1. On 15th March last a petition was presented to us on behalf of Miss Pramila Gupta and Miss Sushila Das Gupta. The material allegations in the petition are that the petitioners are cousins and third year students of the Bethune College, that on 9th February last the house in which the petitioners both live were searched by the police in connexion with the attempt made on 6th February on the life of His Excellency the Governor of Bengal and the petitioners were arrested, that on 10th February and several subsequent dates they were brought before the Chief Presidency Magistrate and remanded to custody and finally discharged on 29th February, that on the passing of the order of discharge a Police Inspector named F. N. Sen immediately re-arrested the petitioners declaring that he did so under 'the Bengal (Emergency) Ordinance' that the petitioner Miss Pramila Gupta is now interned in the Presidency Jail and the petitioner Miss Sushila Das Gupta is now interned in the District Jail of Birbhum at Suri; there are various allegations of bad faith in the petition which is entitled:
in the matter of an application under Section 491, Criminal P.C., and in the matter of an application for exercise of this Hon'ble Court's inherent power of issuing writs of Habeas Corpus as a Court of King's Bench or as a Court of His 'Majesty's Justices appointed by Royal Charter.
2. It is suggested that the action of the Government is not bona fide, but is due to the petitioners having incurred the displeasure of the authorities of the Bethune College.
3. The following are named as opposite parties: the Chief Secretary to the Government of Bengal, the Deputy Commissioner of Police (Special Branch), the Superintendent, Presidency Jail, the Superintendent, Suri Jail and the Superintendent of Police, Suri.
4. On these materials, on 15th March we issued a Rule addressed to the Superintendent of the Presidency Jail to show cause why the body of Miss Pramila Gupta should not be produced in Court on ground No. 1 of the petition. Ground No. 1 is as follows: 'For that the arrest and detention of the petitioners are illegal.'
5. The learned Advocate-General who has appeared to show cause has taken no exception to the form of the proceedings. We have therefore not been asked to decide whether in the circumstances in which the petitioners have been detained proceedings under Section 491, Criminal P. C, are competent, or, if. they are not, whether this Court has nontheless the power to issue a writ of Habeas Corpus and sub-jiciendum in respect of a person detained within the local limits of its original jurisdiction.
6. The learned Advocate General in our opinion rightly maintains that we are not concerned here with the legality of Miss Gupta's arrest on 29th February, but with the legality of her detention on 15th March.
7. By Section 2 (1), Bengal Criminal Law Amendment Act, 1930, as amended by Section 3, Bengal Criminal Law Amendment Ordinance 1931, where in the opinion of the Local Government, there are reasonable grounds for believing that any person: (1) is a member of an association of which the objects and methods include the commission of any offence included in Schedule 1, or the doing of any act with a view to interfere by violence or threat of violence with the administration of justice or (ii) has been or is being controlled by a member of any such association with a view to the. commission or doing of any such offence or act or (iii) has done or is doing any act to assist the operations of any such association, the Local Government may, by order in writing give directions that such person be committed to custody in jail. By Section 4 (1) any officer of Government authorized in this behalf by general or special order of the Local Government may arrest without warrant any person against whom a reasonable suspicion exists that he is a person in respect of whom an order might lawfully be made under Sub-section (1), Section 2, provided that no person shall be detained in custody under this section for a period exceeding 15 days save under a special order of the Local Government, and no person shall in any case be detained in custody under this section for a period exceeding one month. By a notification of 25th November 1931 under Sub-section (4) (1) all police officers of and above the rank of Sub-Inspector are authorized to exorcise the powers of arrest conferred by that subsection. Inspector Fanindra Nath Sen states on affidavit that having reasonable suspicion that Miss Gupta was a person in respect of whom an order might lawfully be made under Section 2 (1) he arrested her on 29th February. He further states that it is incorrect to say that he told her that she was arrested under the Bengal (Emergency) Ordinance.
8. In the same affidavit there is sot out the following order in writing dated 3rd March 1932 and made by the Governor in Council:
Government of Bengal.
Whereas in the opinion of the Government of Bengal there are reasonable grounds for believing that Srimati Pramila Gupta daughter of the late Babu Kumudini Kanta Gupta by caste Baidya of Madhyapara in the district of Dacca and of 11/3 Madan Mitra Lane, Calcutta is a person in respect of whom an order may lawfully be made under Sub-section (1), Section 2, Bengal Criminal Law Amendment Act, 1930;
9. The Governor in Council, in exercise of the powers conferred by the said Section 2 is pleased to make the following order:
Order ' The said Srimati Pramila Gupta, daughter of the late Babu Kumudini Kanta Gupta by caste Baidya of Madhyapara in the district of Dacca and of 11/3 Madan Mitra Lane, Calcutta, shall be committed to custody in the Presidency Jail.
10. These circumstances in the submission of the Advocate-General constitute a sufficient cause for the detention of this petitioner.
11. Mr. J. Ch. Banerjee, who appears to support the Rule attacks the legality of the detention on two grounds. He first argues that the Bengal Criminal Law Amendment Act 1930 is ultra vires and} outside the scope of the powers of the local legislature by reason of Section 80-A (4), Government of India Act 1915 and 6 Geo. V. Ch. 61 as amended by 9 and
10 Geo. V. Ch. 106. The subsection runs thus:
The local legislature of any province has not power to make any law affecting any Act of Parliament.
12. When asked what Act of Parliament was affected by the Bengal Criminal Law Amendment Act he urged that 'Act of Parliament' should boar a liberal interpretation and mentioned Magna Carta 1215 C.CC . 39 40, the Bill of Eights (1 Wm. and Mary Sections 2, C. 2-1/2 Section 1) and the Habeas Corpus Act 1679 (31 Car II C. 2).
