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Case Number

Criminal Application No. 585 of 1943

Advocates

R.A Jahagirdar, with K.J Kale, and D.M Atharale,
N.P Engineer, Advocate General, with B.G Rao, Government Pleader, for the Crown.
R.A Jahagirdar. This application is made under s. 491 of the Criminal Procedure Code. The order which is challenged has been made under r. 26 of the Defence of India Rules. It shows that it was directed against several persons. It is a condition precedent to the validity of the order that the detaining authority must be satisfied as to the grounds on which the order is based. Although the Court cannot go into the question whether the detaining authority was satisfied, the Court can go into the grounds on which the order is based. Section 6 of the Ordinance of 1944 shows that all orders passed under r. 26 are deemed to have been passed under s. 3. The Ordinance is, it is submitted, ultra vires.
Assuming that s. 3 is valid, the same argument applies, viz., that the detaining authority must be satisfied. It is only when valid orders have been passed that s. 10 of the Ordinance of 1944 would operate as a bar.
The order is, on the face of it, ultra vires. Keshav Talpade's case decides that r. 26 went beyond s. 2(2)(x) of the Defence of India Act, 1939. The detaining authority must have evidence with which to be satisfied before the order is made. If it is shown that the detaining authority had not applied its mind, the order would be bad.
The following authorities were cited: Emperor v. Prabhakar Kondaji Bhapkar(1); Shib Nath v. Porter(2); King-Emperor v. Sibnath Banerjee.(3)
N.P Engineer. There is no suggestion that there is, in this case, any want of bona fides. The order is good inasmuch as it is made by a person competent to make it. The objection raised is that it is directed against several persons and that the District Magistrate had not applied his mind to each individual case. It may be assumed that on August 9, 1942, orders had been passed against several persons. The orders were bound to be stereotyped. Merely because all the four grounds are mentioned in the order, it does not mean that the District Magistrate had not applied his mind to the case.
Under Ordinance III of 1944, the production of an order is a complete answer unless it is suggested that the detaining authority had not applied its mind or that the order was not bona fide. The grounds mentioned in the order are to be considered in the light of the events and circumstances then existing. The scheme of the Ordinance is that s. 3 gives the Central Government or the Provincial Government the same power to make orders as was given by r. 26.
Section 6 of the Ordinance of 1944 is analogous to s. 3 of the Ordinance XIV of 1943. The effect of s. 10 of the Ordinance of 1944 is that the remedy provided by s. 491 is taken away. An order may be void and yet it comes within s. 10. Even if the District Magistrate had not applied his mind and the order is a nullity, it does not affect the submission. Section 10 applies as much to orders made after the Ordinance, as to those made before it.
The following authorities were cited: King-Emperor v. Sibnath Banerjee(3); Liversidge v. Sir John Anderson(4); Bhagat Singh v. King-Emperor(5); Keshav Talpade v. King-Emperor(1); Emperor v. Chanappa Shantirappa(2); Matthen v. District Magistrate, Trivandrum(3); Girindra Nath Banerjee v. Birendra Nath Pal(4); Abeyesekera v. Jayatilake(5); and P.K Tare v. Emperor.(6)
Jahagirdar, in reply. Section 10 of the Ordinance of 1944 does not apply to this case. The application under s. 491 was pending when the Ordinance came into force.

Judges

Mr. Leonard Stone, C.J
Mr. Kania
Mr. Wadia
Mr. Divatia
Mr. Chagla, JJ.

Acts

sub-s. 2(5) of the Defence of India Act, 1939, the Provincial Government
sub-s. (5) of s. 2 of the Defence of India Act, 1039 (XXXV of 1039),
r. 26 and sub-s. 2(2)(x) of the Defence of India Act, 1939.
26(1) of the Defence of India Rules as that sub-rule
s. 2 of the Defence of India Act, 1939 (XXXV of 1939).(2)
provision in s. 16 of the Defence of India Act,
(1) of r. 129 of the Defence of India Rules, 1939,
s. 205 of the Government of India Act, 1935,
sub-s. 16(1) of the Defence of India Act,
rules, r. 26 and r. 129.On August 7, 1942,
rule 26 of the Defence of India Rules
s. 2 of the Defence of India Act, 1939.
s. 205 of the Government of India Act.
r. 129 of the Defence of India Rules
r. 26 of the Defence of India Rules
EVIDENCE ACT 1872
26(5) of the Defence of India Rules
r. 26, Defence of India, Rules. (1)
rule 26 of the said Rules,
GOVERNMENT OF INDIA ACT

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Smart Summary

Structured Summary of the Court's Opinion (Stone, C.J.)

