Shearer, J.:— These applications are made under Section 491 of the Cr PC, by or on behalf of twenty-three persons, who are detained in jails in this province under orders made by the Governor of Bihar under S. 26(1)(b), Defence of India Rules. In response to the rules which were issued, the learned Advocate-General has appeared and has produced copies of the orders, under which the petitioners are detained. Except in one case, the original order, made by the Governor of Bihar, was not produced. None of the petitioners put in a copy of the order, under which he was detained, and, in most of the affidavits it was specifically stated that no copy of the order had been made over to the detenue and that he had merely been given to understand by the jailor of the prison, in which he was confined that an order had been made against him under S. 26(1)(b). It is, I think, essential that, when a person is ordered to be detained under this rule, a copy of the order made against him should be supplied to him immediately. Clearly, if this is not done, and if an application is made on his behalf to this Court under Section 491 of the Cr PC, this Court will have no option but to issue a rule forthwith. Further, it is, I think, incumbent on the Crown, whenever a rule is issued, to exhibit in this Court the original order. Counsel for the petitioners did not, however, ask us to insist on the production of the original orders, and accepted the copies, which were produced as true copies, although, in many cases, they were not certified to be true copies by any responsible officer.
2. It is now well settled that Rule 26(1)(b), Defence of India Rules is intra vires, and, also that it is not open to a Court of law, on an application made by a person detained under that rule for a writ of Habeas Corpus, or in a suit, to recover damages for false imprisonment, to enquire into and pronounce on the validity of the reasons, which led to the making of the order. The country is at war, and, for the purpose of safeguarding it against internal as well as external dangers the Legislature has delegated to high executive functionaries the power to order, on one or more of various grounds, the detention of individual persons for an indefinite period. In exercising that very grave responsibility, the officer, to whom it is entrusted must frequently act on information, which, in the interest of the public safety, cannot and ought not to be disclosed. As the information, or most of the information, on the basis of which an order has been made, cannot in many cases, be disclosed, the Courts are, quite properly, debarred from considering the propriety of the order and setting it aside, merely on the ground that, in their opinion, it was not an order, which should have been made. It is, however, equally well-settled that this Court may examine the correctness of the recital contained in any such order, and if it comes to the conclusion that the recital is incorrect, may declare the order to be invalid and the detention of the individual concerned illegal. The orders, which have been made in all these cases, are in one and the same form, and it will be convenient, at this stage, to set out one of them in extenso:
“No. 3460 (P). Whereas the Governor of Bihar is satisfied with respect to the person known as Dr. Asoke Kumar Bose, that with a view to preventing him from acting in a manner prejudicial to the public order, it is necessary to make the following order:
Now, therefore, in exercise of the powers conferred by cl. (b) of sub-r. (1) of R. 26, Defence of India Rules, the Governor of Bihar is pleased to direct that the said Dr. Asok Kumar Bose be arrested by the police wherever found and detained until further orders of the Governor of Bihar.”
3. The material portions of the recital in the order are, in the first place, that “the Governor of Bihar is satisfied with respect to the person named,” and, secondly, that his detention is necessary “with a view to preventing him from acting in a manner prejudicial to the public order.” The word ‘satisfied’ in Rule 26(1)(b) must be construed as meaning “reasonably satisfied.” In 1942 A.C 2061 at p. 271 Lord Wright said:
“‘Satisfied’ must mean ‘reasonably satisfied.’ It cannot import an arbitrary or irrational state of being satisfied. I find the distinction between ‘reasonably satisfied’ and ‘has reasonable cause to believe too tenuous.”
4. If, therefore, any of these petitioners can show that there existed no grounds, on which the Governor of Bihar could, as a reasonable man, have been satisfied that their detention was necessary, they are, in my opinion, entitled to be released. Similarly, if they can show that the Governor of Bihar acted under a misapprehension as to the extent of the powers entrusted to him and did not in fact, order their detention with a view “to preventing them from acting in a manner prejudicial to the public order”, but with some other ulterior object such as to regularize their illegal detention or to punish them for acts, which they had already done rather than to prevent them from doing or instigating the doing of similar acts again, they would, in my opinion, be entitled to be released. In such a case it could not be said that the Governor of Bihar, had, in law acted in good faith, and the order of detention would be, to use the expression of Pickford L.J, in (1918) 1 K.B 5782 at p. 686, “practically a sham order.” As I have already said, the Crown merely produced copies of the orders, under which the petitioners are detained. No affidavits were put in, and it was contended by the learned Advocate-General and the learned Government Advocate that the Court was not entitled to go behind the orders of detention and pronounce on their validity. These orders, it was asserted, showed on their face that the petitioners were detained in legal custody. Much reliance was placed on the presumption “omnia rite esse acta”. The power to order the detention of any person on the ground set out in the order had, it was argued, been delegated to the Governor of Bihar, and a presumption arose that, in exercising this power, the Governor of Bihar had acted regularly, that is, that, before making any particular order, he had satisfied himself, on the materials placed before him, that it was necessary to detain the particular individual named in it with a view to preventing him from acting in a manner prejudicial to the public order. There can, of course, be no doubt but that this presumption does, in each case, arise. Viscount Maugham, in 1942 A.C 206 at p. 225, said:
“Just as the fact that the act of the Secretary of State acting in a public office is prima facie evidence that he has been duly appointed to his office, so his compliance with the provision of the statute or the order in Council under which he purported to act must be presumed unless the contrary is proved”.
