Venkatesh Yeshwant Deshpande v. Emperor

Niyogi, J.:— This is an application made by Venkatesh Yeshwant Deshpande, a prisoner in the Central Jail, Nagpur, under Section 491 of the Cr PC, for issue of an order to be set at liberty. The applicant was convicted by the Sessions Judge, Amraoti, in Sessions Trial No. 8 of 1936 of an offence punishable under S. 120-B, I.P.C, and sentenced to two years' rigorous imprisonment and to pay a fine of Rs. 1000. His appeal to the High Court was dismissed on 14th June 1937, and he surrendered to his bail on 22nd June 1937 on which day he was re-committed to jail. The date of his release would thus be 21st June 1939. It appears that he made some applications to the Local Government under Section 401 of the Cr PC, and he succeeded in getting remission of one year by an order of the Local Government passed on 24th February 1938. On 24th March 1938 the Hon'ble the Premier announced a general remission of two months respecting all the prisoners throughout C.P and Berar in commemoration of the introduction of jail reforms. The applicant also earned his usual remission for good conduct and industry under Rule 130 of the Rules issued by the Government of India under the Prisoners Act, the total number of days numbering 27 up to the end of the first quarter of 1938.

2. The applicant contends that taking into account all these remissions he was entitled to be released on 16th April 1938 and complains that he is being illegally and improperly detained in prison notwithstanding that he has served the unremitted portion of his sentence and also paid his fine in full on 16th July 1937. The applicant's learned counsel, Mr. J. Sen, advocate, appeared on 23rd May 1938 forenoon with a motion for the issue of an order under Section 491(b) of the Cr PC. On hearing him and taking into consideration the Local Government's order dated 24th February 1938, I admitted the application and forthwith issued notice to the Advocate-General and the matter was heard at length on 30th and 31st May 1938. The learned Advocate-General admits that on 24th February 1938 the Local Government granted remission of one year and that it was communicated to the applicant in due course. He further admits that there was general remission of two months announced by the Hon'ble the Premier on 24th March 1938 and also that the applicant was entitled to the usual remission for good conduct and industry. He concedes that in consideration of these remissions the applicant was entitled to be released on 16th April 1938. He however contends that on 14th April 1938 that is two days before the due date of release, the Local Government varied its previous order dated 24th February 1938 and directed that he should not be released until further orders, and further that order was rescinded by a fresh order passed on 28th May 1938. He therefore denies that the applicant at any material time was illegally or improperly detained in prison and opposes the application.

3. The arguments covered rather a wide field involving discussion of the fundamental principles as to the liberty of the Subject and the urgency of the issue of an order under S. 491 which is in the nature of the writ of habeas corpus, and reference was made to numerous English and Indian decisions bearing on the question. It however appears to me that it is unnecessary to go into this abstract question, as the issue which arises on the present application is of a limited and defined character, although not free from complexity. The main questions in this case are (1) whether the remission granted by the Local Government on 24th February 1938 took effect immediately or it did not take effect until 16th April 1938, (2) whether the Local Government's order of 14th April 1938 that the prisoner should not be released was a valid order and could operate to withdraw the remission already granted under Section 401 of the Cr PC, on 24th February 1938 and (3) whether the Local Government's order passed on 28th May 1938 was according to law. In view of the novel and exceptional nature of the application, the importance of the case and the complexity of the issues involved, I am of opinion that this case should be dealt with by the Division Criminal Bench of the High Court. I would therefore reserve my final opinion on the issue involved and I should guard myself against being under, stood as conclusively determining the matters in controversy in the observations which follow.

4. In order to decide whether this proceeding should be allowed to continue or not I have to examine cursorily the arguments put forward on either side. If the learned Advocate General's contention is valid and should prevail, the dismissal of the application must follow as a matter of course. It is therefore necessary to consider the points raised in support of the legality of the Local Government's orders dated 14th April 1938 and 28th May 1938. I may first deal with the order dated 14th April 1938. That purports to be a memorandum addressed to the Superintendent of the Central Jail, Nagpur, and it says:

In continuation of this department endorsement No. 670-433 XIX, dated 24th February 1938, I am directed to inform you that pending farther orders the prisoner V.Y Deshpande should not be released.

