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Jatindra Gupta and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1944Cal284
AppellantJatindra Gupta and ors.
RespondentEmperor
Excerpt:
- .....the time the said order was made, be legally conferred by a rule made under section 2, defence of india ordinance, 1939 (5 of 1939) or under section 2, defence of india act, 1939 (35 of 1939).(2) every such order shall on the commencement of this ordinance be deemed to have been, and shall have effect as if it had been, made under this ordinance, and as if this ordinance had been in force at the time the order was made:provided that sections 7 and 9 of this ordinance shall apply in relation to any order made under clause (b) of of sub-r (1) of b. 26, defence of india rules, as if that order had been made on the date of the commencement of this ordinance and section 8 of this ordinance shall not apply to any such order....3. the next relevant clause is clause 9 which provides that:no.....
Judgment:

Derbyshire, C.J.

1. On 7th September 1943, a Bench of this Court issued a Rule under g S: 491, Criminal P.C. calling upon the Chief Secretary to the Government of Bengal and the Superintendent of the Dacca Central Jail to show cause why the petitioners, alleged to be illegally and improperly detained in custody, should not be brought up before the Court and dealt with according to law or set at liberty. The number of persons concerned in this Rule was 176. The applicants made a joint application for the rule. They were apparently all confined in a jail at Dacca. They are represented before us by Mr. P. K. Bose who agrees that the cases all stand on the same footing. There, however, is one exception, namely, that of petitioner 21, Piyush Kiron Eauth, whose papers have not been available, and his case is not, therefore, taken in the present proceedings. The Advocate-General has appeared on behalf of the Government of Bengal to show cause against the rule. We are informed, and it is not disputed, that with the exception of four persons orders for the detention 'of the applicants were made by the Governor of Bengal. In the cases of the four others, they were made-by the District Magistrate of Chittagong to whom authority to make the orders had been delegated. The orders were originally made under B. 26 (i) (b), Defence of India Rules. Rule 26 was, in April 1943, by the Federal Court, declared ultra vires of Section 2, Defence of India Act. In May 1943, an ordinance was promulgated by the Governor-General validating the orders that had been made under Rule 26. The validating of that ordinance was questioned in this Court in May 1943 and in September 1943 by the Federal Court. In the meantime applications had been made by persons including the present applicants, to this Court for orders under Section 491, Criminal P.C. It was as a result of those applications that the Rule in question was granted. On 15th January 1944, another ordinance, Ordinance 3 of 1944, was promulgated by the Governor-General which recites:

Whereas an emergency has arisen which makes it necessary to empower the Central Government and the Provincial Government and any officer or authority to whom 'the Central Government or the Provincial Government may delegate its powers in this behalf to restrict the movements and actions cl and to place in detention and detain certain persons, to regulate the exercise of these powers and the duration of orders made in such exercise, and to confirm the validity of the past exercise of such powers under B. 26, Defence of India Rules;

Now, therefore, in exercise of the powers conferred by Section 72, Government of India Act, as set out in Sch. 9 to the Government of India Act, 1935 (26 Geo. V, c. 2), the Governor-General is pleased to make and promulgate the following Ordinance....

2. Clause 3 of the Ordinance gives the Central or Provincial Governments power to make orders restricting the movements or actions of or detaining certain persons in certain specified circumstances which are therein set out. There are other provisions in the ordinance, e. g., Clause 4 as to the photographing, etc., of persons: Clause 5 as to the delegation of powers and duties of Central and Provincial Governments to other authorities and to officers: Clause G as to the validation of orders made under B. 26, Defence of India Eules: Clause 7 as to the grounds of (l Order of detention to be disclosed to persons affected by the order: Clause 8 -as to the Order of detention made in pursuance of delegation under Section 5 to be reported to Government for confirmation: and Clause 9 as to the duration of orders of detention made under Section 3. In cl 10 there are certain saving powers and in Clause 11 the disclosure of the grounds of detention are forbidden. The relevant Clauses which arise in this application are first, dl. 6 which provides that:

(1) No Order made before the commencement of this Ordinance under B. 26, Defence of India Rules, shall after such commencement be deemed to be invalid or be called in question on the ground merely that the said Rule purported to confer powers in excess of the powers that might at the time the said Order was made, be legally conferred by a Rule made under Section 2, Defence of India Ordinance, 1939 (5 of 1939) or under Section 2, Defence of India Act, 1939 (35 of 1939).

