Agarwala, J.These four applications are made u/s 491, Criminal P.C., alleging that the applicants are being illegally detained. They now come before us under an order of the Federal Court, dated 23rd May 1944, AIR 1944 86 (Federal Court) remitting them to this Court with a direction that they be restored to the file and disposed of in due course of law. Since that date two of the petitioners, Baidyanath Rai (Criminal Misc. case No. 63 of 1944) and Mo-hant Dhanraj Puri (Criminal Revision No. 979 of 1943) have been released. We are therefore concerned only with the applications of Ba-santa Chandra Ghosh (criminal Misc. case No. 60 of 1944) and Dr. Asoke Kumar Bose (criminal Misc. case No. 204 of 1944), except that an application for costs has been made on behalf of the two released men.

2. Criminal Miscellaneous Case No. 60 of 1944. -- Basanta Chandra Ghose is an advocate of this Court. He was arrested on 27th March 1942 under order No. 963C, dated 19th March 1942, purporting to be made in exercise of powers conferred by Rule 26, Defence of India Eules. On 22nd April 1943 the Federal Court decided in AIR 1943 1 (Federal Court) that Rule 26 was ultra vires. The petitioner alleged that on 24th April he sent a petition addressed to this Court through the Superintendent of the Central Jail at Hazaribagh, where he was, and is, being detained, but that this petition and other petitions were not forwarded to this Court. The facts are that the Provincial Government consulted the Court as to whether petitions which did not comply with the Courts rules should be forwarded or not and was informed that the Court insisted upon strict compliance with its rules but that the questions of forwarding defective petitions would be left to the discretion of the Provincial Government. It appears that the petition was considered to be defective and for that reason was not forwarded. It is, in my opinion, undesirable that the question of rejecting a petition addressed to this Court on the ground of alleged defects in its form should be left to any authority other than this Court. However that may be, there can be no question in this case of the petition being improperly withheld. On 28th April 1943, a petition u/s 491 was presented to the Court on behalf of this detenu and a rule was issued. For reasons which it is unnecessary to state the rule was not heard until 14th February 1944 and was discharged on the 29th, it being held that Section 10 (2), Restriction and Detention Ordinance (3 of 1944), deprived the High Court of power to order the release of a person detained by reason of an order purporting to be made under Rule 26, Defence of India Rules. On 23rd May the Federal Court1 set aside the order of this Court and remitted the application as stated above.

3. The Restriction and Detention Ordinance (3 of 1944) was enacted by the Governor-General on 15th January 1944. The Ordinance, besides empowering the Central or Provincial Government to detain persons for the same reasons for which they might have been detained by an order made under Rule 26, Defence of India Rules, also purported to validate detentions already made under that rule, but introduced a provision requiring the authority by which a person was detained to furnish him with (i) the grounds of detention so far as it is possible to do so without disclosing facts which such authority considers it would be against the public interest to disclose, and (ii) such other particulars as are, in the opinion of such authority, sufficient to enable him to make, if he wishes, a representation against the order (Section7). An opportunity was afforded to the petitioner to make such a re-presentation* and it was in fact made and rejected.

4. On 26th June 1944 in support of the application u/s 491, Criminal P. C, which had been remitted by the Federal Court to this Court for disposal, the petitioner swore an affidavit denying (i) that the Governor of Bihar had in fact made an order against him under Rule 26, Defence of India Rules, on or about 19th March 1942; (ii) that the Governor had any materials before him for satisfying himself that the petitioners detention was necessary to prevent him from acting in a manner prejudicial to the public order; and (iii) that the Governor was in fact so satisfied. In reply to this affidavit another was filed by the Advocate-General. The deponent states that he is an Assistant in the Special Section of the Political Department of the Government of Bihar and deals with the files regarding detenus. He swears that order No. 963C of 19th March 1942, was cancelled by the Governor by order No. 89280, dated 3rd July 1944, and that the petitioner is at present being detained under Order No. 39290 of the same date which was made by the Governor and signed by Mr. J. W. Houlton, Chief Secretary to the Governor. There is also an affidavit of the Assistant Jailor, Central Jail, Hazaribagh, stating that he received a duplicate of Order No. 3929C and served it on the petitioner on 5th July. It is conceded that the petitioner was furnished with the grounds of his detention as required by Section 7 of the Ordinance on 5th July and it is not denied in his affidavit that his representation against the order was rejected. With the affidavits were filed copies of order Nos. 3928C and 39290C. At our request the Advocate-General procured the originals which were shewn to the petitioners advocate. They are as follows:

Government of Bihar Political Department. (Special Section). Order Patna, the 3rd July, 1944.

No. 3928-C--In exercise of the powers conferred by Sub-section (1) of Section 3 of the Eestriction and Detention Ordinance 1944, the Governor of Bihar is pleased to cancel the orders mentioned in column 1 of the annexed schedule which were issued under Sub-rule (1) of Rule 26 of the Defence of India Rules and which are deemed u/s 6 of the said Ordinance, to be orders made under the said Sub-section.

No, 3929-C--Whereas the Governor of Bihar is satisfied with respect to the person known as Basanta Chandra Ghosh son of Umesh Chandra Ghosh that with a view to preventing him from acting in a manner prejudicial to the maintenance of the public order and the efficient prosecution of the war, it is necessary to make an order directing that the said Basanta Chandra Ghosh be detained.

Now, therefore, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 3 of the Restriction and Detention Ordinance, 1944, the Governor of Bihar is pleaded to direct that the said Basanta Chandra Ghosh be detained.

By order to the Governor of Bihar. Sd. J. W. Houlton, Chief Secretary to Government.

To

The Deputy Inspector-General of Police, Criminal Investigation Department (In duplicate), The Superintendent of the Hazaribagh Central Jail.

