Ameer Ali, J.
1. We are called upon to consider certain action of the executive taken in pursuance of Section 2, Act 6 of 1930. Mr. Chaudhury pressed us not to allow our decision to be influenced by the fact that in one event the executive might be embarrassed. His apprehension was and remains groundless. We are not concerned with the necessities either of the executive or of the subject. We are concerned only to weigh the legal rights of the subject against the legal rights of the executive. I am prepared further to assume that the exercise of powers under emergency legislation in spite of every precaution is likely in certain cases to produce hardship. This may or may not be such a case. This Court, however, does not remedy injustice in the abstract. We are here to enforce legal rights and to remedy legal wrongs. It will, I think, be convenient first to summarize the facts in order of date. I will state first the actual facts, either established or conceded, and then the inferences which Mr. Chaudhury has asked us to draw, and upon which he has based his case.
2. The actual facts are as follows: The petitioner is a shop-keeper at Ranchi. On 15th February 1933, he was arrested without a warrant at Ranchi in pursuance of a letter dated 13th February 1933, merely stating that his arrest was required in connexion with a conspiracy case in Calcutta. On 16th February he was brought to Calcutta and remained under police custody. On 3rd March 1933 he was sent to Alipore Jail. On 3rd March 1933 an application by him for bail before the Chief Presidency Magistrate was refused. The case was fixed for 9th March and it is said without notice to the petitioner's lawyers, he was discharged on 4th March. On the same day or a day later he was sent up before the Additional District Magistrate of Alipore and an application for bail was made to that Magistrate and was again refused. On 1st April 1933 he was discharged. He was then arrested under Section 4(1), Act 6 of 1930 and was committed to jail under an order which is Ex. A to the affidavit in opposition. The period of his custody was extended under orders which are also exhibited. On 9th May 1933 the order under Section 2 of the Act (the main object of attack in this case) was issued over the signature of the Officiating Additional Secretary to the Government of Bengal. That order is Ex. D. On 12th June there was a supplementary order (Ex. E) transferring the petitioner to Hijli. He was, in fact, removed on 7th July 1933. On 8th July 1933 took place the incident at Alipore Jail which has been referred to by my learned brother. On 10th July 1933 an application on behalf of the petitioner was made by his father. This is miscellaneous case No. 113 of 1933. It was headed:
In the matter of Section 491, Criminal P. 0., and in the matter of a writ of habeas corpus.
3. A rule was issued and the matter was heared on 28th August 1933 by C. C. Ghose, and Henderson JJ., who dismissed the application. The judgment is before us and has been relied on by the Crown. On 29th August 1933 the present petition was filed by the detenue himself and is miscellaneous case No. 137 of 1933. The allegations contained in the petition are almost identical, with a significant addition to para. 18 to which I shall refer again. There is, however, a difference as regards the reliefs claimed and a Rule was issued in the following form: first, to show cause why the petitioner should not be released; second, to show cause why a writ of habeas corpus should not be issued; and third, to show cause why an inquiry should not be made whether an' offence under Section 124(1), Government of India Act, had been committed. On the foundation of the actual facts above stated Mr. Chaudhury has built a superstructure of inferences. Mr. Chaudhury points first to the arrest at Ranchi and he contends, [relying upon the case of Subodh Chandra v. Emperor : AIR1925Cal278 that the arrest was in itself illegal. He relies further upon events in Calcutta and Alipore especially the successive remands, the refusal of the applications for bail, and the fact that his client was twice discharged. Finally, he relies upon the incident at Alipore Jail on 8th July 1933. He contends that from these facts it should be inferred, first that the police, in particular the Intelligence Branch, were the real movers in the matter from beginning to end; secondly, that the Intelligence Branch was actuated throughout by some wrong motive or malice; thirdly, that the whole series of events is to be regarded as a single transaction tainted throughout with the malice in question; and, lastly, that this Court should infer that full and fair information was not put before the authorities who under the Act in question are charged with the duty of scrutinizing the case of the detenue. He goes so far as to suggest the possibility of the Intelligence Branch being itself misled by inaccurate information supplied by informers.