(2) Every such Order shall on the commencement of this Ordinance be deemed to have been, and shall have effect as if it had been, made under this Ordinance, and as if this Ordinance had been in force at the time the Order was made:

Provided that Sections 7 and 9 of this Ordinance shall apply in relation to any Order made under Clause (b) of of sub-r (1) of B. 26, Defence of India Rules, as if that Order had been made on the date of the commencement of this Ordinance and Section 8 of this Ordinance shall not apply to any such order....

3. The next relevant Clause is Clause 9 which provides that:

No Order made or deemed under the provisions of Section 6 to have been made under Clause (b) of Sub-section (1) of Section 3 shall be in force for more than six months from the date on which it is made.

Then there is a proviso which is not relevant in the present case. Clause 10 provides that-:

(1) 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, Criminal P.C. 1898 (5 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) If at the commencement of this Ordinance there is pending in any Court any proceeding by which the validity of an Order having effect by virtue of Section 6 as if it had been .made under this Ordinance is called in question, that proceeding is hereby discharged.

4. The ordinance in fact sets up a new procedure for dealing with cases of persons who have been detained under the Defence of India Rules. Clause 6 (2) together with the proviso makes it clear that the detention of persons originally detained under K. 26 (1) (b) is now to be treated as the detention of those persons under this ordinance as if an Order had been made under this ordinance on 15th January 1944. Mr. P. K. Bose, who is appearing on behalf of the applicants, has argued that the proviso to Clause 6 (2) is repugnant to the provisions of Clause 6 (2) itself. In my view that is not so. Clause 6 (2) relates to all orders under the ordinance whereas the proviso relates to those made under B. 26 (1) (b), namely, detention. In my view the position is as stated above.

5. It has been contended on behalf of the Government of Bengal that this Court has no jurisdiction to deal with this Rule by reason of the provisions of Clause 10. Mr. P. K. Bose on the other hand, has contended that the provisions of Clause 10 which in effect oust the jurisdiction of the Court to deal with this matter are themselves invalid as being beyond the powers of the Governor-General. If Clause 10 (2) is valid then there is an end of these proceedings because they have under the ordinance been discharged, that is, put an end to, as from 15th January 1944, and we have no further powers to deal with them.

6. Mr. P. K. Bose for the applicants has further contended that the Governor-General in ousting the jurisdiction of the Courts has acted contrary to the provisions of Section 110, Government of India Act, 1935, which provides that:

Nothing in this Act shall be taken-

* * * * *(b) to empower the Federal Legislature, or any Provincial Legislature-

(i) to make any law affecting the Sovereign or the Royal Family, or the Succession to the Crown, or the sovereignty, or dominion or suzerainty of the Crown in any part of India.

7. It is necessary therefore to see what the Governor-General's powers with regard to this class of legislation are. Under Section 317, Government of India Act, 1935, the provisions of the Government of India Act, 1915, as set out in Sch. 9 of the Act shall continue to have effect. In Sch. 9, Government of India Act, 1935, is set out Section 72, Government of India Act, 1915, which provides that:

The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws....

8. On 3rd September 1939, when war was declared an emergency was proclaimed. Thereafter under Section 102, Government of India Act, 1935, the Federal Legislature was given power to make laws for the province in respect to any of the matters enumerated in the Provincial List. So that it follows that from 3rd September 1939, the Governor. General could pass such laws as the Central Legislature and the Provincial Legislature could pass for the peace and good government of British India. Section 100, Government of India Act, 1935, prescribes what laws the Central Government may make and what laws the Provincial Government may make by reference to Sch. 7 of the Act. Schedule 7, the Federal, that is, the Central Legislative List in Item 1, gives power to the Central Legislature to make laws with regard to preventive detention in British India for reasons of State connected with defence, external affairs, or the discharge of the functions of the Crown in its relation with Indian States. Under List 2 as set out in item 1 the Provincial Government may make laws amongst other things relating to public order, the administration of justice, the constitution and organization of all Courts, except the Federal Court, preventive detention for reasons connected with the maintenance of public Order and persons subject to such detention. Under Item 2 of List 2 the Provincial Government may make laws with regard to jurisdiction and powers of all Courts except the Federal Court with respect to any of the matters in this List. List 3 is a Concurrent List and contains subjects upon which both the Central and Provincial Legislatures may make laws. Items 1 and 2 contain criminal law and criminal procedure.

