Patrick Spens, Kt., C.J.
1. This is an appeal by a detenue against an order of the High Court at Patna dismissing his application under Section 491 of the Criminal Procedure Code. The appellant was arrested on March 27, 1942, under an order dated March 19, 1942, purporting to be made by the Governor of Bihar in exercise of the powers conferred by Rule 26 of the Defence of India Rules. The application under Section 491 was filed on April 28, 1943. For one reason or another, the hearing of the application was delayed till February, 1944, and in the meanwhile, Ordinance III of 1944 was promulgated on January 15, 1944. The application was dismissed by the High Court; but, on appeal, this Court held that the new Ordinance (Ordinance No. III of 1944) did not take away the power of the High Court to deal with the matter and accordingly remitted the case to the High Court with a direction that the petition be restored to the file and disposed of in due course of law. The order of this Court was passed on May 23, 1944. On July 3, 1944, the Governor of Bihar passed two orders, Nos. 3928-C and 3929-C. By the first, he cancelled the order of detention dated March 19, 1942, and by the-second, he directed the detention of the appellant on the ground that it was necessary so to do 'with a view to preventing him from acting in a manner prejudicial to the maintenance of public order and the efficient prosecution of the war.' When the application again came on for hearing before the High Court, reliance was placed by the Advocate General of Bihar on the order of July 3, 1944, and he contended that it was unnecessary in the circumstances to enquire into the validity of the order of March 19, 1942. Objection, was taken on behalf of the detenue to this course and the validity of the orders of March 19, 1942, and July 3, 1944, was questioned on various grounds. These contentions were discussed at considerable length by the learned Judges of the High Court and they held that the objections were untenable; the petition was accordingly dismissed. Hence this appeal.
2. Two constitutional points were urged before us. The first was to the effect that Ordinance No. III of 1944 was ultra vires the Governor General in so far as it purported to authorise detention on the ground that the detenue was likely to act in a manner prejudicial to the efficient prosecution of the war. It was contended that legislation relating to the prosecution of war was not within the ambit of any of the lists in Schedule VII to the Constitution Act and that therefore neither the Indian Legislature nor the Ordinance-making authority was competent to legislate in respect of that topic. It was recognised that 'preventive detention for reasons of State connected with defence' was a subject specified in entry No. 1 in List I, but it was urged that it could not be assumed that the prosecution of the war was necessarily a matter of defence and that the war may in certain circumstances be a war of aggression or conquest. We are of the opinion that there is no force in this contention. The reference to 'to the efficient prosecution of the war ' in the Ordinance as well as in the Order of detention must be understood in the light of the circumstances in which the Ordinance came to be passed. The language of Clause 3 of the Ordinance is only a repetition of the language of Section 2(i) of the Defence of India Act and that Act begins; by referring to the proclamation of the Governor General under Section 102 of the Constitution Act to the effect that the security of India is threatened by the war. Events of which the Court is entitled to take judicial notice were happening in 1942, 1943 and 1944 with reference to which it could clearly be postulated that the efficient prosecution of the war was necessary for the defence of India.
3. It was next contended that Clause 11 of the Ordinance was invalid in so far as it precluded certain matters being adduced in evidence. It was said that this was in effect an attempt to repeal pro-tanto certain provisions of the Indian Evidence Act, 1872, and it was not within the power of the Governor General to do so by an Ordinance. This contention is misconceived. It was admitted that it was within the power of the Governor General to enact such a provision to be in force during the time that the Ordinance itself was in force. What was contended was that he had no power to affect the provisions of the Evidence Act permanently. Clause 11 of the Ordinance does not purport to do so. Its words are general. The utmost that could be said is that if the prohibition enacted by it were sought to be enforced after the expiry of the Ordinance, a question might arise as to whether the prohibition would then remain in force. But that is no ground for holding that the clause is invalid even in so far as it prohibits certain things being done during the currency of the1 Ordinance. Objection was also taken to the validity of Sub-clause (2) of Clause 11. It was contended on the authority of Chester v. Bateson (1920) 1 K.B. 829 that such a provision could not be said to be for the peace and good government of British India and could not therefore be held to be authorised by Section 72 of the Ninth Schedule to the Constitution Act, It is unnecessary for the decision of this case to deal with this question even if it were open to the Court to examine the correctness of the decision of the Governor General as to the requirements of any particular situation.
