John Beaumont, Kt., C.J.
1. This is an application under Section 491 of the Criminal Procedure Code, that is to say, an application in the nature of habeas corpus.
2. The applicant was arrested on December 14, 1942, the suggested charge against him being one under the Explosive' Substances Act, and he was remanded in police custody on December 15 for a week. On December 21 he was served with a notice under Rule 129 of the Defence of India Rules, 1939, stating that he had been detained under that rule for the purpose of investigation as from that day. On January 12, 1943, the District Magistrate of Ahmedabad made an order under Rule 26 of the Defence of India Rules, stating that he was satisfied with respect to the persons named in the first column of the Schedule thereto annexed (those names including the name of the applicant) that with a view to preventing them 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 following order. Then under Rule 26 it was ordered 'that the said persons be detained until further orders.' Then, there is a direction as to their place of detention, and a further direction as to their classification, the present applicant being classified in Class I. It is not disputed that the District Magistrate is the officer empowered by Government to make an order under Rule 26.
3. I entertain no doubt that this Court has jurisdiction under Section 491 of the Criminal Procedure Code to require a person detained under the Defence of India Rules to be brought before it with a view to satisfying itself that the detention is legal. But there is also no doubt that it is not open to this Court, or any other Court, to go behind the reasons given by Government for the detention. The law on the subject has recently been discussed by the House of Lords in England in Liversidge v. Sir John Anderson  A.C. 206 and there is no doubt that under a rule framed as is Rule 26 of the Defence of India Rules, it is not open to the Court to enquire into the reasons which induced Government to think that the arrested person is likely to act in the manner specified in the rule. Therefore, normally if a man is detained under Rule 26, it is useless for the Court to make an order under Section 491 of the Criminal Procedure Code for his production in Court. It is, however, open to a person detained under that rule to challenge the bona fides of Government, and to; show that Government were not really of the opinion stated in their order, but were induced by some different reason to detain the detenue. But normally the Court will require definite evidence that a charge of lack of bona fides can be preferred against Government in the matter.
4. The suggestion in this case was that as the detenue had originally been arrested for an offence under the Explosive Substances Act, Government were really detaining him under the Defence of India Rules with a view to preventing him from enjoying such rights as an accused person possesses under the Criminal Procedure Code. As that suggestion was made, and as this was the first case of its kind to come before the Court, we thought it desirable to make an order under Section 491 of the Criminal Procedure Code, and direct that the detenue be brought before us.
5. There was also a complaint that the detenue was not allowed to see his legal advisers, and we were referred to a recent decision of the' Nagpur High Court, in which the Court directed that a person detained under Rule 26 of the Defence of India Rules should be allowed to see his legal advisers. I entertain very grave doubt as to whether there is;any jurisdiction to make such an order. I know of no authority which would enable this Court to direct the authorities responsible for the detention of a person under Rule 26 to allow some third party to have access to him. But having got the detenue before us, we then directed that he should have an opportunity of seeing his legal advisers and explaining his case to them, and Government raised no objection to that course.
6. We have now got an affidavit made by the detenue after consulting his legal advisers, and the whole affidavit really goes to showing that the detention is wrong, because nothing has occurred to justify his detention under Rule 26. As I have said, we cannot go into that. We have no power to require Government to tell us the reasons which induced them to take action under the rule, and, without knowing those reasons, we are obviously not in a position to express any opinion as to whether their action was justified or not. We must assume such justification.
7. It is also suggested in the affidavit that Government are not acting bona fide, because they are really trying to deprive this man of his rights under the Criminal Procedure Code. But there is no evidence of that. The learned Advocate General tells us that it is the practice of Government, in the case of persons accused of offences, to allow them proper facilities for preparing their defence, and if Government decide to proceed with the charge; under the Explosive Substances Act, then they will follow that practice' in this case. But, in the case of persons detained under Rule 26, it is not, I understand, the practice of Government to allow them to see their legal advisers. In my opinion, that is a matter which is entirely within the discretion of Government, and it is not open to us to make' any order in the matter.
8. I have made these observations, because this is the first case of its kind, and I want it to be clearly understood that the Court will not normally make an order under Section 491 of the Criminal Procedure Code, unless there is evidence before it to suggest that the order of Government under Rule 26 of the Defence of India Rules was not made bona fide.
9. In this case, there is no reason for holding that the detention is illegal, and we cannot make any further order.
10. I agree.