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Emperor Vs. Gajanan Krishna Yalgi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application No. 672 of 1944
Judge
Reported inAIR1945Bom533; (1945)47BOMLR669
AppellantEmperor
RespondentGajanan Krishna Yalgi
Excerpt:
.....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 clause 10(1) of the ordinance the only method of escape is to show that the alleged order is in fact no order at all.;in a case in which the order for detention is regular in point of form and in which an affidavit has been made showing that the mind of the detaining authority has been applied to a consideration of the case, it is established that the document under which the person is detained is an order. hence, the jurisdiction of the court to question the grounds or motive for the making of it or for calling it in question are taken away by clause 10 of the ordinance,..........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.4. petitioner gajanan krishna yalgi was arrested on march 14, 1943, under rule 129 of the defence of india rules. from november 2, 1943, until august 7, 1944, he was tried in respect of ten different cases involving criminal charges against him. seven of these cases were discharged or withdrawn for want of evidence and in respect of these cases he! was not called upon to defend himself, in the remaining three cases he was acquitted after trial. on.....
Judgment:

Leonard Stone, Kt., C.J.

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 Code of Criminal Procedure, 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. 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.

4. Petitioner Gajanan Krishna Yalgi was arrested on March 14, 1943, under Rule 129 of the Defence of India Rules. From November 2, 1943, until August 7, 1944, he was tried in respect of ten different cases involving criminal charges against him. Seven of these cases were discharged or withdrawn for want of evidence and in respect of these cases he! was not called upon to defend himself, in the remaining three cases he was acquitted after trial. On July 15, 1944, he was acquitted on what in point of time was the ninth case for which he was tried. In the remaining tenth case he had been allowed bail, so that on his acquittal in the ninth case he was released from prison and went home. Bail in the tenth case had been granted about one week previous to his acquittal in the ninth case ; but no one has been able to inform this Court whether the granting of that bail was opposed by the police or not. On July 17, he was again arrested under Rule 129 of the Defence of India Rules and on August 7, 1944, he was acquitted in respect of the tenth case. By virtue of the second proviso to Sub-rule (2) of Rule 129 no person can be kept in custody for a period exceeding two months under that sub-rule. So that the period of lawful detention under Rule 129 expired on September 16, 1944, and it appears that no order for his detention was received at the prison before September 18, 1944, though such order which is in fact made by the Provincial Government is dated September 14, 1944. Whether or not the jailor was justified in detaining this petitioner after September 16 and before the order was received cannot in the events which have happened now be material. The order of September 14, 1944, is regular in point of form and with regard to it Mr. Drewe, Secretary to the Government of Bombay in the Home Department, has made an affidavit in which he states:

The order under which the applicant is now in detention was made by the Government of Bombay on September 14, 1944, under Clause (b) of Sub-section (1) of Section 3 of the Restriction and Detention Ordinance 3 of 1944. Before the said order was made the case of the applicant was considered on September 13, 1944, by His Excellency the Governor of Born-bay and His Excellency considered it necessary to make the order of detention with a view to prevent the| applicant from acting in a manner prejudicial to the public safety and the maintenance of public order. The said order was forwarded to the District Magistrate of Belgaum on the next day, viz. September 14, 1944. But the order seems to have been served on the applicant on September 18, 1944.

As the time when the said order was made the judgments in the several cases in which the applicant was the accused or one of the accused were not available. The said judgments were sent for and as soon as they were received the case of the applicant was reviewed by Government. His Excellency the Governor of Bombay again considered the case of the applicant on November 2, 1944, and His Excellency came to the conclusion that the detention of the applicant should be continued. On November 24, 1944, the District Magistrate of Belgaum was informed by the Government that Government had reviewed the case of the applicant in the light of the judgment forwarded by him and had decided to continue him in detention.

