1. This order will also govern Miscellaneous Criminal Case No. 72 of 1944. The cases arise out of applications under Section 491(1) of the Cr PC. The applications are in respect of Purshottam Yeshwant Deshpande and Yeshwant Vishnu Lele. In order to appreciate the points involved, it will be necessary to set out a few relevant facts from the applications and the affidavits which support them. Purushottam Yeshwant Deshpande is an Advocate of the High Court. He is also an Editor of the Bhavitavya, a Marathi Weekly which is printed by the Independent Press. He lives in Craddock Town and the office of the Bhavitavya is situate in the adjacent block. W.G Sheorey, is the Editor, Printer and Publisher of the Independent, an English Weekly. He is also the Printer of the Bhavitavya. He lives in a house on the Jail Boad in the compound of which is situate the office of the Independent and the press in which it is printed. One Inamdar was employed as a clerk in the Bhavitavya office but he left service in May 1944. On 21st August 1944, at about 6-30 A.M, Mr. B.K Misra, Additional District Magistrate, Nagpur, accompanied by several police officers and a posse of constables, surrounded the residence of Deshpande in Congress Nagar and searched the house and the office of the Bhavitavya till 1-30 P.M and seized certain articles. During the course of the search, the police took down the numbers of certain 100-rupee notes. After the search the party left and instructed Deshpande to attend the Sitabuldi Police Station at 3 P.M He attended as directed but returned as he did not find anyone there. At about 8 P.M he went to the Police Station again and was interrogated by the police. He was then arrested and put in the police lock-up at Sitabuldi. He was not informed why he was arrested nor was he told what the charge against him was.

2. On 22nd August 1944, which was a holiday on account of Ganesh Chaturthi, Deshpande was removed to the police lock-up in the compound of the District Magistrate's Court and kept there for the whole day. In the afternoon, at about 5 P.M, he was removed to the Central Jail at Nagpur. A report was published in the Hitavada of 22nd August 1944 about the searches and arrests made on that date. The relevant portion of the report is reproduced below:

“It is reported that simultaneous searches were carried out at Wardha also and some five rupee notes were seized.

These searches are stated to be connected with an armed dacoity alleged to have been committed in East Khandesh some time in April last……The persons connected with the dacoity are still absconding and the search is stated to have been made with a view to catching the absconders.”

3. Waman Venkatesh Deshpande, a nephew of the Deshpande whose case we are considering, was questioned by a police officer regarding Inamdar, his visitors and his present whereabouts. Deshpande informed the officer that Inamdar was at one time employed as a clerk in the Bhavitavya Office but that he left some time in May 1944. On 23rd August 1944, at about 10-15 A.M, two persons, said to be police officers from Bombay, went to the house of Purushottam Deshpande and asked his wife about Inamdar and his friends. On the same day, 23rd August 1944, Mr. V.K Ringe, an Advocate of this Court, was instructed by Deshpande's wife to see Deshpande in jail in order to obtain necessary facts from him to enable an application for bail to be made, but the Superintendent, Central Jail, Nagpur, refused to grant an interview on the ground that Deshpande was detained under R. 129, Defence of India Buies. Then, on 25th August 1944, Deshpande's wife, Mrs. Vimalabai Deshpande, filed the present application under Section 491(1)(b) of the Cr PC, praying that he be set at liberty as his detention was illegal and improper. This application was supported by an affidavit sworn by Waman Venkatesh Deshpande, his nephew. Relevant paragraphs from the application are reproduced below.

“12. That from the nature of the inquiry by the Police and from the report in the ‘Hitavada’ it appears that Bombay Police are investigating into an offence of dacoity and are trying to trace the offenders. The enquiries regarding Inamdar suggest an inference that the police suspect that the said Inamdar who was probably a suspect in the eyes of the police was harboured in the Bhavitavya office.

14. That searches and enquiries by the police having been ostensibly made in connection with an attempt to trace the offenders in a dacoity alleged to have been committed in Bombay Presidency, the arrest of the applicant's husband ought to have been made under the provisions of the Code of Criminal Procedure. But it appears that R. 129, Defence of India Rules has been deliberately and in utter want of good faith used in order to prevent Mr. Deshpande from pursuing the ordinary legal remedies and to deprive him of his ordinary legal rights. This is an abuse of the Defence of India Act and the rules framed thereunder.

15. That the arrest of Mr. Deshpande, under R. 129, Defence of India Rules is a gross abuse of powers by the authorities, malicious and a fraud upon the law.”

4. These paragraphs specifically challenge the detention as illegal and improper on the ground that there was utter want of good faith, gross abuse of power and a fraud upon the law. The application also complained that a request for an interview with counsel had been refused. On 28th August 1944 this. Court directed issue of notice of the application to the opposite party for a date to be fixed in office. The Superintendent, Central Jail, Nagpur, was further directed to produce a copy of the warrant or order under which Deshpande was detained. The office fixed the hearing for nth September 1944. On the same day, 28th August 1944, Waman Venkatesh Deshpande filed an affidavit stating that his uncle had been taken from the Central Jail to the lock-up of the Police Station in the District Court compound on 27th August 1944 and that he was being detained in police custody. He stated that he believed that he had been kept there continuously from 27th August 1944 for purposes of interrogation. On 30th August 1944, another application was filed in this Court, seeking information from the Crown, or the Provincial Government, on certain points. We reproduce the relevant portions below:

“2…….the following information is necessary in order to enable full and complete arguments to be advanced at the hearing: (i) Who is the ultimate officer who made or directed the arrest? (ii) What report of the fact of arrest was made to the Provincial Government by the officer making the arrest? (iii) Has the Provincial Government passed any order on such report under sub-r. 2 of R. 129? and if so, what? (iv) If the Provincial Government has passed no order, has the officer who made the arrest passed any order in writing in respect of the commitment of arrested person to custody? If so, what? (v) Is there any general or special order of Provincial Government about the commitment of the arrested person to custody? If so what? (vi) What is the purpose of transferring the applicant's husband to the lock-up in the compound of the District Court?

3…. The hearing of the case in which the applicant urges that the arrest has been made by misusing the powers given by the Defence of India Rules should take place before the end of the first period…

4…. the applicant's husband has been transferred to the lock-up in the compound of the District Court from the jail… The purpose of the transfer is not known to the applicant. Presumably it is in connection with an inquiry into an offence under the Penal Code and in order to enable the Police officer to have facilities of interrogation.

5. The applicant thinks it necessary that since interview by a lawyer was not permitted, the applicant's husband should be ordered to be produced before this Honourable Court to enable the Court to know all the circumstances about the arrest and detention.

6. That if this Honourable Court so decides, it may direct the Provincial Government to allow a lawyer to have an interview with Mr. P.Y Deshpande before the date of hearing.

7. The transfer of Mr. P.Y Deshpande from the Jail to the lock-up and his continued detention there, have given rise to a grave apprehension in the mind of the applicant. The applicant's husband is not in robust health and the transfer to the lock-up and detention there would certainly cause mental torture to him which will inevitably undermine his health. There being no restriction on the visits of the Police officers as regards the times and the periods the applicant's husband might be kept without sleep for days and this would amount to physical torture also. The applicant feels that detention in jail is the lesser of the two evils so long as detention continues.

8. The applicant prays for the following reliefs: (a) The Crown or the Provincial Government be ordered to supply the information specified in paragraph 2 of this petition.

(d) A lawyer of Mr. P.Y Deshpande should be permitted to have an interview with Mr. P.Y Deshpande at the place of his detention.”

5. This application came up for hearing before a bench composed of Hemeon, J. and one of us, Bose J., on 1st September 1944. An early hearing was asked for on the ground that the matter was urgent because of the detention in police custody. A complaint was also made in argument that interviews with counsel had not been granted. As to this Bose, J. remarked that there was no longer any difficulty about legal interviews. Notice was directed to issue to the Crown and the matter was fixed for hearing at 11 A.M on 4th September 1944. The learned Advocate-General happened to be present in Court in connexion with another case and he was told informally that the matter which would be considered on the 4th was the question of detention in police custody rather than jail custody. Counsel on both sides were told that the merits of the application would be considered on the 11th along with the application under S. 491(1) which had already been fixed for that date. But in order that the Provincial Government might have an opportunity of considering all the points raised, the order was couched in general terms and was as follows:

“Issue notice to the Crown and in duplicate to the Legal Secretary to the Provincial Government to show cause of (this is a slip for “against”) the application dated 30-8-44. Three copies to be supplied to the Advocate-General today. The case will be heard on Monday at 11 A.M (4-9-44).”

6. On 4th September 1944, the learned Advocate-General filed a copy of an order of the Provincial Government dated 26th August 1944, directing that Deshpande be detained in police custody during the remaining period of his detention of 15 days expiring on 4th September 1944, and stated that there might not be a fresh extension of the period of detention and that Deshpande might be released. Accordingly the case was fixed for 5th September 1944 instead of being taken up on the 4th. Complaint was however still made that no legal interviews had been sanctioned and we were asked to pass orders regarding this. We told the learned Advocate-General to look into the matter and to let us know the position on the following day at 11 A.M On the following day, 5th September 1944, the matter was taken up at 11 A.M Counsel complained bitterly that they were in an exceedingly difficult position because no orders regarding an interview with the detenus had been passed and accordingly it was very difficult for them to set out the necessary facts in the absence of instructions from Deshpande himself. We asked the learned Advocate-General for an explanation and he assured us that after I.L.R (1943) Nag. 1541 there was no longer any difficulty about interviews. He said that his instructions were that in Binge's case Ringe did not even wait for an answer. He simply went to the jail, asked for an interview, and walked away again. This does not sound likely to us. But that apart, we have an affidavit before us sworn by Deshpande's nephew who was present in person and who swears to the matter to his personal knowledge, that an interview was refused on the ground that Deshpande was detained under R. 129. There is no affidavit in reply. The complaint about this was made on 28th August 1944, and was repeated on 1st September 1944 and on 4th September 1944. So there was ample time for the Provincial Government to make an affidavit in reply, particularly as both of us stressed on 4th September 1944, that an adverse inference would be drawn against the Provincial Government if no affidavit refuting the facts set out in the affidavits before us was filed. In the circumstances we can only conclude that the allegations in W.V Deshpande's affidavit are true.

7. The next excuse the learned Advocate-General made on behalf of the Provincial Government was that no panel of names had been supplied to Government and that the understanding reached after Prabhakar Tare's case . ’43 30 A.I.R 1943 Nag. 26 was that a panel of names should be supplied so that Government might choose from among the panel. He also said that Deshpande had not asked for an interview but that his wife had made the application. We pointed out that four senior members of the High Court Bar were appearing in the case and that surely by now Government could have made up its mind as to which it would select, or if it considered them all undesirable, could have made alternative proposals.

8. The Advocates appearing in Deshpande's case are: Dr. T.J Kedar, Mr. T.L Sheode, Mr. M. Adhikari and Mr. B.L Gupta. They filed their memorandum of appearance on 24th August 1944, and the application of 30th August of which copies were supplied to the Advocate-General by the orders of this Court, is signed by Messrs Adhikari and Gupta. Messrs Kedar, Adhikari and Sheode appeared on 1st September 1944. These are counsel of eminence in the profession and of status. Dr. T.J Kedar is one of the leaders of the Bar with over 35 years practice. He was Vice-Chancellor of the Nagpur University for six years and as such was in honorary command of the University Training Corps. He had the honorary rank of Lieutenant Colonel. He was also a Minister for some time and has been a member of the Provincial Legislature for many years. Mr. T.L Sheode is the President of the High Court Bar Association and was formerly a member of the Bar Council. He is one of the leaders of the Bar and has put in over 34 years of practice. Mr. Adhikari is a senior lawyer of over 24 years practice and Mr. Gupta has put in over 21 years of practice and is a Lecturer in the University College of Law. What possible objection could there have been to one of these gentlemen being granted an interview? and in fact no objection was made. On the contrary we were repeatedly assured that no obstacles would be placed in the way of an interview. We told the Advocate-General that we would give the Provincial Government time till 4 P.M to make up its mind.

