EMPEROR Vs. GAJANAN KRISHNA YALGI

JUDGEMENT

(1.) We have before us the petitions of four persons made under Section 491 of the Criminal Procedure Code, 1898, which provides for the codified and restricted form of habeas corpus which applies to India. All the petitioners have been arrested and are detained Under Rules or Ordinances made by virtue of the Defence of India Act, 1929, All four petitioners are persons who have stood their trial on some criminal charge or charges and all of them had been acquitted of those charges by the trial Courts. Mr. Jahagirdar on their behalf urges that the real motive of the detention orders is to punish the accused for crimes which the executive authority thinks they have committed, but in respect of which they have been acquitted by the Courts, and that accordingly the Provincial Government cannot have been satisfied, which, as has now been laid down, means reasonably satisfied that the petitioners or any of them are within the class of persons to which either Rule 26 of the Defence of India Rules or Clause 3 of Ordinance III of 1944 applies. All the four petitioners are now detained under Clause 3 of Ordinance III of 1944 which is as follows: The Central Government or the Provincial Government, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in Tribal Areas or the efficient prosecution of the war it is necessary so to do, may make an order . (b) directing that he be detained. Sub-clause 10(1) of the Ordinance provides: 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 of the Criminal P. C., 1898 (V 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.) Numerous cases have been brought before the High Courts of India by persons detained under wartime legislation and the same can be said of persons detained in England under similar legislation. In my opinion as a result of the decided cases it is clear that if the order for detention is regular in point of form, an onus is cast on the person detained to show that it is in effect no order "made under or having effect under this Ordinance" either because the mind of the detaining authority has not been applied or because it is no order, having been made by mistake or by mala fides. Unquestionably the onus is a heavy one. As has been pointed out in Rex V/s. Secretary of State for Home Affairs : Greene Ex parte [1942] 1 L.B. 87, by Lord Justice MacKinnon (p. 108): The power of the Home Secretary to issue a valid order depends on the fulfilment of a condition. The nature of that condition is very material, It is not the existence of an objective fact, for example, that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary, that is, that he has reasonable grounds for believing certain facts to exist, and, by implication, that he honestly entertains that belief If an order asserting the existence of that state of mind and belief, in valid form, has been made, the onus on the applicant of disproving its existence is obviously much more difficult than would be the disproof of an objective fact, for example, that the man is an alien. Evidence of the applicant, that he does not know that there are any persons for the Home Secretary's belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the Home Secretary to explain and justify the assertion of his order. In the present case the appellant does rather more than make those general assertions or denials, and an affidavit in) reply has been filed by the Home Secretary.

(3.) But once the person who has issued an order for detention regular in point of form implements it by an affidavit in which he says that on material laid before him he applied his mind and came to the conclusion that the detained person ought to be detained for reasons given in the enabling Act, Rule or Ordinance, the onus on the person detained becomes almost impossible to! discharge, because having regard to Sub-clause 10(1) of Ordinance III of 1944 the only method of escape is to show that the alleged order is in fact no order at all.