JATINDRA GUPTA Vs. EMPEROR

JUDGEMENT

(1.) On 7 September 1943, a Bench of this Court issued a Rule under g S: 491, Criminal P.C. calling upon the Chief Secretary to the Government of Bengal and the Superintendent of the Dacca Central Jail to show cause why the petitioners, alleged to be illegally and improperly detained in custody, should not be brought up before the Court and dealt with according to law or set at liberty. The number of persons concerned in this Rule was 176. The applicants made a joint application for the rule. They were apparently all confined in a jail at Dacca. They are represented before us by Mr. P. K. Bose who agrees that the cases all stand on the same footing. There, however, is one exception, namely, that of petitioner 21, Piyush Kiron Eauth, whose papers have not been available, and his case is not, therefore, taken in the present proceedings. The Advocate-General has appeared on behalf of the Government of Bengal to show cause against the rule. We are informed, and it is not disputed, that with the exception of four persons orders for the detention of the applicants were made by the Governor of Bengal. In the cases of the four others, they were made-by the District Magistrate of Chittagong to whom authority to make the orders had been delegated. The orders were originally made under B. 26 (i) (b), Defence of India Rules. Rule 26 was, in April 1943, by the Federal Court, declared ultra vires of Section 2, Defence of India Act. In May 1943, an ordinance was promulgated by the Governor-General validating the orders that had been made under Rule 26. The validating of that ordinance was questioned in this Court in May 1943 and in September 1943 by the Federal Court. In the meantime applications had been made by persons including the present applicants, to this Court for orders under Section 491, Criminal P.C. It was as a result of those applications that the Rule in question was granted. On 15 January 1944, another ordinance, Ordinance 3 of 1944, was promulgated by the Governor-General which recites: Whereas an emergency has arisen which makes it necessary to empower the Central Government and the Provincial Government and any officer or authority to whom the Central Government or the Provincial Government may delegate its powers in this behalf to restrict the movements and actions cl and to place in detention and detain certain persons, to regulate the exercise of these powers and the duration of orders made in such exercise, and to confirm the validity of the past exercise of such powers under B. 26, Defence of India Rules; Now, therefore, in exercise of the powers conferred by Section 72, Government of India Act, as set out in Sch. 9 to the Government of India Act, 1935 (26 Geo. V, c. 2), the Governor-General is pleased to make and promulgate the following Ordinance....

(2.) Clause 3 of the Ordinance gives the Central or Provincial Governments power to make orders restricting the movements or actions of or detaining certain persons in certain specified circumstances which are therein set out. There are other provisions in the ordinance, e. g., Clause 4 as to the photographing, etc., of persons: Clause 5 as to the delegation of powers and duties of Central and Provincial Governments to other authorities and to officers: Clause G as to the validation of orders made under B. 26, Defence of India Eules: Clause 7 as to the grounds of (l Order of detention to be disclosed to persons affected by the order: Clause 8 -as to the Order of detention made in pursuance of delegation under Section 5 to be reported to Government for confirmation: and Clause 9 as to the duration of orders of detention made under Section 3. In cl 10 there are certain saving powers and in Clause 11 the disclosure of the grounds of detention are forbidden. The relevant Clauses which arise in this application are first, dl. 6 which provides that: (1) No Order made before the commencement of this Ordinance under B. 26, Defence of India Rules, shall after such commencement be deemed to be invalid or 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 Order was made, be legally conferred by a Rule made under Section 2, Defence of India Ordinance, 1939 (5 of 1939) or under Section 2, Defence of India Act, 1939 (35 of 1939). (2) Every such Order shall on the commencement of this Ordinance be deemed to have been, and shall have effect as if it had been, made under this Ordinance, and as if this Ordinance had been in force at the time the Order was made: Provided that Secs.7 and 9 of this Ordinance shall apply in relation to any Order made under Clause (b) of of sub-r (1) of B. 26, Defence of India Rules, as if that Order had been made on the date of the commencement of this Ordinance and Section 8 of this Ordinance shall not apply to any such order....

(3.) The next relevant Clause is Clause 9 which provides that: No Order made or deemed under the provisions of Section 6 to have been made under Clause (b) of Sub-section (1) of Section 3 shall be in force for more than six months from the date on which it is made. Then there is a proviso which is not relevant in the present case. Clause 10 provides that-: (1) 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, Criminal P.C. 1898 (5 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) If at the commencement of this Ordinance there is pending in any Court any proceeding by which the validity of an Order having effect by virtue of Section 6 as if it had been .made under this Ordinance is called in question, that proceeding is hereby discharged.