5. Both the orders are on printed forms in which the particulars have been filled in in manuscript. That part of the cancellation order below the signature and designation of Mr. Houlton is on the reverse. There are two paragraphs on the reverse, one stating that as the detention order has been cancelled the detenu is to be forthwith released--in the present instance this is scored through--and the other, as reproduced above, stating that fresh detention orders were being issued and the detenu was not to be released. At the outset it was pointed out to the learned advo cate for the petitioner that as the latter is at present being detained under order No. 3929C, which ex facie was regularly made by the Governor in exercise of the powers conferred on him by Section 3 (1) (b), Restriction and Detention Ordinance, 1944, it would be necessary for him to shew us that the detention of the petitioner in consequence of that order is illegal before this Court could order his release, and that, consequently, it would not suffice for him to attack the validity of Order No. 963C which purported to be made under Rule 26, Defence of India Rules. The learned advocate insisted that since the Federal Court had remitted to us for disposal an application against Order No. 9630 we are bound to decide the question of the validity of that order. He referred to the fact that in AIR 1943 72 (Federal Court) the Federal Court had refused "to take cognizance" of a later Ordinance when considering a case arising out of a previous Ordinance. The mistake of the learned advocate is in supposing that we are considering an application "against order No. 963." What we have to consider is an application made u/s 491, Criminal P. C, and what we have to decide is whether the petitioners detention is legal or illegal. The position of the Federal Court was precisely the same in the case referred to. It declined to order the release of the detenus although it held that it. 26, Defence of India Rules, under which he was being detained, was ultra vires, because the Crown might have had other grounds on which to resist the release. It is obvious that even if we should consider that order No. 963C was not a valid order we could not make an unqualified order for the release of the petitioner. The most we could do would be to direct his release unless he is being detained under some other order, and there can be no doubt that he would continue to be detained under Order No. 3929C unless we declare his detention under that Order also to be illegal.

6. With regard to order No. 3929C, although it was not denied in the petitioners affidavits that any such order was in fact made by the Governor, it was argued that the onus lies upon the Crown to prove the making of the order. The Crown contends that this onus has been discharged by production of the order which is ex facie an order regularly made and authenticated. Section 59 (1), Constitution Act, requires that all executive actions of the Government of a province shall be expressed to be taken in the name of the Governor, and Sub-section (2) that orders and 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. By Sub-section (3) the Governor is required to make rules for the more convenient transaction of the business of the Provincial Government and by Sub-section (5) it is declared that in the discharge of his function under sub-ss. (2) and (3) the Governor shall act in his discretion after consultation with his Ministers. By notification No. 2042, made by the Governor u/s 93, Constitution Act, the constitution has been suspended in Bihar. The effect of Clause (a) of Sub-section (1) of Section 93 is to dispense with the necessity of consultation with Ministers, and to authorise the Governor to exercise his functions in his discretion. By Section 3 (1) of the Ordinance it is the Provincial Government that is empowered to make an order of detention. Such an order being an executive action of the Provincial Government, Section 59 (1) required it to be expressed in the name of the Governor. Section 10 (3) of the Ordinance raises a presumption that an order purporting to be made by any authority in exercise of any power conferred by or under the Ordinance was made by that authority. The onus therefore lies on the petitioner to ; shew that the order is not what it purports to : be, namely, an order made by the Governor.

7. The next contention on this part of the case has, I think, only to be stated to be rejected. It is based on the language of para. 2 of the order, "Now, therefore, ...the Governor of Bihar is pleased to direct that the said Basanta Chandra Ghosh be detained." It is said that a direction for the detention of a person is not the same thing as making an order for his detention. There is no substance in this point. Paragraph 1 of the order recites that the Governor is satisfied that it is necessary to "make an order" directing the detention of Ghosh and then para. 2 directs his detention. The validity of the order was also challenged on the ground that it does not bear the seal of the Government of the Province. We have not been shewn any rule requiring such an order to be sealed.

8. It was next contended with respect to this order that, assuming Order No. 9630 to have been properly made and cancelled, the Governor had no power to make a fresh order under Section3 (1) (b), Restriction and Detention Ordinance, 1944, and that the new order which he purported to make is a mere abuse of power. It is contended that the Federal Court having decided on 23rd May 1944 AIR 1944 86 (Federal Court) that the validity of an order purporting to be made under Rule 26, Defence of India Rules, could be investigated on an application u/s 491, Criminal P. C, and the petitioner having sworn an affidavit on 26th June denying that the Governor had in fact made an order against the petitioner under that rule, the issue of orders cancelling Order No. 963C and directing the detention of the petitioner under Section3 (1) (b), Restriction and Detention Ordinance, 1944, was a mere fraudulent device to circumvent the decision of the Federal Court. It was pointed out that up to that time the petitioners denial had not been controverted and that the Crown advisers must have realised that if they relied on the presumption u/s 114 (e), Evidence Act, for proving that the order had in fact been made by the Governor they were faced with the possibility--and, as the petitioner suggests, the probability--that the Court might, in the circumstances of the case, refuse to draw that presumption. In the circumstances of the case, I refrain from commenting on the impropriety of making so serious a charge as fraud on materials so meagre as exist in the present case. A person fighting for his liberty in the dark may perhaps, be excused for not being over-careful of the weapons he uses. Suffice it to say that the known facts are entirely insufficient to serve as a foundation for an inference of fraud. The mere fact that in July 1944, it was realised that it might not be possible to establish the validity of Order No. 963C in a Court of law or to justify the detention of the petitioner under that order from the date of his arrest in 1942 is not, in my opinion, sufficient reason for holding that on 3rd July 1944, the Governors action in cancelling that order and making a fresh one was anything but an exercise of his powers to the best of his judgment, he being satisfied that the continued detention of the petitioner was necessary.

9. Next, it is contended that even if the charge of fraud fails, as the petitioner alleges that the order against him was not made bona fide, this Court is entitled to investigate whether the Governor had before him materials on which he could be satisfied of the necessity for detaining the petitioner, and the sufficiency of those materials. For this contention reference was made to certain observations in Liversidge v. Anderson (1942) 1942 A. C. 206 : (1941) 3 All. E. R. 338. In that case Liversidge had been detained in Brixton Prison under an order made by the Home Secretary under Regulation 18B of the Defence (General) Regulations 1939. In an action against the Home Secretary for false imprisonment, the plaintiff applied for particulars of the grounds on which the defendant had reasonable cause to believe (i) that the plaintiff was a person of hostile associations and (ii) that by reason of those associations it was necessary to exercise control over the appellant. The Master refused to make an order and his decision was upheld by the judge in chambers. The Court of Appeal held that at that stage the plaintiff was not entitled to any of the particulars claimed. In affirming this decision, the House of Lords discussed the question whether it was open to a Court of law to inquire whether in fact the Home Secretary had reasonable cause to believe that the plaintiff was a person of hostile associations and that by reason thereof it was necessary to exercise control over him. The question was answered in the negative by all their Lordships except Lord Atkin. Although this decision was regarded by some as a departure from the judicially accepted connotation of the words in question a similar view had been taken previously by the High Court of Australia in Lloyd v. Wallach (1915) 20 C. L. R. 299 where the phrase under consideration was "Where the Minister of Defence has reason to believe," and in E. v. Arundel (1906) 3 C. L. E. 557 where the language was "If the Postmaster General has reasonable ground to suppose." Nevertheless it is clear from the speeches in the House of Lords case that, ordinarily, where an enactment authorises a person to act in a particular manner only if he has reasonable cause to believe the existence of a certain state of things, the Courts may inquire both into the existence of the state of things which constitutes the condition precedent to the exercise of the power and the reasonableness of the belief founded on the existence of that state-of things. But with regard to the same words, in Regulation 18B their Lordships, in order to ascertain what the Legislatures intended by them, took into consideration certain important factors. Among these was that the Regulation was enacted at a time when the safety of the realm was threatened by externaL aggression. For instance, Lord Macmillan-. said:

The fact that the nation is at war is no justification for any relaxation of the vigilance of the Courts-in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of th& subject--rather the contrary. But in a time of emergency, when the life of the whole nation is at stake, it may well be that a regulation for the defence of the realm may quite properly have a meaning which, because of its drastic invasion of the liberty of the subject, the Courts would be slow to attribute to a peace time measure.

10. Similarly, Lord Romer observed:

But we are dealing with an Act passed and regulations made under it in times of a great national emergency, and in view of this circumstance and of the objects which that Act and the Begulations so plainly had in view, the Courts should, in my opinion, prefer that construction which is the least likely to imperil the safety of the country,

and not the ordinary construction, viz., the one least likely to lead to an invasion of the liberty of the subject. Another important factor which was taken into consideration in. construing a well-known phrase in an unusual, sense was the fact that the Home Secretary was subject to the House of Commons which could prevent any unjust use of the powers, empowered by the Regulation. Lord Maugham pointed out that

the person primarily entrusted with these important duties is one of the principal Secretaries of State, and a member of the Government answerable to Parliament for a proper discharge of his duties.

11. Lord Macmillan said:

The Statute has authorized it (i. e., the emergency-power of detention) to be conferred on a Secretary of State, one of the high officers of State who, by reason of his position, is entitled to public confidence in his capaoity and integrity who is answerable to Parliament for his conduct in office and who has. access to exclusive sources of information.

12. Lord Wright stated:

if the sense of the country was outraged by the-system or practice of making detention orders, or indeed, by any particular order, it could make itself: sufficiently felt in the Press and Parliament to put an end to any abuse and Parliament can always amend the Regulation.

13. The stress laid by their Lordships on the control exercisable by the House of Commons on the person entrusted with the exercise of the power of detention might indicate the possibility that their Lordships would have hesitated to take the view which they did if they had been dealing with the matter in relation to a person not subject to control by the Legislature. However, we are not concerned with this aspect of the matter.. All that the Ordinance requires is that the Governor shall be "satisfied" about certain things before making an order for detention. Lord Maugham, in, the case referred to above, pointed out that, in the case of Regulations merely requiring the Secretary of State to be satisfied of the existence of a certain state of things before making an order of detention,

It was conceded that there is no recourse to the Courts provided, of course, that the Secretary of State acts in good faith.

14. Lord Wright observed that:

satisfied must mean reasonably satisfied -- It cannot import an arbitrary or irrational state of being satisfied.

15. On these observations two contentions have been founded by the learned advocate for the petitioner; (i) that as, even in a case where the condition precedent to the Governors action is merely that he shall be satisfied, his satisfaction must be reasonable, it is open to the Courts to investigate the reasonableness of his satisfaction and (ii) that, in any event, if the Governor does not act in good faith the Courts may question both the existence of the grounds on which he was satisfied and the reasonableness of his conclusion. The answer to the first of those contentions cannot be better put than in the language of Lord Macmillan, that it is for the Governor alone to decide in the forum of his own conscience whether he had reasonable cause to be satisfied. The true meaning of the observation relied upon by the learned advocate is that when an enactment requires an officer to be satisfied about the existence of a particular state of things before taking action, his satisfaction, i. e., his mental state, must be accompanied by an element of reasonableness, determined however, by himself, i. e., the officers mind to him a kingdom is. Roma locuta, causa finita est.

16. With regard to the condition mentioned by Lord Maugham that the action must have been taken in good faith, it is obvious that a mere allegation of want of good faith cannot entitle the Courts to examine the materials on which the Governor was satisfied of the necessity for detaining the petitioner for the purpose of determining whether he acted in good faith or not. On any other view, it would be sufficient for a detenu merely to allege want of good faith to force the Governor to disclose information which it may be vital to the interest and safety of the State should not be disclosed or allow the allegations to go unchallenged. The petitioner, however, contends that he himself having been furnished, as required by Section 7 of the Ordinance, with the grounds on which the order has been made against him, ho is entitled to invite the Court to scrutinise these grounds and determine whether they are reasonable grounds or not. In the first place Section 7 does not require all the grounds of his detention to be communicated to the detenu. The authority making the order of detention is not required to disclose facts which he considers "it would be against the public interest to disclose." It is not possible for us to say in this case that there were no such facts taken into consideration before the order was made. Furthermore, Section 11 of the Ordinance imposes a bar to the course suggested by the learned advocate. He, therefore, contends that this section is ultra vires. That section prohibits any Court from allowing any statements to be made or any evidence to be given before it of the substance of any communication made u/s 7 of the grounds on which an order under Clause (b) of Sub-section (1) of Section 3 has been made against any person or of any particulars disclosed in connexion thereof u/s 7. This provision, it is said, in effect repeals the Evidence Act, 1872, in so far as, but for Section 11 of the Ordinance, it would be possible for the petitioner to secure the production before the Court of the grounds of detention with which he has been furnished u/s 7 and is ultra vires because the Governor-General has no power to repeal this Act or any part of it. Section 11 of the Ordinance does not repeal any part of the Evidence Act. At most what it does do is that, for the period of its own currency, it suspends any provision of the Act which would enable the petitioner to place before the Court the matters referred to in Section 11. The petitioner is, of course, entitled to show lack of good faith by referring to materials other than those referred to in Section 11 and as I understand the case in Kamla Kant Azad v. Emperor A. I. R. 1944 Pat. 334 it was from facts found that the Court inferred lack of good faith. From the known facts of the present case, it is at least as reasonable to draw an inference of good faith as of bad faith, in fact more so. There is certainly no presumption in favour of bad faith, dishonesty or fraud -- least of all when they are attributed to an officer of State. The law presumes that ordinary standards of truth and honesty have been observed until the contrary is shown by evidence incompatible with such standards.