5. The presumption, however, is, and Viscount Maugham made this quite clear, a rebuttable presumption. It is, I think, important to bear in mind how the question as to the applicability of the presumption arose in 1942 A.C 206. It appears that in England, during the last war and, also, during the present war, whenever a rule was issued on an application for a writ of habeas corpus, made by a person detained under an order of the Secretary of State or of some other official purporting to act under powers conferred on him by regulation, the ordinary practice had been to put in, along with the order of detention, an affidavit by the Secretary of State or other official, who had made it. This was done, for instance, in the last war in (1916) 115 L.T 229,3 and in this war in (1941) 1 K.B 72.4 In a subsequent case, (1942) 1 K.B 875 the Court was invited to say that the filing of an affidavit by the Secretary of State was unnecessary. Goddard L.J expressed the opinion that, in that particular case, no affidavit need have been put in. It is, however, important to notice that no question there arose as to the Secretary of State not having acted in complete good faith, and that, Goddard L.J observed, “I do not say that in no case is it necessary for the Secretary of State to file an affidavit”. At least one case has occurred in England during the last war: (1918) 1 K.B 578. in which the hearing of an application for a writ of habeas corpus was adjourned in order that the Secretary of State, at the suggestion of the Court, might put in a further and better affidavit, and, in this war, Stable, J. in his dissenting judgment in (1941) 2 All. E.R 7496 at p. 763 appears to have thought that this was a suitable course to take. In some of these cases, as will appear presently, I am of opinion that the detention of the petitioners is unlawful, and that, in consequence, they must be released. The circumstances of each case are such, that the putting in of an affidavit in a stock form, or, as one learned Judge in England described it “over the rubber stamp” would not, I think, have altered my decision. But even if it had been desirable to give the Crown an opportunity of putting in affidavits, it would have been quite useless to grant an adjournment for that purpose. The orders of detention were, in each such case, passed by the then Governor of Bihar, who was either His Excellency Sir Thomas Stewart or His Excellency Sir Thomas Rutherford, and Sir Thomas Stewart is no longer in this country and Sir Thomas Rutherford is no longer in this Province. An affidavit by some other officials that the material, on which, as against these petitioners, reliance was placed, was submitted to His Excellency before the orders of detention were made, would clearly be of no assistance to the Court, and indeed would be irrelevant. The question at issue is whether, in each of these cases, the Governor was satisfied as to the necessity of making an order of detention, and, clearly no one except the Governor himself is in a position to say what the state of his mind was at the time the orders were made. In this connexion, I must refer to certain statements, which were made by Mr. Baldeva Sahay, who appeared for one of these petitioners, in the course of his argument. Mr. Baldeva Sahay suggested that in some cases at least, and, perhaps, in many, the orders of detention had not, in fact, been made by His Excellency the Governor at all, but had been made by some other official subordinate to him. He went on to insinuate that was the reason why no affidavit had been put in by the Crown. It will be remembered that, in certain similar cases, which occurred in Bengal, affidavits were put in and these affidavits disclosed that the orders of detention had not, in any case, been made by His Excellency the Governor of Bengal, but had been made by the Home Minister, and, in some cases, by an Additional Secretary to the Government of Bengal. A majority of the Judges of the Federal Court* took the view that the power to make an order of detention under R. 26(1)(b) was conferred on the Governor, and could not be delegated under any rule made under Section 59(3) of the Government of India Act, and that in consequence, the detention of these persons was illegal. When pressed to disclose the grounds, on which he had made the assertions he did, Mr. Baldeva Sahay was unable to say anything except that, in the emergency which arose, His Excellency Sir Thomas Stewart must have been far too busy with other matters of the greatest importance to bestow his personal attention on these cases. I have satisfied myself, by reference to the rules of executive business, of which, in my opinion, this Court is entitled to take judicial notice, that there was an obligation on the Chief Secretary to Government to submit cases of this kind to His Excellency and to obtain his orders. In the absence of anything in the affidavits, this Court is bound to presume that the Chief Secretary to Government did, in fact, place the materials before His Excellency the Governor, and that the orders of detention were, in fact, made by His Excellency.
6. I need scarcely, I think, point out that, if in a particular case, this was not done, and the order of detention, although on the face of it, it purports to be an order of the Governor of Bihar, was in fact, an order of some other and subordinate official, the detention of the person, against whom the order is made, has been illegal. It may, perhaps, be that, in a suit to recover damages, the damages which would be awarded would, if there were at the time good reasons for this detention and the order was made in good faith, not be very considerable. But if, after attention has been drawn to the matter, his detention is continued under the illegal order, the position will be very different. If any such case has, in fact, occurred, the proper course to be taken now is for the Governor of Bihar or the officials to whom power has been delegated, as I understand it has been delegated, under Section 2(5) of the Defence of India Act, to consider the case of any such person de novo, and decide whether or not his detention is still necessary. I may say that in the particular case, in which these suggestions were made, the learned Government Advocate assured us that the order was, in fact, made by His Excellency the Governor. Indeed, he went further and said that the materials, placed before His Excellency, were in Court and offered to show them to us. We declined to look into them, as we are not at all concerned with the propriety, but merely with the validity of the order and in any case to look into them and not to give the petitioner an opportunity of adducing rebutting evidence, which of course, we cannot do would be quite wrong. It was then suggested that we should not rest content with the assurance given us by Mr. S.K Mitra, but should insist on an affidavit, that, in each one of the cases, the order was, in fact, made by the Governor. In my judgment, it was not at all open to us to take such a course. As I have just said, there is a presumption that the papers were laid before the Governor, and that presumption was not, in any way rebutted. Quite apart from that, it is not, I think, open to a Court to require proof that an order, which purports to have been made by the Governor and which is properly authenticated as such order, was, in fact, made by him. The learned Judges of the Federal Court, in 24 P.L.T 832,7 have made certain observations as to the scope of Section 59(2) of the Government of India Act. I can find nothing in these observations to suggest that the view, which I have just expressed, may be open to any doubt or criticism. It is important to notice that, in the Bengal cases, it was admitted by the Crown that the orders had not been made by the Governor of Bengal and that the question that arose was whether His Excellency could delegate the power to make such orders under the rules of executive business, which, it was contended, he had done. The question, raised by Mr. Baldeva Sahay, is quite a different one. It is whether these orders were, in fact, orders of the Governor of Bihar and sub-s. (2) of Section 59 of the Government of India Act, in my opinion, prohibits us from going into that.