4. I am not now considering whether these inferences are reasonable or legitimate. This must be postponed in favour of the important questions of law discussed before us. It will be seen that there are two main branches of the present application. The first is attack: that is to say, criminal proceedings in respect of an offence under Section 124, Government of India Act of 1919. The second is defence; relief either under Section 491, Criminal P. C, or alternatively by means of a writ of habeas corpus. The first is new matter and Mr. Chaudhury, by placing it in the forefront not only emphasized the difference between this application and the last application, but also succeeded in introducing an element of novelty into the second branch of his case, which has already been considered by more than one Bench of this Court. The two branches are however quite distinct and 1 propose to treat them separately. I will deal first with the branch of the case based directly upon Section 124, Government of India Act, in regard to which Mr. Chaudhury commenced and concluded his address. Until the conclusion of the hearing Mr. Chaudhury's argument took one form- a form which might be called quasi complaint, i.e., he was not prepared to prefer a definite complaint. His argument may be summarized as follows: (1) the subject alleges that the 'misdemeanour' or 'oppression' mentioned in Section 124, Government of India Act has been committed by certain persons unknown; (2) the subject contends that without substantive criminal proceedings the Court has power to hold a supplementary inquiry as to the legality of the subject's detention; and (3) that if on such an inquiry a prima facie case of illegal detention is made out this Court will order his release. Mr. Chaudhury himself has referred to this as 'incidental relief.'
5. Now, the answer to this particular aspect of this branch of Mr. Chaudhury's case is, I think, plain. Assuming that this Court will entertain a complaint for the misdemeanour or oppression, without a complaint, I know of no method by which, or principle on which, this Court will hold such a supplementary inquiry. Secondly, before the main criminal proceedings are concluded in which the vital question is whether the detention is or is not illegal, I consider it premature and illogical to ask this Court to order a release. This is not a case of an accused asking to be released on bail. The detenue is a complainant. At the last and in view of the difficulties indicated, Mr. Chaudhury expressed himself ready to prefer a complaint of 'misdemeanour' under Section 124. The three persons against whom Mr. Chaudhury was ready to complain were, the officer responsible for the original arrest, the officer responsible for sending up the accused before the Magistrate in Calcutta and lastly the only respondent to the application the commandant of the Hijli Detention Camp. The Crown, through Mr. Khondkar, very properly offered to furnish the actual names of the officers concerned, as to which therefore there is no obstacle.
6. The answer of the Crown to this aspect of this branch of the case is as follows: first, that there is no jurisdiction given to this Court by the Government of India Act; secondly, that this Court on appeal is not the proper forum for a criminal complaint; thirdly, that there is no appropriate procedure; and, fourthly, that the complaint is frivolous and should be rejected. With regard to the first point, I agree with counsel for the Crown that the statute confers no new jurisdiction, but it appears to me that the Supreme Court by virtue of Section 14 of 13 Geo, 3, c. 63, did have jurisdiction to entertain complaints of misdemeanour in the same manner as the Court of King's Bench in England, and that such jurisdiction has descended to the High Courts. The matter has not been discussed before us, but as at present advised I see no reason to differ from the decision in Faqir Singh v. Alt Mohammad AIR 1929 Lah 217. The objection with regard to forum as also the question of procedure I propose to disregard. With regard to the latter, it appears to me that the complainant might have sought in aid Section 561-A, Criminal P. C.
7. Lastly, with regard to the merits or bona fides of this complaint, I agree with my learned brother that it should be rejected. The reasons will I think appear from that portion of my judgment relating to the second branch of Mr. Chaudhury's case under the head 'propriety of the action' taken by the executive. I now come to the second branch of Mr. Chaudhury's argument, i.e., that based on the right of the subject to liberty or, in other words, the right of the subject not to be imprisoned without a trial. On this branch of the case a great deal of ground has been covered. Consequently I have found it necessary in the interest of perspective as also to distinguish what we have to decide, and what we have and what we have not decided, to formulate in a systematic manner the various contentions on either side. As the appropriate method, I have followed the analogy of pleadings in a civil action.
1. The subject alleges that he has an inherent right to freedom unless he has been imprisoned after lawful trial and that this right has been infringed.
2. The executive admits the right and the infringement, [i.e., it has not been contended in this case as it was in the case of Girindra Nath Banerjee v. Birendra Nath Pal : AIR1927Cal496 that there is no detention] , but the executive claims to have acted in pursuance of statutory authority, Act 6 of 1930.