17. It was next contended (i) that the Governor was not empowered to cancel Order No. 963C, (ii) that while that order was in existence he had no power u/s 3 (1) (b) to make a fresh order in respect to the person ordered to be detained under Order No. 9630, and (iii) consequently, that the detention of the petitioner is illegal unless Order No. 9630 is a valid order. The power to make an order, in the absence of provision to the contrary, includes the power to rescind it. This has been expressly enacted in Section 21, General Clauses Act, 1897. That it was not intended that a fresh order relating to a person detained by an order purporting to be made under Rule 26, Defence of India Rules, should not be made is clear from the proviso to Sub-section (3) of Section 3, Restriction and Detention Ordinance, 1944, which provides that the cancellation of an order purporting to be made under Rule 26, by or in consequence of an order of a competent Court, shall not prevent the making, under the Ordinance, of a fresh order to the same effect as the order cancelled. It was suggested that the very fact that power has been reserved to issue a fresh order when a previous order has been cancelled by or in consequence of a decision of a competent Court indicates that it was not intended to reserve such a power in the case of a cancellation by executive authority. I am unable to accept this view. To me it appears that although it was desirable to indicate that the Governor should not be regarded as flouting the decision of a competent Court in a case where he considered it necessary to issue a fresh order in respect to a person whose detention had been declared to be illegal in consequence of Rule 26 being ultra vires, it was, rightly, considered to be unnecessary to make a similar provision where the Governor himself caneels an order purporting to be made under Rule 26. The learned advocates contention that Sub-section (3) of Section 3 of the Ordinance and its proviso are ultra vires, does not affect the question as the cancellation in the present case was by the Governor and not by the Court.

18. Nor, in my opinion, is there any substance in the next contention that, assuming the Governor had power to make a fresh order, he could do so only on fresh materials. In the first place, we do not know that the Governor had no fresh materials before him when he made Order No. 3929C on 3rd July 1944. It is true the petitioner had been continuously in detention since his arrest on 27th March 1942, but it is not inconceivable that by July 1944, fresh materials as to the petitioners proclivities may have come to light. It is common knowledge that there had been a review of the cases of all detenus, by persons appointed by the Governor, before the fresh order was made, and that in consequence of their recommendations many, detenus had been released. The petitioner was not one of these. Furthermore, he does not deny in his affidavit that he was afforded- an opportunity to make a representation against his detention, as required by Section 7, or that he made such a representation or that it was not rejected. The possibility that the report of the review-, ing authority or the petitioners own representation may have furnished further grounds for his detention cannot be ruled out. On this branch of the case reference was made to Kamla Kant Azad v. Emperor A. I. R. 1944 Pat. 334 . Budd had been detained under Regulaton 18B, Defence of the Realm (General) Regulations. On the return to a writ of habeas corpus the High Court directed his release. A few days later he was re-arrested on a fresh order under Regulation 18B. Another writ of habeas corpus was issued but on this occasion the rule was discharged. There is an observation that in addition to other reasons for discharging the rule, the subsequent order appeared to have been made on fresh materials. That case is of no assistance to the petitioner. There was no order of a Court in existence on 3rd July 1944, deciding that the petitioners detention was illegal. Had there been such an order deciding that there was in fact no ground for the petitioners detention when Order No. 968C was made, the petitioner could not legally have been detained under a fresh order made on the same grounds, but that is not the case here.

19. Furthermore, a comparison of the two orders, No. 9630 of 19th March 1942, and No. 8929C of 3rd July 1944 suggests that fresh grounds for the petitioners detention had transpired. In the first order the only reason given for his detention was that it was necessary to prevent him from acting in a manner prejudicial to the defence of the country and the public safety. In the later order the reasons for his detention are stated to be that it was necessary to prevent him from acting in a. manner prejudicial to (i) the maintenance of public order, and (ii) the efficient prosecution of the war. It is significant that in the later order there has been no routine adoption of a printed form. Although such a form was utilized the grounds of detention printed therein have been scored through and, above them, in manuscript have been written the grounds on which the detention was ordered. Prima facie a comparison of the two orders indicates that although what was known about the petitioner in March 1942 merely satisfied the Governor that his conduct was likely to be "prejudicial to the defence of British India and the public safety," by July 1944 the Governor had materials before him which satisfied him that the petitioners conduct was likely to interfere with "maintenance of public order and the efficient prosecution of the war." The order of July 1944 was by no means, as has been suggested, an attempt to continue a detention that was illegal by validating an illegal order. The later order does not attempt to validate the former order or justify the past detention of the petitioner and could not do so. What it does is to provide a legal basis for the detention of the petitioner as from 3rd July 1944. To meet this view, it was contended that the Ordinance does not apply at all to a person already in detention. Reference was made to the language of the preamble which declares the Ordinance to be one to empower the Central and Provincial Governments "to place in detention and detain" certain persons. It was contended that a person already in detention cannot be placed in detention and, therefore, the Ordinance is not applicable to such a person. The clear language of Section 3 (1) (b), empowering the Central or Provincial Government to make an order detaining a person whom it is considered necessary to prevent from acting in prejudicial manner cannot be overridden by so narrow a construction of the language of the preamble. Equally without merit is the contention that the words "from acting" in Section 3 (1) indicate that the only persons against whom an order of detention may be made are persons considered to be actually acting in a prejudicial manner at the time of the making of the order and that they do not refer to persons who may act in such a manner in the future. Such a construction is neither warranted by the intent of the Ordinance nor the language used.

20. The next contention on behalf of this petitioner was that there was no authority for his detention in the Hazaribagh jail as there is in existence no order committing him to custody in that jail. The following order made in exercise of the powers conferred by Sub-sections (4) and (5) of Section 3 of the Ordinance is a complete answer:

Government of Bihar, Political Department, (Special Section). Patna, the 11th April 1944. ORDER.