9. At 4 P.M the learned Advocate-General again assured us that there would be no trouble. We then asked him which lawyer was to be permitted to see Deshpande. He replied that an application regarding this should be made to the District Superintendent of Police as he was now in charge of the prisoner. On this we were sharp with him and told him that the Provincial Government must choose inunediately between Messrs Kedar and Sheode and that unless it did so we would either direct Deshpande to be brought before us and permit him to interview any counsel he chose or release him altogether. On this the learned Advocate-General stated that his instructions were that there would be no objection to either Dr. Kedar or Mr. Sheode interviewing Deshpande. We accordingly directed that an interview be granted to Mr. Sheode.

10. This is a deplorable attitude, unbecoming a Provincial Government. We could have appreciated a straightforward stand to the effect that under the Defence of India Act and rules no interviews need be granted and that is a matter which lies in the sole and exclusive province of the Provincial Government. We could have understood the Crown seeking to make this, or any other case, a test case, and asking for a ruling so that one side or the other might test its validity before a higher tribunal — either the Federal Court or the Privy Council. We could have understood a request for a reference to a Full Bench. All that would have been candid and wholly proper. These are difficult times and the authorities, torn between the stress and strain of war demands and the normal calls of peace time government, have unenviable duties to discharge. They are armed with special powers under an Act and rules which judges trained to the law find it difficult and perplexing to construe. Opinions differ widely about them—even judicial opinion—and strong views are held on both sides as the powerful dissenting judgments of Lord Atkin in (1941) 3 ALL E.R 3382 and Lord Shaw in Holliday's show2a. No judge would wish to be harsh or ungenerous in his criticisms of those who are called upon to administer these special and perplexing laws. But judges on their part are entitled to candour and frankness when the matter comes before them and they are entitled to expect that their decisions will be respected until they are set aside by Legislature or higher authority. They cannot allow the Court to be trifled with. What we cannot understand in this case is the repeated assurance that no obstacle would be placed in the way and then find some fresh obstruction at every stage.

11. The first complaint about interviews was made in the application of 25th August. Notice of this was issued to the Crown. The complaint was repeated in the application of the 30th. It was again repeated in argument on 1st September in the presence of the Advocate-General, who though not appearing on that date, was present in Court and was given informal notice of the application by the Judges, and more, was supplied with three copies of the application at his express request. This application is signed by Messrs Adhikari and Gupta. It expressly asks for an interview. The counsel who appeared and were present in Court were Messrs Kedar, Adhikari and Sheode. The counsel who argued the application was Dr. Kedar with Mr. T.L Sheode assisting him. Whatever doubts may have existed previously there could have been no doubt on that date either about the identity of counsel or about the fact that an interview was wanted. The complaint was again repeated in argument at 11 A.M on 4th September—this time with considerable bitterness. Dr. Kedar and Mr. Sheode argued the application. The Crown had three days to consider its attitude. In spite of this we allowed another 24 hours to enable the Crown to consider the matter still further. Even then nothing had been done at 11 A.M on the morning of the 5th, and, in spite of the fact that the Crown had before it the names of four senior lawyers of this Court, it contended that no panel of names had been furnished, and contended that the application was by Deshpande's wife and not by Deshpande himself. Even then we were forbearing and told the learned Advocate-General that these four senior counsel with two leaders of the Bar among them could be regarded as the panel and gave the Provincial Government time till 4 P.M either to choose between them or furnish an alternative or names and what were we told at 4 P.M? After repeated assurances at each stage that no disrespect was intended and that every reasonable facility would be afforded we were told that an application for an interview should be made to the District Superintendent of Police.

12. Judicial patience and temper wear thin in such circumstances. This Court, having negotiated with the Provincial Government direct through its Advocate-General regarding this request for permission to interview Deshpande, having allowed adjournments in the face of strong protest by the other side because of the assurances given, having furnished the Crown at its request, with a panel of four names consisting of two of the leaders of the Bar and two advocates of long standing and experience even though this panel of names had been before the Provincial Government for at least three days together with an application expressly asking for an interview, is told at the end of it all that an application to the District Superintendent of Police is now necessary. There was no assurance that the application would be granted. This can only be described as deplorable. One would have thought that if an interview were to be allowed at all that the more dignified course, quite apart from considerations of straightforwardness and frankness, would have been to assent to the position, however unwelcome with good grace from the start instead of trifling with the Court's time and patience and inviting avoidable criticism and adverse comment.

13. And all this was done to deprive a man of a little legal advice so that he might defend his liberty. All done in the name of public safety and the efficient prosecution of the war. Is the Realm really in such desparate straits? Are the war efforts really hampered or endangered if men are allowed legal advice to enable them to defend their liberties? We have certainly seen no evidence of it, nor do we believe that can be possible. We have a more robust faith in the might of Allied arms. But if it does, or is likely to, then why not frankly and openly take away these rights and liberties by legislation? That is done elsewhere, particularly in countries with which we are at war. Why not here? After all the safety of the Realm is the paramount consideration and if it is done it will be our duty to give effect to such laws however harsh or oppressive they may be. But if it is not done, and if remnants of liberty are still left to the subject, then we cannot allow this Court to be made a mockery and its proceedings a farce. So long as the law says, as it indubitably does that a man may defend his liberties in this Court in given circumstances, however restricted, we cannot allow the executive to deprive him of those rights and force us to conduct our proceedings in a manner which has been characterised by the Privy Council as opposed to natural justice—certainly opposed to the British justice which is administered in this Court in His Majesty's name. Even the House of Lords in (1941) 3 ALL. E.R 338 said that an attempt to try an issue without a full and fair hearing would be “startling”, a “fantastic result”, and a “travesty of a trial”. The point was also considered in I.L.R (1943) Nag. 154 at p. 162.

14. The claims of the Crown are dangerous claims. What we decide today for A will enure tomorrow for B. Even when this Act and its rules have gone other laws may take their place and the principles which we lay down now will live on. Other Governments with other views may come into being. Of course if that was the intention and meaning of those who framed this Act and its rules, and if that is the interpretation which the words used bear, then our duty is plain. But there is a human side to all laws, and in a matter of such fundamental importance we would require strong and indisputable evidence to convince us that is what the Act and the rules import. Nor can it be forgotton that in this case a wife is seeking desparately for redress for her husband and what is she told?— that her application is of no avail because her husband has made none. She is not allowed to find out from him what his wishes are and she is not even told that he does not wish to make an application and in any event how can she know? How can she be sure that precious time is not being wasted while her husband's application is being bandied about from jailor to Magistrate, from Magistrate to jailor, from jailor to Secretariat, and from Secretariat back to jailor for oblivion in his files secure from the piercing scrutiny of this Court? That did not happen here. But it has happened. (See Misc. Cri. case No. 47 of 1944.)3 It might and will happen again if Judges shrink from their duty and relax their vigilance and anyway, how can she know that it did not, seeing that it has. This vexed question of interviews was threshed out in I.L.R (1943) Nag. 1541 decided in December 1942, and so far as this province is concerned the decision is that they must be granted. We were given to understand sometime ago that this principle had been accepted and that a modus operandi had been agreed upon. As far as we know no High Court has decided that legal advice can be wholly withheld. The only difference of opinion that we are aware of lies in the procedure to be followed. In the Bombay case, reported in I.L.R (1943) Bom. 4334 at p. 439 the detenu was produced in Court and was permitted to interview his legal advisers there. In our view it is more convenient, and saves time and expense and trouble all round to leave this in the hands of Government.

15. On the Nagpur view Government is given wide latitude regarding the counsel whom the detenu may see and is afforded scope for regulating the place and manner of the interview. It can take all proper precautions against undesirable practices. On the other view it would be necessary in each case to have detenus from all over the province brought here every time an application is made. The learned Bombay Judges are agreed that the good faith of a detention can be challenged, and if challenged, that it must be enquired into. But how is any man to set forth his case if he is not allowed either to come in person to plead his own cause or to instruct any legal adviser who can do that for him? Once the principle is conceded that those orders can be challenged on certain grounds it becomes inevitable that means must be devised to enable this to be done effectively. No Court has yet held that there can never be any challenge. Even the House of Lords has conceded that there can—and they have gone as far, in (1941) 3 ALL. E.R 338, as any Court has yet gone in a matter touching the liberty of the subject. In our opinion the view taken in I.L.R (1913) Nag. 154 is the most convenient all round. But whether that be so or not, that is the considered view of this Court and it must be followed until set right by higher authority, or overruled by a Full Bench. We draw attention in this regard to the observations of Lord Beading C.J in (1916) 1 K.B 5955 at p. 610:

“This is the King's Court; we sit here to administer justice and to interpret the laws of the realm in the King's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown.”

16. After the decision in I.L.R (1943) Nag. 154 any refusal in this province to grant an interview along the lines laid down there, or to afford a detenu reasonable facilities for access to legal advice, or any attempt to place obstacles in his way, will amount to an abuse of power and might even justify an order for immediate release: see also I.L.R (1944) Nag. 6296 at pp. 636, 637. To return now to the facts. When the case was taken up on the 5th the learned Advocate-General produced a copy of another order of the Provincial Government, dated 2nd September 1944 directing that P.Y Deshpande be detained in police custody for a further period of fifteen days from 5th September 1944. Mr. Sheode had the long sought for interview on the 5th. The purport of the interview is set out in the affidavit of Waman Venkatesh Deshpande dated 8th September 1944. The relevant portions are reproduced below:

“(i) The local police and the Bombay C.I.D police interrogated the detenu only about some dacoity alleged to have taken place in the Bombay Presidency, particularly with reference to one Inamdar, who was in his (detenu's) service as a clerk in the Bhavitavya office and who left his service in May 1944 last… The detenu was further asked whether he knew the whereabouts of the said Inamdar and about his (Inamdar's) friends and associates alleged to be connected with the aforesaid dacoity.

(ii) All these interrogations continued both in jail and in the lock-up for about 6 or 7 days and since the last 3 or 4 days all this is stopped altogether.

(iii) Not a single question was ever put to the detenu at any time about war activities, or about other topic. In fact the whole enquiry centred round the dacoity affair only.

(iv) Since the interrogation stopped, the detenu is required to wash his clothes, and clean the pots of his daily use, which formerly used to be done by his servant who took his meals to the lock-up and he has thus been deprived of the amenities which were allowed to him previously.”

17. The case was taken up again on 11th September 1944. On that date the learned Advocate-General filed a statement on behalf of the Provincial Government supported by an affidavit of Mr. Jayaratnam, Chief Secretary to the Government of the Central Provinces and Berar, Political and Military Department. The statement is reproduced below:

“1. Certain persons including Mr. P.Y Deshpande of Nagpur were arrested on the evening of 21st August 1944 under R. 129, Defence of India Rules under the ultimate orders of the Deputy Inspector General of Police (Crime and Railways). The formal report of the arrest was received by the Provincial Government on 23rd August 1944.

2. The report was carefully considered by the Provincial Government and inter alia, revealed reasonable grounds for suspecting that Mr. Deshpande was actively associated with certain persons engaged in underground activities calculated to prejudice the public safety and efficient prosecution of the war and in the opinion of the Provincial Government, there were reasons to suspect that they had already acted in a manner which had prejudiced the public safety.

3. On receipt of this report, the Provincial Government passed an order under Defence of India Rule 129(2) and (4) for Mr. P.Y Deshpande's detention temporarily in police custody for a period of 15 days. During this period he was also interrogated with regard to his activities and associates.

4. A further report was sent to the Provincial Government upon which the Provincial Government by an order dated 2nd September 1944 extended the period of detention by 15th days.

5. An order for search was issued under R. 126 on 20th August 1944 by the District Magistrate, Nagpur.

6. He was arrested under R. 129 on the evening of 21st August 1944.

7. That the Provincial Government is advised that it is not the normal practice to make such statements on affidavit and that there are no rules providing for the filing of affidavits.

8. That this Provincial Government is aware that affidavits are filed sometimes to assist the Courts in reaching a just and proper decision.

9. That this Provincial Government is anxious to give all reasonable assistance to this Honourable Court so that this Honourable Court may reach a just and proper decision. At the same time this Provincial Government is apprehensive that this action may not in future be accepted as a precedent requiring the Provincial Government to make returns on, affidavit.

