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Emperor Vs. Bajirao Yamanappa Hatgar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Application Nos. 426, 427 and 428 of 1944
Judge
Reported inAIR1946Bom32; (1945)47BOMLR675
AppellantEmperor
RespondentBajirao Yamanappa Hatgar
DispositionAppeal allowed
Excerpt:
ordinance iii of 1944, sections 3 and 10 - restriction and detention ordinance, 1944-order of detention-detaining authority-care and caution before issue of order-jurisdiction of court to look into reasonableness of order-criminal tribes act (iii of 1911).;section 10 of ordinance iii of 1944 provides that no order made under the 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, in respect of any order made or having effect under the ordinance, or in respect of any person the subject of such an order.;the jurisdiction of the court under the section is only taken away provided the order on which the government is relying is an order 'made under the ordinance.' it must be made by the..........on may 23, 1944, and it purports to order the detention of the applicant because the government of bombay was satisfied that it was necessary to do so with a view to preventing the applicant from acting in a manner prejudicial to the public safety and the maintenance of public order ; and the order of november 6, 1944, directs that the original order shall continue in force which direction was given by the government of bombay after a further consideration of all the circumstances of the case. it is, therefore, for the applicant : to satisfy us that it was not validly made on any of the grounds which i have indicated above. the first ground on which the order is attacked is that before the applicant could be validly detained the authority that has got to be satisfied is the governor of.....
Judgment:

Chagla, J.

1. This is an application under Section 491 of the Criminal Procedure Code. It seems that on May 22, 1942, one Section v. Ghatnatti, Sub-Inspector of Police, was murdered at Kerur. In connection with that offence the applicant was arrested on August 27, 1942, and he along with others was tried by the Sub-Divisional Magistrate, First Class, Southern Division, Bijapur, under Sections 147 and 186 read with Section 149 of the Indian Penal Code. The applicant was released on bail by the Court on October 7, 1942. The trial of the case went on October 9, 10, 14, 15 and 16, 1942, and on May 11, 1943. On all these days the applicant appeared at the trial. Thereafter he absconded. On May 24, 1943, the District Magistrate, Bijapur, issued an order under Rule 26 of the Defence of India Rules for the detention of the applicant in the Belgaum Central Prison for one year from the date of arrest. On January 4,, 1944, a proclamation under Section 87 of the Criminal Procedure Code was issued for the arrest of the applicant, and he ultimately surrendered to the District Superintendent of Police, Bijapur, on April 8, 1944. In the meanwhile, the case against the other accused was disposed of on September 14, 1943, and all of them were acquitted. On June 6, 1944, the District Magistrate, Bijapur, sanctioned the withdrawal of the case against the applicant and an order for his acquittal was made by the Resident Magistrate, First Class, Bijapur, on June 24, 1944. On May 23, 1944, the Government of Bombay issued an order Under Clause (b) of Sub-section (1) of Section 3 of Ordinance III of 1944 for the detention of the applicant, and on November 6, 1944, the Government under Section 9 of the Ordinance directed that the order of May 23, 1944, should continue in force.

2. The applicant has been in detention since April 8, 1944, and his contention is that his detention is illegal and he should be set at liberty. The applicant is at present detained under an order of the Government of Bombay dated November 6, 1944, and we have to consider whether that order is valid and whether the detention of the applicant under that order is legal. Section 10 of Ordinance III of 1944 provides that no order made under the 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, in respect of any order made under or having effect under the Ordinance, or in! respect of any person the subject of such an order. But it is clear that the jurisdiction of the Court is only taken away provided the order on which the Government is relying is an order' made under the Ordinance. 'It must be made by the detaining authority in the proper exercise of its powers. It would not be an order 'made under the Ordinance' if it was made merely in the colourable exercise of its powers or if the detaining authority exceeded the powers given to it under the Ordinance. The detaining authority must satisfy the Court that it has complied with all the rules of procedure laid down in the Ordinance and has observed all the safeguards. The order must not be made for an ulterior purpose-a purpose which has no connection with the security of the State or the efficient prosecution of the war. The order must not be intended to override the ordinary powers of the police for the investigation of a crime or to suspend the ordinary criminal tribunals of the land or prevent them from exercising their ordinary jurisdiction. The powers conferred on the executive under the Ordinance are for the purpose of preventive detention and they are not punitive in their nature. The executive must not detain a subject in order to punish him for what he has already done but in order to prevent him from doing something which in the opinion of the executive is likely to affect the safety of the State or the efficient prosecution of the war. It is not competent to the Court to inquire into the sufficiency of the materials and the reasonableness of the grounds on which the detaining authority was satisfied that it was necessary to make the order. But if any reasons which influenced the detaining authority in making the order appear on the record, then the Court can scrutinize them in order to see what was the condition of the mind of the detaining authority when it made the order. These principles which I have stated clearly emerge from the various decisions of the Federal Court and the High Courts in India which have been cited at the Bar. In Basanta Chandra v. Emperor Sir Patrick Spens, Chief Justice, delivering the judgment of the Federal Court, observed (p. 93):