7. I turn now to the individual cases, and shall deal, in the first place, with criminal miscellaneous case no. 186, in which the petitioner is Tarkeshwar Prasad, as it stands in a category by itself. The order, made against this petitioner, purports to be an order of the Governor of Bihar, but it is not signed, as the orders in the other cases are, by the Chief Secretary, but by one D. Pires “for Chief Secretary.” We have been given to understand that Mr. Pires, is the head-assistant in the special section of the Political Department, and it is conceded that he is not authorized to authenticate, by his signature, orders made by the Governor of Bihar. That being so, the order, under which Tarkeshwar Prasad is detained, is an invalid order, and his detention under it is unlawful: vide (1860) 30 L.J.Q.B 39.8
8. It is conceded that, in law, the onus is on the petitioners to show that the orders, which have been made against them, although, on their face, they appear to be valid orders, are not in fact, what they purport to be, and in consequence, their detention is unlawful. Admittedly, onus is one, which it is very difficult to discharge. Such being the position, the question that really arises, in each of these cases, is whether or not the petitioners have succeeded in shifting the onus of proof on to the Crown. If, in any case, this has been done, then in the absence of any affidavit or other evidence on behalf of the Crown, this Court must, I think, make an order for their discharge. As I have already said, the word ‘satisfied’ in the rule means ‘reasonably satisfied,’ and, if any of the petitioners can show that there existed no grounds, on which the Governor of Bihar could reasonably have come to the conclusion that their detention was necessary for the purpose stated in the orders, the orders will be deemed to be invalid. Unfortunately for the petitioners, the Governor of Bihar was not required to and did not communicate to them the grounds, on which he had made the order, and this Court is not entitled to compel their disclosure and examine into them. The utmost, therefore, that the petitioners could do was to give in their affidavits some account of their previous career and of the political opinions which they held, and suggest that their career having been, and their political opinions being such, the order made against them could not have been made on reasonable grounds. The majority of the petitioners may, perhaps, have thought that it was useless and hopeless to do this. At all events, with the exception of three, none of the affidavits contain matter of this kind. The affidavits, which do, are those which have been put in by the petitioners, Machkun Sharma, Maksndan Lal Sao and Parmanand Tribedi. Machkun Sharma, who is the petitioner in case no. 195, admitted that, prior to 1939, he had been an ordinary member of the Congress, and that, in that year, he had been the president of a Thana Congress Committee. He said that he had subsequently resigned and had joined the Kisan Sabha, of which he was the president in the district of Muzaffarpur from 1940 to 1942. He asserted that the objects of the Kisan Sabha were entirely different from the objects of the Congress. Maksudan Lal Sao, who is the petitioner in case No. 392, said that he had once been a member of the Congress, but that there had been acute difference between himself and the congress office-bearers of the Lohardaga municipality, and that these had culminated in litigation in the criminal Courts. He asserted that he had ceased to be a member of the Congress sometime in 1941 and denied that he had taken any part whatever in any subversive movement. Parmanand Tribedi, who is the petitioner in case no. 302, said that he was a member of the central executive of the All India Radical Democratic Party and the Provincial Secretary of the Indian Federation of Labour. He went on to assert that the political aspirations of the All India Radical Democratic Party were not at all the same as those of the Congress. I will assume that the statements made in these affidavits are correct in so far as both the Kisan Sabha and the All India Radical Democratic Party and the Indian Federation of Labour are concerned, and that these bodies had nothing to do with the disturbances which occurred last year. It does not, however, by any means, necessarily follow that individual members of any one of these bodies were not concerned in promoting them. It may no doubt be said that, if the leaders of these parties had disavowed any sympathy with the Congress and had called on their members to take no part at all in the civil disobedience movement, then before making any order of detention against an office bearer of one of these parties, the Governor of Bihar ought to have been very clear in his mind that individual had, by some overt act or other, shown that he was not prepared to obey the instructions of his leaders. This Court can scarcely, however, assume that so obvious a consideration was not present to the mind of Sir Thomas Stewart, when he made the orders which he did against Par-manand Tribedi and Machkun Sharma. At first sight, there is, to my mind, more substance in the contention put forward by the other petitioner, Maksudan Lal Sao, that he had dissociated himself from the Congress some time in 1941 and had since then ceased to have anything to do with it or with any other political body. I find, however, that this very point was taken in a case, which occurred in England and was negatived. In the middle of 1940, when Great Britain was threatened with invasion, the Secretary of State for Home Affairs ordered a large number of persons, who belonged to, or had at one time belonged to, a body known as the British Union of Fascists, to be detained. One of the persons so detained subsequently brought an action to recover damages for false imprisonment against Sir John Anderson and Mr. Herbert Morrison, the two Home Secretaries who were responsible for his detention. In this suit it was contended that the order of detention could not have been made in good faith, as, at the time it was made, the plaintiff was not a member of the British Union. In rejecting this particular contention, Tucker, J. said this:
“I myself take the view that, in a proper case, it might be sufficient, provided that the Home Secretary was applying his mind to the question of the necessity for exercising control in a particular case, to show that the man had at some time prior to the making of the order been a member of this association, and to show nothing more. It would depend upon his position in the organisation, perhaps, or upon the nature of his activities in the organisation, or upon the length of time which had elapsed since he had ceased to have anything to do with it. Those appear to me to be particular matters which it would be right to take into consideration, and I am not satisfied that it is necessary in every one of these cases for the Home Secretary to be satisfied that, since a man resigned from the organisation, he must have been a party to some overt act to which the Home Secretary can point: vide (1941) 2 All. E.R 6659 at p. 673-4.”
9. Rule 26(1)(b) required the Governor of Bihar to be satisfied “with respect to” the person named in the order, that is, it required him to consider the case of each person, against whom an order was sought individually. The main point, which has been taken by the various counsel who appeared on behalf of the petitioners, is that there are circumstances which go to show conclusively, or at least to raise a presumption which has not been rebutted, that the Governor did not in fact, consider each case separately before he made an order. One circumstance relied on is that each one of these orders is in the same form. The necessity for detaining each of these petitioners was, however, the same, namely, “to prevent him from acting in a manner prejudicial to the public order.” The Governor was not required to give the petitioners any indication of the reasons which had led to the making of the order, still less to set them out in the order itself. The orders also had to be made in conformity with the language used in the rule. That being so, the circumstance, that each one of the orders contains the same recital is, to my mind, a matter of no consequence at all. Another circumstance relied on is that the orders or some of them appear to have been cyclostyle. This argument is based on the order made in the case of Mr. Phulan Prasad Varma, who is the petitioner in case No. 59. That order, as I have already said, would seem to be the only original order, which has been produced. The intrinsic evidence afforded by it certainly suggests that a number of orders of detention were made on a cyclostyle, that some clerk was given a type-written list of the persons, against whom orders were to be made, that this clerk cut each of the names out of the list and pasted it into the blank space in the cyclostyled form and then submitted these to the Chief Secretary for signature. The act of making out the orders in the proper form and obtaining on each of them the signature of the Chief Secretary was, however, a purely ministerial act. That a procedure of this kind was adopted, in order, presumably to save time and labour does not, in my opinion, create any kind of presumption that the case of each person, against whom an order was made, was not separately and properly considered by the Governor. In the English case which I have just cited, (1941) 2 All. E.R 665, orders of detention were made at one and the same time against no fewer than 344 persons. The order merely recited that on one or other of several alternative grounds the persons named in a schedule annexed to it were to be detained. Tucker, J., took the view that what he called the omnibus nature of the order was not a fatal defect to its validity. He said:
“I feel it quite impossible to say that, because the order applies to a number of people, whose names are set out in the schedule, that must make the order bad on the face of it.”