Factual and Procedural Background

This full bench considered two petitions under section 491 of the Criminal Procedure Code, 1898, filed by Mr. Keshav Govind Gokhale, a pleader of the Belgaum District and a Member of the Bombay Legislative Assembly, who was produced from Belgaum Central Prison where he had been detained.

The opinion records the following undisputed factual particulars:

Mr. Gokhale was arrested on 9 August 1942 at 3 p.m. at Nipani (44 miles from Belgaum) under rule 129 of the Defence of India Rules by a Sub‑Inspector of Police.
He was conveyed the next day to Belgaum Central Prison and detained there until mid‑March 1943, then transferred to Nasik Road Central Prison, and subsequently retransferred to Belgaum Central Prison.
The document purporting to authorize his detention was signed by C.N. Millard, District Magistrate of Belgaum, on 9 August 1942 — in point of time before the arrest.
On the same day Mr. Millard issued documents that led to the detention of about thirty other persons.
Mr. Gokhale requested a copy of the order under which he was detained (after reading of a Federal Court decision) on 2 September 1943, but he was not supplied with any copy until 7 November 1943. The Court regretted and noted the unexplained delay.

The Court emphasised the fundamental right of every detainee to know the terms of the order under which he is detained.

Legal Issues Presented

Whether the document signed by the District Magistrate (C.N. Millard) on 9 August 1942 constituted a valid order under rule 26 of the Defence of India Rules, 1939, so as to justify continued detention of Mr. Gokhale.
Whether the District Magistrate applied his mind (i.e., exercised the requisite executive discretion and quasi‑judicial consideration) before signing the document — in other words, whether satisfaction under rule 26 was in fact formed.
If the document was invalid as an order, whether Ordinance No. III of 1944 (the 1944 Ordinance), and in particular sections 6(1)/(2) and 10, retrospectively validated that document and/or ousted the jurisdiction of the Court under section 491 CrPC to inquire into the detention.
Whether, as a consequence of the above, Mr. Gokhale's detention was lawful or unlawful (including whether detention became unlawful after the expiry of the periods permitted by rule 129).
Whether a certificate under section 205 of the Government of India Act, 1935, should be granted to enable an appeal to the Federal Court (i.e., whether the case involved a substantial question of law under that Act).

Arguments of the Parties

Advocate General's Arguments

The Advocate General argued that the document signed by Mr. Millard was an order made under rule 26 and therefore, by virtue of section 6(2) of the 1944 Ordinance, should be deemed valid and have effect as if made under the Ordinance.
He relied on the 1944 Ordinance (particularly ss. 6 and 10) to contend that courts are barred from calling such orders in question and that section 491 CrPC is suspended in respect of orders covered by the Ordinance.
He also relied on authorities (quoting Rex v. Secretary of State for Home Affairs, Ex parte Greene) to contend that there is no general obligation on the authority (here Mr. Millard) to file an affidavit explaining his satisfaction unless the return is specifically and properly controverted in a way that necessitates an answer.
The Advocate General did not ask for an adjournment to file any affidavit from Mr. Millard.