3. The subject replies admitting that as a matter of form the action taken is authorized by the statute in question but alleging:
(a) that the statute itself is illegal, ultra vires. Alternatively, (b) that the action taken is an illegal use of the power provided by the statute. Alternatively, (c) that the action, even if legal, constitutes an 'improper' use of the power.4. The executive in further reply, admits that ordinarily the Court has jurisdiction to investigate the three questions mentioned in the preceding para-graph, but in this case demurs to jurisdiction on the following grounds: (1) that there are only two methods of approach to the Court of law-writ of habeas corpus or alternatively Section 491, Criminal P. C; (2) that writ of habeas corpus in India has been displaced-I use the word advisedly-by Section 491, Criminal P. C; and (3) that Section 491 has been in turn shut out by Section 4, Act 8 of 1932, the Supplementary Act.
In the interest of clearness I have omitted two further preliminary points: first, that any application of this nature should be made to the original side of this Court. Second, that this application is barred by reason of Application 113 of 1933 having been heard and dismissed. With neither of these points, although for different reasons, do I propose to deal.
5. The subject replies to the demurrer: '(1) that Section 491 cannot displace the writ of habeas corpus and in so far as it purports to do so it is ultra vires; (2) that if it does displace the writ of habeas corpus then Section 4, Act 8 of 1932 in displacing Section 491 is ultra vires; and (3) again in the alternative that if the Supplementary Act is not ultra vires in displacing Section 491 then from the nature of the writ of habeas corpus jurisdiction to issue such writ must be taken to revive. Point (3) is really involved in point (1) and I do not propose to treat it separately.
6. The executive replies finally, first, that point 5(1), that is to say, whether Section 491 can lawfully displace the writ of habeas corpus, has been decided against the subject by this Court in the case of Girindra Nath v. Birendra Nath Pal : AIR1927Cal496 ; secondly, that point 5(2) whether Section 4, Act 8 of 1932, is ultra vires, has also been decided by this Court in Misc. Case. 113 of 1933.
7. Further, and in the alternative, i.e., assuming that the Court has jurisdiction to consider any of the three questions set out in the above, (1) that the main statute, i.e., Act 6 of 1930 is not ultra vires: decided by Girindra Nath v. Birendra Nath : AIR1927Cal496 that the action taken was not illegal, and cannot be illegal: see Pramila Gupta v. W. Section Hopkins : AIR1932Cal470 ; and : AIR1927Cal496 that the action taken was not improper (that being the only question not covered by authority, and a question of fact).
8. That, if I may so express it, is the state of the matter on the pleadings. It will be seen that there are in all 8 debatable points: 4(2), 5(1), 5(2), 6(1), 6(2), 7(1), 7(2), 7(3).
9. It will be seen further that it is contended by the Crown that the points relating to the preliminary objection to jurisdiction, i.e., 4(2), 5(1), 5(2), 6(1) and 6(2) and two of the points relating to the merits, namely as to the legality of the main statute, and the legality of the action, 7(1) and 7(2), have also been decided against the subject. In order to see how far this contention is correct I propose very shortly to examine the cases relied upon.
10. Ameer Khan's case (1870) 6 Beng LR 392 at pp. 438 to 444, 455 and 477, a case decided in relation to detention under Regulation 3 of 1818. It is not for the moment necessary for me to discuss this case beyond noting Norman, J's decision that the power to issue a writ of habeas corpus is not confined to Presidency towns.
11. Rudolph Stallman's case, (1911) 39 Cal 164, which related to action by the Executive under Section 3, Act 15 of 1903, the Extradition Act. The point argued in that case by the Advocate-General was that the right to relief under Section 491 was displaced by implication owing to the existence of alternative procedure provided in the Extradition Act. The question whether a statutory provision expressly excluding exercise of powers under Section 491 would be legal or otherwise was not considered. Sarno's case (1916) 2 KB 742, I shall discuss in dealing with 'propriety of the action'. Govindan Nair v. Emperor AIR 1922 Mad 499. Action had been taken by the Executive under Ordinance 2 of 1921. A writ of habeas corpus was issued by the Madras High Court to the jailor of BeMary, outside the Presidency town. The Madras Court took the view that jurisdiction to issue a writ of habeas corpus had not been displaced by any provision of the Criminal Procedure Code, and that Section 491 merely substituted a different form of procedure. Incidentally, at p. 924, the learned Judges refer without comment to Section 16 of that Ordinance which contains a bar identical in effect with that contained in the Supplementary Act. In 1927 the case of Girindra Nath v. Birendra Nath : AIR1927Cal496 was decided by this Court. The petitioner in that case was ordered under Section 11, Criminal Law Amendment Act, 1925, to reside under the surveillance of the respondent, a police officer residing in Canning Town. The petitioner applied to the Original Side of this Court for a writ of habeas corpus and the respondent denied the fact of detention (See p. 596 of 31 CWN). Buckland, J., held that there was no custody or detention in fact. An appeal was preferred, and the Advocate-General on behalf of the Crown took a preliminary objection that the application to the Original Side being solely under Section 491, Criminal P. C. and therefore purely a criminal matter, no appeal lay (see p. 598 of 31 CWN).