10. Another of the numerous persons, against whom this order was made, applied for and succeeded in obtaining a writ of habeas corpus. He was released but, within a few days, was again taken into custody, and then a fresh order under the same regulation was made against him. He again applied for a writ of habeas corpus, and this application was rejected. The decision is reported in (1941) 2 All. E.R 749. Prom this report it is clear that the main ground, on which Captain Budd was, in the first instance, ordered to be released was that he had been given wrong information as to the grounds, on which it was proposed to detain him. The learned Judges, who dealt with the second application, would appear to have taken the same view of the omnibus nature of the order as had Tucker, J. Then, it is said in some cases, the interval, which elapsed between the apprehension of some of the petitioners and the making of the order of detention against them, was so very brief that the Governor of Bihar could not possibly have applied his mind to their individual cases. The case, in which this particular argument has been most vehemently put forward, is Miscellaneous case NO. 59, in which the petitioner is Mr. Phulan Prasad Varma, who is an advocate of this Court. In an affidavit, which has been sworn by a near relation of Mr. Varma it is stated that he was arrested in the morning of 9th August 1942 by the Additional Superintendent of Police, Patna. It is further stated that no reasons for his being apprehended were given to him at the time. The Additional Superintendent of Police had, it is there stated, a slip of paper with him and Mr. Varma and his relations gathered that it contained the names of certain persons, of whom he himself was one, who were to be apprehended immediately. The order of detention, under which Mr. Varma is now confined, was made on the day following, that is on 10th August 1942. We have been asked to infer from these various circumstances, that Mr. R.A.P Sinha, the Additional Superintendent of Police acted on his own initiative in arresting Mr. Varma, and that his action was regularized on the day following by the Governor of Bihar, without taking any steps to satisfy himself that Mr. Varma's detention was, in fact, necessary. It has been conceded that, on 8th August 1942, the working committee of the congress sanctioned “the starting of a mass struggle on non-violent lines on the widest possible scale”. Reference has also been made to a resolution of the Government of India, published immediately after the working committee of the congress had taken this decision, in which it was stated that the Government of India had been aware for some days of dangerous preparations for the destruction of communications, the organization of strikes, sabotage and the like. The events, which subsequently took” place, certainly suggest that, in the congress party, there were numerous persons who were not prepared to obey the injunctions of the working committee and confine themselves to what are ordinarily described as non-violent measures.
11. The learned Government advocate has said that, when the executive authorities knew what was impending, they may be presumed to have taken steps to meet the danger, and in particular, to have considered whether in the interest of the public safety, it was necessary to apprehend and detain certain individuals. The inference, which he asks us to draw from the very brief interval which elapsed between Mr. Varma's apprehension and the making of the order of detention against him, is that the Governor of Bihar had previously considered and decided that, in the interest of the public safety, it was necessary to arrest and detain him. This contention of Mr. S.K Mitra ought, in my judgment, to be accepted. The circumstance, that the Additional Superintendent of Police did not tell Mr. Varma why he was arresting him, clearly suggests, to my mind, that, in arresting him and certain other individuals that day, Mr. Sinha was acting not on his own initiative, but on instructions from some superior authority. If the order of detention, made against Mr. Varma, was not actually made out and signed until after he had already been taken into custody, that can be explained on the assumption that a number of such orders had to be made, and that it took rather more time to have them drawn up and signed than to communicate to the local police the decision that had been taken to arrest the persons concerned. It is quite impossible to say that, in the emergency which was created by the decision of the working committee of the congress, the executive were not entitled to take immediate action and to order the detention of persons who, they were satisfied, were likely to commit or encourage the commission of acts, “prejudicial to the maintenance of public order”. The other cases, in which orders of detention were made prior to the commencement of the disturbances, are Miscellaneous Case No. 57 in which the petitioner is one Kamala Kant Azad, Miscellaneous case no. 69, in which the petitioner is one Makhan Lal Mukherji, Miscellaneous Case No. 150, in which the petitioner is one Sadhan Gupta and Miscellaneous Case No. 241, in which the petitioner is one Swarni Viswanand. Another case, which stands on very much the same footing, is, in my opinion, Miscellaneous case no. 151, in which the petitioner is one Anil Chandra Banerji. An order of detention was made against Anil Chandra Banerji on 21st August 1942, and he was apparently taken into custody on the same day. In the affidavits, which have been put in by or on behalf of these various persons, there is nothing to suggest that the Governor of Bihar, in making the orders which he did, did not act properly. The validity of all these orders has not, in my judgment, been successfully or indeed at all impugned.