5. It bears the signature of the Assistant Legal Remembrancer for Secretary to Government C.P and Berar, Judicial Department. The argument of the learned Advocate-General is that this memorandum must be read as a part of the letter refer, red to therein. The obvious objections to this course are that there would be two contradictory orders in one and the same correspondence, namely (1) remitting the sentence, and (2) commanding detention of the prisoner. That the first letter was unconditional in its terms and as such was understood by the jail authorities as an order to grant remission forthwith, is evident from the fact that in the history ticket of the prisoner against date 26th February 1938 is noted on mercy petition from outside, the Governor of the C.P and Berar has remitted under Section 401 of the Cr PC, 1898, a portion of one year of the sentence of two years.

6. The remission granted on 24th February 1938 was not encumbered with any condition which under S. 401, the Local Government was certainly empowerd to impose. As the remission was granted without any condition as contemplated in Sec. 401(1), it would be contrary to the letter and spirit of that Section to impose a condition at a later date. The memorandum dated 14th April 1938 may be read either as supplementary to the first or independently of it. On the first alternative, it leads to the startling and anomalous result that while the prisoner was granted remission of punishment, he would be denied the benefit of it. Is it reasonable to predicate of the Local Government as saying “We remit your punishment, nevertheless we will not release you when your term of imprisonment expires, but will continue to detain you as long as we choose”? Such an order would be repugnant to Section 401 of the Cr PC. It must be observed that Section 401(1) of the Cr PC, speaks of suspension of the execution of the sentence or remission of the whole or part of the punishment but it makes no mention of release. Consequently the memorandum dated 14th April 1938 which only prohibits the release of the prisoner cannot be covered by Section 401 of the Cr PC. The remission of punishment is a solemn juristic act, whereas release is a ministerial routine and is purely mechanical. The order addressed to the prison authority to detain the prisoner physically could not impair the legal effect of the remission of the punishment which that document did not purport to affect. Consequently, whether the remission of punishment came into force on 24th February 1938 or 16th April 1938 there was no legal impediment to its operation with the result that the prisoner became entitled to be set at liberty at the end of one year's imprisonment. The legal right which the prisoner acquired as the result of the remission of his punishment could not be taken away by the prohibitory order. That mere inhibition of the routine act of release could nullify the legal effect of the remission of the punishment is a proposition the soundness of which is open to grave doubt. It is pertinent to notice here that on 28th May 1938 an order was passed rescinding the order dated 24th February 1938. In that rescission is implicit the admission that the remission of punishment under the first order dated 24th February 1938 had continued in force during the interval, notwithstanding the memorandum of 14th April 1938. If that was in force until 28th May 1938, its validity on 16th April 1938 cannot be challenged. It must therefore follow that the prisoner was legally entitled to be released on 16th April 1938 and that his detention since that date is contrary to law.

7. The learned Advocate-General contends that the memorandum dated 14th April 1938 should be construed as order varying the first order of 24th February 1938. Variation affects the substance of the order varied but there is nothing in the memorandum which affects the substance of the first order. It is further doubtful whether the previous order could be varied. The only authority relied on is Section 21 of the General Clauses Act, which has been specifically mentioned in the order dated 28th May 1938. That Section runs as follows:

Where by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind any notifications, orders, rules or bye-laws so issued.

8. Was the order dated 24th February 1938 one of the nature contemplated in Section 21 of the General Clauses Act? It is a well recognized rule of construction that the words used in a statute must be interpreted according to their context. Section 21 of the General Clauses Act, must therefore be read in the light of Ss. 14 to 20 which precede and Ss. 22 to 24 which follow. S. 21 occurs among Sections which are grouped under the heading “Provisions as to orders, rules, etc. made under enactments.” The relevant words in S. 21 are:

Where by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred.