10. That the Provincial Government, subject to the reservation that this may not be treated as a precedent, is prepared if called upon to file fortwith an affidavit in support of the allegations of fact in paras. 1 to 6 above, and particularly in deference to the wishes expressed by this Honourable Court.”

18. Paragraphs 1 to 4 of the statement have been reproduced in identical terms in the affidavit, dated 10th September 1944, by Mr. Jayaratnam, Chief Secretary to the Government of the Central Provinces and Berar, Political and Military Department. All ordinary typed copy of the order dated 22nd August 1944 passed by K.C Diwakar, a police officer, Sitabuldi, under R. 129(1), Defence of India Rules, addressed to the Superintendent of Central Jail, Nagpur, committing Mr. Deshpande to custody has been filed. The reason for the arrest has been stated thus:

“I have arrested P.Y Deshpande……whom I reasonably suspect of having acted, or of acting, or of being about to act in a manner prejudicial to the efficient prosecution of war.”

19. This is a mechanical reproduction of R. 129, Defence of India Rules and is open to the same criticism as was made by the Federal Court in 1944 F.C.R 17 at p. 22 and in 1949 F.C.R 18 at page 8. Judges dislike rubber stamps and are suspicious of them. We shall criticise this later. The order of Diwakar which has been filed in the case has not been attested as a true copy by any responsible officer of the Crown. It is necessary in habeas corpus cases that the order signed by the officer making the arrest and committing the person so arrested to custody should be filed: see the observations of Lord Green M.R in (1942) 1 ALL. E.R 3739 at p. 377:

“Now it transpired that no Buck order has ever been made by the Home Secretary; the document was false from beginning to end including the statement at the foot that it had been signed by the Home Secretary. This cynical piece of carelessness on the part of departmental officials was severely criticised by the Divisional Court…..It appeared however that the Home Secretary had in fact made an order…….for the detention of the appellant under Reg. 18B, (1A), although no copy of that order was given to the constable or the appellant. On the application of the appellant for a writ of habeas corpus a Divisional Court consisting, of Humphreys, Singleton and Tucker, JJ. ordered his release.”

20. Separate orders passed by Diwakar committing W.G Sheorey and Yeshwant Vishnu Lele to custody have been filed. W.G Sheorey and H.P Deshpande have been released by the Provincial Government and the applications made on their behalf have been filed as the purpose of the applications has been served. It may be noted that in the above cases the same features occur as in P.Y Deshpande's case, and the applications for their release were made on the same grounds.

21. Yeshwant Vishnu Lele is a teacher in the Khadi Vidyalaya of the All India Spinners' Association, Wardha Branch. He also assists the Secretary of the Gandhi Sewa Sangh Wardha Branch, and is a resident of Wardha. On 21st August 1944 at about 7 A.M two Sub-Inspectors from Wardha and two police officers from Bombay accompanied by a Magistrate of Wardha, went to the place where Lele was residing and searched it. No warrant for the search was shown to him, nor was he informed about the purpose of the; search. In the affidavit of Mrs. Kamalabai w/o Dwarkanath Lele it is stated:

“They only represented that the search was being taken in connexion with some dacoity in Bombay Presidency.”

22. After a search of about 2½ hours Lele was arrested and taken to Nagpur and was detained in the Central Jail. An application for his release under Section 491(1)(b) of the Cr PC, has been filed by his brother's wife Mrs. Kamalabai w/o Dwarkanath Lele. The grounds urged for release are the same as in Deshpande's case. The application is supported by her affidavit on 11th September 1944 after her lawyer Mr. Gomkale had an interview with Lele on 7th September 1944. The relevant portion of the affidavit is given below:

“3. That since that date almost every day for about 8 to 10 hours he is being continuously questioned by various police officers about the alleged dacoity in the Bombay Presidency.”

23. In para. 4 of the affidavit, after referring to the threats given on the Hazaribagh Hills, it states:

“From the above information received by the applicant from Mr. Gomkale, pleader, the applicant believes that Mr. Lele has been transferred from Jail to the police lock-up to give a full and free scope to the police for prosecuting the investigation of the alleged offence of dacoity. It is submitted that this is an abuse of the provisions of R. 129, Defence of India Rules.”

24. In cases where the liberty of the subject is at stake, the responsibility of this Court is great, and it has a right to expect that the Crown will place all the facts before it frankly, or at any rate so much of the facts as will, without disclosing secret information, enable the Court to reach a conclusion on the issues raised: see as to this the observations of Harries C.J in I.L.R (1944) Lah. 24510 at p. 267.

25. This Court has to determine whether Deshpande and Lele are illegally or improperly detained and whether the power exercised under R. 129, Defence of India Rules was a fraud on the statute. There are matters which cannot be judicially determined unless the Court has material before it for arriving at a just and proper decision. This is recognised in the statement filed by the Provincial Government. Nevertheless it has made its affidavit under protest and seeks a ruling on the point. As to this it will be more convenient to consider the law first and then the procedure regarding affidavits afterwards. In considering the law the first thing to bear in mind is that the detentions we are considering here are under B. 129, Defence of India Rules and not under R. 26. There is a fundamental difference between the two. But in order to understand, the difference it will be necessary to consider certain other provisions of the Defence of India Act. Section 14 of the Act directs that

“Save as otherwise expressly provided by or under this Act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction.”

26. And S. 15 says,

“Any authority or person acting in pursuance of this Act shall interfere with the avocations of life and the enjoyment of property as little as may be consistent with the purpose of ensuring the public safety and interest and the defence of British India.”

27. Now these are two important and fundamental positions. Nothing is to be altered, no rights or liberties to be interfered with, no privileges withdrawn or curtailed, except as expressly provided by or under the Act. The ordinary laws are to continue to function except and in so far as they are expressly altered by or under the Act. More, even when they are altered the special powers conferred are to be used sparingly, and the ordinary lives and avocations of those proceeded against under the Act and its rules are to be interfered with as little as possible, and only to the extent consonant with the public safety and interest and the defence of British India. These conditions are express and restrictive. They are fundamental. The Act and the rules must be construed in the light of them. The next question is, how far are the ordinary laws altered by the Defence of India Act and the rules? So far as present purposes are concerned, they do three things. First, they confer certain emergency powers for the purposes set out in S. 2 and confer them on a number of persons and authorities, and they frame rules for carrying this into effect. Secondly they make a breach of these rules punishable as an offence and thus create special offences, and also make certain existing offences punishable in a special way. See Rr. 34(6) and 38(5). Thirdly they confer certain powers of detention. These are conferred by Rr. 26 and 129.

28. Now how are these special offences to be punished and what is the procedure to be followed by the tribunal trying them? Chapter 3 of the Act makes provision for the constitution of Special Tribunals. No Special Tribunal affecting the present matters has been constituted. Therefore that part of the Act is of no avail here. Apart from chap. 3, there is no provision as regards a tribunal for trying either these special offences, or any other existing offence, nor is any procedure prescribed. Accordingly Ss. 14 and 15 of the Act come into play and we are relegated to the ordinary law. The ordinary law is contained in Section 5 of the Cr PC. Under that

“(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force, regulating the manner or place of investigating, inquiring into, trying, or otherwise dealing with such offences.”

29. Now Deshpande and Lele have either committed offences or they have not. If they have not, then there is no power to detain them or to keep them in custody except under Rr. 26 and 129. If they have, then Section 5 of the Cr PC, comes into play. If the offences they are accused of having committed are offences under the Penal Code the procedure regarding the investigation, inquiry and trial is the procedure prescribed by the Code. If they are any of the special offences created by the Defence of India Act and its rules then sub-s. (2) of Section 5 of the Cr PC, operates. There is no special enactment regulating the manner of the investigation and inquiry and so again the procedure in the Code applies Rule 129 gives the Provincial Government special power to regulate the place of detention and the nature of the custody but not to regulate the manner of an investigation. Therefore, the procedure regulating the manner of the investigation is the procedure set out in the Code of Criminal Procedure.

30. Under that Code any person accused of an offence has valuable rights. Under S. 61 he cannot be kept in police custody for more than twenty-four hours without being produced before a Magistrate. If the police want to detain him longer they must obtain a special order from a Magistrate under S. 167 and cannot obtain this unless they give reasons and make out a case for it; and the Magistrate cannot make the order unless he records his reasons for doing so. Then for each successive remand the police must make out a stronger and an ever stronger case. Also he has a right to ask for bail and all these proceedings are under the general superintendence and control of the High Court. None of this is taken away or touched by the Act. Therefore all the old rights and privileges remain intact. The learned Advocate-General relied on S. 161 of the Code. But that is restricted to “an investigation under this Chapter.” That chapter embraces ss. 154 and 176 and includes S. 167 to which we have just referred. It does not stand alone and must be read in its proper context along with the remaining provisions of the Code.

31. The provisions relating to detention are to be found in Rr. 26 and 129, Defence of India Rules. But they relate to detention and to nothing else. They confer wide powers, but even they have their limitation limitations which we shall examine in a minute. Up to the present, all we need say is that if either the police or the Provincial Government desire an investigation into any offence, whether under the Penal Code or under the Defence of India Rules, then they are bound to conduct their enquiry in accordance with the provisions of the Code of Criminal Procedure. They cannot call in aid their powers of detention and in the guise of exercising those powers conduct a secret investigation into a crime. If they have information that these detenus have committed crimes or offences, they are not bound to investigate into them. They can rest content with detaining them under Rr. 26 or 129 provided the matter falls within the ambit of those rules. But if they want an investigation they must proceed in accordance with the provisions of the Code of Criminal Procedure. If they do otherwise it is a fraud upon the Act and their action is not taken in good faith. They cannot make the best of both worlds.

32. Now touching this matter of good faith, there appears to be some misunderstanding. No one is accusing either the Provincial Government or the police of acting dishonestly or for some ulterior purpose or motive. All that is alleged is that they have mistaken the extent of their powers—a mistake which, as we well realise, can easily be made when rules of such difficulty and complexity have to be construed. We do however accuse the Provincial Government of want of candour. But that is another matter. Good faith in this connexion does not bear the sense in which it is used in the General Clauses Act. In the first place that Act does not apply because we are not construing the expression here as used in any particular Act of the Legislature but as used in the judicial pronouncements of the House of Lords. Also in any event, all definitions in the General Clauses Act are subject to repugnance in the subject or context. The expression “good faith” as used here is akin to “malice in law” and we cannot do better than reproduce Lord Haldane's description of this in 1914 A.C 80811—a House of Lords' decision to which we shall have to refer when construing R. 129. He says:

“Between ‘malice in fact’ and ‘malice in law’ there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of ‘malice in law’, although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. ‘Malice in fact’ is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.”

33. What is alleged here against the authorities is “malice in law” and not “malice in fact.” That brings us to R. 129. Sub-rule (1) states (we will only reproduce the portions relevant to these proceedings):

“Any police officer…. may arrest without warrant any person whom he reasonably suspects of having acted….

(a)…. in a manner prejudicial to the public safety or to the efficient prosecution of the war.”

34. Stopping there and comparing this with R. 26, the first point of difference is that under R. 129 the power is conferred on “any police officer”—that is to say even on a police constable. In R. 26 the power is conferred on either the Central or the Provincial Government though of course there can be delegation under Section 2(5) of the Defence of India Act. But there has been no delegation here. The next point of difference is that the police officer can act on suspicion. The Provincial Government cannot. It must be satisfied. The third point of distinction is that the power given to the police is hedged with a qualification which does not apply in the case of the Central and Provincial Governments. The police can only act if they are reasonably satisfied—the Provincial Government “if it is satisfied” without any qualification as to its satisfaction. Now this is an important and vital point of difference as a reference to two House of Lords' cases will show. But before we proceed to that we will refer to a decision of the English Court of Appeal, in (1916) 115 L.T 229.12 The Court was considering there a Defence of the Realm Regulation of 1914 and was construing the word “satisfied.” The word used in the Regulation was “satisfied” without any qualifying phrase such as “reasonably” or “honestly.” Lord Reading C.J, delivering the judgment of the Court held that when the word “satisfied” is used by itself it must mean “honestly satisfied,” and if want of honesty could be shown then that would call for action by the Court. But he said that “reasonably satisfied” and “honestly satisfied” are not the same thing.