12. In the remaining cases, the petitioners were arrested either during the continuance of the disturbances or, and this, I think, happened more often, after the disturbances had been brought under control, or some considerable measure of control, in the local areas to which they belong. In each of those cases, recommendations were apparently made that they should be detained under S. 26(1)(b), and, after a greater or shorter interval, an order of detention was, in each case, made against them. Under modern conditions, the existence of forces of internal disruption may be as great as or an even greater menace to a country, which is at war, than the presence of an external enemy on its frontiers. For that reason, the Legislature has seen fit to delegate to executive the power to detain persons without trial, and to debar the judiciary from examining into the reasons for their detention and pronouncing on their propriety. There can be no doubt but that a very large number of persons were concerned in the promotion of the disturbances, which occurred last year; and, it may well be, that until some individual had, by his overt act or acts disclosed his connexion with the subversive elements at the back of these disturbances, the necessity for detaining him was not apparent to the executive. The Legislature has made the Governor of Bihar the sole judge as to the necessity for his exercising this very exceptional power. It is not for judicature to say, and indeed it is quite impossible for it to say that no emergency any longer exists in which this power cannot properly be exercised. It is not, in my opinion, possible for us to say that the Governor of Bihar, looking to the overt act or acts, which had been done by certain of these petitioners, and to their previous associations and the views, which they may have expressed, could not have been honestly satisfied that it was necessary to detain them on the ground set out in these orders. It was contended by counsel for petitioners, and, I think, most vehemently by Mr. Avadeshnandan Sahay that, inasmuch as this Court had issued rules, the onus of proof was thereby shifted to the Crown, and it was for the Crown to justify the detention. In nearly every case, the ground, on which the rule was issued, was that R. 26 was ultra vires, and, before the applications came on for hearing, this had ceased to be a valid ground. This is not, however, of any importance, as, in the great majority of cases, the Court would, in any event, have had to issue a rule, as no copy of the order of detention, which had been made against each of the petitioners, had been served on them. Mr. Avadesh Nandan Sahay was correct in saying that the issue of rule had put the onus on the Crown, but that onus was discharged when orders of detention, which on the face of them were valid orders, or rather copies of such orders, were produced. The onus was then again shifted on to the petitioners to show that, in point of fact, the orders, made against them, were not valid orders; that is, that in exercising the power, which he had, the Governor of Bihar had not, in law, acted bona fide. Except in the cases, to which I shall now proceed to refer, no evidence was produced by any of the petitioners to show that this may have been the case.
13. Singheshwar Prasad, who is the petitioner in Misc case no. 61, was arrested on 15th August 1942. The order, under which he is at present detained, was not made until 22nd February 1943. Bajeshwari Prasad Singh, who is the petitioner in Misc. Case No. 374, was arrested on 22nd May 1943, and the order of detention was not made until 18th September 1943. Harinam Gurgutia, who is the petitioner in Misc case No. 187, was arrested on 2nd September 1942, and an order of detention was made against him on 17th November 1942. The learned advocate, who appears on behalf of Singheshwar Prasad, has said that, sometime after his arrest his relations applied to the Chief Secretary for information as to the jail, in which he was detained, and that, although enquiries were made, the Chief Secretary was unable to supply the information. It is said that, subsequently, an application under Section 491 of the Cr PC, was made to this Court, and, on a rule being issued, fresh enquiries were made, and it was then ascertained that Singheshwar Prasad, who belongs to Patna and had been arrested there, had been removed to the Hazaribagh Central Jail. It was only then, it is said, and the facts appear to bear out the assertion, that an order of detention was made against him. Even if each of these petitioners was taken into custody by some police officer, purporting to act under R. 129, Defence of India Rules, and this is denied in one case, and is, by no means, clear in the other two, it is plain that, when the orders of detention were made, the petitioners had already been detained for a period of more than two months, that is, their detention had already, for sometime at least, and, in two cases, for a very appreciable length of time, been illegal.
14. Now, the power to arrest and detain, on mere suspicion, which has been conferred on the executive, is not intended to be exercised in this arbitrary and capricious manner. Sub-rule (1) of R. 129, Defence of India Rules empowers a police officer to arrest on suspicion, and sub-r. (2) empowers him to commit any person he may so arrest to custody. Sub-rule (2), however, also requires him to report the arrest forthwith to the Provincial Government, and sub-r. (4) requires the Provincial Government to consider the report and make an order either releasing the person detained or authorising his further detention. The Provincial Government, for obvious reasons, is not required to come to a final decision immediately. It may think it necessary or desirable to have further enquiries made. It is, however, incumbent on it to see that such enquiries are completed and a final decision taken within two months. If the Superintendent of the Jail, in which the person arrested is detained, does not receive any order from the Provincial Government within 15 days or within two months as the case may be, he is bound to release him. These provisions in the rules are intended to protect the individual against the caprice or malice of the subordinate and the carelessness or neglect of the higher officials. Whenever a person is arrested and detained on suspicion, a number of officials at once or within a very short space of time owe a duty to him. What is to be said when each one of these officials neglects that duty, when a man is thrown into jail and remains there for months on end without any kind of valid warrant or order until, eventually and, perhaps, only when this Court demands to know why he is detained, an order under R. 26 is made against him? Is it not that the order is a mere cloak or device to cover up something illegal that has already been done, that the recital in it is a mere sham? In exercising this power to detain on suspicion, the executive must act reasonably and in good faith, in such a way, that is, that a Court of law cannot say that it was obviously not acting bona fide because it was acting so unreasonably that no honest man could say that it could possibly have so acted. That is a well-known proposition of law; if it does act so unreasonably, there is ground for saying that it has not acted bona fide ((1916) 85 L.J.K.B 166910 at p. 1672). When the orders of detention against these three men were made, the Provincial Government must have or ought to have realised that they had already been unlawfully detaind for very appreciable periods. Was it not the reasonable course to take to order their release and to ascertain and take suitable action against those who had been responsible for their unlawful detention? Was it not highly unreasonable, by a single stroke of the pen, at once to deprive them of any remedy for the injury they had undoubtedly suffered and to authorise their further detention for an indefinite period? Two of them are pleaders in active practice and can scarcely be very dangerous characters. But even if their being at large was a source of the greater danger to the State then it would conceivably appear to be, was it not worth while taking the risk? Against whatever risk had to be run, there would have been set as a more than adequate counterpoise this, that the ordinary citizen had in some degree been re-assured that if the executive had been given power to frame a multitude of regulations encroaching in a variety of ways on his ordinary rights, the executive at least recognized an obligation to obey the Code which it itself had framed.