No. 20620. In exorcise of the powers conferred by Sub-sections (4) and (5) of Section 3 of the Restriction and Detention Ordinance, 1944, the Governor of Bihar is pleased to direct that whenever a fresh order is issued under Clause (b) of Sub-section (1) of Section 3 of the said Ordinance against a person already under detention under a previous order under the said clause or under an order which is deemed u/s 6 of the said Ordinance to be an order made under the said clause the persons concerned shall remain in the same place of detention and in the same class and division unless and until it is otherwise directed by a competent authority.

For information and communication to all concerned. Henceforth no separate orders will issue under Sub-section (4) of Section 3 of the Bestriction and Detention Ordinance, 1944, in respect of persons against whom fresh detention orders under clause (b) of sub-seetion (1) of Section 3 of the said Ordinance issue in cancellation of the existing detention orders.

21. The last contention was that the Ordinance is ultra vires in so far as it legislates for detention for reasons connected with the efficient prosecution of the war. Article l of List l of Schedule 7, Constitution Act, however, includes detention for reasons of State connected with defence, and it is clear that actions and conduct which are prejudicial to the efficient prosecution of the war will at the same time jeopardise the defence of the country against aggression. It was suggested that this could not have been the case in July 1944, owing to the repulse of the Japanese force in the campaign on the Assam-Burma Border. It would be rash to assume this to be the case, and in any event we are not in possession of all the facts which would be required to determine the question.

22. Criminal Miscellaneous Gase, No. 204 of 1944. -- No points were raised in this case which were not also raised in Ghoshs ease. I would dismiss both applications.

23. Criminal Miscellaneous Case, No. 65 of 1944 and Criminal Revision, No. 979 of 1943--An application for costs was made in these two cases in which the petitioners have already been released. It appears, however, that we have no power to grant the costs of an application u/s 491, Criminal P.C., Ramammal v. Vijayaragliavalu AIR. 1933 Mad. 102 After this judgment had been prepared, but before its, delivery, an application was made by the petitioner Ghosh to be heard in person. A similar application had been dismissed before the rule was heard on the Advocate-General undertaking to brief on behalf of the petitioner any advocate the petitioner should select. Mr. S. C. Ghosh was then briefed and appeared for the petitioner for the four days occupied by the hearing of the rule. The fresh application for leave to appear personally is dismissed.

Meredith, J.

24. I entirely agree with my learned brother Agarwala J. I have, however, something to add. In these applications u/s 491, Criminal P. C, we are concerned with one thing only, namely, whether the present detention of the petitioners is legal. We are, therefore, solely concerned with the fresh orders made in 1944 under Ordinance 8 of 1944 for the detention of the petitioners. The original detention orders made in 1942 have been very strongly attacked before us on a large number of grounds. It is unnecessary and profitless to consider them. We are in no way concerned in these applications with whether the past detention of the petitioners was legal and justifiable or not. But, it is said, we must examine the validity of the 1942 orders, because if they were illegal, it would follow that the 1944 orders must also be considered illegal, as being mere colourable orders, really made to validate the illegal orders, and not because the Governor was actually satisfied that it would be dangerous to release these people.

25. The answer is that this inference by no means necessarily follows. For the sake of the argument we may assume that the orders of 1942 were invalid. In 1944 these orders were cancelled and fresh detention orders were made. The natural inference to be drawn is not that the Government was trying to cover up past mistakes but that it was trying to provide that the future detention, which it considered necessary, should be unquestionably legal. This inference is strengthened by the fact that before fresh detention orders were passed, Government took the trouble to con-stitute a Revision Board, consisting of a Deputy Inspector General of Police and a Divisional Commissioner, which interviewed all the detenus and examined their cases. Thereafter the Board made reports to Government as a result of which a number of detenus were released, in other cases the detention under the original orders was extended under the procedure provided by ordinance 3 of 1944, and in yet others, including the cases of Basanta Chandra Ghosh and Asoke Kumar Bose, now before us, the original orders were cancelled and fresh detention orders were made. The natural inference to be drawn from these circumstances is that in the case of the petitioners it was known to Government that the original orders were technically defective, or at least had been seriously challenged, and, therefore, it was safer to make fresh orders rather than to extend the original orders. There is nothing here at all suggestive of mala fides, rather the circumstances suggest just the contrary. What was done was not to attempt to validate the old orders, but to replace them by fresh orders to which similar objections could not be taken.

26. It is further argued that since the petitioners were lying in jail since 1942, the fresh orders could not have been based upon fresh materials, and so could not have been bona fide. Even assuming that they were not based on fresh materials but on the old materials, that in itself would not contra-indicate bona fide. I can see no reason at all why, if the original orders were found to suffer from technical defects, fresh orders should not be made bona fide to replace them, if the Governor was satisfied that the detention was proper upon the merits and was still necessary in the interests of public order or public safety. Indeed the Ordinance itself provides that where a detention order is set aside by a Court, a fresh order can be made upon the same materials. If the Governor can do this where the original order is cancelled by the Court for technical defects, there is no reason in logic or equity why the Governor should not do the same thing where he has himself cancelled the original order, not because he thought the detenu had been wrongly detained on the merits, but because he thought the original order suffered from technical defects which might render it doubtful whether it would stand before the Courts.

27. Apart from that, the fact that the fresh orders were passed while the petitioners were in detention, does not justify the inference that there were no fresh materials. It might well be that as a result of the re-examination of the cases by the Revision Board, fresh materials came to light, materials dating back to before the date of the original detention orders or indeed it might be that during his examination while under detention the detenu might himself have provided fresh materials by his answers to questions. Whether there were in fact fresh materials is a question into which we are not entitled to enter. We are entitled to ask ourselves only two questions; was the Governor in fact satisfied that detention was necessary when he made the order, and was his order bona fide To my mind these two questions are really one and the same. That we are not entitled to examine the sufficiency of the Governors reasons, but only the fact of his satisfaction, has been settled beyond any further question by the House of Lords in Liversidges case, Liversidge v. Anderson (1942) 1942 A.C. 206 the wording of the regulation was that the Secretary of State had to have "reasonable cause to believe;" yet it was held that the Courts could not apply any objective test to the reasonableness of the cause. The only test that could be applied was subjective, to ask whether the Secretary of State had cause which to his own mind appeared reasonable. It is to be noticed that in Ordinance 8 of 1944 the wording is merely "is satisfied." That, in the case of such wording, no objective test could be applied, was not even argued in Liversidges case Liversidge v. Anderson (1942) 1942 A.C. 206 it was conceded. In a sense it may be that satisfaction must be interpreted as reasonable satisfaction. Lord Wright said so in Liversidges case, Liversidge v. Anderson (1942) 1942 A.C. 206 but he did not mean, as is clear from the context, that any objective, test of the reasonableness could be applied. The Courts are not entitled to ask whether the materials are such as would satisfy a reasonable man.