12. The questions discussed on appeal, as will appear from the bottom of p. 606, (of 31 CWN) were four: (a) right of appeal depending upon whether a writ of habeas corpus had been displaced by Section 491; (b) whether a writ of habeas corpus could issue to the respondent, he being outside the jurisdiction; (c) whether the Act of 1925 - the main Act was ultra vires; and (d) the question of fact, whether or not there was detention. It is desirable to see how these matters were treated in the judgment. The Chief Justice dealt first with question (c), whether the Act of 1925 was or was not ultra vires and answered it in the negative. (The discussion is from p. 606, Col. 2 to p. 611, Col. 2 of 31 CWN). He dealt secondly with question, (a) whether writ of habeas corpus had been displaced by Section 491, Criminal P. C. The discussion is from p. 611, Col. 2 to p. 614, Col. 1 (of 31 CWN). This question he answered in the affirmative. Question (b), whether a writ of habeas corpus could be issued outside the Presidency towns was referred to at p. 614, Col. 2 (of 31 CWN), but it was not decided. Question (d), detention or no detention was dealt with at p. 614, Col. 2 (of 31 CWN) and the finding of Buckland, J., upheld.
13. Parenthetically at p. 616 (of 31 CWN), the Supplementary Act of 1925, which contains a provision similar to that in the Supplementary Act 8 of 1933, was referred to but for reasons which I think are apparent, it was not necessary to discuss the validity of that provision. On 11th February 1931 Bhagat Singh v. Emperor was decided by the Board. In my opinion it has no very direct bearing on the question before us. The short point was that Section 72, Government of India Act gave the Governor-General power in cases of emergency to issue Ordinances. He issued an Ordinance creating a special Court. A prisoner tried by such a Court applied to be released and contended that there was no emergency and that the Court should investigate this fact. The Board held that by the terms of the statute the Governor was made the sole authority to determine whether there was or was not an emergency.
14. In the same volume is to be found Eshugbayi v. Officer Administering Government of Nigeria AIR 1931 PC 248. I shall discuss this case when dealing with the question of the 'legality of the action' of the Executive. On 24th March 1932 Pramila Gupta v. W. S. Hopkins : AIR1932Cal470 was decided by Panckridge J. and my learned brother now sitting with me. That was a case of action taken under the statute with which we are now concerned. It appears that it was conceded that there was no bar to the application of Section 491, Criminal. P. Order (see p. 671, Col. 1 of 36 CWN). In this case, Eshugbayi's case AIR 1931 PC 248 was considered and distinguished. The last case, that of Jitendra Nath Ghose v. Chief Secretary to the Government of Bengal : AIR1932Cal753 was decided by this Court on 7th July 1932, It was again a case of action taken under Act 6 of 1930. The Supplementary Act had received the sanction of the Governor-General in Council on 5th April 1932, but was not relied upon, it being again conceded: see p. 1096, Col. 1 (of 36 CWN) that Section 491 was available. The three points taken by the appellant were: illegality of the main statute, illegality of the action taken, and the 'impropriety' of the action taken. On the first point, see p. 1097 (of 36 CWN) Remfry, J., followed Girindra Nath v. Birendra Nath : AIR1927Cal496 . On the second point, again distinguishing Eshugbayi's case AIR 1931 PC 248 and following Pramila Gupta's case : AIR1932Cal470 , Remfry, J. held that by the terms of the statute the Governor-General was the final authority to determine the class to which the Act should be applied, p. 1098, Col. 2 (of 36 CWN). Lastly,, with regard to the question of impropriety he pointed out that no proper case of impropriety had been pleaded or put before the Court, p, 1100, Col. 2 (of 36 CWN).
