1. We are unanimous in our opinions on the various questions which have been raised, and the judgment I am about to deliver is the judgment of this full bench.

2. We have before us two petitions under Section 491 of the Criminal Procedure Code, 1898, of Mr. Keshav Govind Gokhale, who has been brought up from Belgaum Central Prison where he is under detention. From these petitions which are duly affirmed it appears that Mr. Gokhale is a pleader practising in the Courts of the District of Belgaum and is also a Member of the Bombay Legislative Assembly. The following further facts, some of which appear in Mr. Gokhale's petitions, are not in dispute:

(1) That the arrest was made under Rule 129 of the Defence of India Rules by a Sub-Inspector of Police at Nippani which is forty-four miles from Belgaum at 3 o'clock in the afternoon of August 9, 1942.

(2) That Mr. Gokhale was on the day following conveyed to Belgaum Central Prison, where he was detained until the middle of March 1943, being then transferred to Nasik Road Central Prison, and subsequently retransferred to Belgaum Central Prison, from whence he has been produced before us pursuant to an order of this Court.

(3) That the document, by virtue of which Mr. Gokhale is detained, was signed by Mr. C. N. Millard, District Magistrate of Belgaum, on August 9, 1942, in point of time before the actual arrest.

(4) That on the same day as Mr. Gokhale was arrested Mr. Millard issued a document or documents which led to the detention of about thirty other persons.

(5) That as a result of reading an account in the newspapers of a decision of the Federal Court, Mr. Gokhale applied on September 2, 1943, to the District Magistrate at Belgaum for a copy of the order under which he was detained. That he was not supplied with any copy until November 7, 1943.

3. Before parting with the facts, we desire to state that every person under detention has a right to know the terms of the order under which he is detained, and that the delay in complying with Mr. Gokhale's request remains unexplained and is regrettable.

4. By Sub-rule (1) of Rule 129 of the Defence of India Rules, 1939, any police-officer, or any other officer of Government empowered in that behalf by general or special order of the Central Government, or of the Provincial Government, may arrest without warrant any person whom he reasonably suspects of having acted, of acting, or of being about to act : in amongst other ways

"with intent to assist any State at war with His Majesty, or in a manner prejudicial to the public safety or to the efficient prosecution of war."

By Sub-rule (2) of Rule 129 it is provided that the officer who makes an arrest under Sub-rule (1) shall forthwith report the fact of such arrest to the Provincial Government and may commit the person so arrested to custody : Provided that no person shall be detained in custody under this sub-rule for a period exceeding fifteen days without the order of the Provincial Government; and that no person shall be detained in custody under this sub-rule for a period exceeding two months.

5. The relevant portions of Rule 26, as it stood on August 9, 1942, were as follows:

(1) The Central Government or the Provincial Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war it is necessary so to do, may make an order;...

(b) directing that he be detained.

Sub-rule (5) provides that so long as there is in force in respect of any person such an order directing detention, the person detained shall be liable to be detained in such place and under such conditions as the Central Government or the Provincial Government may from time to time determine.

6. Under Sub-section 2(5) of the Defence of India Act, 1939, the Provincial Government has the power to delegate its powers and duties. And on December 19, 1941, the Government of Bombay by a Notification in the Bombay Government Gazette made the following order:

No. S.D./W. 3401. In exercise of the powers conferred by Sub-section (5) of Section 2 of the Defence of India Act, 1939 (XXXV of 1939), the Government of Bombay is pleased to direct that the powers or duties conferred or imposed on it by such of the rules of the defence of india rules as are mentioned in the schedule annexed hereto shall also be exercisable or dischargeable by all District Magistrates within the limits of their respective jurisdiction.

The schedule contains, amongst other rules, Rule 26 and Rule 129.

7. On August 7, 1942, that is to say, two days before Mr. Gokhale's arrest, by a further Notification being No. S.D.V./30 in the Bombay Government Gazzette in similar terms to the former it was provided that the powers conferred by Sub-rule 26(5) of the Defence of India Rules "shall also be exercised by all District Magistrates within the Province of Bombay.