“We have come to the conclusion because there is a broad line between honest suspicion and reasonable suspicion. It may be a person is acting quite honestly and yet be acting on unreasonable grounds.”

35. He distinguished the House of Lords' case in 1914 A.C 808, on that ground.

36. The House of Lords' decision in 1914 A.C 808 is, in our opinion, in point here. It was a case of a police constable who had arrested a man on suspicion under the powers conferred by the Glasgow Police Act, 1866. Two extracts from the judgments will show what the decision was. Lord Shaw said:

“By virtue of Section 88 of the Glasgow Police Act, 1866, a police constable has power to arrest without warrant any person whom he may reasonably suspect of having committed a crime. It rests upon the constable to show that his suspicion was reasonable, and his act therefore justifiable.”

37. And Lord Dunedin said:

“We come to this question. Does the Glasgow Police Act make a difference? It says that constables may arrest if they have reasonable ground of suspicion, and on that clause the Glasgow police argue that the constable was allowed to arrest if he suspected, and the mere fact of stating that he suspected absolutely closed the question. I should be sorry to suppose that the liberties of the subject in Glasgow have been interfered with in this way by any Act of Parliament.”

38. That, in our opinion, is almost conclusive authority for this case. Both these decisions were before the Legislature when Rr. 26 and 129 were enacted. (1941) 3 ALL. E.R 338 and 1942 A.C 28413 had not been decided. There must therefore have been some point in drawing a distinction between the powers conferred on the Central and Provincial Governments in R. 26 and those on police officers under R. 129. We think that the distinction means that under R. 129 the Courts must decide the question of reasonableness and not the police; also that the burden of proof lies on the police. The Crown relies on (1941) 3 ALL E.R 338.

39. But that case introduces a startling departure from preconceived concepts and cannot, in our opinion, be carried further than the decision warrants. Incidentally, and we say this with the greatest deference and respect, though the decision is binding in England it is not binding in Scotland and is not binding on us. We note that the decision has been criticised both in England and in America. We reproduce the criticism of Dr. Allen, an eminent jurist, in 58 L.Q Review p. 232:

“This aspect of the decision is perturbing to those of us who are unable, whatever may be the exigencies of war, to divest themselves of certain old fashioned constitutional doctrines. Generations of Englishmen have been brought up to regard it as one vital aspect of the rule of law for which among other things this country is now fighting the most crucial war in its history, that all persons are equal before the law and that for any unjustified infringement of the liberty of the subject the liability of a Minister of State is no whit different from that of a policeman, or indeed from the meanest of the King's subjects. Many of the greatest constitutional battles in our history have been fought on this very issue. If we are to understand for the future that executive office, dignity, or responsibility, whether in peace or in war, exempts the incumbent from Inquiry into the reasonableness or arbitrariness of his conduct when it affects the elementary rights of a citizen, then we must revise all our ideas.”

40. The following observations in the Harvard Law Review vol. 56 pages 6 quoted in 1943 Mad. L.J Vol. 2, Journal Section pp. 60-64 are also apposite:

“Moreover, trusting a Secretary of State does not mean trusting that high official personally. It means trusting subordinates who often cannot be identified and ‘investigators’ of varying degrees of reliableness and responsibility, working under cover, in a huge and very busy public department. If one thousand or more are arrested at one swoop under such orders, how many cases can the head of the department have given thorough personal examination? and if he examines a case, what does he look at but material gathered for him by subordinates and investigators as to whom there lacks the guarantee said to be involved in high official position.”

41. In our opinion, (1941) 8 ALL E.R 838 is distinguishable. But even if it were not we would still have to choose between these two considered decisions of the same august tribunal, sitting it is true in different capacities, once as the ultimate Court of appeal from Scotland and once from England, but nevertheless decisions of the same weight and authority. We are not bound by either and are free to follow whichever we choose, or in theory—and by this we mean no disrespect—neither.

42. But we are not driven to this choice because we think there is a difference between the two cases. (1941) 3 ALL. E.R 338 is a very special case and was decided on very special grounds. Again and again the learned law Lords stressed the fact that the person concerned was the Secretary of State, that he was responsible to a removable executive and to Parliament; also that the person detained was provided with considerable safeguards. We gather that had that not been the case the decisions would have been otherwise, and indeed Lord Macmillan said as much. This has been dealt with in detail in I.L.R (1943) Nag. 1541 at pp. 163-165. What was said there need not be repeated here.

43. Lord Romer admitted in (1941) 3 ALL E.R 338 that the construction which the majority placed on the words ‘reasonably satisfied’ was not the natural and ordinary one, and he justified a special meaning for them in that particular instance because the words referred to a Secretary of State, This is what he said:

“But the context and circumstances in which they are used may force one to the conclusion that even the most familiar words and expressions are used in other than their ordinary meaning, and this is the case here. For the person who is to have some reasonable cause to believe is not some minor official holding a subordinate position. He is the Secretary of State.

44. So also Viscount Maugham:

“I am not disposed to deny that in the absence of a context the prima facie meaning of such a phrase as ‘if A B has reasonable cause to believe’ a certain circumstance or thing, it should be construed as meaning ‘if there is in fact reasonable cause for believing’ that thing and if A B believes it. But I am quite unable to take the view that the words can only have that meaning.”

45. And then later:

“It is to be noted that the person who is primarily entrusted with these most important duties is one of the principal Secretaries of State, and a member of Government answerable to Parliament for a proper discharge of his duties. I do not think, he is at all in the same position as, for example, a police constable.”

46. Lord Atkin pointed out case after case in which the words ‘reasonable suspicion’ and ‘reasonably satisfied’ had been construed objectively by the Courts, particularly in relation to police constables, and we gather all the noble Lords in (1941) 3 ALL E.R 338 agreed with him when police constables and other minor officials were concerned but not when the matter related to a Secretary of State.

47. But R. 129 does not deal with a Secretary of State. It deals with, among others, a police officer, and that officer can be a police constable. The House of Lords dealt with a police constable in (1914) A.C 808 and gave the words ‘reasonably satisfied’ their natural meaning when they had relation to a police constable. We can find nothing here, either in the context or the circumstances, to force us to give these words any but their ordinary meaning, and so prefer (1914) A.C 808 on being more apposite to the present case, and follow it accordingly. That means that the Court must determine the reasonableness of the suspicion, and that the burden of proof is on the Crown.

48. As regards the other ground taken in (1941) 3 ALL E.R 338—perhaps the strongest point made there—that to require the official concerned to disclose his grounds for suspicion would involve disclosures which might impair much of the usefulness of the information gathered in secret, the answer is, we think, two fold. If the matter is as delicate as that then the Provincial Government is armed with, power under R. 26. According to (1941) 3 ALL E.R 338 this right to deprive a man of his liberty without enquiry or trial is only justifiable if there is some guarantee that his case has been considered by some responsible authority of high standing such as a Secretary of State and the Noble Lords who decided the case made it clear that those considerations would not apply in the case of some subordinate minor official, or in the case of a police constable. We are not concerned with a police constable in this case though we are concerned with a minor official. But the point is that even a police constable can take action under R. 129, and whatever we decide regarding its ambit and scope will apply to the procedure of any police constable who chooses to exercise authority under the rule. Therefore, seeing that R. 26 affords ample safeguards in the case of matters which are too secret and delicate for disclosure to the Courts, we are unable to extend considerations which apply these to R. 129. The Provincial Government can in such cases take action under R. 26. The second answer is best given in the language of the Harvard Law Review which criticises (1941) 3 ALL E.R 338:

“But it ought to be possible to disclose, for example, what the hostile associations were, as disclosed by investigation, so that they might be explained or disproved without disclosing the sources of information. It should be possible to put reasonable limits of this type to the discovery allowed.”

49. We now proceed to consider the rest of R. 129. Sub-rule (1), as we have seen, confers the right of arrest. Sub-rule (2) refers to the place and manner of custody. It runs as follows:

“(2) Any officer who makes an arrest in pursuance of sub-r. (1) shall 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) by order in writing, commit any person so arrested to such custody as the Provincial Government may by general or special order specify.”

50. There is not much in this. It gives the Provincial Government the right to determine the place of custody. But it is important to observe that it gives no other right. It does not give the Provincial Government power to justify an unauthorized arrest or to make legal that which in the beginning was illegal. Nor does it confer any right to control or regulate the mode of any investigation which the police, or anyone else, may wish to make. After this comes the proviso which regulates the period of detention permissible under this rule. It runs as follows:

“Provided—

(i) that no person shall be detained in custody under this sub-rule for a period exceeding 15 days without the order of the Provincial Government; and

(ii) that no person shall be detained in custody under this sub-rule for a period exceeding 2 months.”

51. The Provincial Government has passed orders in this behalf and those orders do not in our opinion contravene those provisions. But again it is to be noted that there is here no enlargement of powers. Consequently, if the original order made by the police officer is defective the subsequent order of the Provincial Government specifying the place of detention and its duration will not serve to cure the original defect. After that we have sub-rule (4):

“(4) On receipt of any report under the provisions of sub-r. (2) the Provincial Government may, in addition to making such order ‘(that is, regarding the custody)’ subject to the second proviso to sub-r. (2) ‘(that is, limiting the total detention to two months)’ as may appear necessary for the temporary custody of any person arrested under this rule, make, in exercise of any power conferred on it by any law for the time being in force, such final order as to his detention etc.”

52. No final orders have been passed in this case, and so we are not concerned with this sub-rule. All that is relevant at this juncture is to observe that here again there is no enlargement of powers. The final orders cannot be passed under this sub-rule but must be made in accordance with powers conferred elsewhere. One such power, of course, is it. But there has been no order under that rule. That brings us to the next question. What powers have we got under Section 491 of the Cr PC? This was decided in I.L.R (1943) Nag. 154. But as the decision there was provisional and as it related to R. 26 and not to R. 129, we feel it incumbent on us to review the matter afresh. The power to issue a direction in the nature of a writ of habeas corpus is derived from Section 491 of the Cr PC, which runs thus:

“(1) Any High Court may, whenever it thinks fit, direct—

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(2) The High Court may, from time to time, frame rules, to regulate the procedure in cases under this section.

(3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation 1818, Madras Regulation 2 of 1819, or Bombay Regulation 25 of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858.”

53. Under Section 491(2) of the Cr PC, no rules have been framed by this Court to regulate the procedure in cases under this section. The combined effect of R. 1(r)(vii), High Court Rules and r. 4 is that these applications have to be heard by a Bench of two Judges. In accordance with these rules, these applications came for hearing and disposal before us. Under the several regulations mentioned in sub-s. (3) of S. 491 the executive has been given power to detain a person indefinitely without any charge being formulated and without the person being placed on trial. A High Court has no power to issue a direction under S. 491 in regard to persons detained under these regulations. But the present detentions are not under them. The rule of law expounded by Dicey in his book ‘Introduction to the study of the law of the Constitution’, is the same in India as in England except for certain differences not relevant to the present matter. In England the executive has no power to detain a person indefinitely without trial in normal times, and the power of the High Court there to issue a writ of habeas corpus in respect of a person detained under the orders of the executive has not been taken away. The power of the High Court in the Letters Patent is subject to the legislative powers of the local Legislature and of the Indian Legislature and also of the Governor-General in Council under Section 71 of the Government of India Act, and also of the Governor-General under S. 72 of that Act. They can be amended and altered in all respects: see cl. 38, Letters Patent of the Nagpur High Court and Section 223 of the Government of India Act. But they have not been altered. The power of the High Court to issue a direction under S. 491 has not been taken away in regard to persons detained under R. 129, Defence of India Rules. Formerly, a High Court in India had jurisdiction to issue the common law writ of habeas corpus: see, 6 Beng. L.R 39214 at p. 459. Later, there were a series of legislative enactments and there was a difference of opinion in the High Courts on the point whether the power of the High Court to issue a common law writ of habeas corpus had been taken away.