15. I turn next to a number of cases, in which the petitioners were apparently taken into custody originally on certain specific charges, on which they were eventually not prosecuted. Nageshwar Prasad Singh who is the petitioner in case no. 122, and Jogendra Prasad Sinha, who is the petitioner in case No. 103, were both arrested on 12th December 1942, and were produced in the Court of the Sub-divisional Magistrate at Begusarai to answer a charge under R. 38 of the Defence of India Rules. The proceedings were apparently adjourned from time to time until on 20th March 1943, the Public Prosecutor withdrew from the prosecution under Section 494 of the Cr PC. In the meantime, orders of detention had apparently been passed against each of them on 13th February 1943. Jagdish Prasad Santalia, who is the petitioner in case No. 295, was arrested with six other men on 19th March 1943 on a similar charge of having committed an offence under R. 38 of the Defence of India Rules. He was released on bail and remanded on bail until 11th May 1943, when he was again taken into custody. The order of detention was, in his case, made on 21st June 1943. Subsequently, on 17th July 1943, the Public Prosecutor intimated to the Court that he did not propose to adduce any evidence to substantiate the charge under R. 38; and Jagdish Prasad Santalia was, in consequence, discharged. Kumar Jha who is the petitioner in case no. 300, was the cashier of the Central Bank of India at Gaya. He was arrested on 10th August 1942, apparently for the part taken by him in a collision, which occurred on that day between the police and a crowd in the town of Gaya. In his affidavit, Kumar Jha has said that it was through a mere accident that he got mixed up in this fracas and sustained certain injuries. That may very possibly have been an incorrect statement. It appears, however, from his affidavit that the persons who were arrested along with him, were all tried, convicted and sentenced. He himself was not put on trial, the reason being that an order of detention was made against him on 21st August 1942. His affidavit contains a statement that he had “never participated in any congress activities.” Whatever his political sympathies may have been, his position as a cashier of well-known bank at Gaya, makes it I think, rather doubtful if he could have taken any very important part in promoting the disturbances. In each of these four cases, there was, it is clear, an arbitrary interference on the part of the executive with the ordinary course of justice.
16. Miscellaneous Case No. 58, in which the petitioner is Jogeshwar Singh, stands on a similar, but not precisely the same footing. Jogeshwar Singh was arrested on 16th September 1942, on suspicion of having taken part in the extensive looting, which occurred at the Mokameh railway station. He was, subsequently, tried on a charge of dacoity and was convicted, but on appeal, the conviction was set aside by the Special Judge. This was on 20th April 1943, and long before that, on 27th October 1942, an order of detention had been made against him. Prom what is contained in the judgment of the learned Special Judge, it would seem that a judicial enquiry was held by a Sub-Deputy Magistrate. This was not completed until 15th November 1942, so that the order of detention was made while it was still in progress. When a man is arrested and brought up before a Court on some definite and specific charge, it seems to me very undesirable and indeed quite wrong for an order of detention to be made against him before he has been tried on the charge and his guilt or innocence finally determined. If he is convicted and sentenced, the necessity for any order of detention ceases to exist, at least until he has served out his sentence, by which time conditions may have entirely altered. If, on the other hand, he is acquitted, and an order of detention is sought against him, surely, the official, on whom the responsibility of making such an order rests, should obtain and study a copy of the judgment. I do not say that, in no case, where a man has been acquitted, should or can an order of detention be made. Prosecutions may break down, and acts of the person against whom an order is sought, other than the act or acts which led to his being prosecuted, may, quite properly, have to be taken into consideration. Clearly, however, in most of such cases, the act which led to man's prosecution, will also be the overt act, relied on or principally relied on to connect him with some subversive movement and justify the making of an order of detention; and, if the official on whom the duty of making the order is cast, neglects to send for and study a copy of the judgment, it may very well be said that he has failed to act with due care and attention in the discharge of that duty.
17. Until the last war, the practice in England, in times of emergency, had invariably been to suspend the Habeas Corpus Acts, and, when the emergency came to an end, to pass an Act of indemnity. It is important to remember that, during such periods, any person, unlawfully detained, or who believed himself to be unlawfully detained, or any one on his behalf could still apply for a writ of habeas corpus, and the power of the Judges to grant such a writ was not taken away except in a very limited class of cases. The Suspension Acts, as they were properly called, merely provided that, when persons were detained in prison by warrant of the Privy Council or of one of His Majesty's Secretaries of State “for high treason, suspicion of high treason or treasonable practices,” no Judge or Justice of the Peace should “bail or try” them “without order from His said Majesty's Privy Council signed by six of the said Privy Council” till some date mentioned in the enactments. In other words, a person, who had been taken into custody and was detained on a charge of having committed any crime other than high treason, was still entitled to a speedy trial. To adopt the language, used in the petition of right, such a man was detained “with cause shown” to which he was entitled to “make answer according to law.” In the last war, the constitutional lawyers of the twentieth century devised another expedient, more effectual, perhaps, in safe, guarding the body politic against dangers greater than had ever before menaced it, and yet better calculated to interfere as little as possible with the personal freedom of the subject. The Legislature conferred on the executive a power to make regulations, both punitive and preventive, to create new offences and provide punishments for them and to prevent individuals committing certain offences by ordering their detention. The position, however, with regard to the particular matter, we are now considering, remained the same. A person, once arrested and charged with some crime, whether what he had done or was alleged to have done was, in time of peace, a crime at common law or by statute, or whether it had been a crime by regulation, is entitled to be brought before and tried by the Courts of the land. In this respect, His Majesty's subjects in India are in no worse a position than His Majesty's subjects in Great Britain. Neither there nor here is it open to the executive, once a man has been brought before a Court of law on some specific charge, to substitute for the warrant, under which he is detained in jail awaiting his trial, an order of detention under R. 26, and then to deprive him of his right to clear himself of the charge by entering a nolle prosequi or intimating to the Court that they do not propose to adduce evidence against him.
18. In order to enable this Court to vindicate the rights of the subject, it may be necessary for it to rest its decision on a narrow and technical ground, namely, that the recital in the orders of detention, made in these five cases, is incorrect. But, on many occasions in the past, questions of the greatest importance affecting the right to personal freedom have been and have had to be decided on such grounds. The word “satisfied” in R. 26(1)(b) must, as I have already said, be construed as meaning “reasonably satisfied.” At the moment when the Governor of Bihar signed the orders of detention against these five men, he could not have been reasonably satisfied that any such orders were at all necessary, as each of them was already detained under valid warrants. It was not open to the Governor to anticipate or prejudge the decision of the Courts, and, in so far as he did so, a suspicion must necessarily arise that he was using the power, which had been conferred on him, not for the purpose of preventing some danger to the State, but for the purpose of punishing some act or perhaps crime, which, in his opinion, had already been committed and that he could not do. These five petitioners, namely, Nageshwar Prasad Singh, Jogendra Prasad Sinha, Jagdish Prasad Santalia, Kumar Jha and Jogeshwar Singh, must be released.
