KALI PRASAD UPADHYAY Vs. EMPEROR

JUDGEMENT

(1.) These are applications under Section 491, Criminal P. C, by or on behalf of persons who are detained in jail. The Advocate-General has taken a preliminary objection to these applications on the ground that the persons in question were arrested and detained under orders passed under Rule 26, Defence of India Rules, and that such orders have been validated by Ordinance 3 of 1944 and that that Ordinance has taken away the power of this Court to pass any orders under Section 491, Criminal P. C., in respect of such persons. As against the contention of the Advocate-General it has been contended on behalf of the petitioners first that Ordinance 3 of 1944 is invalid and, secondly, that, even if that Ordinance is valid, it does not affect the case of the present petitioners. I will consider first the question of the validity of ordinance 3 of 1944. The first point made by Mr. M. N. Pal, who addressed to us the main argument against the validity of Ordinance 3 of 1944, was that this Ordinance is a ratifying enactment, and he pointed out that it is not possible to ratify an act which is ultra vires of the ratifying body. For this proposition he relied on the decision in Jailal Sahu V/s. Emperor A.I.R. 1943 Pat. 346. There can be no quarrel with this proposition, but Mr. M. N. Pal went on to argue that if orders passed before Ordinance 3 of 1944 came into force were void, they could not be ratified by that Ordinance. This, however, does not follow from the proposition just stated. Ordinance 3 of 1944 was passed by the Governor General and he could ratify any act or order of subordinate authorities if he could himself have passed a valid order or Act or Ordinance to the same effect. This proposition will, therefore, not help to determine the validity of Ordinance 3 of 1944. The second point taken by Mr. M. N. Pal is that Ordinance 3 of 1944 is not merely retrospective, but in the words of Zafrulla Khan J. in the decision of the Federal Court in Emperor V/s. Sibnath Banerjee (and other cases) ?retroactive" and, therefore, ultra vires. The particular sections of Ordinance 3 of 1944, which have been attacked on behalf of the petitioners, are Secs.6 and 10 which run as follows: 6. Validation of orders made under Rule 26, Defence of India Rules. (1) No order made before the commencement of this Ordinance under Rule 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 Section 7 and Section 9 of this Ordinance shall apply in relation to any order made under Clause (b) of Sub-rule (1) of Rule 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) Nothing in the foregoing provisions of this section shall apply to any such order which has already been cancelled by or in consequence of an order of a competent Court: Provided that any such cancellation shall not prevent the making under this Ordinance of a fresh order to the same effect as the order cancelled. 10. Saving as to orders. (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. (3) Where an order purports to have been made by any authority in exercise of any power conferred by or under this Ordinance, the Court shall, within the meaning of the Indian Evidence Act, 1872 (1 of 1872), presume that such order was so made by that authority.

(2.) We are not now concerned with Sub-section (3) of Section 6 or with the proviso to Sub-section (2) and it will be convenient to deal separately with the validity of Sub-sections (1) and (2) of Section 6 and Section 10. Section 6, Sub- section (1), is almost a verbatim re-enactment of Section 3 of Ordinance 14 of 1943. It was held by the Federal Court in 24 P. L. T. 3322 that Section 3 of Ordinance 14 of 1943 was not retrospective in such a way as to be invalid, and I consider that that decision shows clearly that Section 6 (1) of Ordinance 3 of 1944 must also be held valid.

(3.) As regards Section 6 (2) of Ordinance 3 of 1944, I do not think it is necessary to consider whether this Sub-section could have been challenged as invalid had it merely stated that the orders in question should, on the commencement of this Ordinance, be deemed to have been made under this Ordinance because the Sub- section does not stop there but goes on to provide that such orders shall have effect as if they had been made under this Ordinance and as if this Ordinance had been in force at the time the order was made. This further portion of the Sub- section clearly has regard to the future. During the course of argument we enquired from the lawyers appearing for the petitioners exactly how this portion of Section 6 (2) was "retroactive," and so far as I can ascertain, their argument was that the liberty of individuals is in question and that if the order under which the petitioners have been detained, was originally either void or invalid, then any order, Ordinance or other enactment, which provides that such detention shall be valid for the future, would itself be invalid as an attempt to alter the past. With this contention I cannot agree. In proceedings under Section 491, Criminal P. C, we are concerned not with the past detention of the petitioners but with their present detention and that portion of Section 6 (2) of Ordinance 3 of 1944, which provides that certain orders shall have effect on the commencement of this Ordinance, is not an attempt to alter the past and is valid even if detention prior to this Ordinance under such orders may have been invalid. I, therefore, consider that Section 6 (2) of the Ordinance is valid.