54. The view taken in 45 Mad. 92215 was that the High Court in India had a right to issue the common law writ of habeas corpus. In 54 Cal. 727, 16 however, it was held that a High Court had no such power. The Madras High Court in a subsequent decision in I.L.R (1939) Mad. 70817 overruled their previous decision in 45 Mad. 922 and approved the decision in 54 Cal. 727. The matter is now settled by their Lordships of the Privy Council in I.L.R (1939) Mad. 74418 where it has been held that a High Court has no power to issue the common law writ of habeas corpus in cases falling under Section 491 of the Cr PC. But though a High Court in India now has no power to issue the common law writ of habeas corpus, the problem which falls for decision under S. 491 is the same. In I.L.R (1943) Nag. 154 Pollock, J. at p. 157 summarised the effect of the decision of the House of Lords in (1941) 3 ALL E.R 338, (1942) A.C 284 and (1942) 111 L.J.K.B 475 in these terms:

“The position is this, that the Court has no power to inquire into the grounds for the Home Secretary's having ‘reasonable cause to believe’ or being ‘satisfied’ within the meaning of the regulation and that the only matters upon which the Courts have power to inquire are the good faith of the Home Secretary, the authenticity of the order, and its application to the persons detained.”

55. At p. 159 he stated that the validity of the order of detention can be challenged on the ground that the person passing the order had no authority to pass it, and on the ground that he was not in fact satisfied that it was necessary to pass such an order and had acted in had faith. If the person passing the order had authority to pass it and was in fact so satisfied then this Court cannot go into the grounds on which he was satisfied and the order cannot be called in question in this Court. Bose, J. at page 160 observed:

“Fundamentally, the principles which underlie both provisions are the same. The object of both is to safeguard the liberty of the subject against excesses of the executive and against an abuse of power.”

56. And at page 170:

“Allegations of want of good faith must be investigated in spite of the war. Other cases, some of less authority, also reach the same conclusion, though they use different language. Thus some call it an ‘abuse of power’, others a ‘fraud upon the Act’.”

57. At page 172:

“It is to be observed that S. 16 requires that the order be passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power…. It is not enough therefore that these orders should be passed under colour of the power conferred. They must be done in actual exercise of it and, as I read the law, no power is conferred to make such orders in had faith, or in abuse of the Act, or for the purpose of effecting a fraud on the Act, and consequnetly these issues must be investigated if they are raised.”

58. In 60 Cal. 36419 at pp. 376-377 Ramfry, J. interpreted the word “improperly” in S. 491 to refer to cases in which although the forms of law have been observed there has been a fraud on an Act or an abuse of the powers given by the Legislature, and further stated:

“The Courts can, and in a proper case, must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the Legislature.”

59. In 61 Cal. 19720 Ameer Ali, J. observed at page 214:

“It is apparent that the English Courts, in their anxiety to do justice between the subject and executive, have asserted and maintained a residuary power to interfere, in certain cases, notwithstanding that the action taken is technically legal.”

And later,

“I agree with Mr. Chaudhuri that, under certain circumstances, the malice of a subordinate would fall to be imputed to the higher authorities.”

60. And after referring to the case in (1916) 2 K.B 74221 stated at page 215:

“This decision appears to me to indicate the type of case, to meet which the English Courts have asserted jurisdiction, i.e, cases involving some element of misuse of the statute itself.”

61. In I.L.R (1943) ALL. 77322 Iqbal Ahmad C.J stated at page 775:

“It is however clear that in cases in which even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment or amounts to an abuse of the powers given to the executive by the Legislature, it is the duty of this Court to step in and to order that the person detained be set at liberty.”

62. In (1916) 2 K.B 742 Lord Reading C.J observed at p. 749:

“If we were of opinion that the powers were being misused, we should be able to deal with the matter. In other words, if it was clear that an act was done by the executive with the intention of misusing those powers this Court would have jurisdiction to deal with the matter.”

63. Low, J. at p. 752 observed:

“I do not agree that if the executive were to come into this Court and simply say ‘a person is in our custody, and therefore the writ of habeas corpus does not apply because the custody is at the moment technically legal’ the Court would have no power to consider the matter and if necessary deal with the application for the writ. In my judgment that answer from the Crown in reply to an application for the writ would not be sufficient if this Court were satisfied that what was really in contemplation was the exercise of an abuse of power. The arm of law in this country would have grown very short, and the power of this Court very feeble, if it were subject to such a restriction in the exercise of its power to protect the liberty of the subject as that proposition involves.”

64. In (1941) 3 ALL E.R 338 Viscount Maugham stated at p. 342:

“It should be mentioned that the good faith of the Secretary of State is not challenged.”

65. At page 348:

“The result is that there is no preliminary question of fact which can be submitted to the Courts, and that in effect there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith.”

66. Lord Macmillan said at p. 364:

“In the latter case it is for the Secretary of State alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he cannot if he has acted in good faith be called upon to disclose to anyone the facts and circumstances which have induced his belief, or to satisfy anyone but himself that these facts and circumstances constituted a reasonable cause of belief.”

67. And Lord Wright said (p. 373):

“The Judge adds, as is obvious, that the Court might no doubt be called upon to decide questions of bona fides or mistaken identity, if they should ever arise.”

68. Lord Romer said (p. 384):

“… if at the trial the Home Secretary gives rebutting evidence to the effect that, in his opinion, there were reasonable grounds for his belief, his statement, being merely a statement as to his opinion, must necessarily be accepted unless it can be shown that he was not acting in good faith and the onus of showing this would lie upon the plaintiff.”

69. In (1941) 3 ALL E.R 388 Lord Macmillan observed at page 396:

“The result in my opinion is that the production of the Secretary of State's order, the authenticity and good faith of which are in no way impugned, constitutes a complete and peremtory answer to the appellant's application.”

70. At page 403 Lord Wright observed:

“If the Home Secretary were to misrepresent the state of his mind that would be fraud….”

71. In (1942) 1 ALL E.R 20723 Viscount Caldecote L.C.J observed at p. 209:

“It would be a gross abuse of the powers given by Parliament to attempt to use them in order merely to suppress unpopular or obnoxious opinions. Regulations not required for any of the purposes stated in the Emergency Powers (Defence) Act, 1939, S. 1 or in the amending Act of 1940, would indeed be ultra vires.”

72. And Wrottesley, J. (p. 213):

“……the Court is entitled to be told what the applicant is entitled to be told, and in addition since the Habeas Corpus Act, 1640, the Courts have power to supervise and control the Crown and its ministers in matters affecting the freedom of the subject.”

73. In (1866) L.R 1 H.L 3424 it was laid down that where persons have special powers conferred on them by Parliament for effecting a particular purpose they cannot be allowed to exercise those powers for any purpose of a collateral kind. In 1905 A.C 42625 Lord Macnaghten observed at p. 430 as follows:

“There can be no question as to the law applicable to the case. It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. The last proposition is involved in the second, if not in the first.”

74. So also in (1930) 2 K.B 9826 Scrutton, L.J said at page 145:

“The Attorney-General went so far as to argue that though the order violated all the statutory conditions, was made without a scheme, or advertisement or public inquiry, once the order was made, it had the effect of a statute. I cannot agree. In my view an order which goes beyond the statutory conditions under which alone it can be made, an order which for that reason the Minister could be prohibited from making, if he announced his intention of making it, is not an order which when made can…. have statutory effect.”

75. And Greer L.J at p. 157:

“If the Minister had, in the events that happened no power to make any order at all, his delegated power of legislation never came into existence.”

76. And Slesser L.J at p. 170:

“I do not think that the mere fact that the minister describes the order as an order necessarily constitutes it one.”

77. The decision of the. House of Lords in (1895) A.C 32827 can also be referred to. The propositions deducible from these cases are: (i) If a person exercises power conferred on him in had faith, or for a collateral purpose, it is an abuse of the power and a fraud upon the statute and is not really an exercise of the power at all, and a Court can interfere with such colourable exercise of the power; and (ii) when the issue is raised that any particular order has been made in had faith or for a collateral purpose and therefore not made in exercise of the power, the Court is bound to enquire into the facts; see, 48 C.W.N 76628 at p. 782.

78. The question is: Is there anything in the Defence of India Act or the rules framed thereunder which has in any way modified these well settled propositions? Section 16 of the Defence of India Act 1939 is in these terms:

“(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

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

79. The presumption raised by sub-s. (2) of S. 16 is a rebuttable one. Under Section 4 of the Evidence Act, a Court shall presume that the order was so made until it is disproved. In I.L.R (1943) Nag. 154 the order of detention under R. 26, Defence of India Rules was passed by Mr. Farquhar, Additional District Magistrate. With reference to such an order Pollock, J. observed at page 157:

“The first question to be decided is whether Mr. Farquhar had power to pass such orders. If he had no such power, then the order was not made in exercise of the power conferred; upon him under the Defence of India Rules and its validity could be challenged in this Court.”

80. Bose, J. said at page 172:

“… Section 16 requires that the order be passed in the exercise of the power conferred by the Act and not merely in colourable exercise of such power.”

81. In A.I.R 1943 F.C 1 at page 9 the Federal Court held:

“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.”

82. The question there was whether the order of detention which was passed under R. 26 which was in excess of the rule-making power conferred under S. 2(2)(x) could be challenged. The decision was that Section 16 of the Defence of India Act, was no bar and that the order of detention of Talpade was declared to be illegal. In A.I.R 1943 Cal. 37729 the question was whether the orders of detention passed under R. 26, Defence of India Rules, which contained a recital that the Governor was satisfied that the detention of the persons mentioned in the orders was necessary for the purpose mentioned in them could be challenged. It was held that Section 16 of the Defence of India Act, was no bar and the orders of detention were declared invalid as the Governor was not satisfied that their detention was necessary. This was affirmed by the Federal Court in (1944) F.C.R 1. In I.L.R (1943) Lah. 61730 the Provincial Government passed a requisite order under R. 75A, Defence of India Rules. It was held that S. 16 of the Act did not preclude the order from being challenged on the ground that it was ultra vires or that it was not made bona fide but for some collateral purpose. The decision was that the order was ultra vires and that it had not been made in good faith but for a collateral purpose, that is for a purpose other than that for which the Legislature had invested the Provincial Government with extraordinary powers.

83. In 48 C.W.N 766 the question for decision was whether the order passed by the Provincial Government superseding the Howrah Municipality under sub-r. (6) of R. 51(f), Defence of India Rules, was invalid. The order contained a recital that the Governor was of opinion that it is necessary to supersede the Commissioners of the Howrah Municipality for ensuring the due maintenance of the vital services of the said local authority in the event of hostile attack. Das, J. reviewed the case law on the subject and held that Section 16 of the Defence of India Act, was no bar to an inquiry whether the order was passed in good faith, and held that the order was mvalid as it was made for a purpose not contemplated by the Defence of India Act or the rules framed thereunder. Section 16 of the Defence of India Act, is thus no bar to an enquiry whether the order passed under the Defence of India Act or the rules framed thereunder is a valid order made in good faith, and the question of good faith, when raised has to be decided by the Court: see, I.L.R (1944) Nag. 629 at pp. 636, 637. In (1931) A.C 66231 Lord Atkin at p. 670 observed:

“In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice and it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.”

84. In (1941) 3 ALL E.R 338 Lord Atkin at p. 361 observed:

“In England amidst the clash of arms the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting that the judges are no respecters of persons, and stand between the subject and any attempted encroachments of his liberty by the executive, alert to see that any coercive action is justified in law.”

85. The following passage from Dicey's Introduction to the Study of the Law of the Constitution, Edn. 9, pp. 293 and 294 will illustrate the lengths to which the Courts will go to uphold the law:

“Nothing better illustrates the noble energy with which judges have maintained the rule of regular law, even at periods of revolutionary violence, than (1798) 27 St. Tr. 614.32 In 1798, Wolf Tone, an Irish rebel, took part in a French invasion of Ireland. The man-of-war in whicli he sailed was captured, and Wolfe Tone was brought to trial before a Court martial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission as an English officer, his only commission being one from the French Republic. On the morning when his execution was about to take place application was made to the Irish King's Bench for a writ of habeas corpus. The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by a Court martial, or in effect, that the officers who tried him were attempting illegally to enforce martial law. The Court of King's Bench at once granted the writ. When it is remembered that Wolfe Tone's substantial guilt was admitted, that the Court was made up of judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis, it will be remembered that no more splendid assertion of the supremacy of the law can be found than the protection of Wolfe Tone by the Irish Bench.”