13. As regards Magna Carta it is difficult to see how legislation passed by a legislature established by Act of Parliament conferring certain powers on the executive can be hold to infringe the right of the subject, declared by the Charter, not to be judged or condemned except by the lawful judgment of his peers or by the law of the land.
14. Nor do we think that the learned advocate has succeeded in showing that the Bengal Law Amendment Act purports to affect or affects the Bill of Eights which was directed against the power then-claimed by the Crown to suspend laws and the execution of laws without the consent of Parliament.
15. With regard to the Habeas Corpus Act 1679 and the other Acts of Parliament dealing with the Common law right of the subject to a writ of Habeas Corpus we need only say that the proceedings before us are based on the assumption that in the case of this petitioner at any rate the right or an analogous right exists, and this assumption has not been disputed by the learned Advocate-General in showing cause.
16. The second ground of the petitioner's argument is however worthy of most serious consideration.
17. It is argued that before her detention can be justified it must be shown that the Local Government had on 3rd March reasonable grounds for believing that she was a person of one of the three classes mentioned in Section 2 (1) of the Act. In this connexion the petitioner strongly relies on Eshugbayi Eleko v. The Government of Nigeria A.I.R. 1931 P.C. 248. It is necessary to examine the facts of that case in some detail. Under the Deposed Chiefs Removal Ordinance Section 2 (1) when a native chief or a native holding office under a native administration or by virtue of any native law or custom has been deposed or removed from his office by or with the sanction of the Governor, the Governor may, if native law and custom shall require that such deposed chief or native shall leave the area over which he exorcised jurisdiction, by order in writing direct that such chief or native should leave such area. In the case of refusal or neglect to leave such area in disobedience to an order made as aforesaid the Governor has power under Section 2 (2) to order the deportation of the person against whom the order has been made.
18. The appellant contended (a) that he was not a native chief, (b) that he had not been deposed, and (c) that there was no native law or custom which required him to leave the area. The Supreme Court of Nigeria held that it had no power to consider these questions, the decision of the Governor being final. The Judicial Committee in allowing the appeal held it was the duty of the Court to investigate the questions raised by the appellant's contentions and to come to a judicial decision thereon. In delivering the judgment of the Board Lord Atkin observes p. 670:
The Governor acting trader the Ordinance acts solely under executive powers and is in no sense a Court. As a Court ho can only act in pursuance of the powers given him by law. In accordance with British jurisdiction no member of the executive can interfere with the liberty or property of a, British subject except on the condition that he can support the legality or his action before a Court of justice and it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.
19. The learned advocate for the petitioners maintains that this decision is an authority for the proposition that where [the executive claims to detain a subject [under statutory powers it must satisfy the Court that the circumstances in which the statute lays down that such [powers can be exercised in fact exist.
20. This would appear to be correct. He goes on to argue that it follows that in this case that the Local Government must show that there are grounds which we consider to be reasonable for believing that the petitioner belongs to one or more of the three classes described in the section. For this he relies on Subodh Chandra v. Emperor : AIR1925Cal278 . That case was concerned with the powers of the police to arrest without warrant under Section 54, Criminal P. C. It was not then argued that when the arrest was made under the clause of the section beginning with the word 'seventhly' the Court could not inquire whether reasonable complain had been made, credible information had been received or reasonable-suspicion existed. On the contrary it was argued that certain telegrams received from the police of a Native State by the Calcutta police were credible information or created a reasonable suspicion-an argument which assumes the powers of the Court to inquire.
21. It appears to us that for our present purpose this case is of no assistance for there is nothing in Section 54, Criminal P.C. to suggest that the arresting police officer is to be the final judge of what is reasonable or credible.
22. Similarly in Eshugbayi Eleko's case A.I.R. 1931 P.C. 248 the Ordinance nowhere purported to-make the opinion of the Governor conclusive on the question whether the conditions precedent of a valid order of deportation had been fulfilled.
23. We have therefore no difficulty in distinguishing both the cases relied on in support of the rule from the petitioner's case.
24. In our opinion it was clearly the intention of the legislature as expressed in Section 2 (1), Criminal Law Amendment Act, that the opinion of the Local Government whether or not there were reasonable grounds for making an order under the section should be conclusive. We further think that the Court cannot go behind the order of 3rd March 1932 and that it is not possible to question the fact that in the opinion of the Local Government there were reasonable grounds for believing that Miss Gupta was a person in respect of whom an order might lawfully be made.
25. It would be idle for the Court to examine those grounds, since even if it considered the grounds unreasonable it would still have to pronounce the detention lawful because the Local Government took the opposite view.
26. The Advocate General relies strongly on Bhagat Singh v. Emperor . In that case the Judicial Committee of the Privy Council held that when an Ordinance is promulgated by the Governor General under Section 72, Government of India Act 1915, the Courts cannot inquire whether there is a case of emergency within the meaning of the section or whether the particular Ordinance is made and promulgated for the peace and good government of British India. It will be observed that in the language of Section 72 there is nothing that directly or by implication makes the Governor General the sole judge of those questions and it therefore appears to us that the language of Section 2, Bengal Criminal Law Amendment Act 1930 renders the position of the Local Government under that Act even more plain than the position of the Governor-General under the Government of India Act.
27. For these, reasons we entertain no doubt that the facts disclosed in the affidavit made by the opposite party and the argument of the learned Advocate-?General show that the petitioner's detention is lawful.
28. We therefore discharge the Rule.
M.C. Ghose, J.
29. I agree.