9. The power to issue orders, etc. is the power indicated in S. 14 of that Act, and such provisions are, to mention a few, to be found in Section 6 of the Air Craft Act, 22 of 1934, Section 6 of the Faotories Act, 25 of 1934, Section 9 of the Lepers Act, 3 of 1898, Section 21 of the Prisoners Act, 3 of 1900 and Sections 9 to 39 of the Cr PC. The word ‘order’ is used in S. 21 along with “notifications, rules and bye-laws.” They are all comprised in the expression ‘Indian law’ which is defined in Section 27(a) of the General Clauses Act, as inserted by the Government of India (Adaptation of Indian Laws), Order, 1937. There the Indian law is described as including any law, ordinance, order, bye-law, rule or regulation passed or made at any time by any competent Legislature; authority or person in British India. The meaning of the word “orders” becomes clear when S. 21 is read in conjunction with S. 24. These considerations make it clear that the word ‘order’ used in Section 21 of the General Clauses Act, is a legislative or statutory order, that is an order haying the force of law. The order passed under S. 401 granting remission of punishment falls in a category different from the order contemplated in Section 21 of the General Clauses Act. The applicability of that Section is therefore highly doubtful.

10. The object of S. 491, as the Habeas Corpus proceeding in England, is to enable a person under detention in public or private custody to test its legality. The applicant is therefore fully entitled to take recourse to S. 491. The foregoing discussion clearly shows that the order under which the applicant was detained and the subsequent order which rescinded the remission of punishment do not appear to be quite in conformity with law. There is also the important question whether the order passed on 28th May 1938, rescinding the previous order after the prisoner filed this application in Court should be given effect to. The applicant has in my opinion established a strong prima facie case for his being set at liberty under Section 491 of the Cr PC.

11. An order will now issue to the Superintendent, Central Jail, Nagpur, to produce the applicant V.Y Deshpande, B Class Prisoner No. 3144 before me to-morrow at 10-30 A.M to be dealt with according to law.

ORDER OF THE FULL BENCH

Stone, C.J and Gruer, J.:— This matter raises a point of some interest owing to the fact that it is an application in the nature of a writ of Habeas Corpus whereby the applicant seeks to be set at liberty immediately and because the facts of the case are somewhat remarkable and, we hope, unique. The applicant was sentenced under S. 120-B, I.P.C, that is to say, for criminal conspiracy, and was sentenced to two years' rigorous imprisonment and a fine of Rs. 1000 or in default, to an additional sentence of six months. The Rs. 1000 fine was paid and accordingly as his sentence began on 22nd June 1937, he would be entitled to release on 21st June 1939, subject to any remissions under the Prisoners Act which in this case amounted to 42 days, subject to the two months' remission which came into effect on 15th April 1938, had that been applicable to his case, and subject to a remission made by the order which is the centre of controversy here. The order was passed under the powers conferred by Section 401 of the Cr PC, on 24th February 1938.

12. It is in the following form:

The Governor of the Central Provinces and Berar is pleased to remit, under Section 401 of the Cr PC, 1898 (5 of 1898) a portion of one year of the sentence of two years' rigorous imprisonment and a fine of Rs. 1000 passed on the petitioner.

By order of the Governor,

Central Provinces and Berar

Nagpur,Secretary to Government,

24th Feb. 1938.Central Provinces and Berar.

Judicial Department.

13. It is perhaps necessary to explain that though the order is in the name of the Governor, that is the constitutional form it has to take. It is in reality an order of the Provincial Government. In view of the general misunderstanding on this point the Provincial Government felt it necessary, after it had issued its order of cancellation dated 28th May 1938, to issue a press communique explaining this difference. It should be understood that what is here involved are the acts, powers and privileges of the Provincial Government and not of His Excellency the Governor.