15. In the light of the authorities above discussed I now proceed to give my decision on the debatable points already enumerated. On point 4 (ii), (the question whether Section 491 displaces the writ of habeas corpus) Mr. Chaudhury has Govindan Nair v. Emperor AIR 1922 Mad 499 in his favour and Girendra Nath v. Birendra Nath : AIR1927Cal496 against him. He has attempted to displace the latter case by reliance in particular on the repeal of Acts of 1872 and 1875, and also upon the English statute, the Habeas Corpus Act of 1862, Without the assistance of the discussion already referred to at pp. 611 to 614 (of 31 CWN) it may be that I should not on this point have arrived at the same conclusion. In any event the decision is adverse to Mr. Chaudhury and is binding upon us. The second debatable point 5(i), (whether Section 491, Criminal P. C, in so far as it displaces writ of habeas corpus is illegal) is again covered by the authority of Girendra Nath v. Birendra Nath : AIR1927Cal496 . It is, I think, desirable to point out here that Mr. Chaudhury relies upon the taint of ultra vires at three distinct stages.' First in order to show that Section 491 cannot legally displace the writ of habeas corpus (the point immediately under consideration); secondly in order to show that Section 4, Supplementary Act, is beyond the power of the legislature; lastly to show that the main Act is ultra vires. In each case the nature of the taint is substantially the same. In order to establish that taint Mr. Chaudhury was not content merely to repeat and elaborate the argument of Mr. B. C. Chatterjee in Girendra Nath v. Birendra Nath, : AIR1927Cal496 based upon Section 80, Government of India Act. The new matter introduced, included (1) Section 124, Government of India Act, 1919. (2) Section 65, Government of India Act, 1919. (3) The Habeas Corpus Act, 1862. With regard to Section 124, Government of India Act, Mr. Chaudhury's argument is roughly this: The main statute is 'affected' because without Section 491 the machinery to render Section 124 effective will be wanting. Even if this be so, (and I am not clear that it is) such a circumstance would not, in my opinion, 'affect' the statute.
16. With regards to Section 65 'the unwritten law, etc., etc.'-the argument of Mr. Chaudhury is based upon the interdependence of allegiance with the right to freedom. The view contended for was accepted by Norman, J., in Ameer Khan's case (1870) 6 Beng LR 392 and was rejected by Phear, J., upon appeal from that decision. I am unable to agree that any of the matters now under discussion affect the law which has been saved by Section 65, Government of India Act. 'With regard to the Habeas Corpus Act, 1862 it is not entirely clear that that statute relates to India, Assuming that it does, in my opinion, the statute confers no jurisdiction. It is merely a preventing or disabling enactment. In my view, had this statute been relied upon before the Chief Justice in Girendra Nath v. Birendra Nath : AIR1927Cal496 the decision would not have been different. I am therefore of opinion that on the point now under discussion we are again bound by that decision. The next debatable point is 5(ii), (whether Section 4, Act 8 of 1933 in so far as it purports to deprive the Courts of all powers to investigate and interfere is ultra vires). There is no question here of implied displacement as in Rudolph Stallmans case (1911) 39 Cal 164. The language is specific.
17. In Govindan Niar v. Emperor AIR 1922 Mad 499 and Girendra Nath v. Birendra Nath : AIR1927Cal496 express prohibitions of similar nature were referred to but not considered. In Misc. Case No. 113 of 1933 however as I read the judgment, the application was dismissed on the ground that Section 4, Supplementary Act, constituted a valid bar to jurisdiction. On this question it appears to me, first of all, that logically nothing can deprive this Court of the power to examine the legality of the Supplementary Act. Indeed, whether the prohibition be contained in the main Act or in a Supplementary Act the prohibition itself must always be exposed to the scrutiny of the Court. But apart from this mechanical circumstance, in my opinion the fundamental question whether this Court can be thus deprived of its powers requires the most anxious consideration. The judgment in Misc. Case No. 113 of 1933 contains no reasoning and, speaking entirely for myself, had it been necessary to decide this question, I should not have been prepared, without the support of my brothers of the Pull Bench to be a party to an abdication of power so absolute and so unconditional.