86. These traditions continue. In (1923) 92 L.J K.B 797, 33 Scratton L.J said:

“This care is not to be exercised less vigilantly because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases in which you have no sympathy at all.”

87. Those observations were quoted and acted on by this Court in I.L.R (1940) Nag. 134 at p. 10 and in I.L.R (1943) Nag. 1541 at p. 165 and were applied as recently as this month by this Bench in Misc. Cri. case No. 47 of 1944. Formerly England was full of private prisons—the prisons of Lords who claimed jurisdiction by royal grant or by prescription. At the suit of an imprisoned subject the King would send his writ to the keeper of the goal bidding him have the body of that subject before the King's Court, to undergo and receive what that Court should award. This prerogative of the King came to be regarded as the right of the subject: see Maitland's Constitutional History of England, p. 271. In the seventeenth century, however, there arose a conflict between the King and his subjects. The King claimed certain prerogative rights and asserted that they were necessary for the defence of the realm. This was disputed by his subjects. When the King sought to levy loans from the subjects without the sanction of Parliament it was resisted by Darnel and others who were committed to prison under the orders of the King. The writ of habeas corpus was issued and the return was per speciale mandatum Domini Regis, (1627) St. Tr 1.35 This was considered sufficient and the writ was discharged. The history of the constitutional struggle has been traced by Lord Wright in (1941) 3 ALL E.R 388 at p. 399. Parliament nullified the decision in (1627) St. Tr 13 and reaffirmed the right to personal liberty in S. 3 of the Petition of Rights, 1627. In 1640 the Star Chamber which claimed the prerogative of committing persons to prison was abolished and the Habeas Corpus Act of 1640 guaranteed to the subject against the King and his Council the writ of habeas corpus. Various devices however had been adopted to evade the writ of habeas corpus. The Habeas Corpus Act 1679 was passed for the better securing the liberty of the subject. The object of the Act was to prevent delay or evasion in making the return. The Act dealt with criminal or supposed criminal matters other than felony. The Habeas Corpus Act of 1816 dealt with detention or illegal deprivation of liberty other than those on a criminal charge. The two Habeas Corpus Acts made the remedy more speedy, efficacious and certain.

“The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty: Dicey's Introduction to the Study of the Law of the Constitution, Edn. 9, p. 199.”

88. At page 221,

“There is no difficulty and there is often very little gain, in declaring the existence of a right to personal freedom. The true difficulty is to secure its enforcement. The Habeas Corpus Acts have achieved this and have therefore done for the liberty of Englishmen more than could have been achieved by any declaration of rights.”

89. The writ of habeas corpus ad subjiciendum, commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody. The writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus. In any matter involving the liberty of the subject the action of the Crown or its ministers or officials is subject to the supervision and control of the Judges on habeas corpus. The Judges owe a duty to safeguard the liberty of the subject, not only to the subjects of the Crown but also to all persons within the realm. The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute: see Halsbury's Laws of England (Hailsham Edition) vol. 9, paras. 1200–1205, pages 701-706: (1941) 3 ALL. E.R 388 at pp. 399, 400.

90. The procedure on habeas corpus was regulated by Rules 216-227 given at pages 319-332 of Short and Mellor's book on the practice on the Crown side, and is now regulated by Order 59, Rules 14-23 of Rules of the Supreme Court. The truth of a return in criminal cases of imprisonment for debt or by any process in civil suit, cannot as a general rule be traversed or impeached by affidavit, though matters may be stated on affidavit in confession and avoidance of the facts alleged in the return. In other cases the Judge is by statute empowered to inquire into the facts set forth in the return: see Halsbury's Laws of England (Hailsham Edition) Vol. 9, para, 1254, p. 735.

91. Lord Wright in (1941) 3 ALL E.R 338 at p. 372 observed:

“The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.”

92. Both in England and in India fundamental rights are not guaranteed. The right to personal liberty of the subject and other rights flow from the ordinary law of the land. The interference with personal liberty is remedied in England by a writ of habeas corpus and, in India, by an application under Section 491 of the Cr PC. The Emergency Powers Defence Act of 1939 Conferred powers on His Majesty to make such regulations as appear to him to be necessary or expedient for purposes connected with the defence of the realm. Under S. 1(2)(a) of the Act provision could be made for the detention of persons whose detention appeared to the Secretary of State expedient in the interest of public safety and the defence of the realm. In exercise of the powers thus conferred the King in Council framed Regn. 18B. The text will be found reproduced in (1941) 3 ALL E.R 338 at p. 341. This was the regulation which the House of Lords had to construe in that case, and they showed that despite the wide powers conferred by that regulation the right to the writ still remained. All this shows that the right to the writ of habeas corpus and the corresponding guarantee of liberty under Section 491 of the Cr PC, are living realities and form one of the most fundamental and powerful forces in the constitution. It also shows with what extreme zealousness the right is guarded and upheld by the Courts. Our conclusion is that we have the power to take action under S. 491. The rights conferred by that section have not been taken away or affected. That means that in this case we are entitled to enquire into the allegations made because first an issue of want of good faith is raised, and because secondly, in a matter under R. 129 as contrasted with R. 26, the Court can and must enquire into the reasonableness of the suspicion which justifies the detention, the burden being on the Crown.

93. We now turn to the facts. Tj/e reason stated for the arrest of Deshpande and Lele in the order of arrest is that the officer arresting reasonably suspects them of having acted or of acting, or of being about to act in a manner prejudicial to the efficient prosecution of war. The word ‘or’ before ‘being about to act’ is perfectly in order in the rule, but it is out of place in the orders of detention. The police officer making that order has not stated whether the persons had acted in the past in a manner prejudicial to the efficient prosecution of war, or were acting at present, or were about to act in the future, in a manner prejudicial to the efficient prosecution of the war. There is no reference of any reasonable suspicion that these persons acted in a manner prejudicial to the public safety. The police officer who makes an arrest in pursuance of sub-r. (1) is required forthwith to report the fact of arrest to the Provincial Government. We take it that the order of detention under R. 129(4), Defence of India Rules, passed on 22nd August 1944, was made on the strength of such a report. On 26th August 1944, the Provincial Government directed that Deshpande be detained in police custody during the remaining period of his detention of 15 days expiring on 4th September 1944. On 2nd September 1944, an order directing Deshpande to be detained in police custody was extended for a further period of 15 days from 5th September 1944. In none of these orders is there any reference to the fact that P.Y Deshpande has acted in any manner prejudicial to the public safety—not that such a reference would have been in place in such an order. But it serves to show that the orders of the Provincial Government were made on the basis of the police report, which of course is what is intended under the rule.

94. Under R. 129 the power to arrest and detain is conferred on the police, or on any other officer of Government empowered in that behalf by general or special order of the Central Government or the Provincial Government. It is not conferred on the Provincial Government. The powers of the Provincial Government are to be found in R. 26. Under R. 129 all that the Provincial Government can do is to specify the place of detention and up to a limit of two months, its duration. Therefore the only authority we are concerned with under R. 129 is the police officer who made the detention, and it is for him to show that he had reasonable grounds for suspicion. Clearly he cannot discharge that onus by merely asserting that he had reasonable grounds because that is the very question we have to decide. Under the law as we understand it, the Court is to be the judge of that and not the police officer. Therefore he must tell us what those grounds were and leave us to decide whether they are reasonable. That was the very point argued and decided in (1914) A.C 808 by the House of Lords. That apart. In this particular case we have not even a prima facie guarantee that there is a reasonable suspicion. The alternative terms in which the order is couched shows that the police officer making the arrest did not know his own mind. He did not know what he suspected and floundered about in his order from one alternative to another. If one suspects that A has acted in a certain manner one says so. If the suspicion is that he is in addition about to set in that or a similar manner in the future again one says so and uses the word “and” and not “or.” The moment the “or” is introduced it becomes patently apparent that no thought was given to the requirements of the rule and that a rubber stamp order was made. That will certainly not satisfy the condition of “reasonable suspicion” which R. 129 requires.

95. Incidentally this order has not been supported by an affidavit, and the burden being on the Crown the mere production of an order under R. 129 is not enough. There must be proof. The only affidavit we have on the side of the Crown is one which tells us about the suspicions entertained by the Provincial Government, not by the police officer making the arrest. But what we have to determine here is what were his suspicions, and were they reasonable, and not what the Provincial Government's suspicions are; moreover, under R. 129 the Court has to determine whether the suspicions were reasonable and not the Provincial Government. Turning next to the affidavit made by the Chief Secretary, when we examine its terms it becomes more apparent than ever that the police officer making the order did not know what he suspected. As we have said, his order is confined to matter which will be “prejudicial to the efficient prosecution of the war.” The affidavit of the Chief Secretary on the other hand, sets out that the material placed before the Provincial Government gave rise to the suspicion that Deshpande's activities were “calculated to prejudice the public safety and the efficient prosecution of the war.” Now under R. 129 the Provincial Government can only act on the report of the police made under sub-r. (2). If the police had no material in which their opinion would have justified an order on the ground that the public safety was likely to be endangered how can the Provincial Government decide otherwise? Of course, the Provincial Government can act under R. 26, but if it does not choose to do so, it cannot decide ex post facto that the police officer making the arrest ought to have accepted matter which in the police officer's opinion would not have justified him in making the arrest. As we have said, all we can consider under R. 129 is whether the police officer making the arrest had reasonable grounds for suspicion at the time of making the arrest and whether he in fact suspected. He seems to have entertained no suspicion on the score of public safety. This difference of opinion between the police officer and the Provincial Government in itself shows that there is room for a difference of view on the material set out in the report, and accordingly makes it all the more incumbent upon us to know what the grounds for the suspicions are.

96. As regards the question of public safety. In one sense every offence, however trivial, affects public safety—even some silly personal defamation or drunken brawl between a couple of inebriates. But that cannot be the connotation in which these words are used here. They import something much wider relating to the defence of the realm. A clue to the meaning of the words is to be obtained from Part 10 of the Rules in the chapter headed ‘Public Safety and Order.’ They relate to matters like the holding of, or taking part in public processions, meetings or assemblies, and to trade disputes, hartals, etc., and to the wearing of unauthorised uniforms. The chapter is a preventive chapter and has no reference to offences committed in the past even if they be offences like dacoity. If Messrs Deshpande and Lele are suspected of having committed an offence under the Penal Code, the investigation into the offence has to be in accordance with the provisions of the Code of Criminal Procedure. If, however, they are suspected of having committed a prejudicial act within the meaning of R. 34(6), punishable under R. 38(5), Defence of India Rules, or of having committed any offence under those rules the investigation into them has to be conducted in accordance with the provisions of the Code of Criminal Procedure as no separate procedure has been provided for investigating an offence committed under the Defence of India Act. The procedure for investigating into an offence is regulated by chap. 14, sections 154 to 176 of the Cr PC.

97. The learned Advocate-General contended that under Section 161 of the Cr PC, a police officer has power to question any person supposed to be acquainted with the facts and circumstances of the case. ‘Any person’ in the section is wide enough to include an accused person: see, 18 Pat. 23436 and I.L.R (1940) Nag. 232.37 Section 161 has to be read along with other provisions in the chapter. An accused has a right that he should be placed before a Magistrate within 24 hours of the arrest. The Magistrate has to decide whether a remand should be granted. If so, on what conditions, and for each successive remand a stronger case has to be made out by the prosecution. The accused is entitled to move for bail. All these rights are inter-related and the power of the police cannot be considered apart from the right which an accused person has. Under trial prisoners are entitled to all reasonable facilities for interviewing or otherwise communicating either orally or in writing with their relatives, friends and legal advisers: see Jail Manual, R. 906, p. 283. These rights are not available if they are detained under Rule 129, Defence of India Rules. A copy of the order dated 22nd January 1944 giving instructions of the Provincial Government regarding the conditions to be applicable to all persons detained in police custody under Rule 129, Defence of India Rules, has been placed before us. Instructions 9 and 10 are reproduced below:

“Interviews:

(9)(i) A prisoner shall not be permitted to have an interview with persons other than police officers except on the written order of the Superintendent.