14. That order having been passed and communicated to the Superintendent of the jail where the applicant was confined, the result was that the date of release was altered to 21st June 1938, again subject to any other remissions owing to the good conduct of the applicant or otherwise. The history ticket contains the following amendments in red: Sentence “2-0-0 (Two jrears) B.I” is struck out and in red is put “One year R.I on Mercy Petition.” Date of release “22nd June 1939” is struck out and in red is put “21st June 1938.” On 26th February 1938 there is an entry about the remission to the following effect:

On Mercy Petition from outside the Governor of the C.P and Berar has remitted under Section 401 of the Cr PC, 1898, a portion of one year of the sentence of two years and fine Rs. 1000: Vide C.P Government No. 670-433-XIX dated 24th February 1938.

15. On 29th March 1938 in the Legislative Assembly the Government was questioned about remissions and the Minister in charge tabled a list of remissions which had been made and the one under consideration is No. 41. On 20th May 1938 the present application was filed.

16. According to the history ticket originally it was written “16th April 1938. Two months special remission awarded by Government”. That relates to a general remission of two months made apparently to all prisoners by Government. That “16th April 1938” is scored out in red and under it is put “15th April 1938”. The effect of that, had it applied to this man, would have been to still further antedate the date of his release and would have brought it down to 16th April 1938. On 14th April 1938, it is said with a view to keeping this man properly in prison until after 16th April 1938 and until Government had time to consider this case, the following communication was sent by letter headed memorandum addressed to the Superintendent, Central Jail, Nagpur.

In continuation of this Department endorsement No. 670 (671)/433-XIX, dated 24th February 1938, I am directed to inform you that pending further orders the prisoner V.Y Deshpande should not be released.

Sd/- V.N DEO,

Assistant Legal Remembrancer,

For Secretary to Government, Central Provinces and Berar, Judicial Department.

17. That was followed, eight days after this application has been made to the Court and during an adjournment which had been asked for, by an order from Government. The purported effect of that order was to rescind the order passed on 24th February 1938. Consequently instead of the applicant being entitled to be released on 16th April 1938 he would not become entitled to release until long after this application was made, were that order effective.

18. It is urged on behalf of Government that the Government is entitled to rescind its order by the communication above mentioned dated 14th April 1938, alternatively it rescinded the order of February by the order dated 28th May 1938. It is further said that if the latter is the rescinding instrument then, despite the fact that the order was passed after the application was made, and although it is conceded that normally applications are considered on the facts as existing at the time of the application, still in a habeas corpus matter what one has to consider is whether at the time of the hearing the applicant was or was not entitled to be set at large, and at the time of the hearing, which is after 28th May 1938, the applicant was not entitled to be set at large.

19. That leads to the question as to the power of Government to cancel an order of this kind, generally, in any circumstances or, particularly, in these circumstances. The wide general power is founded upon Section 21 of the General Clauses Act. That Act may broadly be said, as to S. 20, to confer power to make orders in certain cases, and as to S. 21, to confer power to rescind such orders. It has been strenuously contended for the applicant, that the order in contemplation in the case of S. 20, if one regards the General Clauses Act as a whole and in particular Ss. 14 to 22, are orders of a legislative character. We do not feel called upon to pronounce any decision on this matter because even granted that the words ‘any order’ mean what they say and that the Sections relate to any order and anybody empowered to make any order and enable a person so empowered by an Act of the Governor-General in Council to make any order or to cancel any order he has made, still it is obvious that such a power contained in the General Clauses Act must be subject in any particular case to the special legislation relating to that case and to the circumstances. The special legislation in this case is the Section 401 of the Cr PC, the first sub-section of which, read in with the Government of India (Adaptation of Indian Laws) Order, 1937, gives a power to the Provincial Government inter alia to suspend or to remit the whole or any part of a sentence. It is under that power that the order of 24th February 1938 was made. It has been argued that here no ‘power’ is contained in that sub-section and that the side note cannot be used to import a power which is not in terms conferred; but we think viewing the sub-section as a whole it is the clear intention of the Legislature to confer such a power. Accordingly if it stood there alone the power thus conferred would be a power within the meaning of Section 21 of the General Clauses Act. If however one looks at sub-s. 3 one finds that it reads as follows:

If any condition on which a sentence has been suspended or remitted is, in the opinion of the Governor-General in Council or of the Local Government, as the case may be, not fulfilled, the Governor-General in Council or the Local Government may cancel the suspension or remission and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the un-expired portion of the sentence.