18. It is, as I have indicated, unnecessary to decide the point because the other question, i.e. with regard to the legality of the main statute is determined by authority, because further the question of the legality of the action has been decided by authority, and because, in my view, the question of 'the propriety' of the action presents in this case no difficulty. The legality of the main-statute [debatable point 7(1)] has been established by the decision in Girendra Nath v. Birendra Nath : AIR1927Cal496 . The argument to the contrary I have already referred to in dealing with the questions relating to the preliminary objection as to the jurisdiction. The legality of the action [debatable point 7(2)] is a matter which I have not yet discussed. There appear to me at least two possible lines of attack on the legality of action taken in pursuance of a statute: (1) That the action taken is on the face of it outside the powers given by the Act. That is not suggested here. (2) That on an examination of the facts it will be found that the particular individual dealt with is not a proper subject for the application for the Act.
19. The point taken with reference to the enactment in question may be expressed as follows: The subject asserts: 'I am in fact not a conspirator and if the executive says I am, the executive must prove it.' The executive replies 'The legislature has made me the sole judge of that fact.' The subject relies upon Eshugbayi's case AIR 1931 PC 248. This case was relied upon for a similar proposition in, the two cases in Pramila Gupta v. W. Section Hopkins : AIR1932Cal470 and was distinguished, but, as pointed out by counsel for the Crown, the full nature of the difference between that case and a case of the kind before us was not fully demonstrated. In Eshugbayi's case AIR 1931 PC 248 the statute defined the class or object to which it was to be applied as follows: (a) Native Chiefs, (b) deposed, (c)-1 required by local custom to depart, alternatively, (c)-2 considered by the Government undesirable, (a), (b) plus either (c)-1 or (c)-2 were essential in gredients. The executive notified (a), (b) and (c)-1. They did not exercise their jurisdiction under (c)-2. The subject contended:
I am neither (a) nor (b) nor (c)-1. The point at issue in cases of the kind before us would have arisen if the Government had acted under (c)-2, and (a) and (b) had either been proved or admitted. To make the point clear suppose this particular Act read: Any member of the Bhadralok class believed by the executive to be a conspirator.
20. The two elements necessary would be that the man affected was (a) of the Bhadralok class, (b) the belief of the executive that he was a plotter. The subject would be entitled to assert: ' I do not belong to the Bhadralok class ' and that would be a matter for the Court to decide. The belief of the executive would not. This is the angle from which Remfry, J., has discussed the matter in Jitendra Nath Ghose v. Chief Secy. to Govt. Bengal : AIR1932Cal753 . I myself prefer to regard it from, a slightly different angle. The class affected is the Bhadralok class. The executive is invested with final power to determine which members of that class are to be dealt with under the statute. From whatever angle the matter be regarded, the decision in Jitendra Nath v. Chief Secy. to Govt. Bengal : AIR1932Cal753 , covers the point, and I agree with the reasoning which underlies it, The last debatable point, (7)(iii), is the question of the 'impropriety ' of the action taken. I have already referred to the inferences of fact which Mr. Chaudhury has asked us to draw in order to support this aspect of his case. I will deal with them in a moment, but before doing so, desire to say something on the question of principle. Mr. Chaudhury contends that the Court has jurisdiction to investigate and decide whether the power although legally exercised has been exercised bona fide. He refers to the word ' improper ' in Section 491 and to the decision in Saron's case (1916) 2 KB 742. Sarno's case (1916) 2 KB 742 was followed by Remfry, J., in Jitendra Nath v. Chief Secy. to Govt. Bengal : AIR1932Cal753 , when the phrase used is ' fraud upon the Act. ' It is apparent that the English Courts in their anxiety to do justice between the subject and executive have asserted and maintained a residuary power to interfere in certain cases notwithstanding that the action taken is technically legal.
21. It seems to me that the following may be distinguished upon principle- wrong information, whether, intentionally false or otherwise, malice or ill-will on the part of some officer in the departments or services concerned- improper or dishonest application of the statute itself, i.e., use of the statute for a purpose not contemplated by the statute. As regards wrong information this must normally constitute a case of 'illegal exercise ' of power and be governed by principles already discussed. As regards malice I agree with Mr. Chaudhury that under certain circumstances the malice of a subordinate would fall to be imputed to the higher authorities, but under what circumstances and what kind of malice; Sarno's case (1916) 2 KB 742 affords some answer to these questions. The point in that case was this: Analien had been externed under certain wartime legislation. The man had been shown to be an immoral scoundrel. He applied for habeas corpus on the ground that from the preamble and certain sections of the Act it was apparent that the statute was directed against aliens dangerous to the realm. He said:
The executive has shown me to be a scoundrel, but it has not shown me to be dangerous. The statute has been misused.