9. It is clear, therefore, that from and after 3rd September 1939, the Governor-General had powers to make laws under the provisions of Section 72, Government of India Act, 1915 and Section 102, Government of India Act, 1935 and the Legislative List of Sch. 7 in relation to preventive detention and the jurisdiction and powers of the High Courts. The High Courts' jurisdiction and powers are confirmed by Section 223, Government of India Act, 1935, which continues the jurisdiction as follows:

Subject to the provisions of this part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act , the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of -the Judges thereof in relation to the administration of justice in Court, shall be the same as immediately before the commencement of Part III of this Act.

10. Section 311, Government of India Act, 1935, namely, the interpretation section, provides in Sub-section (6) that:

Any reference in this Act to Federal Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made by the Governor-General or a Governor-General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act.

11. The powers of the High Courts were given to them by Section 9, High Courts Act of 1861 in ^ Letters Patent granted in 1865. Clause 9, High Courts Act, sets out the jurisdiction of the High Courts hitherto exercised and states that they shall have jurisdiction in such matters as Her Majesty may by Letters Patent grant and direct subject, however, and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor- Getieral of India in Council. The High Courts Act, 1861, was repealed by the Government of India Act, 1915, which however by Section 106 continued the existing jurisdiction of the High Courts. Clause 44 of the Letters Patent provides:

And we do further ordain and declare, that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council under Section 71, Government of India Act, 1915, and also of the Governor-General in cases of emergency under S., 72 of that Act, and may be in all respects amended and altered thereby.

12. It is clear, therefore, that the powers of the High Court are subject to the legislative powers of the Governor-General in cases -of emergency under Section 72 of the Act of 1915 and may be in all respects amended and altered thereby. The Govern or. General since 3rd September 1939, has had power to deal legislatively with the powers and jurisdiction of the High Courts and with matters of preventive detention. Clause 10 of the Ordinance in question deals with the powers of the High Courts and their jurisdiction to deal with cases of preventive detention. Clause 10 of the Ordinance cuts down the powers of 'the High Court to deal with cases of this kind. However, it is said by Mr. P. K. Bose, 'Yes but in cutting down the powers of the High Court to deal with matters of this sort the Governor-General is doing something which he is not permitted to do under Section 110, Government of India Act, namely, making laws affecting the sovereignty, or dominion or suzerainty of the Crown in any part of India.'

13. It is said that cutting down the powers of the High Court is cutting down the powers of the Crown in its relation to the administration of justice. Assuming that that is correct I am unable to see how the sovereignty, or dominion or suzerainty of the Crown is affected. Such a contention was negatived by the Privy Council in Buggav Emperor ('20) 7 A.I.R. 1920 P.C. 23 at pp. 137 and 138 where the question was whether Ordinance 4 of 1919 was invalid under Section 65 (2) and Section 72, Government of India Act, 1915, which prevented the Governor-General from making any law 'affecting the sovereignty or dominion of the Crown over any part of (British India.' In my opinion for the above reasons, the contention that Clause 10 (2) of Ordinance 3 of 1944 is invalid fails. That being so, the effect of Clause 10 (2) is that the Rule which has been granted and the proceedings thereunder in these matters were deemed to be discharged on 15th January 1944. The result is that we have no further powers to deal with these applications. For that reason we formally make the Order that this Rule is discharged. Certificate under Section 205, Government of India Act, is granted in this case.

Lodge, J.

14. I agree.


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