Petitioner's / Mr. Jahagirdar's Arguments

The petitioner (through counsel Mr. Jahagirdar) contended that the document was invalid because the District Magistrate had not applied his mind; the form was cyclostyled and inappropriate to a single person, and its contents indicated routine mechanical signing rather than a considered order under rule 26.
Mr. Jahagirdar also contended that, on a true construction of the relevant provisions, the Central or the Provincial Government (and not the District Magistrate) had to be satisfied under sub‑rule 26(1); hence the District Magistrate could not validly make the required satisfaction. The Court did not decide this contention because it found invalidity on other grounds.
Separately, counsel applied for a certificate under section 205 of the Government of India Act, 1935, arguing that the case involved a substantial question of law as to interpretation of that Act (sufficient to "involve" the question even if it did not determine it ultimately).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Greene v. Secretary of State for Home Affairs	Illustrates the Home Secretary's careful investigations and the necessity for the authority to study reports and form an actual belief before ordering detention; used to show the standard of application of mind expected.	The Court contrasted Millard's mechanical signing with the meticulous inquiries described in Greene to support the conclusion that Millard had not applied his mind when signing the cyclostyled form.
Rex v. Secretary of State for Home Affairs. Ex parte Greene (Court of Appeal)	Passage stating that where an order valid on its face is produced, the onus is on the prisoner to disprove; but whether the Secretary must file an affidavit depends on the grounds of challenge.	The Advocate General relied on this passage to argue no obligation to file an affidavit. The Court accepted the general proposition about initial onus but held that on the particular admitted facts and the document's form the initial onus was discharged and shifted to Millard to show he applied his mind.
Liversidge v. Sir John Anderson	Authoritative appreciation (by higher court) of the principles relating to subjective satisfaction and the need for reasonable cause; cited in relation to the Rex/Greene passages.	The Court noted that the passage from Rex/Greene was referred to with approval by Lord Wright in Liversidge and used the broader jurisprudential context to discuss the nature of the satisfaction required and the evidentiary onus.
King-Emperor v. Sibnath Banerjee	Federal Court decision holding similar cyclostyled orders invalid where the authority had not been satisfied; principle that the satisfaction required by rule 26 is a condition precedent requiring exercise of executive discretion and quasi‑judicial consideration.	The Court relied on this decision to reinforce the principle that if an officer did not apply his mind as required by rule 26 the order is invalid. The Court distinguished factual differences but drew the same legal principle.
Keshav Talpade v. King-Emperor	Federal Court held rule 26 ultra vires; led to retrospective Ordinances intended to cure that invalidity.	The Court noted this decision as the reason for Ordinance No. XIV of 1943 and subsequent Ordinance No. III of 1944, but held that those Ordinances did not validate a document that was not an order at all because the officer had not applied his mind.
Baldev Mitter v. Emperor	Interpreted as adopting reasoning that section 6(1) of the 1944 Ordinance could cover certain cases and that s.6(2) applied accordingly; the decision implicitly acknowledged limits to s.6(2)'s validating power.	The Court relied on this case as supporting their view that s.6(2) does not validate documents that are invalid for reasons other than the specific defect cured by s.6(1) (i.e., divergence of language between rule and Act/Ordinance).
Emperor v. Dantes	Authority on the standards for granting a certificate under section 205 of the Government of India Act.	The Court referred to this decision when considering the application for a certificate under s.205 and, relying on it, the Court withheld granting the certificate to the Advocate General.

Court's Reasoning and Analysis

The Court conducted a textual and contextual examination of the detention document and the legal instruments relied upon. Its reasoning proceeded in these principal steps:

Examination of the document: The original document was a cyclostyled form typed and signed by the District Magistrate. It used plural language throughout (referring to "persons named in the first column") and was manifestly inappropriate for the detention of a single named individual. The physical and textual features (cyclostyled form, typed entries, rubber stamp, clerk's initials) indicated routine preparation.
Inference about the District Magistrate's mental exercise: From the form and the circumstances (including reference to an unnecessary Notification concerning powers beyond territorial jurisdiction), the Court inferred that the document appeared to have been signed as a mechanical routine and that Mr. Millard, though assumed conscientious, had not applied his mind to the substantive considerations required by rule 26. The Court held that if he had applied his mind he could not have failed to correct the manifest defects.
Burden of proof and onus: The Court acknowledged the initial onus lies on the petitioner to controvert a facially valid order, but held that on the examination of the document and the admitted facts that initial onus was discharged — thereby shifting the onus to Mr. Millard to show that he applied his mind and made a genuine decision to detain Mr. Gokhale.
Legal nature of the satisfaction required by rule 26: Relying on the Federal Court's reasoning in King-Emperor v. Sibnath Banerjee and on authorities such as Rex/Greene and Liversidge, the Court emphasised that the satisfaction required by rule 26 is a condition precedent that demands the exercise of executive discretion and a quasi‑judicial consideration of materials within the authority's cognizance.
Interaction with retrospective legislation (the 1944 Ordinance): The Advocate General's contention that section 6(2) of the 1944 Ordinance validated the Millard document was examined. The Court parsed s.6(1) and s.6(2) closely and concluded that s.6(1) only validates orders that would otherwise be invalid merely because the rule purported to confer powers in excess of those legally conferred by the Act/Ordinance. Section 6(2) deems such orders to have been made under the Ordinance. However, where the document is not an order at all (because the officer never applied his mind), s.6(1) and s.6(2) do not apply to validate it. The Court relied on the textual word "such" and on the line of authority exemplified by Baldev Mitter to support this narrower construction.
Application of section 10 of the 1944 Ordinance: The Court considered the Advocate General's reliance on s.10(1) (which seeks to bar judicial questioning of orders made under the Ordinance and to suspend s.491 CrPC in respect of such orders). The Court found that the Millard document did not fall within the categories protected by s.10(1), because it was not an order properly made under rule 26 nor an order having effect by virtue of s.6. Consequently, s.10 did not oust the Court's jurisdiction in this case. The pending habeas corpus proceedings at the commencement of the Ordinance did not become proceedings challenging an order "having effect by virtue of s.6" within s.10(2).
Conclusion on lawfulness of detention: Because no valid order under rule 26 had been made in Mr. Gokhale's case, and because the period permitted by rule 129 had expired, the Court concluded that Mr. Gokhale's detention was unlawful from the expiry of that period. The Court therefore ordered immediate release.
Certificate under section 205: The Court considered an application for a certificate under s.205 of the Government of India Act to appeal to the Federal Court. Having considered precedent (Emperor v. Dantes) and the issues, the Court withheld a certificate to the Advocate General.

Holding and Implications

Holding:

The petitions succeeded: the Court ordered the immediate release of Mr. Keshav Govind Gokhale from custody.

Reason and immediate effect:

The Court held that the document signed by the District Magistrate on 9 August 1942 was not a valid order under rule 26 because the District Magistrate had not applied his mind; therefore no lawful order for detention under rule 26 had ever been made in Mr. Gokhale's case.
Consequently, and in any event after the expiry of the periods permitted by rule 129, Mr. Gokhale's continued detention was unlawful and he was ordered released immediately.
The Court declined to rule on the general validity or invalidity of the 1944 Ordinance; it proceeded on the assumption (for argument) that the Ordinance was valid but expressly stated it decided nothing on the Ordinance's validity.
The Court withheld the certificate under section 205 of the Government of India Act requested by the Advocate General.
Procedural direction: In the event of an appeal to the Privy Council the original order of detention dated 9 August 1942 signed by Mr. Millard (to be marked "Exhibit No. 1") was to be forwarded in original to the Privy Council.

Implications beyond the parties: The decision directly affects the release of Mr. Gokhale and clarifies that retrospective validation under s.6(1)/(2) of the 1944 Ordinance does not extend to documents that are not orders because the required subjective satisfaction was never formed. The Court did not purport to establish a new general rule beyond applying established principles (and explicitly avoided deciding the validity of the 1944 Ordinance itself).

Order accordingly. (Per curiam: certificate under s.205 withheld.)

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Imperator v. Keshav Govind Gokhale

Stone, C.J:—

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.

We have before us two petitions under s. 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 r. 129 of the Defence of India Rules by a Sub-Inspector of Police at Nipani 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.

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.

By sub-r. (1) of r. 129 of the Defence of India Rules, 1939, any police-officer, or airy 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-r. (2) of r. 129 it is provided that the officer who makes an arrest under sub-r. (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.

The relevant portions of r. 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 lie 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.

Under sub-s. 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-s. (5) of s. 2 of the Defence of India Act, 1039 (XXXV of 1039), 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, r. 26 and r. 129.