8. In fact Rule 26 was subsequently held by the Federal Court in the case of Keshav Talpade v. King-Emperor [1914] F.C.R. 56 to be ultra vires ; and two Ordinances, to which we will presently refer, were issued by the Governor-General for the purpose of curing by retrospective operation such invalidity.

9. The document, under which Mr. Gokhale has been detained since his arrest on August 9, 1942, is in the following terms:

No. M.C-62.

Order.

Whereas the Government of Bombay has, by Notification in the Home Department (Political), No. S.D./W-3401, dated the 19th December 1941, and No. S.D.V./30, dated the 7th August 1942, directed that the powers conferred on it by Rule 26 of the Defence of India Rules shall also be exercisable by the District Magistrates;

And whereas I, C. N. Millard, District Magistrate of Belgaum, am satisfied with respect to the persons named in the first column of the Schedule hereto annexed 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 is necessary to make the following order ;

Now, therefore, in exercise of the powers conferred by Rule 26 of the said Rules, I do hereby direct that the said persons be detained until further orders in the Belgaum Central Prison.

I do hereby further direct that the said persons shall, for purposes of the Security Prisoners Detention Conditions Order, 1941, be classified as indicated against their names in the second column of the said schedule.

Schedule.

10. An examination of the original of this document shows that it consists of a form, produced by a cyclostyled process, on which has been typed in the left-hand column of the Schedule "K. G. Gokhale of Belgaum", and in the right hand column the figure "I". The date has been filled in by typing "9th" and the word "August". The signature is in ink, which, though illegible, is admitted to be that of Mr. Millard. The only other alterations to the original form are the impress of a rubber stamp of the District Magistrate, Belgaum, and the initials which are in ink of a clerk under the signature and against the words "District Magistrate, Belgaum.

11. It is obvious that the document, as signed, is inappropriate to the case of a single person, since it reads that Mr. Millard is satisfied with respect to "the persons named in the first column of the Schedule," and it continues at four other different places as if it was dealing with a plurality of persons. The reasons contained in the body of it, except those relating to Native States and tribal areas, are copied from Sub-rule 26(1) of the Defence of India Rules as that sub-rule stood on August 9, 1942.

12. Although the form was cyclostyled by the morning of August 9, it refers to the Notification of the Government of Bombay dated August 7. That Notification confers powers on officers under Sub-rule 26(5) to detain persons arrested beyond the limits of their territorial jurisdiction. A reference to that Notification and such powers was not necessary in this document, as it is not suggested that Mr. Gokhale was to be detained beyond the jurisdiction of Mr. Millard although arrested under Mr. Millard's order within the Belgaum District.

13. Ex facie, in our judgment, this document raises the inference that it was signed as a matter of mechanical routine. If it is to be assumed, and we do in fact assume, that Mr. Millard is a responsible and conscientious officer, it is not possible to believe that he appreciated the necessity for applying his mind to this document : since if he had done so, he could not have failed to correct its manifest inappropriateness. In our judgment, it is impossible to believe that in signing this document he appreciated the nature, the extent and the implications of the grave and onerous powers and duties delegated to him by Government for the purpose of curtailing by preventive detention the liberty of His Majesty's subjects without trial or process of the Courts.

14. The fact that there may have been serious disturbances at the time or that such disturbances may have been anticipated and that Mr. Millard signed many such documents on the same day can hardly be craved in aid as an explanation : since Rule 129 itself demonstratively foresaw such a state of affairs when it provided a period of fifteen days in which orders for detention under Rule 26 could have been considered and made in respect of persons arrested under it. The greater the emergencies and the disturbances of the moment, the more the reason to take advantage of the latitude given by the regulations, unless the signing of a document such as the one before us was regarded as a mere formality.