20. In our opinion it is at least arguable that means that the power of cancellation only applies in the case of orders of remission where the order of remission was conditional and where the condition has not been fulfilled. If it were the intention of the Legislature to apply to this kind of order the powers of cancellation conferred by Section 21 of the General Clauses Act, this sub-section was completely unnecessary for, clearly a conditional remission, where the condition is broken, could be rescinded if an unconditional remission could be rescinded under the general power. Having that provision in mind and the general sense, and purpose of this Section, we incline to the view that it is not open to Government after remitting a sentence unconditionally, to restore it. Different considerations would arise in cases of fraud or mistake. No such case is made out here.

21. It is not however necessary to decide whether Government has any and if so what power to cancel such an order, because whether that could or could not be done in a proper case it would have to be done in a very different way, at a very different time and in very different circumstances from the way, time and circumstances present here. An order of this kind which has been acted upon to the extent of altering the history ticket, to the extent of informing the Legislature of the remission, cannot be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of the Central Jail a memorandum telling the Super, intendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended and it is not the way that this order was amended because the amending order is dated the 28th May whereas the above memorandum is dated 14th April. The trouble about the amending order, even assuming a power in Government to rescind such an order, is that it was passed eight days after this application had been launched and one month and 12 days after the prisoner was entitled to be released under the order of 24th February 1938. Any possible locus paenitentia was clearly at an end when the amending order was passed. In the circumstances we have no doubt at all that the application must succeed.

22. We do not consider it within our province to pass any comments on the various steps that were taken save that we see nothing in the record to show that Government when it asked for the adjournment of these proceedings were attempting to get time merely for the purpose of cancelling an order and thereby, as they thought, preparing the ground for a successful resistance of this application. Further we have little doubt that Government in the steps it has taken to resist this application had before it the sole purpose of putting right a most regrettable departure from proper courses made when the order of 24th February 1938 was passed. The order of 24th February is still more remarkable when one bears in mind the fact that this particular prisoner, a few months, hardly more than a few weeks, before his successful petition, had a petition for remission dismissed. The result is that the applicant will be set at liberty as prayed and the bail bond will be cancelled.

Vivian Bose, J.:— I fully agree with the order which my Lord the Chief Justice has delivered and at first I had not intended delivering a separate order, but as the question is one of great constitutional importance I feel, upon reflection, that I ought to express my own opinion. The matter is of first impression. No case like this has ever been known before, and since the right claimed on behalf of the Grown is not to be found in express terms anywhere, I consider it desirable to emphasise certain constitutional principles which, in my view, are fundamental, and which, I feel, ought to govern this question. I do not think that the Executive Government has got unfettered and unqualified freedom of action in these matters. Viewed in a broad and liberal light its powers in this respect are in a sense derived from a statutory delegation of the Royal Prerogative of pardon; not co-extensive with it, and not superior to it; in fact Section 401(5) of the Cr PC, leaves the right of His Majesty and of the Governor-General, when such right is delegated to him, intact: but certainly of a like general character.

23. That being so, I cannot think that the rights of the executive can be greater than those of His Majesty himself except and unless, and only in so far as they are specifically enlarged by statute. I do not think it is possible to urge that the intention of the Legislature was to confer by implication upon the Executive Government in India powers which the Grown itself does not possess under some general provision of law, especially when the matter trespasses upon so fundamental a right as that of the liberty and freedom of the subject. That the Sovereign's powers in respect of his prerogative are limited is undoubted. The matter is put thus in Halsbury's Laws of England, Hailsham Edition, Vol. 6, page 444:

The prerogative is thus created and limited by the Common law and the Sovereign can claim no prerogative except such as the law allows, nor such is are contrary to…. the liberties of the subject…..

