SHIB NATH BANERJEE Vs. AEPORTER

JUDGEMENT

(1.) The nine persons on whose behalf applications under Section 491, Criminal P.C. have been made before us by their relations have been detained in different jails in pursuance of orders passed under Rule 26, Defence of India Rules, on diverse dates between 24 October 1940 and 8 March 1943. Those applications were made on 24 April 1943 after the Federal Court had declared the said rule to be ultra vires Section 2, Sub-section (2), Clause (x), Defence of India Act (35 of 1939), in Keshav Talpade V/s. Emperor . On the same date, nine rules were issued on the Crown to shew cause why the said persons should not be released, Those rules came on for hearing/before us on 7 May 1943. At an early stage of the hearing, seven out of the nine detenus applied to us to give them facilities to swear affidavits in jail. We granted their prayer. They swore affidavits and those affidavits have been put on the record with liberty to the Crown to file affidavits in answer. Another affidavit sworn by Dr. Nalinaksha Sannyal, a member of the Bengal Legislative Assembly and a first cousin of Sasanka Sekhar Sannyal, one of the detenus, was put before us. The Crown objected to the reception of that affidavit but we overruled that objection and directed that affidavit to be put on the re9 cord, the Crown being given liberty to file an affidavit in answer. At the time when we admitted Dr. Nalinaksha Sannyal's affidavit we intimated that we would give reasons in our judgment for admitting the said affidavit.

(2.) At the time when Dr. Nalinaksha's affidavit was put in the advocates for the petitioners stated that as that affidavit embodied only the proceedings in the Legislative Assembly which would be relevant in all the nine cases before us it would be a needless repetition to file affidavits of exactly the same nature in the other eight cases. They ; accordingly prayed verbally that the formality of having eight more affidavits of the same nature, one in each of the other eight cases, may be dispensed with and Dr. Nalinaksha Sannyal's affidavit may be allowed to be used in all the nine cases which we were hearing together. To that course the learned Advocate-General did not object and we allowed the prayer. The Crown has put in an affidavit in answer affirmed by Mr. Porter, who at all material times had been the Additional Secretary in the Home Department of the Government of Bengal, to meet the allegations made in the affidavits of the, seven detenus and those made in the affidavit of Dr. Nalinaksha Sannyal. The orders passed on the nine detinues under Rule 26 have been produced by the Crown for our perusal. True copies of those orders have been put on the record. After the decision of the Federal Court in Keshav Talpade's case,1 the Governor-General has, on 28th April 1943, made and promulgated an Ordinance (Ordinance No. 14 of 1943, hereafter to be called the Ordinance) under Section 72 of Schedule 9, Government of India Act. That Ordinance is as follows: Whereas an emergency has arisen which makes it necessary further to amend the Defence of India Act, 1939 (35 of 1939) for the. purpose hereinafter appearing; Now therefore in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act (26 Geo. V, C. 2) the Governor-General is pleased to make and promulgate the following Ordinance: 1. Short title and Commencement - (1) This Ordinance may be called the Defence of India (Amendment) Ordinance, 1943. (2) It shall come into force at once. 2. Substitution of new clause for Clause (x) of Section 2(2), Act 35 of 1939 - For Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939 (35 of 1939), the following clause shall be substituted, and shall be deemed always to have been substituted, namely: (x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be suspects, on grounds, appearing to such authority to be reasonable, of being of hostile origin, or having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, Sis Majesty's relations with foreign powers or Indian States, the maintenance of peaceful relations in tribal areas or the efficient prosecution of the war, or in respect of whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him for acting in such, prejudicial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.

(3.) Validity of orders made under Rule 26, Defence of India Rules. - For the removal of doubts it is hereby enacted that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2, Defence of India Act, 1939. 3. The underlined (here italicized) portions of Section 2 of the Ordinance represent the amendments made to Section 2, Sub-section (2), Clause (x), Defence of India Act, 1939. Rule 26 of the Defence of India Rules was left intact, but by the aforesaid amendment of Section 2(2), Clause (x), Defence of India Act, 1939, the ground on which the Federal Court had pronounced Rule 26 to be ultra vires was cut away. To regularise the detentions that had been made in the past by orders made under Rule 26 and to prevent the legality of those orders for detention being challenged in Courts the amendment was given retrospective operation and Section 3 of the Ordinance was enacted with the same purpose in view. The Crown pleads this ordinance in answer to the claim for release of the nine detenus.