15. Contrast, as appears from his affidavit, the careful and meticulous investigations of Sir John Anderson as Home Secretary before authorising the detention of one Benjamin Greene under similar Regulations in England for detaining in preventive custody persons of whom the Home Secretary had reasonable cause to believe to be of hostile origin or association or to have been recently concerned with acts prejudicial to the public safety or the defence of the realm...:

Before I made the said order I received reports and information from persons in responsible positions who are experienced in investigating matters of this kind and whose duty it is to make such investigations and to report the same to me confidentially, I carefully studied the reports and considered the information and I came to the conclusion that there was! clear cause to believe, and I did in fact believe, that Benjamin Greene was a person of hostile associations and that by reason thereof it was necessary to exercise control over him.

See Greene v. Secretary of State for Home Affairs (1942) A.C. 285.

16. The learned Advocate General has contended that there is no obligation' upon Mr. Millard to file any affidavit to justify his action, and he relies upon the following passage in the judgment of Lord Justice Goddard in the Court of Appeal in the case above referred to reported in Rex v. Secretary of State for Home Affairs. Ex parte Greene (1942) 1 K.B. 87 (p. 116):

I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is ' I do not know why I am interned. I deny that I have done anything wrong,' that does not require an answer because it in no way shows that the Secretary of State had not reasonable cause to believe, or did not believe, otherwise.

This passage is quoted with approval by Lord Maugham at p. 295 in the report of the same case in appeal to the House of Lords in Greene v. Secretary of Shite for Home Affairs.

17. There is no doubt that the initial onus is on the petitioner, but we are of the opinion that on an examination of the document itself and considering it in the light of the admitted facts that the initial onus is discharged and that the onus is shifted on to Mr. Millard to show that he applied his mind to what he was doing, and that he did himself make a decision with regard to detaining Mr. Gokhale in preventive custody.

18. In the exercise of his discretion, and we doubt not that the discretion has been wisely exercised, the Advocate General has not asked for any adjournment so as to file any affidavit by Mr. Millard.

19. In the case of King-Emperor v. Sibnath Banerjee [1944] F.C.R. 1 the majority of the Federal Court were of opinion that the orders signed in that case were invalid. There also the. orders were on a cyclostyled form ; but the grounds set out in Rule 26 upon which an order could be made were copied disjunctively into the order and, not conjunctively as in the case before us. The majority of the Federal Court held that the authority making the order was not satisfied as to the reason for detaining the detenus concerned in that case. Undoubtedly the facts in the case of King-Emperor v. Sibnath Banerjee (supra) are different from the facts before us. But in each case the Court must consider the order of detention in the light of the actual language used and the circumstances surrounding the making of it. But the principle to be deduced from the decision of the Federal Court is clear, namely, that if on a perusal of the order it becomes clear that the authority or officer making the order did not apply its or his mind as required by r, 26, the order must be held to be invalid. The orders were on their face regular in point of form. There was nevertheless affidavit evidence to show the circumstances in which they were made. The learned Chief Justice of India, Sir Patrick Spens, observed (p. 95):

It was suggested by the Advocate General of Bengal that the satisfaction required by Rule 26 was not a condition precedent to the exercise of the power. I do) not take this view. I have already indicated that in my opinion it is a condition to be fulfilled before an order can be validly made. This condition requires1 in my judgment the exercise of executive discretion and demands a quasi-judicial consideration of the materials before him by the person authorized to deal with the matter.

20. In our opinion, all the circumstances in the case before us show that Mr. Millard did not exercise any executive discretion or make a quasi-judicial consideration of the facts pertinent to Mr. Gokhale's case.

21. The Advocate General was constrained to admit that, if one of the cyclostyled forms had been filled up with a wrong name by a dishonest clerk, and signed by the District Magistrate without noticing the defect, it would be no order. On the view we take of the matter, namely, that Mr. Millard never applied his mind when he signed this document to any consideration of the matters which the powers conferred and the duties imposed upon him compelled him to consider : it has no more efficacious result. In Talpade's case [1942] F.C.R. 56 the learned Chief Justice of India, Sir Maurice Gwyer, in considering whether the order was protected from examination by Sub-s. 16(1) of the Defence of India Act, which provides :

"no order made in exercise of any power conferred by or under this Act shall be called in question in any Court"

, said as follows (p. 9):

We are clearly of opinion that where the order is made under or by virtue of a rule which is invalid and therefore of no force or effect, the order is a nullity and section 16(1) has no application.

