KAMLA KANT AZAD Vs. EMPEROR

JUDGEMENT

(1.) These applications are made under Section 491, Criminal P.C., by or on behalf of twenty-three persons, who are detained in jails in this province under orders made by the Governor of Bihar under Rule 26(1)(b), Defence of India Rules. In response to the rules which were issued, the learned Advocate-General has appeared and has produced copies of the orders, under which the petitioners are detained. Except in one case, the original order, made by the Governor of Bihar, was not produced. None of the petitioners put in a copy of the order, under which he was detained, and, in most of the affidavits it was specifically stated that no copy of the order had been made over to the detenue and that he had merely been given to understand by the jailor of the prison, in which he was confined that an order had been made against him under Rule 26(1)(b). It is, I think, essential that, when a person is ordered to be detained under this rule, a copy of the order made against him should be supplied to him immediately. Clearly, if this is not done, and if an application is made on his behalf to this Court under Section 491, Criminal P.C., this Court will have no option but to issue a rule forthwith. Further, it is, I think, incumbent on the Crown, whenever a rule is issued, to exhibit in this Court the original order. Counsel for the petitioners did not, however, ask us to insist on the production of the original orders, and accepted the copies, which were produced as true copies, although, in many cases, they were not certified to be true copies by any responsible officer.

(2.) It is now well settled that Rule 26(1)(b), Defence of India Rules is intra vires, and, also that it is not open to a Court of law, on an application made by a person detained under that rule for a writ of Habeas Corpus, or in a suit, to recover damages for false imprisonment, to enquire into and pronounce on the validity of the reasons, which led to the making of the order. The country is at war, and, for the purpose of safeguarding it against internal as well as external dangers the Legislature has delegated to high executive functionaries the power to order, on one or more of various grounds, the detention of individual persons for an indefinite period. In exercising that very grave responsibility, the officer, to whom it is entrusted must frequently act on information, which, in the interest of the public safety, cannot and ought not to be disclosed. As the information, or most of the information, on the basis of which an order has been made, cannot in many cases, be disclosed, the Courts are, quite properly, debarred from considering the propriety of the order and setting it aside, merely on the ground that, in their opinion, it was not an order, which should have been made. It is, however, equally well-settled that this Court may examine the correctness of the recital contained in any such order, and if it comes to the conclusion that the recital is incorrect, may declare the order to be invalid and the detention of the individual concerned illegal. The orders, which have been made in all these cases, are in one and the same form, and it will be convenient, at this stage, to set out one of them in extenso: No 346C (P). Whereas the Governor of Bihar is satisfied with respect to the person known as Dr. Asoke Kumar Bose, that with a view to preventing him from acting in a manner prejudicial to the public order, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by Clause (b) of Sub-rule (1) of Rule 26, Defence of India Rules, the Governor of Bihar is pleased to direct that the said Dr. Asok Kumar Bose be arrested by the police wherever found and detained until further orders of the Governor of Bihar.

(3.) The material portions of the recital in the order are, in the first place, that "the Governor of Bihar is satisfied with respect to the person named," and, secondly, that his detention is necessary "with a view to preventing him from acting in a manner prejudicial to the public order." The word satisfied in Rule 26(1)(b) must be construed as meaning "reasonably satisfied." in Liversidge V/s. Sir John Anderson (1942) A.C. 206 Lord Wright said: Satisfied must mean reasonably satisfied. It cannot import an arbitrary or irrational state of being satisfied. I find the distinction between reasonably satisfied and has reasonable cause to believe too tenuous.