28. The reason for this interpretation of the law is obvious and substantial. The Court cannot possibly pronounce upon the reasonableness of the Governors satisfaction when the reasons which actuated the Governor cannot be placed before it, or, if they can be placed at all, can be placed only in a partial form. In war time risks cannot be run. I may usefully quote what Viscount Maugham said in Liversidges case4 on this point:

It is obvious that in many cases he (the Secretary of State) will be acting on information of the most confidential character, which could not be communicated to the person detained or disclosed in Court without the greatest risk of prejudicing the future efforts of the Secretary of State, in this matter and an alike matters, for the defence of the realm. A very little consideration will show that the power of the Court to give directions for the hearing of proceedings in camera would not prevent confidential matters from leaking out, since such matters would become known to the person detained and to a number of other persons. It seems to me impossible for the Court to come to a conclusion adverse to the opinion of the Secretary of State in such a matter. It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be contrary to the public interest, and that this privilege of the Crown cannot be disputed. It is not ad rem on the question of construction to say, in reply to this argument, that there are cases in which the Secretary of State can answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature. That must have been plain to those responsible in advising His Majesty in regard to the Order in Council, and it constitutes, in my opinion, a very cogent reason for flunking that the words under discussion cannot be read as meaning that the existence of reasonable cause is a matter which may be discussed in a Court which has not the power of eliciting the facts which, in the opinion of the Secretary of State, amount to reasonable cause.

29. Much reliance has been placed for the petitioners on the case of Kamla Kant Azad v. Emperor AIR 1944 Pat. 354 . I am not clear that the learned Judges in that case meant to hold that any objective test of the Governors satisfaction could be applied by the Courts. It seems to me that when the learned Judges in that case held detention orders invalid it was because they considered that the circumstances indicated mala fides on the part of certain Government officials. If however they meant to hold that the reasonableness of the Governors satisfaction was open to objective examination in the Courts, then, with the greatest respect I do not agree.

30. The detention orders, under which the petitioners are now held, have been attacked upon a large number of grounds, in regard to which I have nothing to add to what my learned brother has said. It was not asserted in regard to these orders that the Governor had not in fact made them, but they were strongly attacked, and indeed this was the main attack, on the ground that he had not made them bona fide, indeed, that he had made them colourably and fraudulently, that he had deli-berately said he was satisfied that detention was necessary when in fact he was not satisfied, and was merely seeking an expedient to cover up the former illegality of the Government. There was no hesitation in using the word "fraudulent." The detenu, Basanta Chandra Ghosh, in his affidavit dated 9th September 1944, has used the word "fraudulent" in no less than five places. He says in para. 12,

That the alleged order of cancellation, if any, No. 3928C dated 3rd July 1944, and the alleged order of detention if any, No. 3929c, dated 3rd July 1944, were fraudulently passed only to keep the petitioner illegally detained and the power was fraudulently exercised by the Governor to keep the petitioner in jail and not for the purpose as is alleged in the Order No. 3929C, dated 3rd July 1944.

31. In para. 13 he says,

That the alleged cancellation Order No. 3928C, dated 3rd July 1944 was fraudulently made for the purpose of keeping the petitioner in jail and is only a cloak and fraudulent device to keep the petitioner in jail as there was no Order No. 963C, dated 19th March 1942, passed by the Governor of Bihar as is claimed by the opposite party.

32. In para. 17 he says:

That the petitioner should have been released on the cancellation of the Order No. 963C and has been fraudulently detained.

33. In other words, the Governor in respect of these orders is not accused of negligence; he is accused in no uncertain terms of fraud. There is nothing whatever in the affidavits,, or in the circumstances attending the passing of these orders, to support an accusation of mala fides, much less of fraud, and I wish to disapprove the reckless way in which these accusations, wholly without substance, have been made against the Governor of the Province, and incidentally, against the Chief Secretary who signed the orders for him. We have been practically invited to presume that the Government is composed of rogues and liars. It should be unnecessary to point out that if the subject is entitled to a square deal from the Courts, so also is the Government. If justice in one hand bears a sword, in the other she carries the scales. It "would be wholly unreasonable to assume that Government is keeping these people in jail merely for the fun of it, or out of zid, or for some ulterior motive, or that Government has any desire to keep them in jail once it is satisfied that they can be released without danger. I repeat what I have already said, that the circumstances, the examination of all the eases by a Revision Board and the release of a large number of detenus, suggest just the contrary.

34. It seems to have, become the custom to expect the Courts in these Ordinance cases to strain every principle of construction in favour of the subject and to exhaust every resource of legal subtlety, to pick holes in the orders, or in the Ordinances under which they are made.

35. Such a principle, however, while all right in peace time, is inappropriate in dealing with emergency legislation for security purposes in war time. My authority for this statement is again that of the House of Lords in Liver -sidges case Liversidge v. Anderson (1942) 1942 A. C. 206. I cannot do better than again quote from Viscount Maugham. He says:

Before dealing with the construction of the regulation, it is desirable to consider how the matter should be approached. The appellants counsel truly say that the liberty of the subject is involved. They refer in emphatic terms to Magna Carta and the Bill of Rights, and they contend that legislation dealing with the liberty of the subject must be construed, if possible, in favour of the subject and against the Crown. Adopting the language of Lord Finley, L.C, in this House in R. v. Halliday (1917) 1917 A.C. 260, I hold that the suggested rule has no relevance in dealing with an executive measure by way of preventing a public danger when the safety of the State is involved....

36. My Lords, I think we should approach the construction of Regulation 18B of the General Regulations without any general presumption as to its meaning except the universal presumption, applicable to orders in council and other like instruments, that, if there is a reasonable doubt as to the meaning of the words used, we should prefer a construction which will carry into effect the plain intention of those responsible for the order in council rather than one which will defeat that intention."