22. The Chief Justice, while affirming the jurisdiction to investigate this question, disposed of or circumvented the application by holding that, in time of war, a mere scoundrel constituted a menace to the realm because he would monopolize forces of the Crown required for more essential services. This decision appears to me to indicate the type of case to meet which the English Courts have asserted jurisdiction, i.e., cases involving some element of misuse of the statute itself. I conclude with an example, in itself trifling but which illustrates the distinction I have in mind. Suppose that by statute the Commissioner of Police is empowered to extern any dancer whose performance is in his opinion likely to offend public taste. Information is given by an Inspector out of revenge. That; would not constitute a case of 'fraud upon the statute.' The dancer might prove that her performance was perfectly proper. That again, in itself, would not be enough, nor would it enable the Court to investigate the correctness or otherwise of the opinion of the Commissioner of Police. But supposing it came to the knowledge of the Commissioner of Police that the information was false, but that he had other reasons for desiring to extern the person in question, e.g., for writing inflammatory literature. The person in question had been sent for and told ' unless you stop your inflammatory writing you will be externed.' If such a case was made out in the petition, I conceive that the Court would proceed to investigate the matter and if true would not hesitate to interfere.
23. If I am correct on principle, I am of the opinion that the nature of the allegations here are not sufficient to found as case of fraud upon the Act. The mere suggestion that certain officials were actuated by ill will or might have supplied false information during the course of the enquiry is, in my opinion, inadequate. Further, as pointed out by my learned brother, such allegations as there are, are of the vaguest character. In this respect I entirely agree with the observations of Remfry, J., in Jitendra Nath v. Chief Secretary to the Government, Bengal : AIR1932Cal753 as to the necessity for precision. Notwithstanding the above objections both on the matter of principle and on the matter of form, we have considered the facts and have come to the conclusion that the inferences which we have been asked to draw are not justified. I refer specially to para. 18 of both petitions. That paragraph of the first petition contained an allegation that the police had taken action 'in order to ruin the business of the detenue.' The same paragraph of the second petition contains the following addition: 'To ruin the business if the detenue does not give further information.' No single fact has been proved in support of the charge in either form. The legality of the arrest at Ranchi is not in point. Indeed, the very facts upon which Mr. Chaudhury was reduced to rely established the absolute inadequacy of the materials at his command to found a case of fraud upon the statute. I refer to the incident, so much discussed, of Alipore Jail. On the merits therefore I agree with my learned brother that there has been no improper exercise of power' adequately alleged or at all proved. The Rule therefore will be discharged.
M. C. Ghose, J.
24. This is a petition by Pratul Chandra Mitra, who is detained in Hijli Detention Camp. His ease is that he is being illegally and improperly detained there. Upon this petition a Rule was issued calling upon the Commandant, Hijli Detention Camp, to show cause, why (1) the petitioner Pratul Chandra Mitra should not be released ; (2) a writ of habeas corpus should not be issued for the production of the body of the said petitioner in Court to be dealt with according to law; and (3) an enquiry should not be made whether an offence under Section 124(1), Government of India Act has been committed, or why such other or further order should not be made as to this Court may seem fit and proper.
