-1942 and 19-8-1942. The offences alleged in Miscellaneous Criminal cases NOS. 62 and 63 were committed respectively on 18-8-1942 and 16-8-1942 and the accused were arrested respectively on 13-8-1942 and 19-8-1942. The Special Criminal Courts tried the cases as directed in writing by the Legal Remembrancer in exercise of the powers conferred upon him by Section 5 of the Ordinance. The enactment, which ostensibly debars the applicants from taking recourse to Section 491, Criminal P.C., is Section 26 of the Ordinance. It runs as follows: Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall save as provided in this Ordinance, he no appeal from any order or sentence of a Court constituted under' this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.

(2.) TO escape from the bar created by Section 26 of the Ordinance the applicants put forward a twofold contention: (1) That the Ordinance is ultra vires of the Governor-General and therefore void; that it applies to nobody in India. (2) That even if it is held to be valid it does not affect them and therefore it does not debar their entry into the High Court for claiming relief under Section 491, Criminal P.C., for the reason that they are accused of offences committed before the Ordinance came into force in this Province. The cases were argued at considerable length by a number of counsel representing the several groups of applicants. They joined in launching a vigorous attack on the validity of the Ordinance and the action taken by the Provincial Government in directing the applicants to be tried by the Special Criminal Courts, with weapons drawn from the copious armoury of the Indian and English authorities.

(3.) THE appellant in that case was a person detained by an order of Sir John Anderson as Home Secretary on May 1940 under the Defence (General) Regulations, 1939, Reg. 18B. That detention was continued by the Home Secretary who succeeded Sir John Anderson. The validity of the detention was raised in the action in which the appellant claimed damages for false imprisonment and for consequential relief, and the only question that arose for consideration was the interpretation of the words "Whereas I have reasonable cause to believe." The appellant's contention was that Sir John Anderson, the defendant, was bound to furnish particulars on which his belief that the plaintiff was 'a person of hostile associations was grounded. It was held that the onus of proving the various facts which justified the making of the order for detention was not on the Home Secretary since the regulations were made for the safety of the realm and the administrative plenary discretion was vested in the Secretary of State. Lord Atkin while expressing his dissent sounded caution in these words Liversidge v. Anderson 1942 A.C. 206: Bernard v. Gorman at p. 361 Liversidge v. Anderson 1942 A.C. 206: I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time, leaning towards liberty, but following the dictum of Pollock, C.B., in Bowwidth v. Balchin, (1850) 5 Ex. 378 cited with approval by Lord Wright in Barnard v. Gorman (1941) 3 All. E.R. 45, Barnard v. Gorman at p. 55. Pollock, C.B., said at p. 381: 'In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.' In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respectors of persons,' and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.