37. The Crown, though challenged, has declined to file an affidavit to the effect that the Governor had applied his mind to these cases and was in fact satisfied of their necessity before he made the orders in question. The learned Advocate-General has stated that he has in his possession an affidavit, but the Crown wishes to assert the general principle that no such affidavit is necessary merely because the bona fides of the order has been challenged. He asks the Court to give a ruling upon the point and contends that it would not be reasonable to expect the Chief Secretary or the Governor to file an affidavit in every one of the numerous cases where their bona fides has been challenged.

38. I will not go so far as to hold that in no case could an affidavit be necessary. There might be cases where the affidavits of the petitioners disclosed specific circumstances easting a real doubt on the bona fides of the orders. There are no such circumstances, however, in the present cases, and in ordinary circumstances, in my opinion, the Crown is entitled to rely upon the production of the orders themselves. Ordinarily, the general presumption, omnia acta rite esseprcssumuntur, which is embodied in Section 114 (e), Evidence Act, is applicable, and I can find no reason why in the present cases it should not be applied. Even Governors and Chief Secretaries are entitled to expect that when they say a thing plainly they shall be taken to mean what they say, and to have said it honestly.

39. That in the absence of exceptional circumstances no affidavit on the part of the Crown is necessary, has, in my opinion, been settled by the House of Lords in Greene v. Secretary of State (1941) 3 ALL E. R. 388. In that case it was held that where the return exhibits an order of commitment regular on its face, it is a complete answer to the application. There was, therefore, no need for an affidavit by the Home Secretary.

40. Viscount Maugham in the course of his opinion said:

In the present case, I think that the order itself is a sufficient answer, and we must presume that the Secretary of State, acting under a regulation having the force of law, had what he considered reasonable cause for his belief.

41. Similarly, in the present case, I consider that there was nothing in the allegations of the petitioners which called for any affidavit on the part of the Crown. The affidavits, though they attack the bona fides of the orders in general terms, and upon the unsubstantial ground that they are in supersession of previous cancelled orders, do not disclose any reason why the Governor, or his Chief Secretary who signed the orders on his behalf, should wish to keep these people in custody unless they were honestly satisfied that it was necessary in the interest of security. The orders are, therefore, entitled to be taken at their face value. I suggest to the petitioners, that instead of making wild and reckless accusations against the Government they try the effect of giving Government a solemn undertaking to do nothing during the continuance of the emergency period, to hinder the war effort, disturb public order, or subvert Government.

Sinha, J.

42. I have had the advantage of reading the judgments prepared by my learned brothers Agarwala and Meredith JJ. and I agree to the order proposed, namely, that the applications of Basanta Chandra Ghose and Asoke Kumar Bose be dismissed on the ground that they have not shown that the orders of detention passed against them are, in any way, illegal. I wish to add a few observations of my own, particularly with respect to the procedure to be followed in such cases. These applications come before us under the provisions of Section 491, Criminal P. C. Sub-section (2) of that section contemplates that the High Court, from time to time, may-frame rules to regulate the procedure in cases under this section. It does not appear that this Court has framed any rules in pursuance of this section. Hence, we had to deal with these cases under the ordinary procedure followed by this Court in cases arising under the criminal jurisdiction of this Court. But, as these applications u/s 491 of the Code arise under the extraordinary criminal jurisdiction of this Court, it is desirable that special rules should be framed with a view to regulating the procedure in such cases.

43. After these cases were remitted by the Federal Court to be dealt with by this Court on merits, the hearing of the cases began on 24th August last. Mr. S. C. Ghosh opened the case with an attack on the legality of the order passed against Basanta Chandra Ghose on 19th March 1942. Then, for the first time, the learned Advocate-General for the Crown informed the Court that the petitioners were being detained under fresh orders passed by the Governor on 3rd July 1944, under the new Ordinance 3 of 1944. Naturally, counsel for the petitioners were taken by surprise as they had not been apprised beforehand of the fresh developments. That day, the case, naturally, had to stand over in order to enable the Crown to furnish the requisite affidavits,and to serve copies thereof on 1 ho advocates for the detenus, and for allowing sufficient time to the advocates for the petitioners to take fresh instructions from their respective clients. The cases were heard again on 13th September 1944, and on subsequent days, after the parties got ready with reference to the fresh materials. The learned Advocate-General on behalf of the Crown filed affidavits, with copies of the orders in question attached, saying that the previous detention orders passed against the petitioners by His Excellency the Governor of Bihar under Rule 26 (1) (b), Defence of India Rules had been cancelled and substituted by new orders. The affidavits also disclosed the fact that two of the petitioners, namely, Mahanth Dhanraj Puri and Baidya Nath Rai, had been released in pursuance of the orders dated 27th May and 29th May 1944, respectively. Hence, we were left with the applications of Basanta Chandrr, Ghose and Asoke Kumar Bose only to be dealt with on merits.

44. During the hearing of the cases on merits, the learned Advocate-General on behalf of the Crown informed the Court that the two petitioners aforesaid had been interviewed by a Board of certain officials on certain dates, and that they had an opportunity of making representation to the Government against their detention. All these detailed statements were made by the learned Advocate-General at the Bar. Naturally, counsel for the petitioners objected to all these details being given to the Court by statements at the Bar, and not by proper affidavits sworn to by responsible officers of the Crown. Though it was objected on behalf of the petitioners that we should not act upon those statements at the Bar, we did take notice of those statements made by the Advocate-General. In my opi-nion, the more satisfactory way of dealing with the case should have been to present all the relevant facts in properly drawn up affidavits sworn to by the officers concerned, or such other officers who could give first-hand information to the Court. After all, to deal with a case judicially on statements made at the Bar is not a very satisfactory method of dealing with a case. Though it is common knowledge that, in pursuance of the recent legislation on the subject, certain officials had been interviewing detenus in their respective places of detention, judicial determination of a case must proceed on evidence on record. The Government stands on the same footing as any other litigant in a Court of justice, and should, therefore, present its case in the ordinary way known to the Courts on evidence properly brought on the record, at the proper time, so that the party adversely affected by that evidence should have a full opportunity of adducing evidence to counter the evidence given on behalf of the Crown. The business of the Court also is facilitated by having all the relevant facts of the case placed and arranged in the paper-book in their proper order. Otherwise the Court has to be kept fishing about for facts of each particular case as and when they are supplied by counsel for the parties as it suits them. I have made it a point to make these observations in order to help, if I can, the proper determination of cases like these with the least possible delay, as such cases obviously involve the life and liberty of His Majestys subjects. Such cases have, naturally, to be heard and disposed of as quickly as possible, without any avoidable delay. Furthermore, such cases are no more rare, especially in these days of the exigencies of the war.