25. Mr. Chaudhury on behalf of the petitioner has given us an elaborate disquisition on the history of the prerogative writ of habeas corpus. But Section 4, Government of India Act 8 of 1932 lays down that
the powers conferred by Section 491, Criminal P.C., 1898, shall not be exercised in respect of any person arrested, committed to or detained in custody
under the Bengal Criminal Law Amendment Act 1930, and the said Act as supplemented by Act 8 of 1932. This provision clearly excludes the petitioner from the benefit of Section 491, Criminal P. C. It is argued however by Mr. Chaudhury that independently of Section 491, Criminal P. C, it is open to the petitioner to make this application for the prerogative writ of habeas corpus. This question was fully discussed by Sir George Rankin, C. J., in the case of Girindra Nath v. Birendra Nath Pal : AIR1927Cal496 . Relying upon that decision I have no hesitation to hold that in this case the petitioner has no right for a writ of habeas corpus apart from the provisions of Section 491, Criminal P. C. He was arrested by an order of the Governor in Council and ordered to be detained in Hijli Detention Camp under the powers provided by Bengal Act 6 of 1930 as supplemented by India Act 8 of 1932, Act 6 of 1930 empowers the Local Government, when over they are of opinion that there are reasonable grounds for believing that any person answers to a certain description as belonging to a certain criminal association etc., to have him by an order in writing detained in a detention camp. So long as that statute remains in force, it cannot be said that the petitioner's detention in Hijli Detention Camp is illegal or improper. Whether the Bengal Government were right in their decision to order the detention of the petitioner is not a question which is for us to determine. The statute leaves the decision entirely to the local Government. If the local Government be of opinion that there are reasonable grounds to proceed, they may proceed under the Act. No discretion is left to the High Court to enter into the question whether the local Government have reasonable grounds for their action. Grounds (1) and (2) of the Rule therefore fail.
26. The learned Deputy Legal Remembranoer has brought to our notice that a similar petition made by the father of the petitioner on his behalf was rejected on 28th August last by a Bench of this Court consisting of the Acting Chief Justice and Henderson, J. Mr. Chaudhury has commented on the facts of the arrest of the petitioner and urged that the police acted mala fide in respect of him and this Court ought to order an inquiry whether an offence under Section 124(1), Government of India Act, has been committed. The facts in short are as follows: The petitioner is a young man who used to reside in Ranchi. He was arrested there on 15th February 1933 by the police at Ranchi upon a request in writing which they received from the Calcutta Police. He applied for bail at Ranchi but his application was rejected by the Magistrate of Ranchi. It is urged that the Police at Ranchi had no authority to arrest the petitioner upon a mere request from the Calcutta Police without a proper warrant issued by a Magistrate and that the Magistrate of Ranchi acted illegally in not granting him bail. These criticisms against the police and the Magistrate of Ranchi do not touch the merits of the present case, namely, whether the petitioner is lawfully detained at Hijli Detention Camp.
27. On the material before us it cannot be held that the police or the Magistrate of Ranchi acted illegally. Upon arrest at Ranchi he was duly sent to Calcutta where the Calcutta police on 16th February 1933 produced him before the Chief Presidency Magistrate on an allegation that they were investigating into a case of a serious criminal conspiracy and that they had reason to suspect that the petitioner was a member thereof. He was remanded to Hajat in Presidency Jail until 4th March when the police, it is said, were advised to lay their conspiracy case not before the Chief Presidency Magistrate of Calcutta but before the Magistrate of Alipore whereupon at the request of the police the case was withdrawn from the Court of the Chief Presidency Magistrate and' the accused and the other men arrested in that case were taken to the Magistrate of Alipore who ordered their detention in prison until 1st April last when, it is said, the police had sufficient evidence against certain of the accused men against whom a charge-sheet was eventually submitted, but they had not sufficient evidence against the petitioner to put him on trial. They had however sufficient evidence against him to apply to the Local Government to pass an order of detention under Act 6 of 1930. It may be noted that under that Act the Local Government do not pass final order of detention without the opinion of two judicial officers of the rank of a District and Sessions Judge, who peruse all the papers and advise the Local Government on the matter. Upon these facts it cannot be said that any of the officers acted illegally or improperly so as to come under the provisions of Section 124(1), Government of India Act.
28. It was urged that the father of the petitioner who wanted to interview his son was treated badly by the police and the jailor of the Presidency Jail. It appears that the father applied for an interview with the petitioner and some police officer wrote to him that he might interview his son at Presidency Jail on. 8th July. Accordingly on 8th July he went to the Presidency Jail and there he was told that he could not interview the prisoner unless a police officer was present but no police officer came and the poor father had to depart after waiting for about two hours and it further appears that the petitioner on 8th. July was not at all in the Presidency Jail but that he had been on the previous day sent to Hijli Detention Camp. These facts show that there were certain unfortunate mistakes by which the father of the petitioner suffered. These facts however do not touch the legality or propriety of the detention of the petitioner by the Local Government in Hijli Detention Camp. I am of opinion that all the grounds fail and this Rule must be discharged.