In our judgment, no further curtailment of the power of the Court to investigate and interfere with orders for detention has been imposed by Ordinance 3 of 1944. The Court is and will be still at liberty to investigate whether an order purporting to have been made under Rule 26 and now deemed to be made Under Ordinance 3 or a new order purporting to be made under Ordinance 3 was in fact validly made, in exactly the same way as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made on any of the grounds indicated in any of the long line of decisions in England and this country on the subject, other than the ground that Rule 26 was ultra vires, Section 10 of Ordinance 3 will no more prevent it from so finding than Section 16, Defence of India Act, did, Such an invalid order, though purporting to be an order, will not in fact be an ' order made under this Ordinance' or having effect by virtue of section 6 as if made under this Ordinance at all for the purposes of section 10.' And Harries, Chief Justice, in Dilbagh Singh v. Emperor A.I.R [1944] Lah. 373, in the course of his judgment, said (p. 375):

In my judgment Rule 129 cannot be used legally for any purpose, other than that for what it was intended, namely, to ensure inter alias the security of the State and the efficient prosecution of the war.

To use it for some entirely different purpose, wholly unconnected with the security of the State or the efficient prosecution of the war, is in my view a misuse of the powers given by that rule and an order passed for such purposes cannot be said to, be an order under Rule 129 of the Defence of India Rules.

Further on the learned Chief Justice observed (p. 376):

It would in my view be extremely dangerous to hold that the police or the Provincial Government had any right to detain persons Under Rule 129 unless the order was made with the object of making it impossible for the person detained to interfere with matters connected with the defence of India or the efficient prosecution of the war.

With respect, I entirely agree with these observations of the learned Chief Justice, and, in our opinion, these observations apply as much to an order made under Ordinance III of 1944 as to an order made under Rule 129 of the Defence of India Rules.

3. In this case the order made by the Government of Bombay is valid on the face of it. The original order was made on May 23, 1944, and it purports to order the detention of the applicant because the Government of Bombay was satisfied that it was necessary to do so with a view to preventing the applicant from acting in a manner prejudicial to the public safety and the maintenance of public order ; and the order of November 6, 1944, directs that the original order shall continue in force which direction was given by the Government of Bombay after a further consideration of all the circumstances of the case. It is, therefore, for the applicant : to satisfy us that it was not validly made on any of the grounds which I have indicated above. The first ground on which the order is attacked is that before the applicant could be validly detained the authority that has got to be satisfied is the Governor of Bombay, and in this case it is not the Governor of Bombay that is satisfied but the Government of Bombay. This contention is clearly untenable because it is opposed to the clear and specific language of Section 3 of the Ordinance which requires that it is the Provincial Government which has got to be satisfied. But reliance is placed on a decision of the Federal Court in Emperor v. Sibnath Banerjee . In that case Mr. Justice Zafrulla Khan took the view that for the definition of 'Provincial Government ' for the purpose of the Defence of India Rules, recourse must be had to the General Clauses Act; and the General Clauses Act defines in Section 3 (43-a)(a) 'Provincial Government' in a Governor's Province as:

The Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in (that behalf made by and under the said Act Government of India Act.

And in the course of his judgment the learned Judge observed (p. 85):

In each case, it must be the Governor who acts, whether without the advice of his Ministers or after such advice has been tendered, and in the latter case, whether in accordance with such advice or differing from such advice.

Therefore the effect of this decision is that in every case the Governor either with or -without his Ministers is the authority which has got to be satisfied before the powers are exercised under Section 3 of the Ordinance. But the Governor who has to be satisfied is as a part of the Provincial executive and not in any way in contrast with or in contradistinction to the Provincial executive. It is true that in no case can the Provincial Government exercise its powers unless the Governor has applied his mind and is satisfied as required by Section 3 of the Ordinance. But all the same the authority contemplated by Section 3 is the Provincial Government and not the Governor. In this case there is nothing on the face of the order to show that the Governor as a part of the Provincial Government was not satisfied with respect to the applicant that he should be detained. The order itself is issued by order of the Governor of Bombay, and in his affidavit made on this application Mr. Drewe, Secretary to the Government of Bombay, Home Department, specifically states that His Excellency the Governor agreed to the detention of the applicant when the order of May 23, 1944, was made and His Excellency considered the case of the applicant when the order of November 6, 1944, was made directing that the order of May 23, 1944, shall continue in force,