24. The passage continues:

The Courts have jurisdiction therefore to enquire into the existence or extent of any alleged prerogative….. If any prerogative is disputed they must decide the question whether or not it exists in the same way as they decide any other question of law,

and again at page 455:

Claims made by the Crown cannot be supported by mere pretence of prerogative, since the Courts have power to determine the extent and the legality or otherwise of any alleged prerogative, nor may illegal acts be rendered justifiable by the plea if the King's commands or State necessity. The Crown is bound to observe the law both by statute and by the terms of the Coronation oath, which embodies the contract between the Crown and people upon which the title to the Crown originally depended, and still in large measure depends. Upon any doubtful point of prerogative the Crown and its Ministers must therefore bow to the decision of the legal tribunals.

25. Even in respect of pardons the right is restricted. I quote again from Halsbury (page 477):

The right of pardon is moreover confined to offences of a public nature where the Crown is prosecutor and has some vested interest either in fact or by implication; and where any right or benefit is vested in a subject by statute or other, wise, the Crown, by a pardon, cannot affect it or sake it away.

26. If then the very right to grant a pardon is so restricted and circumscribed, how much more must be the right to retract a pardon once it has been granted, even if such a right exists the constitution is jealous of all such claims and the Courts will be slow to enlarge them. As Lord Herschell said in (1890) 15 AC 506 (1890) 15 AC 506 , 60 LJ QB 89 , 63 LT 392 , 39 WR 145 , 17 Cox CC 158 , 54 JP 820 at p. 527: “The law of this country has been very jealous of any infringement of personal liberty” and that applies to India also. To quote from Halsbury again (page 477):

The Crown enjoys the exclusive and inseparable right of granting pardons, and this privilege cannot be claimed by any other person either by grant or prescription.

27. In the face of these rigorous safeguards I cannot see how any right can be claimed in these matters unless they have been expressly conferred in explicit terms. And to quote Scrutton L.J in (1923) 92 LJKB 797 Ex parte O'Brien, (1923) 2 KB 361 , 92 LJKB 797 , 27 Cox CC 433 , 87 JP 166 , 39 TLR 487 , 21 LGR 419 , 67 SJ 553 at page 802:

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….. and the subject is entitled only to be deprived of his liberty by due process of law, although that due process, if taken, will probably send him to prison. A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It is quite possible, even probable that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law,

and that applies here too. I do not say that an order of remission is never open to recall. It may be in certain circumstances; fraud and mistake for example might justify such action. But I am clear that it cannot be done arbitrarily. The matter vitally affects the liberty of the subject, and so, if such power exists at all, it can in my opinion only be exercised in circumstances which a Court of justice would uphold on general grounds of justice, equity and good conscience, and of public policy. In every case Government must be prepared to substantiate and justify its action and that means that it must give reasons, first to the person concerned, and then, if the matter reaches Court, to that tribunal. It cannot merely say, as here, “I have done it and that is all that need be said. I have the right and I have the power.” To quote Low, J. in (1916) 2 KB 742 (1916) 2 KB 742 , 86 LJKB 62 , 115 LT 608 , 80 JP 389 , 32 TLR 717 , 14 LGR 1060:

I do not agree that it is for the Executive to come here and simply say: ‘The man is in custody, and therefore the right of the High Court to interfere does not apply because the custody is at the moment technically legal.” I say that this answer of the Crown will not do if this Court is satisfied that what is really in contemplation is the exercise of an abuse of power. The arm of the law would have grown very short, and the power of the Court very feeble, if that were the case.

28. The constitution guarantees freedom and liberty to every subject and he cannot be deprived of it arbitrarily. In order to prevent abuse of power and an arbitrary or irresponsible exercise of authority in this behalf, elaborate machinery has been set up which (except when some special statute specifically and expressly directs otherwise) must be set in motion and faithfully followed to the end before any person can be deprived of his liberty. In every case where it is necessary to send a man to jail or to detain him in custody for more than a few hours (again special statutes excepted), reasons have to be given and justification shown to the person concerned on the face of the order. If His Majesty's subjects must be incarcerated or deprived of their liberties or detained in custody, they are entitled to know the reason why and the authority under which action is taken. They are entitled to be brought before Court and have the matter adjudicated upon by an impartial Judge or Magistrate who in turn must publicly justify his own action.