(ii)… The Superintendent shall be competent subject to any special directions that may be issued by the Inspector General of Police, to allow or refuse an interview….

Police Interviews:

(10) Subject to the directions of the Inspector General of Police the Superintendent may by general or special order authorise any police officer, either singly or with another police officer and accompanied or unaccompanied by subordinate police officers, to interview any prisoner.”

98. If a police officer, for facility of carrying on an investigation unhampered and unrestricted detains an accused person, or a witness supposed to be acquainted with the facts and circumstances of the case, under R. 129, Defence of India Rules, that would be an abuse of the power conferred under R. 129: see the judgment of Harries, C.J in A.I.R 1944 Lah. 37338 at p. 375. It may be noted that there is no restriction as regards the time, period and the number of interviews which a police officer is entitled to have with a detenu in a day. The complaint made here is that Deshpande has been subjected to continuous interrogation by the police for a number of days and there is no refutation of that allegation. The question is whether the police officer in question passed the order of detention under R. 129, Defence of India Rules in good faith or whether the detention was made with a view to facilitate the investigation into a dacoity in East Khandesh unhampered and unrestricted by any of the provisions of the Code of Criminal Procedure and was not made in bona fide exercise of the power. The affidavit and the application on behalf of Deshpande complained that no interview was allowed and that he was in the police lock-up instead of in jail.

99. This refusal to grant an interview or to afford facilities to the detenu to place in his case before the Court amounts to an abuse of power under the Defence of India Act and the rules framed thereunder and is an additional ground for suspecting the good faith of the authorities: see, I.L.R (1944) Nag. 629 at p. 636: The complaint in the application was that the arrest and detention have been with a view to facilitating an investigation into a dacoity which took place in East Khandesh, and that the detention under B. 129 was in utter want of good faith and was made to prevent Deshpande from pursuing his ordinary legal remedies and to deprive him of his ordinary legal rights. This, it was urged, is an abuse of the Defence of India Act and rules framed thereunder.

100. An affidavit was filed on 28th August 1944 to the effect that Deshpande was kept in police custody from 27th August for purposes of interrogation. On 30th August 1944 the applicant wanted information as to the purpose of transferring the applicant's husband to the lock-up in the compound of the District Court and stated that the detention in jail was the lesser of the two evils so long as the detention continued. On 6th September 1944, after Mr. Sheode had an interview with Deshpande an affidavit was filed stating that the interrogations continued both in jail and in the lockup for about 6 or 7 days. In spite of the definite and specific allegation that the order of detention was not made in good faith but for an ulterior purpose in order to facilitate the police in carrying on an investigation into a dacoity the Provincial Government passed an order on the 26th placing him in police custody. The protest of the applicant was registered on 30th August, and in spite of that protest a fresh order was passed on 2nd September 1944 extending the period of detention in police custody for a further period of 15 days from 5th September 1944. The application filed on behalf of the Provincial Government and the affidavit sworn by the Chief Secretary lack details and particulars. They may be compared and contrasted with the affidavits and particulars furnished in (1941) 1 K.B 72.39 The order of the Home Secretary is at pp. 72-73, the particulars furnished by the Advisory Committee under the Defence Regulations at pp. 73-74 and the affidavit of Sir John Anderson at pp. 75-76. A part of the affidavit of the Secretary of State in (1941) 2 ALL E.R 74940 will be found at pp. 753 and 754. The affidavit filed by the Chief Secretary is open to the criticism which Stable, J. made in (1941) 2 ALL E.R 749 at p. 759.

“An affidavit in stock form, applicable to all cases and, as Langton J., expressed it in a recent case, over the rubber stamp is in my judgment, undesirable in almost any proceedings and most particularly undesirable in proceedings of this nature, where the liberty and reputation of the subject are involved and in which consequently particular individual attention must, as a matter of right be given to every relevant factor.”

101. This was cited with approval by Shearer, J. in I.L.R (1944) Pat. 252441 at p. 258. The applicant made definite and specific allegations of fact, viz., that a dacoity was committed in East Khandesh some time in April last, that police officers from Bombay were investigating into the offence, that the arrests and searches were made with a view to find out the culprit and catch the absconders, that the police officers from Bombay had questioned Deshpande about Inamdar and his whereabouts and his associates, that no question was asked from Deshpande about the articles in Bhavitavya or about his activities in relation to the war and that the inquiries have been restricted to find out the whereabouts of Inamdar and his associates. These facts have not been denied either in the statement filed by the Provincial Government or in the affidavit of the Chief Secretary.

102. Paragraph 2 of the statement of the Provincial Government is cryptic and it is almost impossible to find out what is alleged against Deshpande. It is not asserted that Deshpande was engaged in underground activities calculated to prejudice the public safety and or the efficient prosecution of war. The only allegation against him is that he was actively associated with persons who were engaged in such activities. But what kind of association? Innocent or otherwise? and what are the facts which lead to a conclusion that the association is an active one? The affidavit is curiously and studiously silent about this. How can we judge whether there is any association or not, and whether it is active, and whether it is innocent or otherwise, without being placed in possession of a single fact on which to form an opinion? In the English cases there were definite allegations made that the persons detained were members of the British Union of Fascists and the parts which they had taken and how their activities were calculated to endanger public safety were set out. We have a right to expect that statements made on behalf of the Provincial Government will be full and frank. The Provincial Government has undoubtedly a right to withhold its sources of information, as also the evidence on which the conclusion was reached. But it must state frankly matters on which there can be no question of secrecy, particularly when they have already been made public and have even been published in the papers. The statement studiously avoids any reference to the investigation which is being carried out by the police officers from Bombay in a dacoity which was committed in East Khandesh. In our opinion the order of the Provincial Government placing Deshpande in police custody could not have been with a view to promote the efficient prosecution of war or to safeguard the public safety, but must have been with a view to afford facilities to the police officers to carry on the investigation into the offence which had already been committed and to find out the traces of Inamdar and his associates. Had the case been otherwise the Provincial Government would have taken the responsibility for the detention upon itself and would have acted under R. 26. That in turn would have given Deshpande certain limited findings.

103. The police officer who arrested and ordered the detention has not filed any affidavit. The circumstances in the case leave no manner of doubt that the arrest and search were made with a view to trace the whereabouts of Inamdar and his associates and to investigate into the offence of dacoity which had been committed. Deshpande was placed in police custody, in order to give police officers facilities for carrying on an investigation. The detention in police custody could not possibly have contributed to the efficient prosecution of the war or in any way to safeguard the public safety. In the case of Lele there is a definite statement that two police officers from Bombay searched his quarters and stated that the search was being made in connexion with a dacoity in the Bombay Province. This has not been controverted by the Provincial Government. No statement or affidavit has been filed by the Government in Lele's case. The learned Advocate-General submitted that the statement filed in Deshpande's case should be taken as a statement in this case also. But there is no reference at all to Lele in either the statement or the affidavit in Deshpande's case, accordingly neither can be read as applicable to Lele. If this was due to laxness then we say with Lord Wright in (1942) A.C 284:

“I feel very strongly that in a question like this affecting the liberty of the subject the greatest care should be taken and the greatest correctness of procedure observed. Laxity is most reprehensible, whoever may have been responsible.”

104. And with Lord Macmillan:

“Nothing could be more unfortunate than that, in a matter in which scrupulous accuracy is imperative, the impression should be created that the safeguards prescribed for the protection of detained persons are carelessly observed and administered.”

105. The circumstances in Lele's case also indicate that the order of detention by the police officer was not made in good faith in exercise of the powers for the purpose mentioned in the rule but that they were made with the ulterior purpose of facilitating the police investigation. That brings us to the question of affidavits. As we have said the Provincial Government filed its affidavit under protest and asked for a ruling. Affidavits have been filed in numerous cases in England as well as in India to justify detention. An affidavit was filed in (1916) 2 K.B 742. Reference to the affidavit will be found at pp. 743 and 748 and at p. 750 where Lord Reading C.J said:

“In my judgment, upon the material before us, namely, the affidavit of the Assistant Secretary of the Home Office, there was sufficient ground for the exercise of his powers by the Secretary of State, and consequently the applicant is not illegally detained in prison.”

106. In (1941) 1 K.B 72 two affidavits of the Home Secretary were filed. The text of the affidavits will be found at pp. 75-76. At p. 79 the affidavit is quoted and at page 80 Humphreys, J. observed:

“We accept those statements made upon oath by Sir John Anderson and accepting them, we are satisfied that he had reasonable cause for believing that the applicant was a person to whom Reg. 18B (1A) applied.”

107. In appeal Mac Kinnon L.J at p. 84 observed:

“I have his affidavit and I have no reason to think that it was otherwise than strictly honest and correct. Therefore he has proved to my satisfaction that he had reasonable cause to believe and did honestly believe, in the terms of the regulation, and that being so, the order was validly issued pursuant to this regulation.”

108. In (1941) 2 ALL E.R 749 at p. 755, after referring to the affidavit of the Home Secretary, Viscount Caldecote, L.C.J observed:

“I see no reason to doubt that the Home Secretary has given proper and careful consideration to this particular case, and that he has considered reports and information which appear to him to justify his belief.”

Later,

“The Secretary of State has declared on oath, as well as having stated in the order, that he is satisfied as to the first of these conditions, and, as to the second, that he is satisfied, or has reasonable cause to believe, that it is necessary to exercise control over the applicant.”

109. The judgment of the Court of appeal will be found in (1942) 1 ALL E.R 373. Lord Greene M.R at page 376 stated:

“In cases to which that Act applies, it is open to the Court, although the return to a writ of habeas corpus may be good and sufficient in law, to examine into the truth of the facts set forth in such return.”

“It is clear that there may be many matters into which the Court can and will inquire under the section if occasion arises, e.g, the bona fides of the Secretary of State, the genuineness of the detention order itself and the identity of the applicant with the person referred to in the order.”

110. Goddard L.J at pages 377-378 stated:

“… permit me to take this opportunity of correcting a passage in my judgment in (1941) 3 All E.R 10442 at p. 119. I there said that the prisoner's right to controvert the return to a writ of habeas corpus was expressly preserved by the Habeas Corpus Act, 1816, S. 4. This was a mistake. The right of controverting the return was first given by the Act, by S. 3 where the writ was granted by a single judge, and by S. 4 where it was granted by the full Court. A perusal of the opinion of Wilmot C.J delivered in the House of Lords in 1758, when a bill for amending the law relating to habeas corpus was before the House, makes it clear that no dispute on any matter of fact was allowed on a return to the writ, and that the only question which could be debated was whether the return disclosed on its face a ground for the detention which was sufficient in law. The reason was that in those days it was only a jury that could try a question of fact. Accordingly, if the applicant for the writ desired to dispute any fact alleged in the return, he could do so only by an action, or by preferring an indictment, for a false return. If he obtained a verdict, the Court would then take notice that the allegation was false and proceed accordingly…. It was by the Act of 1816 that the law in this respect was first altered.”

111. In (1941) 3 ALL E.R 104 Goddard L.J at page 119 observed—

“By S. 3, the Court is given power to inquire into the truth of the return by affidavit,”—

continued at page 120—

“…. still leaves it open to the subject, under S. 4, to controvert the return, in which case the onus is upon him.”

112. And concluded the judgment at page 123 with the observation—

“…. the old procedure did not require a return to be verified, at any rate in the first instance, modern practice does require an affidavit, and care should be taken in these cases under the regulations to exhibit the actual order signed by the Secretary of State, which alone is the authority for detaining the prisoner.”

113. In (1942) A.C 284 two affidavits were filed: one of Sir John Anderson and the other of Mr. Herbert Morrison, his successor. The terms of the affidavits are quoted at pages 283-286. In (1942) A.C 206 Lord Atkin observed at page 242 as follows—

“I agree with the Divisional Court, in the case of Greene, in accepting what appears at that time to have been the contention of the Home Secretary that the Home Secretary's affidavit establishes the particulars as constituting reasonable cause.”