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 Gazette in similar terms to the former it was provided that the powers conferred by sub-r. 26(5) of the Defence of India Rules “shall also be exercised by all District Magistrates within the Province of Bombay”.

In fact r. 26 was subsequently held by the Federal Court in the case of Keshav Talpade v. King-Emperor 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 in validity.

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.

Name of person.Classification.

K.G Gokhale of Belgaum.1.

Initials.Signed (Illegible).

(Illegible)District Magistrate, Belgaum.

Dated at Belgaum, this 9th day of August 1942.

(Impress of rubber stamp).

District Magistrate, Belgaum.”

An examination of the original of this document shows that it consists of a form, produced by a cyelostyled 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.”

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-r. 26(1) of the Defence of India Rules as that sub-rule stood on August 9, 1942.

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-r. 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.

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.

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 r. 129 itself demonstratively foresaw such a state of affairs when it provided a period of fifteen days in which orders for detention under r. 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.

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.)

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, 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 State for Home Affairs.

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.

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.

In the case of King-Emperor v. Sibnath Banerjee the majority of the Fedral 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 r. 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 r. 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 requires 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.”

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.

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 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 s. 16(1) has no application.”

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, 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 Liversidge v. Sir John Anderson.]

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-r. 26(1): but having regard to our conclusion already stated, it is not necessary to go into this question.

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 r. 26 and sub-s. 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.

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 ss. 6 and 10 upon which the Advocate General relies: They are as follows:—

“6. (1) Validation of orders made under r. 26, Defence of India, Rules.— (1) No order made before the commencement of this Ordinance under r. 26 of the Defence of India Rules shall after such commencement be deemed to be invalid or Recalled 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 s. 2 of the Defence of India Ordinance, 1939 (V of 1939), or under s. 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.”

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 s. 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 s. 491 of the Code of Criminal Procedure, 1898 (V of 1998), 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 s. 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 (1 of 1872), presume that such order was so made by that authority.”

In answer, Mr. Jahagirdar challenges the validity of the 1944 Ordinance, and in particular of s. 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.

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 r. 26, it follows that by virtue of sub-s. 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-s. 6(1) is to validate orders made under r. 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 s. 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-s. 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.

In our judgment, sub-s. 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-s. 6(1) to which sub-s. 6(2) applies and is limited.

It was contended that sub-s. 6(1) of the 1944 Ordinance was separately framed to continue the operation of s. 3 of Ordinance No. XIV of 1943 which had been held valid by the Federal Court. That, however, does not mean that by sub-s. 6(2) of the 1944 Ordinance all orders purported to be made under r. 26 were validated. It is significant to note the word “such” used in sub-s. 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 r. 26, sub-s. 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-s. 6(1) are covered by sub-s. 6(2). We find that this line of reasoning was advocated in Baldev Mitter v. Emperor. The Court held that the case fell under sub-s. 6(1), and, therefore, it was covered by sub-s. 6(2). The Court did not, however, reject the contention advocated and seems to have impliedly approved of it.

The first part of sub-s. 10(1), 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 s. 16 of the Defence of India Act, and the Federal Court has enquired into and decided questions of validity of orders passed under r. 26 on the ground of the same being ultra vires.

The second part of sub-s. 10(1), which suspends the operation of s. 491 of the Criminal Procedure Code to such orders, applies to two classes of orders: that is to say, orders made under s. 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.

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 s. 6, as if it had been made under this Ordinance, is called in question.

In the result, no order under r. 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 r. 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.

N.P Engineer applied for a certificate under s. 205 of the Government of India Act, 1935, to appeal to the Federal Court. He stated that 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.

[Kania J. refers to Emperor v. Dantes.]

Per Curiam. It is necessary to add that an application has been made to us by the learned Advocate General for a certificate under s. 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.

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.

Order accordingly.

Y.V.D

Imperator v. Keshav Govind Gokhale

Structured Summary of the Court's Opinion (Stone, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Advocate General's Arguments

Petitioner's / Mr. Jahagirdar's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Imperator v. Keshav Govind Gokhale

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