29. Warrants of arrest must specify the charge; judgments and orders must be fortified by reasons and ordinarily must be publicly delivered in open Court. I cannot think that the Legislature intended to sweep away such fundamental rights safe, guarded under the constitution with such elaborate and anxious care by a general provision like Section 21 of the General Clauses Act, especially when Section 401 of the Cr PC, contains indications to the contrary. See in this connexion the Earl of Birkenhead's remarks in (1923) AC 603 (1923) AC 603 , 92 LJKB 830 , 129 LT 577 , 27 Cox CC 466 , 67 SJ 747 , 39 TLR 638 at page 610:

But I should myself…….decline utterly to believe that a Section couched in terms so general availed to deprive the subject of an ancient and universally recognized constitutional right.

30. It is not necessary for me to decide here whether Government has any, and if so what, power to cancel an order of remission of sentence apart from fraud or mistake. There may be a locus panitentia, but if there is, then clearly there must come a point beyond which it cannot be exercised. I am clear that in no case (fraud and mistake excepted, though even there consideration of public policy may intervene; I say nothing about that) can that point be placed later than the date on which the prisoner is due for release under an uncancelled order of remission. I do not say it cannot be placed earlier. I need not decide that, but I am clear that in no case can it be placed later.

31. The effect of an order of remission is to wipe out the remitted portion of the sentence altogether and not merely to suspend its operation; suspension is separately provided for. In fact, in the case of a pardon in England statutory and other disqualification following upon conviction are removed, and the pardoned man is enabled to maintain an action against any person who afterwards defames him in respect of the offence for which he was convicted: 6 Halsbury, Hailsham Edition, pages 478 and 479.

32. That may not apply in full here but the effect of an order of remission is certainly to entitle the prisoner to his freedom on a certain date. Therefore, once that day arrives, he is entitled to release, and in the eyes of the law he is a free man from that moment and no free man can be deprived of his liberty or re-incarcerated or detained in custody without the order of a competent Court. He must be re-sentenced, and only a competent Court can do that, not the executive Government, and in any case, in no event can it be done, as I read the constitution, without reasons being given and justification furnished on the face of the order itself. The prisoner must know, and the Court to which an application for a writ of habeas corpus (or as S. 491 puts it “in the nature of habeas-corpus”) is made, must know, on the face of the order itself, the justification for detaining him in custody. Otherwise he is entitled to immediate release. Think what the contention of the Crown in this case means. Pushed to its logical conclusion Government would be able to release a man sentenced to death and remit the whole of his sentence upon conditions. Years afterwards, perhaps half a century later, even after all the conditions imposed have been fulfilled, it would be entitled to haul him back to prison and hang him without being called upon to give even the semblance of a reason.

33. It is, in my opinion, monstrous that such a possibility should be thought to exist as a legal right under the constitution even if it be unthinkable in the present circumstances that the power would ever be exercised; the danger would always be there; remote perhaps in the extreme form in which I have put it, but not so remote when we come to humbler situations more nearly approaching the present case. I cannot for a moment think that the power exists. It has certainly not been conferred in express-terms anywhere and I decline to imply it. There is one more point upon which I wish to touch and that is to deal with the letter of 14th April 1938 which, according to the Crown, had the effect of cancelling, the order of remission. I wish to make it plain that in my opinion all matters, touching the liberty of the subject are so fundamental and important under the constitution that they cannot be toyed with by mere departmental communications from one officer of Government to another. In England a pardon has to be either under the Great Seal or by a Sign Manual Warrant counter signed by a principal Secretary of State, and in cases of the more serious offences the pardon has to specify the offence, otherwise it is ineffectual: 6 Halsbury, ibid p. 478. It is a solemn constitutional act performed in the name of His Majesty by or on behalf of the Government, as a whole. It is not the personal gift of an individual minister acting according to the dictates of his fancy, even though under the cabinet rules of business, the right to act may have been delegated to him. It is still Government, acting as a whole and not the minister. Conditions in India are not less stringent. The powers exercisable under S. 401 vest in the Provincial Government and not in an individual minister. Under Section 59(1) of the Government of India Act all executive action of the Government of a Province shall he expressed to be taken in the name of the Governor,

and under Section 59(2):

Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor.