22. The document in the case before us is in no better position for, in our judgment, it is no order at all since the obligation to consider reasons or grounds for making the order and to be satisfied upon material laid before the officer or authority making it or within his cognizance is a condition precedent to the making of an order. In Rex v. Secretary of State for Home Affairs. Ex parte Greene [1942] 1 K.B. 87, Lord Justice MacKinnon said this (p. 108):

The power of the Home Secretary to issue a valid order depends on the fulfilment of a condition. The nature of that condition is very material. It is not the existence of an objective fact, for example, that the person concerned is an alien. It is the existence of a subjective state of mind in the Home Secretary, that is, that he has reasonable grounds for believing certain facts to exist, and, by implication, that he honestly entertains that belief. If an order asserting the existence of that state of mind and belief, in valid form,, has been made, the onus on the applicant of disproving its existence is obviously more difficult than would be the disproof of an objective fact, for example, that the man is an alien. Evidence of the applicant that he does not know that there are any reasons for the Home Secretary's belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the Home Secretary to explain and justify the assertion of his order. In the present case the appellant does rather more than make those general assertions or denials, and an affidavit in reply has been filed by the Home Secretary.

This passage was referred to with approval by Lord Wright in the House of Lords:

See Liversidgc v. Sir John Anderson [1942] A.C. 206, 262.

23. Mr. Jahagirdar has further contended that the order made by Mr. Millard is ultra vires and invalid because on the true construction of the relevant sections it should be the Central Government or the Provincial Government, and not the District Magistrate, who has to be satisfied on the points mentioned in Sub-rule 26(1) : but having regard to our conclusion already stated, it is not necessary to go into this question.

24. As a result of the case of Keshav Talpade v. King-Emperor (supra), there was issued Ordinance No. XIV of 1943, which, in effect, is aimed at curing the effect arising from the divergence of language between Rule 26 and Sub-section 2(2)(X) of the Defence of India Act, 1939. This was followed by Ordinance No., III of 1944, which came into operation on January 15, 1944, and it is upon its terms that the Advocate General relies.

25. Section 3 of the 1944 Ordinance gives power to make orders restricting the movements or actions of or detaining certain persons as therein mentioned. Section 5 provides for the delegation of the powers and duties of the Central and Provincial Governments to other authorities and to officers : But it is Sections 6 and 10 upon which the Advocate General relies : They are as follows:

6. (1) Validation of orders made under Rule 26, Defence of India Rules.- (1) No order made before the commencement of this Ordinance under Rule 26 of the 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 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 of the Defence of India Ordinance, 1939 (V of 1939), or under Section 2 of the Defence of India Act, 1939 (XXXV 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.

26. The rest of this section is not material.

10. Saving as to orders. (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 of the Code of Criminal Procedure, 1898 (V 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.

(3) Where an order purports to have been made by any authority in exercise of any power conferred by or under this Ordinance, the Court shall, within the meaning of the Indian Evidence Act, 1872 (I of 1872), presume that such order was so made by that authority.

27. In answer, Mr. Jahagirdar challenges the validity of the 1944 Ordinance, and in particular of Section 10 of it : But on the view which we take of this matter, it is not necessary to go into these contentions. Whilst, therefore, we proceed on the assumption that the 1944 Ordinance is valid, we desire to make it plain that we are deciding nothing with regard to its validity or its invalidity.

28. The argument of the Advocate General amounts to this ; That the document signed by Mr. Millard on August 9, 1942, is an order, and as it purports to have been made under Rule 26, it follows that by virtue of Sub-section 6(2) of the 1944 Ordinance, it is valid, whatever its defects may be. In our opinion this submission is fallacious. The effect of Sub-section 6(2) is to validate orders made under Rule 26 which would otherwise have been invalid

"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 the Defence of India Ordinance, 1939, or under Section 2 of the Defence of India Act, 1939."