114. And pointed out that in (1941) 1 K.B 72

“the Home Secretary, when represented by the same Solicitor-General and the same junior counsel as in the case, frankly accepted the burden of proving reasonable cause.”

115. The case in (1942) A.C 206 arose out of an action for declaration that Liversidge's detention was unlawful and for damages for false imprisonment. The defendants in the case were Sir John Anderson the previous Home Secretary and his successor, Mr. Herbert Morrison. The defence was that the plaintiff was in lawful detention in pursuance of the detention order in exercise of the powers conferred on the Home Secretary under Reg. 18B, Defence (General) Regulations 1939. The plaintiff applied that the defendant should be called upon to furnish particulars of the grounds on which defendant 1 had reasonable cause to believe the plaintiff to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over the plaintiff. This was refused by Master Moseley and his order was affirmed by Tucker, J. in appeal. The Court of Appeal held that the onus of proof was on the plaintiff and that the defendant could not be called upon to furnish particulars.

116. The matter came up for decision before the House of Lords in (1941) 3 ALL E.R 338. The decision of the majority was that where the Secretary of State acting in good faith under Reg. 18B, Defence (General) Regulations 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary to exercise control over him and directs that person be detained, a Court of Law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief and that the matter is one for the executive discretion of the Secretary of State. Accordingly it was held that in an action by a person detained against the Secretary of State for damages for false imprisonment a Court cannot compel the defendant to give particulars of the grounds on which he had reasonable cause to believe the plaintiff to be a person of hostile associations and that by reason of such hostile associations it was necessary to exercise control over the plaintiff. The decision turned on the interpretation of the expression ‘if the Secretary of State has reasonable cause to believe’ in Reg. 18B, para. 1, Defence (General) Regulations-1939. The majority held that the administrative and plenary discretion was vested in the Secretary of State and that it was for him to decide whether he had reasonable grounds and to act accordingly. Lord Atkin, however, took the view that the expression was capable of only one meaning that in fact there must be reasonable cause for the belief, and that the matter can be inquired into by a Court. The question of good faith was not raised and the noble and learned Law Lords made it clear that if the question had been raised it would be for the Courts to decide that issue.

117. The case in (1941) 3 ALL E.R 388 arose out of an application for a writ of habeas corpus. The good faith of the Secretary of State was not challenged. The only fact which was challenged was that the Secretary of State had not reasonable cause to believe the appellant to be a person of hostile associations and that by reason thereof it was necessary to exercise control over him. Greene wanted that the information on which the Secretary of State formed the belief which he professed to entertain should be produced before the Court to enable it to decide whether in fact he had such reasonable cause, and wanted the Secretary of State to state evidence on which he proceeded: see pp. 297 and 299. The decision of the House of Lords was that the Secretary of State could not be compelled to disclose the information and to justify the reasonableness of his belief. Viscount Maugham at p. 391 observed:

“On the other hand, in cases other than for some criminal, or supposed criminal, matter, and except cases of imprisonment for debt or by process in any civil suit, the Judge is empowered by the Section 3 of the Habeas Corpus Act, 1816, although the return to the writ be sufficient in law, to examine into the truth of the facts therein set forth by affidavit or by affirmation….”

118. At p. 394 the noble and learned Law Lord reproduced with approval the observations of Goddard L.J in (1941) 3 ALL E.R 104 at page 121, viz.:

“I am of opinion that, where, on the return, an order or warrant which is valid on the 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 challenged….”

119. At p. 395 Viscount Maugham observed:

“In the present case, therefore, there was, in my judgment, no necessity for an affidavit by the Secretary of State once the order itself was proved or admitted. However, I am not attempting to lay down a general rule.”

120. The decision in (1942) A.C 284 was that the production of the Secretary of State's order, the authenticity and good faith of which were in any way impugned, constituted a complete and peremptory answer to the appellant's application for a writ of habeas corpus and no affidavit by the Home Secretary justifying his cause of belief was necessary. The two cases cited by the learned Advocate-General do not justify the wider proposition that the truth of the return to a writ of habeas corpus cannot be challenged in Court. The cases in (1942) A.C 206 and (1941) 3 ALL E.R 388 were decided on 3rd November 1941. Even after the decision of these cases an affidavit by Sir John Anderson sworn on 24th November 1941 was filed in (1942) 1 ALL E.R 207. At p. 210 Viscount Caldecote L.C.J observed:

“Whether or not the Secretary of State had such reasonable cause did not, and could not, depend on a recital to that effect. What was vital was that the Secretary of State should have had reasonable cause, and the Court, in my opinion, can properly find such case to exist from the sworn statement of Sir John Anderson, which I have read…. The truthfulness and honesty of Sir John Anderson are not assailed……. When…. it is reinforced, as in this case, by the affidavit of Sir John Anderson who made the order, it seems to me unassailable.”

121. Humphreys, J. at p. 212 observed:

“I see no reason why, in a case where there is no conviction, this Court should not look at any matter in evidence in the case to enable it to decide whether there is legal justification for the detention. If, then, we are at liberty to look at the affidavit of Sir John Anderson, it becomes plain that, in making the order in question the Secretary of State did believe, on grounds which to him seemed reasonable, that it was necessary to exercise control over the applicant.”

122. In A.I.R 1943 Cal. 377 the Calcutta High Court granted liberty to the Crown to file affidavits in answer to the affidavits filed by the applicants. An affidavit sworn on 24th May 1943 by Mr. Porter, the Additional Secretary in the Home Department of the Government of Bengal, was filed and it was taken into consideration in deciding the question whether the applicants were illegally or improperly detained. Similarly the Federal Court in (1944) F.C.R 1 based its decision on the affidavit. In (1918) 1 K.B 57843 although an affidavit was filed in the King's Bench Division the Court of Appeal directed that a fuller one be filed and it was filed accordingly. Pickford, L.J said at p. 585:

“It is not a question of the liberty of a British subject; it is a question of the liberty of a person living under the protection of our laws; and when power is given to a dignified high officer to restrict that person's liberty, I am inclined to think—it is not necessary to decide it—that it must be done by that high officer himself; that he cannot make a general order without considering the circumstances of each case, but that he must examine and see whether the particular person ought to be detained in custody. In consequence we asked that a further affidavit should be made by Mr. Pedder, and he made one.”

123. That incidentally is one of the matters we have to decide here. According to the Federal Court, these orders under R. 26 (and the same will apply to R. 129 so far as the powers of the Provincial Government go) must be made by His Excellency the Governor personally. They purport to be made in the present cases by the Provincial Government. The question is whether the Provincial Government necessarily means His Excellency the Governor. The Federal Court held, in different circumstances it is true, that it does not. If it does not, then on the view of the Federal Court the orders of the Provincial Government are invalid. That was one of the points on which we desired enlightenment, but the affidavit filed by the Chief Secretary adheres to the formula “the Provincial Government,” and we were asked to deduce from a number of none too clear provisions that in this province the Provincial Government can only mean His Excellency the Governor.

124. In the English case just cited a decision on a similar difficult question was obviated by the assistance of the Crown in making the affidavit. We were also anxious to obviate waste of time and energy and so asked for an affidavit. The matter is within the knowledge of the Provincial Government and a single sentence in the affidavit would have settled the question in two minutes and thus have obviated much tedious argument and tiring deliberation. Unfortunately, the affidavit did not make the point clear and adhered to the ambiguous formula “the Provincial Government,” which, as we have said the Federal Court considered insufficient. Fortunately, however, the learned Advocate-General was able to tell us that he had seen the files personally and could assure us that the files had been placed before His Excellency the Governor and that the orders were passed by His Excellency in person. Of course we at once accepted the learned Advocate-General's assurance, it having been made on personal knowledge from a personal inspection of the files and not merely on instructions. That has obviated hours of fruitless argument and consequent loss of time over a matter which, as it turns out, would have been purely academical seeing that His Excellency had in fact passed the orders. But the matter ought to have been cleared up in the affidavit. These “rubber stamp” returns are open to objection, particularly an affidavit. The question about the necessity of filing an affidavit was considered by the House of Lords in (1942) A.C 284. Lord Wright put the matter generally thus:

“The guiding principle of habeas corpus is, as I have explained, that it is festinum remedium. Hence there is a presumption against unnecessary affidavits.”

125. As the learned Law Lord explains, the whole object of these proceedings is to make them expeditious, to keep them as free from technicality as possible, and to keep them as simple as possible. Accordingly, when there is nothing to enquire into, that is to say, when there is no question of fact to be examined, as was the case in (1942) A.C 284 there is no need for an affidavit. As Lord Wright put it:

“Until there emerges a dispute of fact into which the Court feels it should inquire, I think the defendant's statement is enough, though no doubt if the Court is proceeding to enquire into the merits it may order affidavits.”

126. We do not think we can put the matter more concisely than that. But the point to note is that in all these cases — even in two cases after this decision, the Crown in its anxiety to assist the Court and to avoid any possible waste of time went out of its way to make affidavits even though the House of Lords itself had decided that affidavits were unnecessary. That is a refreshing contrast to the attitude here. It is not always easy to anticipate whether the Crown need answer the application once it has produced its order of detention. Therefore, even though it was not strictly necessary to do so it invariably produced an affidavit in the cases we have set forth; and that excellent tradition has been followed in certain Indian cases. That deals with the position when no issue of fact requiring an answer is raised. It is not necessary to file an affidavit in the first instance if the return is good on the face of it. But it is always wise to do so. It assists the Court. It avoids unnecessary waste of time, and it obviates attacks on Government's good faith. Candour and frankness are always appreciated. But if an issue of fact is raised in the application then an affidavit in reply refuting the facts, or explaining them away, is always necessary, and should be filed along with the return so as to obviate unnecessary delay. Otherwise the truth of the facts alleged will normally be accepted. Then again, much depends upon the circumstances of the detention and the power under which it is made. If the detaining authority is the Provincial Government acting under Rule 26, then provided issues of good faith and the like are not raised, a return, good on the face of it would be sufficient. On the other hand, if the detention is under B. 129, where in our view, the burden being on the Crown, it has to justify its action by disclosing facts which show the reasonableness of the suspicion entertained, then a bald return unaccompanied by an affidavit furnishing particulars will not be enough. The burden is on the Crown and if it takes no steps to discharge it, when making the return the applicant will normally be entitled to immediate release. This is explained by Viscount Maugham in (1941) 3 ALL E.R 338 where he says quoting Goddard, L.J in the Court of Appeal,

“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 challenged, but where all 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.”

127. As we have said, these remarks apply in India to detentions under B. 26. They do not apply to ones under B. 129. There the prisoner is entitled to say ‘I do not know why I have been detained, I have done no wrong’ and then it is for the Crown to justify the detention when it makes its return. In the present case issues of fact were raised. The good faith of the police and of the Provincial Government were expressly challenged, and facts were set out which, if unrebutted and unexplained, were sufficient to support the allegations. An affidavit therefore was necessary and should have been filed from the start. In fact it is the complete absence of any refutation of these facts and the failure to explain them that leads us to conclude that the orders in these two cases were not made in good faith and that they are a fraud on the Defence of India Act and its rules. We hold that the detentions of Purushottam Yeshwant Deshpande and Yeshwant Vishnu Lele are illegal and improper and direct that they be set at liberty forthwith. We wish to make it plain that the validity of R. 129 was not questioned before us and accordingly we express no opinion about its intra vires character. After we had delivered judgment, but before we had signed it, the learned Advocate-General stated that we had misunderstood the position of the Provincial Government regarding the granting of interviews and asked us to embody the following explanation in our order. That we have pleasure in doing.

“There has been a misunderstanding on two points which I must clear:

(1) When I informed your Lordships that either Mr. Kedar or Mr. Sheorey conld interview and they had to apply to the D.S.P, I meant to say that they had to get in touch with the D.S.P

(2) I assured your Lordships that no interview was asked for by the prisoner and that no interview was refused. All the applications were to the High Court. The only request to the Government (i.e, jail authorities) being an application by Mr. Ringe.

As this misunderstanding should, I think, be removed, I am drawing your Lordships' attention to it before the order is signed.”

128. Order accordingly.