19. There remain two cases, which present some analogy to the cases which I have just discussed. The conclusion, to which, however, I have eventually come is that they do not stand on quite the same footing and that, in them this Court has no power to intervene. Mathura Prasad Misra, who is the petitioner in Miscellaneous Case No. 208, was convicted of an offence under R. 38(5), Defence of India Rules, on 28th July 1942. Shortly before the expiry of this sentence, on 19th April 1943, an order of detention was made against him. The Governor of Bihar was the sole judge of the continuance of the emergency which was created in August of last year, and, if on 19th April 1943, he thought it necessary to continue the detention of Mathura Prasad Misra, it is impossible for this Court to say that he was wrong. The fact that this man had previously been convicted and sentenced for an offence under R. 38(5) rather suggests, to my mind, that there probably was, in fact, good reason for the making of the order. Sitaram Dukhania, who is the petitioner in Miscellaneous case No. 294, is apparently a native of Monghyr. In his affidavit he says that he left Monghyr and went to Calcutta on business on 3rd October 1942. On 12th October 1942, he was arrested with two other men in a room in a dharamsala, and, in this room, there was found a revolver, some ammunition for it—and some other less incriminating articles. The three men were put on trial under the Arms Act in the Court of the Chief Presidency Magistrate and were eventually acquitted. A copy of the judgment has not been produced, but, from what is stated in the affidavit, it would seem that the Chief Presidency Magistrate was not completely satisfied that it was the petitioner or either of the other two men who had put the revolver and ammunition where they were found. The order of acquittal was passed on 17th February 1943, and the order, under which Sitaram Dukhania, is detained, was made on 9th March 1943. This order was presumably under sub-rule (5) of R. 129 when Sitaram Dukhania was sent to this province by the Government of Bengal. The circumstances are, I think, scarcely sufficient to raise such a presumption as arises, for instance, in the case of Jogeshwar Singh that the action taken was punitive rather than preventive.
20. In the result, then, the rules will be made absolute in the following cases, viz., Nos. 61, 374, 187, 122, 103, 295, 300, 186 and 58 and the petitioners in these cases viz., Singheshwar Prasad, Rajeshwari Prasad Singh, Hariram Gurgutia, Nageshwar Prasad Singh, Jogendra Prasad Sinha, Jagdish Prasad Santalia, Kumar Jha, Tarkeshwar Prasad and Jogeshwar Singh, will be ordered to be released. In the remaining cases the rule will be discharged.
Varma, J.:— I agree with the observations of my learned brother and the conclusions arrived at by him. As it is a matter of some importance, I should like to say a few words on the subject. The petitioners have been detained under orders made by the Government of Bihar under R. 26(1)(b), Defence of India Rules, and they pray that they should be released by this Court under Section 491 of the Cr PC. The relevant rules that come up for consideration are Rr. 129 and 16(1)(b), Defence of India Rules. Rule 129 deals with the powers of arrest and detention of certain persons under certain circumstances. The persons who can exercise these powers are
“any police officer or any officer of Government empowered in this behalf by general or special order of the Central Government or of the Provincial Government.”
21. Rule 26(1) is as follows:
“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 the public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in the 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.” We are not concerned here with the Central Government but with the Provincial Government. The question that arises for consideration is, chiefly, the meaning of the expression “satisfied” and the circumstances under which this Court can pass orders under Section 491 of the Cr PC, for it is now well settled that the amendment of ordinance 14 of 1943 is not ultra vires. As to what is meant by the expression “if it is satisfied,” we have to refer to some of the cases on that point. In 1942 A.C 206 at p. 271, Lord Wright said:
“‘Satisfied’ must mean ‘reasonably satisfied.’ It cannot import an arbitrary or irrational state of being satisfied. I find the distinction between ‘reasonably satisfied’ and ‘has reasonable cause to believe’ too tenuous.”
22. In (1918) 1 K.B 578 at p. 586 Pickford L.J observed:
“But I certainly am not inclined to say that in no case can a Court go behind an order which on the face of it is valid ordering detention or custody. If that order is, if I may say so, practically a sham, if the purpose behind it is such as to show that the order is not genuine or bona fide, it seems to me the Court can go behind it.”
23. From these two decisions it is clear that an order under R. 26(1)(b) to be valid must be based upon a reasonable satisfaction of the authority entitled to pass that order, and this Court can go behind the order if under the circumstances it is in a position to say that the ordering authority was not reasonably satisfied or that the order was not a bona fide order or that it was a sham order. This being the position, I should like to refer to some of the cases before us. I am referring to them in the order in which they have been referred to by my learned brother.
24. The first case that I would take up is Miscellaneous case No. 186 of 1943. Tarkeshwar Prasad was arrested by the police under Section 151 of the Cr PC, and lodged in the Gaya Central Jail. In September 1942, he was in formed by the jailor verbally that he was detained under R. 26(1)(b), Defence of India Rules. The Crown has produced the order in this case. From the order it appears that one Mr. D. Pires has signed the order for the Chief Secretary. In the course of the argument, it transpired that Mr. D. Pires is a Head Assistant, but nothing has been shown from which it can be gathered that he was authorised to sign this order. In these circumstances the detention is clearly illegal, and the authority to which my learned brother has referred clearly applies to this case.