4. With the leave of the Court, a number of contentions relating to other aspects of the case were urged before us. As we are of the opinion that there is no substance in any of these contentions, they may be briefly dealt with. It was broadly maintained that neither the order of March 19, 1942, nor the order of July 3, 1944, was a bona fide exercise of the power entrusted to the Governor and that they were passed for other ulterior ends unconnected with the maintenance of public order or the efficient prosecution of the war. It was urged that as the detenue challenged the bona fides of the order and as the reasons and circumstances relating thereto were wholly within the knowledge of the officers of Government, it was incumbent upon the Crown to examine these officers to establish the bona fide character of the order, and that as they have not been examined, the Court must draw the inference that the order was not made in the bona fide exercise of the power. It was even contended that after the proclamation under Section 93 of the Constitution Act, the Crown was no longer entitled to rely on Section 59(2) of that Act and Clause 10(3) of Ordinance III of 1944 and that the order of July 3, 1944, should therefore be formally proved. A complaint was also made that the High Court acted improperly in dismissing the application of the detenue to summon Mr. Houlton, the Chief Secretary to the Government of Bihar, who had signed the orders of July 3, 1944. This line of argument is in our opinion untenable. It was no doubt open to the detenue to show that the order was not in fact made by the Governor of Bihar or that it was a fraudulent exercise of the power. The observations in Liversidge v. Sir John Anderson (1942) A.C. 206 and Green v. Secretary of State, for Home Affairs (1942) A.C. 284 establish that the burden of substantiating these pleas lies on the detenue. In the words of Viscount Maugham, once the order is proved or admitted, 'it must be taken prima facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State (here, the Governor) was complied with.' As regards proof of the orders, we find nothing in the proclamation under Section 93 to exclude the application of Section 59(2) of the Constitution Act or Clause 10(3) of the Ordinance. The proclamation suspends only so much of Section 59 as requires 'consultation with the ministers.' The mere fact that the detenue challenges the factum or the bona fides of the order or the fact that the officers of Government must naturally be in possession of information on the subject cannot be said to be 'proof to the contrary' so as to make it incumbent on the Government to adduce evidence in support of the order. In Green's case (1942) A.C. 284. Goddard L.J. (as he then was) referred to the possible ignorance of the detenue as to the reasons for his internment and said that that would not shift the burden of proof, because 'it in no way shows that the Secretary of State had not reasonable cause to believe or did not believe' that it was necessary to detain the person. Reference was made to Rex. v. Carr-Briant (1943) 1 K.B. 607 as to the extent of the proof required to rebut the presumption in such cases; but as no proof whatever is forthcoming in this case, no question of quantum of proof arises. The detenue no doubt made some sweeping assertions in his affidavits but no materials or sources of information with reference to which these assertions were made were disclosed in the affidavit. No value can therefore be attached to these assertions. Even these affidavits did not assert that the orders of July 3, 1944, were not in fact made by the Governor. As regards the detenue's application to summon Mr. Houlton, it was certainly within the discretion of the learned Judges of the High Court to dismiss it if they considered that it was only an attempt to fish for information that might be turned to some account by the detenue. To permit such a device would practically be to allow the rule as to the onus of proof to be circumvented.
5. It was next contended that the very fact of the cancellation of the order of March 19, 1942, by the order of July 3, 1944, and the passing of a fresh order of detention on July 3, 1944, showed mala fides. It was said that the orders of July 3, 1944, were passed pending the further hearing before the High Court, in order to burke an enquiry into the circumstances connected with the order of March, 1942. We are unable to draw any such inference from the sequence of these orders. Reports of the decisions of this Court and of the High Courts show that during 1943 and 1944 different views were held in different quarters as to the formalities necessary for a valid order of detention and as to the authority entitled to pass such an order. If in view of possible defects of this kind in connection with the order of March 19, 1942, a; fresh order of detention was passed in July, 1944, so as to avoid any argument based on such defects, such a course will not justify any inference of fraud or abuse of power
6. It was next argued as a matter of law that once the order of March 19, 1942, had been cancelled, there was no power to pass a fresh order of detention except on fresh materials and it was contended that the learned Judges of the High Court were not justified in presuming that fresh materials must have existed when the order of July, 1944, was made. The first step in this argument seems to us unwarranted. The observations of the Court of Appeal in Ex parte Budd (1942) 1 A.E.R. 373 show that in this broad form the proposition is untenable. It may be that in cases in which it is open to the Court to examine the validity of the grounds of detention a decision that certain alleged grounds did not warrant a detention will preclude further detention on the same grounds. But where the earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Courts. There is equally no force in the contention that no order of detention can be passed against a person who is already under detention. The decision of the Patna High Court in Kamla Kant Azad v. King EmperorI.L.R (1943) Pat. 252 cannot be understood as laying down any such proposition as a general proposition of law. The learned Judges seem to have drawn an inference of fact from the circumstances of the case that the order then in question was not one made in the bona fide exercise of the Governor's powers.
7. It was finally contended that as the previous order of this Court directed an enquiry into the validity of the detention under the order of March 19, 1942, the decision of the High Court must be limited to that question and that it was not open to the High Court to base its decision on the subsequent order of July 3, 1944. This contention proceeds on a misapprehension of the nature of habeas corpus proceedings. The analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings cannot be invoked here. If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the petitioner.
8. The appeal fails and is dismissed.