4. It is further contended by the applicant that he is detained not for any purpose connected with the security of the State or the efficient prosecution of the war, but in order to punish him for the alleged offence in connection (with the murder of Section v. Ghatnatti. It is urged that because the prosecution in that case did not have sufficient evidence to warrant his conviction the Government availed themselves of the powers under the Defence of India Rules and under Ordinance III of 1944 and detained the applicant in custody) having failed to secure his conviction by due process of law. It is pointed out that the District Magistrate made the order on May 24, 1943, only after the accused had absconded on May 12, 1943 ; that if Government had any materials to suspect the applicant of any activities prejudicial to the safety of the State or the efficient prosecution of the war, an order under Rule 26 of the Defence of India Rules would have been made long prior to May 24, 1943 ; and that the order of May 24, 1943, was made in order to detain the applicant in connection with his alleged connection with the murder of Section V. Ghatnatti. It has to be remembered that the order of May 24, 1943, was made twelve days after the accuseds had absconded, and the District Magistrate in his affidavit swears that he was satisfied from reports and information received by him from responsible sources that with a view to preventing the applicant from acting in a manner prejudicial to the defence of British India, the public safety, the maintenance of public order and the efficient prosecution of the war, it was necessary to make the order. It is not open to the Court to go behind this statement of the learned District Magistrate. Whether he had sufficient materials or whether the grounds on which he acted were reasonable is not for the Court to inquire into and, therefore, in our opinion it is not open to the applicant to challenge the order made on May 24, 1943.

5. With regard to the order of May 23, 1944, Mr. Drewe in his affidavit says that 'there is a note written on May 21, 1944, by His Excellency the Governor's Secretary Mr. Symington that His Excellency agreed to the detention of the applicant.' We have seen this minute, and what the minute says is this:

His Excellency agrees to the detention as proposed] pending consideration of use of the Criminal Tribes Act.

This minute clearly shows that the Governor was considering the use of the Criminal Tribes Act against the applicant and pending his decision on that question, he agreed to the detention of the applicant under Ordinance III of 1944. Now the considerations which must weigh with the Governor in deciding whether he should use the Criminal Tribes Act against the applicant or not are quite foreign to those which must weigh with him in deciding whether he should detain the applicant Under Section 3 of Ordinance III of 1944. The scope and ambit of the Criminal Tribes Act have no bearing upon the purpose for which the extraordinary powers vested in the executive have to be exercised under Section 3 of the Ordinance. In our opinion this minute of Mr. Symington throws a flood of light on the condition of mind of the detaining authority when it made the order. Its mind was directed not on what it should have been directed to, namely, the question of the security of the State or the efficient prosecution of the war, but it was directed to the more parochial and limited question as to whether the Criminal Tribes Act should be used or not against the applicant-It is unnecessary to emphasize that when wide powers are given to the executive to deprive His Majesty's subjects of their liberty without the intervention of the Courts of law, the detaining authority must consider each case with that care and caution which the exercise' of so tremendous a power should call for. The liberty of the subject is not to be lightly taken away. The satisfaction which the law requires on the part of the detaining authority before a subject can be detained is a reasonable satisfaction-a satisfaction not vitiated by any consideration which is foreign to. the scope and object of Ordinance III of 1944. In this case in our opinion it is impossible to hold that the Government of Bombay was. reasonably satisfied that it was necessary to detain the applicant with a view to prevent him from acting in a manner prejudicial to the public safety and the maintenance of public order.

6. It is contended by the learned Advocate General that even though the order of May 23, 1944, be bad the applicant is detained not under that order but under the order of November 6, 1944, and that order on the face of it states that it was made after a further consideration of all the circumstances of the case, and the affidavit of Mr. Drewe further bears out the fact that His Excellency the Governor considered the case of the applicant before his detention was continued under that order. I take it that all the materials were before His Excellency the Governor when he made the order on May 23, 1944. After that date, the applicant continued to be in detention and was never free even for a single hour. Therefore he could not have done anything between May 23, 1944, and November 6, 1944, to cause the Government of Bombay to be satisfied that his detention was necessary. The learned Advocate General says that further materials about his activities prior to his detention might have been placed before the Government of Bombay. We refuse to speculate and certainly not to the prejudice of the subject. It was open to the Government once the original order of May 23, 1944, was successfully challenged to place further materials! before the Court, but it has not chosen to do so.

7. But it is unnecessary to consider this argument further because in our view when the order of May 23, 1944, is invalid the order of November 6, 1944, must also as a necessary consequence be equally invalid, because all that the order of November 6, 1944, does is to direct that the original order of May 23, 1944, shall continue in force, and if the original order is bad, the subsequent order directing it to continue cannot validate it. The position might perhaps have been different if the Government of Bombay had made a fresh order under Section 3 of the Ordinance but that they have not done.

8. In our opinion, therefore, the order of May 23, 1944, and the order of November 6, 1944, extending the former order are invalid, and the detention of the applicant under these orders is illegal.

9. We, therefore, direct that the applicant should be immediately set at liberty.

10. In Applications Nos. 427 and 428 of 1944 which are also applications under Section 491 of the Criminal Procedure Code our decision is the same on the same grounds, and we direct that the applicants in both those applications be also set at liberty immediately.


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