5. With regard to the other three petitioners, they are Baburao v. Chavan, Ramsing Ratansing Pardeshi and Shankar Trimbak Kulkarni, the history leading up to the detention orders in their cases is similar. On January 24, 1943, a bomb exploded in the Capitol Cinema, Poona. Chavan and Kulkarni were arrested on March 20, 1943, under Rule 129 of the Defence of India Rules and Pardeshi was arrested on March 24, 1943, under the same rule. On May 18, 1943, these three petitioners and other persons were brought before a Magistrate and charged Under Section 302 of the Indian Penal Code with murder. They were all three acquitted of this charge on February 29, 1944, and on the same day Pardeshi was arrested by order of the District Magistrate, Poona, under Rule 129. As to Chavan and Kulkarni they remained in custody by reason of the fact that there was another criminal case pending against them with regard to a conspiracy. On March 6, an order for their detention was made and on March 7, the charges in the conspiracy case against them were withdrawn. On April 19, 1944, an order for the detention of Pardeshi under Clause 3 of Ordinance No. III of 1944 was made. On May 29, 1944, the Provincial Government appealed against the order of acquittal of February 29, 1944, of all the three petitioners and on June 12 such appeal was admitted by the High Court 'and a warrant for the arrest of the three petitioners was granted., Subsequently it appears that the three orders for detention under Clause (3) of Ordinance No. III of 1944 were cancelled. The object of this cancellation has been explained to us by the Advocate General as being for the benefit of the petitioners who were then under arrest by the warrants of the High Court in respect of the appeal which had been preferred by Government, it being pointed out by the Advocate General that under such arrest they were entitled to certain privileges, such as seeing their legal representatives which are without special permission denied to persons detained under the Ordinance. The appeal by Government against the acquittals resulted in such appeal being dismissed without the advocates of the three petitioners being called upon and accordingly on February 13, 1945, all the three petitioners were acquitted and discharged. There is a dispute on the evidence as to whether Mr. Roche, the police-officer in charge of the case, told the petitioners before their acquittal that they would be arrested again if they were acquitted. But in any event what happened was this : after the acquittal by this Court the three petitioners proceeded to take tea in or near the advocates' room on the first floor of this building and they were arrested on leaving the tea room whilst still in this building. Mr. Jahagirdar urged that this arrest was a contempt of Court, on the ground that the Court had ordered their release on their acquittal as the result of the appeal. In my opinion this contention cannot be sustained. The arrest took place under Rule 129 of the Defence of India Rules and not in defiance of the Court's order for their discharge on the capital charge. On February 18, 1945, the District Magistrate of Poona made an order for the detention of the three petitioners under Rule 129 and on March 16, 1945, this was replaced by an order for detention under Clause 3 of Ordinance No. III of 1944. In the case of each of the three petitioners Mr. Drewe, Secretary to Government, Home Department, has made an affidavit. So far as material the affidavits are in similar terms and are as follows:

The order under which the petitioner is now under detention was made by the Government of the Province of Bombay on March 16, 1945, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 3 of the Restriction and Detention Ordinance 1944.

Before the said order was made, His Excellency the Governor of Bombay considered the case of the petitioner on March 15, 1945, and His Excellency was of the opinion that the said order of detention should be made against the petitioner under Section 3 of the Restriction and Detention Ordinance.

6. It, therefore, appears that in the case of all the four petitioners an order for detention has been made against them under Clause 3 of Ordinance III of 1944. All the four orders are regular in point of form and in each case the appropriate officer of Government has made an affidavit saying that before the order was made His Excellency considered the case of each of the petitioners and was of the opinion that an order for detention ought to be made.

7. Whatever may have been the circumstances relative to the detention of the petitioners in the past, it is now clear that the orders under which they are now detained have been made after consideration by His Excellency personally. There is no evidence of, nor is there any justification for, any allegation of any want of good faith. But Mr. Jahagirdar has urged that the Provincial Government must be deemed to have the option either of proceeding to trial under the criminal law or of detaining a person under the Ordinance and that once election has taken place in favour of the former course an acquittal by the Court ousts the power to proceed to detention under the Ordinance. But in my opinion this cannot be so, since even if we assume without deciding that this proposition would be sound if the material was identical, it does not follow that the subject-matter of the criminal charge is co-extensive with all that the Provincial Government may properly take into account in deciding whether or not to make an order of detention.

8. In my judgment, in cases like the present in which the orders for detention are regular in point of form and in which an affidavit has been made showing that the mind of the detaining authority has been applied to a consideration of the case, it is established that the document under which the person is detained is an order so that the jurisdiction of this Court to question the grounds or motives for the making of it or for calling it in question are taken away by Clause 10 of the Ordinance. Speaking generally it is difficult to see any case in which in circumstances such as these the Court can call such an order in question unless it could be affirmatively proved that the order had been brought about by some fraud or that by some mistake the order did not apply to the person who was purported to be detained under it. Whether it is right or in the public interest that the jurisdiction of the Courts should be taken away in any particular class of cases is not for the Courts to judge, it is the function of the Courts to apply the law as it finds it ; with the result that each of these petitions must be dismissed.

Lokur, J.