45. During the course of the arguments, the question of presumptions and the allied question of the burden of proof were hotly contested at the Bar. It was urged on behalf of the petitioners thit, as soon as they alleged that the order of detention had not been passed by the Governor, or that the Governor had not been satisfied as required by the law about the necessity of passing an order of detention, it was for the Crown to lead evidence to prove affirmatively that such orders had heen passed by the Governor and that he had satisfied himself on proper materials that it was necessary to make such an order in respect of a particular individual. It was contended on behalf of the Crown, on the other hand, that under the provisions of Section 59 (2), Government of India Act, 1935, if the orders of detention, as in the present cases, on the face of them show that they had been made by the Governor and that he had been satisfied about the necessity of making them, the petitioners could not challenge the validity of those orders. In AIR 1943 75 (Federal Court) their Lordships of the Federal Court have ruled it that Section 59 (2) can be pressed into aid only to the extent that such orders, if they on their face showed as having been made by the Governor could not be challenged on the ground that the orders were so made by the Governor. But their Lordships indicated it as their view that the correctness of the recitals, in. the orders that the Governor had been satisfied about the necessity of passing those orders could be questioned. Reliance was also placed on behalf of the Crown on Sub-section (3) of Section 10 of Ordinance 3 of 1944 to the effect that it shall be presumed that an order purporting to have been passed by the Governor in the exercise of powers conferred upon him by the Ordinance, had been so made by the Governor, that is to say, that the Governor passed the order of detention on being satisfied, that it was necessary in the interests of the defence of India and the other cognate circumstances recited in Section 3 of the Ordinance, to pass the order of detention in respect of a particular individual. This contention was refuted on behalf of the petitioners by saying that the Legislature could not have intended to throw the burden of proof on the detenu to prove a mere negative. It may be that in the special circumstances contemplated by the Ordinance the Legislature in effect, placed a burden on the detenu which it is almost impossible to discharge. But, reading Section 10 (3) of the Ordinance with Section 59 (2), Government of India Act, referred to above, the legal position seems to be that it is for the detenu concerned to allege and prove that the Governor was not satisfied in terms of the requirements of Section 8 of the Ordinance. In these two cases it was sought to be proved with reference to the tour programme of His Excellency the Governor of Bihar, of the relevant dates, that the .Governor of Bihar was not present in Patna at or about that time. But this argument assumes that the dates appearing on the orders of detention were the dates on which necessary orders were passed by the Governor. It also assumes that, when the Governor is on tour out of Patna he does not deal with files like these. These assumptions, in my opinion, are not justified. Once it is presumed that the orders purporting to have been made by the Governor had been so made in pursuance of the provisions of the Ordinance, a very heavy burden lies on the detenu concerned to show that this apparent state of affairs, backed as it is by statutory presumption of correctness in its favour, is not the real state of affairs. Such a presumption is not rebutted by such vague and general allegations that the orders appear on a printed form, only the name of the particular detenu being inserted therein, or that the Governor is much too busy a person to apply his mind to the individual cases of so many persons detained. The Legislature has advisedly placed heavy responsibilities on the shoulders of the head of the provincial administration in matters affecting the liberties of His Majestys subjects, and it must be presumed that those heavy responsibilities have been properly discharged. The other contentions raised against the legality of the orders of detention in respect of the petitioners have been dealt with in the judgments of my learned brothers Agar wala and Meredith JJ. Hence, I need not go into them over again.

46. In the case of the two petitioners, Mahanth Dhanraj Puri and Baidyanath Rai, who have been released as aforesaid, Mr. M. N. Pal on behalf of the petitioners contended that they had been put to heavy expenses in this Court as well as in the Federal Court in fighting for their liberty and that, therefore, this Court should pass an order against the Crown awarding heavy costs to the petitioners. In this connexion Mr. Pal relied upon the case in R. v. Secretary of State for Home Affairs; Ex parte Lees (1941) 1 K. B. 72 But in that case the original application had been dismissed without any order for costs being made. On appeal by the applicant, the question of costs was raised by" both the parties, and the appeal Court ordered that costs should be awarded against the appellant. Apparently therefore that case can be no authority for the proposition contended for by Mr. Pal. We are dealing with this case under our extraordinary original criminal jurisdiction u/s 491, Criminal P.C. That section does not make any provision for costs. As laid down by a Special Bench of the Madras High Court in the case in Ramammal v. Vijayaragliavalu AIR. 1933 Mad. 102 costs are a creature of statute or of statutory rules. Neither the Criminal Procedure Code, ch. 87, dealing with applications in the nature of habeas corpus makes any provision as regards costs; nor any statutory rules have been placed before us empowering this Court to make such an order for costs. It may also be observed that, whenever the Legislature thought it desirable to make such provision for costs, the statute has made provisions therefor. By way of illustration, reference may be made to Section 148 (3) and Section 526 (6A), Criminal P. C, which make specific provisions for coats or compensation, as the case may be. In Mt. Haidri Begam Vs. Jawad Ali Shah costs were allowed to the successful party in an appeal which was purported to have been filed under Clause 10 of the Letters Patent from an order passed on the original side of the High Court u/s 491, Criminal P. C. In that case their Lordships of the Allahabad High Court specifically observed that in the original proceedings u/s 491. no question of costs could have arisen. Hence, that case also is no authority for the proposition that the High Court, sitting in its original criminal jurisdiction u/s 491 of the Code, is entitled to grant costs to the successful party. It must, therefore, be held that this Court has not been empowered to make any order for costs in a proceeding u/s 491, Criminal P. C.

47. These observations are made without any reference to the question of whether these are proper cases in which an order for costs should be made in the circumstances. Simply because the authorities concerned with the administration of ordinance 3 of 1944 thought fit to release these two persons, it cannot be said that those persons are entitled to costs. Unless it was shown that their detention was illegal, no question for awarding costs in favour of the successful party could arise on the merits of the case.