34. We were not shown these rules but were told that they require the signature of a Secretary to Government. The order of remission dated 24th February 1938 complied with those conditions. Now it is clear that if all these formalities are necessary for the release of a man or for a remission of his sentence, they must be equally necessary for a retracing of those steps. Even under Section 21 of the General Clauses Act, only the authority given the power to make an order would have the right to recall it, and if that authority can only act in a certain solemn way when making the order, it is at least incumbent upon it to be equally solemn when cancelling it; also, in any case no lesser authority can arrogate to itself the right and the power to recall an order of release which a greater authority has given.

35. Now what do we find here: not an order, but a memorandum; not something publicly addressed to the world at large, but a letter to the Superintendent of the Central Jail at Nagpur, not an order issued on behalf of Government in the name of the Governor but a mere departmental intimation from one officer of Government (the Assistant Legal Remembrancer signing for the Secretary to the Provincial Government, Judicial Department, not for or “by order of the Governor”), to another. It does not purport to cancel or recall or amend the order of remission but is merely a continuation of this department endorsement No. 670 (it should be 671 because 670 is not an endorsement but a copy of the order), 433-XIX, dated 24th February 1938,” and what does that endorsement contain? Merely this:

Copy forwarded (that is, a copy of the order granting remission) to the Superintendent, Central Jail, Nagpur, for information, with reference to correspondence ending with his letter No. 630-W dated 18-2-1938 and favour of communication to the petitioner with the request that he will kindly obtain the petitioner's acknowledgment and retain it in his office.

36. Government having in effect solemnly directed the release of this man by a certain date, a casual communication is sent to the Superintendent of the jail by an authority not disclosed but certainly not Government as such (for it can only act in this behalf in a certain way) and for reasons not disclosed, to detain him in custody “pending further orders”. It is all gravely disquieting. Consider these facts. On 26th October 1937, a petition for remission of sentence is dismissed. On 24-2-1938 just four months later another is solemnly allowed by a Government, order issued in the name of the Governor of the Province and signed by a Secretary. The due date for release is 16th April 1938. Two days before this and seven weeks after the order of remission comes this extraordinary missive of 14th April 1938 which without even pretending to cancel or modify the order of Government dated 24th February 1938, directs the Superintendent of the jail not to release the prisoner “pending further orders;” and the prisoner's history ticket, which purports to record events in chronological order as they occur, contains an entry dated 16th April 1938 “Released on remission.” It is Scored out and underneath it and clearly written after it, is an entry dated 2 days earlier (that is to say 14th April 1938) “Detained by order of Government”; and the only order; produced is this curious memorandum. Five weeks pass and still no orders are issued and then on 20th May 1938 comes this application for a writ of habeas corpus. What does it all mean? Something seems to be seriously wrong.

37. But however that may be, I am clear that orders of Government affecting the liberty of the subject cannot be passed in this inconsequential way (I am referring to the memorandum of 14th April). Such orders are solemn constitutional acts and are rigorously circumscribed by statutory provisions and rules. Men's liberties cannot be signed away in this casual fashion. Governments cannot function in this haphazard manner. They cannot play fast and loose with men's lives.

38. It follows that the order of Government solemnly and legally made on 24th February 1938 had not been recalled on 16th April 1938. Under that order the prisoner was entitled to immediate and unconditional release on that day. He was therefore in the eyes of the law a free man from that moment. Thereafter he could not be kept in custody except in accordance with the due processes of law, that is to say except by being re-sentenced by a competent Court. He has not been so re-sentenced. He is therefore entitled to immediate and unconditional release. I concur in the order of my Lord the Chief Justice.

D.S/R.K

39. Applicant set at liberty.