25. The next case is the case of Singheshwar Prasad, Criminal Miscellaneous Case No. 61 of 1943. Singheshwar Prasad was arrested on 15th August 1942. On the date the affidavit was sworn he was in the Central Jail at Hazaribagh. The order under which he is being detained was not passed till 22nd February 1943 a little more than six months after arrest. This order was passed during the pendency of a petition on his behalf for setting aside that order. The affidavit goes on to say that Sigheshwar Prasad, who is an advocate, was arrested without warrant and without any accusation of having committed any offence under the Penal Code or any other enactment. It is not very clear under what section he was arrested by the police. If it was an arrest under R. 129, Defence of India Rules, the provisions of that rule have been clearly ignored. Clause (1) of this rule provides that,
“Any police officer or any other officer of Government empowered in this 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 being about to act……in a manner prejudicial to the public safety or to the efficient prosecution of war……”
26. But after the arrest a duty is cast upon the officer who makes the arrest to forthwith report the fact of such arrest to the Provincial Government and pending the receipt of the orders of the Provincial Government may, subject to the provisions of sub-r. (3) (which deals with the question of furnishing security) by order in writing commit the person so arrested to such custody as the Provincial Government may by general or special order specify. To this sub-rule there are two important provisos, (1) 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 (2) that no person shall be detained in custody under this sub-rule for a period exceeding two months. The judgment of my learned brother has dealt with this aspect of the case. On the facts presented before us, it is clear that the two provisos have been ignored. Before the expiry of the two months, which is the longest period of detention allowed under this sub-rule, some step ought to have been taken for continuing the detention of the petitioner. The order of detention passed on 22nd February 1943 comes long after the period of two months expired, and one cannot help feeling that the order was passed to give his detention a semblance of legality. I am not satisfied that the order was passed bona fide (as defined in some of the decisions that have been quoted). I am therefore of opinion that his detention should be put an end to and he should be released. In Crim. Misc case No. 374 one Rajeshwari Prasad Singh is the petitioner. He was arrested on 22nd May 1943. The order under which he has been detained was passed on 18th September 1943. The petitioner in the criminal Misc. Case No. 187 of 1943, Hari Ram Gutgutia, was arrested on 2nd September 1942 and the order of the detention was passed on 17th November 1942. In these two cases also it will appear that the order of detention was passed more than two months after the arrest, making their detention in jail at the time of the order illegal. In their cases also one cannot help feeling that the orders were made really to give a semblance of legality. Before I take up some of the other cases, I should like to observe that the powers of this Court are not the powers of a Court of appeal. We do not know the materials on which the orders were made. We cannot compel the Crown to disclose them and, therefore, we cannot pronounce on their validity or otherwise. But the power to order the detention of a man under R. 26, Defence of India Rules, is not an arbitrary power. There are limitations on it and this Court may and is bound to satisfy itself that these limitations have not been exceeded. If the executive have gone beyond them and have used the rule in a way not intended, the order is not a bona fide order but a “sham” order, and this Court may interfere. In the cases, which I have just referred to, I am not satisfied that the orders passed were orders passed bona fide under R. 26, Defence of India Rules.
27. In criminal Misc. Case No. 122 of 1943, the petitioner Nageshwar Prasad Singh was arrested on 12th December 1942 on a charge under R. 38, Defence of India Rules. On 20th March 1943 a petition was filed by the Court Sub-Inspector praying that he be permitted to withdraw the case, and the Magistrate order, ed the case to be withdrawn under Section 494 of the Cr PC, and discharged the accused persons. On that very date petition was filed by the Court Sub-Inspector praying that the petitioner be detained under R. 129, Defence of India Rules. That prayer was allowed. But it appears that on 13th February 1943 an order under R. 26(1)(b), Defence of India Rules, was passed against the petitioner. In criminal Misc case no. 295 of 1943, Jagdish Prasad Santalia, was arrested on 19th March 1943 on a charge of having committed an offence under Rule 38. While on bail, he was taken in custody again on nth May 1943 and the order of detention under R. 26(1)(b) was passed on 21st June 1943. Later on, on 17th July 1943 when no evidence was led by the Public Prosecutor to substantiate the charge, the petitioner was discharged. In Misc. Case no. 300, the petitioner Kumar Jha (cashier of the Central Bank of Gaya) was arrested on 10th August 1942 and the order of detention was passed on 21st August 1942. The affidavit in this case shows that in a clash between a crowd and some constables he got mixed up in the crowd, although his presence there was accidental and he had gone there to fetch some medicine. The affidavit further says that the injuries on his person were caused by the brick bats thrown by the crowd. Now he was not the only person who was arrested on that date; but curiously enough, although a number of persons were sent up for trial and were ultimately convicted and sentenced, the petitioner was not put upon his trial. He was informed that his detention was under Rule 26(1)(b). His prayer for bail was rejected on 20th August 1942. The petitioner further asserts that he is a bank employee and has nothing to do with the Congress activities, nor has he taken any part in any movement. In these cases also there were materials upon which the Court could proceed against each of these petitioners, and when the specific facts alleged against them were not substantiated, it is difficult to hold that their detention was ordered after the authorities were reasonably satisfied that they were likely to commit prejudicial acts. When there was evidence available which was either not relied upon or produced in Court against the petitioners, how can one feel satisfied that the evidence which remains unknown could be the basis of an order passed upon reasonable satisfaction. These petitioners should therefore be released from custody.
28. In criminal Misc. Case No. 58 of 1943, the petitioner Jugeshwar Singh was arrested on 16th September 1942 in connexion with certain disturbances at Mokameh railway station. On 20th April 1943 the conviction against the petitioner was set aside by the Special Judge. But several months before this order of acquittal an order under R. 26(1)(b) for detaining him was passed on 7th October 1942. As a matter of fact, it appears that an inquiry by a Special Magistrate was not completed till 15th November 1942. The position that we are reduced to is this that he was arrested on a specific charge and while the inquiry was still proceeding the order for his detention under R. 26(1)(b) was passed, and the charge for which he was originally arrested failed. In these circumstances, although it cannot be said as a general proposition that simply because the man has been acquitted of a particular charge, no order under R. 26(1)(b) could be passed against him, in this particular case it is difficult to hold that the order for his detention was passed on the authorities being reasonably satisfied under the circumstances. In the result I agree with my learned brother that in criminal Misc cases nos. 186, 61, 374, 187, 122, 103, 295, 300 and 58 of 1943 the persons detained should be released from custody. I have not referred to the other cases because on the materials on the record, I am not satisfied that any case for interference, in the present state of the law, has been made out, and I agree with the conclusions of my learned brother.
G.N
29. Order accordingly.
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