That is to say, it cured the defect in the divergence of language between the rule on the one hand and the Ordinance and the Act on the other. It is every such order which under Sub-section 6(2) is to be deemed to have been, and which shall have effect as if it had been, made under the 1944 Ordinance, and as if such Ordinance had been in force at the relevant date.

29. In our judgment, Sub-section 6(2) of the 1944 Ordinance does not validate a document which is not an order at all, even though it bears the signature of a duly authorised officer, if it can be shown that the officer never applied his mind when he affixed his signature to it. And be it observed that it is only orders made valid by Sub-section 6(1) to which Sub-section 6(2) applies and is limited.

30. It was contended that Sub-section 6(1) of the 1944 Ordinance was separately framed to continue the operation of section 3 of ordinance no., xiv of 1943 which had been held valid by the Federal Court. That, however, does not mean that by Sub-section 6(2) of the 1944 Ordinance all orders purported to be made under Rule 26 were validated. It is significant to note the word "such" used in Sub-section 6(2) in this connection. In our opinion, if it could be shown that an order is invalid on a ground other than the invalidity of Rule 26, Sub-section 6(1) of the 1944 Ordinance does not apply and cannot validate such an order. Only orders valid except for the defect mentioned in Sub-section 6(1) are covered by Sub-section 6(2). We find that this line of reasoning was advocated in Baldev Mitter v. Emperor [1944] A.I.R. Lah. 142 F.B.. The Court held that the case fell under Sub-section 6(1), and, therefore, it was covered by Sub-section 6(2). The Court did not, however, reject the contention advocated and seems to have impliedly approved of it.

31. The first part of Sub-section 10(2), which suspends the jurisdiction of the Court to call in question orders to which it applies, does not help the Advocate General. There was a similar provision in Section 16 of the Defence of India Act, and the Federal Court has enquired into and decided questions of validity of orders passed under Rule 26 on the ground of the same being ultra vires.

32. The second part of Sub-section 10(1), which suspends the operation of Section 491 of the Criminal Procedure Code to such orders, applies to two classes of orders : that is to say, orders made under Section 3 of the Ordinance itself and orders "having effect under this Ordinance or in respect of any person the subject of such an order." In our judgment, for the reasons already stated, the document we have to consider does not fall within any of these categories.

33. Sub-section 10(2) does not assist the matter : since, though these habeas corpus proceedings were pending at the time of the commencement of the 1944 Ordinance, they are not proceedings 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.

34. In the result, no order under Rule 26 of the Defence of India Rules has ever been made in the case of Mr. Gokhale ; and, at any rate, from the expiration of the period mentioned in Rule 129 his detention has been unlawful. In these circumstances, it is our clear duty to order his immediate release from custody; and that order we now make.

35. N.P. Engineer applied for a certificate under Section 205 of the Government of India Act, 1935, to appeal to the Federal Court. The only requirement of the section is "that the case involves a substantial question of law as to the interpretation of this Act." It does not say that the "judgment involves". The applicant has raised the question as to whether the Ordinance is ultra vires. This is enough to show that "the case involves." Where there are several questions arising in a case and one of them refers to the interpretation of the Government of India Act, and the decision of the Court turns on a preliminary question not connected with others, in that case alone it can be said that the case does not involve the question. The case need not be the case as decided. It is enough if it is remotely possible that the question may arise.

36. Kania J. refers to Emperor v. Dantes .

37. Per Curiam. It is necessary to add that an application has been made to us by the learned Advocate General for a certificate under Section 205 of the Government of India Act. We have carefully considered the matter and withhold the granting of any such certificate. We are helped in coming to that conclusion by a reference to the case of Emperor v. Dantes , which is a decision of a full bench of this Court.

38. In case of an appeal to the Privy Council, we direct that the original order of detention issued on August 9, 1942, by Mr. Millard, which should be marked "Exhibit No. 1," should be forwarded to the Privy Council in original.