9. I agree. It is a pity that after facing ten trials and securing a discharge or acquittal in all of them, the petitioner Yalgi should still find himself under detention ; but our sympathy can be of no avail to him since the Provincial Government, that is to say, His Excellency the Governor of this Province,, is satisfied that with a view to preventing him from acting in a manner prejudicial to public safety and maintenance of public order it is necessary that he should be so detained. Mr. Jahagirdar has urged on behalf of the petitioner that having elected to prosecute the petitioner in a Court of law, the Provincial Government cannot have again recourse to the provisions of Rule 26 of the Defence of India Rules or Section 3 of Ordinance III of 1944 to keep him in detention, after the prosecution has failed ; and that an order for such detention is not bona fide, and, therefore, cannot be regarded as a valid order.

10. It is a fallacy to say that the right to prosecute a person under the ordinary criminal law and the right to detain him under the Defence of India Rules or the Ordinance are mutually exclusive. If a person, who is really dangerous to public safety and maintenance of public odder, commit an offence, Government would certainly be justified to prosecute him for the offence first, and if for want of sufficient evidence, the prosecution fails, it would none the less be necessary to keep him in detention for the sake of public safety and maintenance of public order. If Mr. Jahagirdar's argument be accepted, it would be risky for Government to prosecute such a man, lest the power of detention would be lost in case of his discharge or acquittal. The standard of evidence required for conviction is different from that required for a reasonable satisfaction of the necessity for detention in the interest of public safety or maintenance of public order. For conviction the Court has to be convinced of the guilt of the accused and the benefit of a reasonable doubt goes to the accused. But for the purpose of detention, it is enough if the Government or any officer duly empowered is reasonably satisfied of the necessity of his detention, and there can be no benefit of doubt, since the public safety and maintenance of public order are the paramount concern of Government, during these times of emergency. Hence even if the evidence adduced at the trial is not sufficient to secure his conviction, the power of the Provincial Government to order his detention is not lost, if it is reasonably satisfied that it is necessary to do so with a view to prevent him from acting in any manner prejudicial to the public safety or the maintenance of public order.

11. The second contention of Mr. Jahagirdar is based on the assumption that the order of the petitioner's detention was made for the purpose of maintaining the prestige of the police after all the ten cases sent up by them against him had failed, and that the Government was not in fact satisfied of the necessity of his detention. In other words the statement in the order that the Government was so satisfied is dishonest and not bona fide.

12. In the leading English cases, Liversidge v. Sir John Anderson [1942] A.C. 206 and Greene v. Secretary of State for Home Affairs [1942] A.C. 284 the question was whether the Home Secretary had reasonable cause to believe that certain persons were of hostile associations or to believe that by reason thereof it was necessary to exercise control over them. It was held that the matter was one for the executive discretion of the Secretary of State, and that the Court was not entitled to investigate the grounds on which the Secretary of State came to believe the persons concerned to be of hostile associations or to believe that by reason of such associations it was necessary to exercise control over them. Referring to these two cases in Emperor v. Sibnath Banerjee , Zafrulla Khan J. observed (p. 84):

Their Lordships held that the question whether there was or was not reasonable cause was one for the Secretary of State and not for the Court.

In Liversidge's case Viscount Maugham observed (p. 234):

In my opinion, the well known presumption omniaesse rite acta applies to this order, and, accordingly, assuming the order to be 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 was complied with.

13. In the words of Zafrulla Khan J., there is no doubt that the presumption attaching to an order regular on the face of it is only a rebuttable presumption, but the burden of rebutting it lies very heavily on the party seeking to challenge the order.

14. As I have already pointed out, the mere fact that the materials placed before a criminal Court were found insufficient to establish guilt beyond doubt cannot deter Government from looking at those materials from a different angle and come to an honest conclusion that it is sufficient to justify detention. Moreover, Government is not bound to disclose all the materials on which such a conclusion was reached. In fact the Secretary to Government, Home Department, has stated in his affidavit that he has been advised not to disclose those materials, but that His Excellency the Governor did apply his mind to them and come to the conclusion that the order of detention passed by him was necessary. Mr. Jahagirdar contends that it is not stated in his affidavit that there were any materials before His Excellency the Governor other than the ten criminal cases against the petitioner, but even that need not be disclosed. There is no reason to presume that there were no other materials and that in regarding even those cases themselves to be sufficient to require the petitioner's detention in the interest of public safety or maintenance of public order His Excellency the Governor did not act in good faith. It is not disputed that H. E. the Governor did apply his mind to the materials before him and it is not for the Court to decide whether those materials were or were not reasonably sufficient. Hence there is no reason to interfere with his order, and the rule must be discharged.

15. The cases of the other petitioners are similar and I entirely agree with the reasons given by my Lord the Chief Justice for discharging the rules in those cases also.


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