(Prayer: Petition (disposed of on 14-2-1949) under S. 491 Crl. P.C. 1898 praying that in the circumstances stated in the affidavit filed therewith, the High Court will be pleased to issue directions in the nature of a Habeas Corpus for production before the High Court, Madras, the person of N.R. Sreenivasan a detenu in the Central Jail, Vellore, to be dealt with according to law and direct that he be set at liberty.)

Rajagopalan, J.

The petitioner applies under S. 491 Criminal Procedure Code for his release from detention. The petitioner was arrested and taken into judicial custody on 25-10-1947. He was charged in two cases with the commission of specific offences punishable under the Penal Code, namely, Ss. 147, 148, 323, 426 and 452 Indian Penal Code. He continued in such judicial custody apparently till 21-3-1948. Some time before 21-3-1948 he applied for release on bail with reference to those specific charges levelled against him under the Penal Code. Bail appears to have been granted by the Sessions Judge, but on what date it was granted we have not been told. Meanwhile, on 5-3-1948, an order was passed by the District Magistrate of Coimbatore under S. 2(1)(a) of Madras Act I of 1947. The order ran:

Whereas I am satisfied that with respect of N.R. Srinivasan..that he is acting in a manner prejudicial to the public safety and with a view to preventing him from so doing it is necessary to detain him I hereby direct that the said N.R. Srinivasan shall be arrested by the police wherever found and removed to the Central Jail, Vellore.

That order was passed on 5-3-1948. From the affidavit filed on behalf of the counter-petitioners it is found that it was only from 21-3-1948 that the petitioner was treated as a person detained under the provisions of Madras Act I of 1947. Grounds for detention dated 29-3-1948 were furnished to the petitioner on 27-4-1948. Additional grounds were furnished on 31-7-1948. It would appear that shortly before 28-1-1949 the Government passed the requisite order under S. 3(5) of the Act confirming the original order passed under S. 2(1)(a) of the Act.

The main contention of the learned Advocate for the petitioner is that the detention of the petitioner under the provisions of Madras Act I of 1947 is mala fide. In Narayanaswami Naidu v. Inspector of Police, Mayavaram (1946 (1) M.L.J. 1 at 23=62 L.W. 51 (F.B.) the learned Chief Justice laid down four categories in which classes of cases alone it will be open to the Court to intervene in an application filed under S. 491 Criminal Procedure Code with reference to orders passed under Act I of 1947, (a) when the order is not duly authenticated, (b) when the person detained in pursuance of the order is not the person intended to be detained, (c) when there is lack of bona fides , and (d) when it is established that the essential requirement of S. 2, namely, the satisfaction. is not present. We are concerned only with (c). In the affidavit filed on behalf of the counter-petitioners, sworn to by an Inspector of Police it was averred:

While in remand, he (the petitioner) applied for bail and the Sessions Judge, Coimbatore ordered his bail on condition that he should report at the police station every day. As such the detenu was at liberty to furnish the necessary securities and come out from the jail. Hence an order for his detention was considered necessary. He was treated as a detenu from 21st March 1948.

No doubt, the affidavit also discloses the fact that the charges against the petitioner were withdrawn, but that in no way affects the legality of the order of detention. In our opinion, the only reasonable construction the averments in the affidavit are capable of is that it was to prevent the release of the petitioner on bail that his detention was considered necessary. That clearly is not one of the grounds of satisfaction S. 2(1) of Madras Act I of 1947 contemplates. No doubt under Cl. (d) of the four classes postulated by the learned Chief Justice, the fact that the District Magistrate, the detaining authority, was satisfied under S. 2(1) of the Act is a fact that can be gathered from the order of detention itself, and further beyond that, it may not be permissible to go. But in considering the question, whether the apparent satisfaction recorded by the District Magistrate was in good faith in exercise of the statutory powers conferred upon him, it is certainly permissible to view the order of detention in relation to the apparent and avowed object with which that order of detention was passed, i.e., not to prevent a breach of the peace or a danger to public safety but to prevent the petitioner from coming out of jail if he could find the sureties he was required to do by the Sessions Judge. Such an exercise of power, we are convinced, was mala fide ; and where a detention is traceable only to such an exercise of power mala fide , the detention must be held to be illegal.

There is one other point to be mentioned. What the District Magistrate said was that the petitioner was acting in a manner prejudicial to the public safety and that with a view to prevent him from so doing, it was necessary to detain him. Now that order was passed on 5-3-1948. The petitioner, it must be remembered, was in custody from 25-10-1947. Under S. 2(1)(a) even a satisfaction that a person was about to act in a manner prejudicial to public safety would have been sufficient to justify an order of detention; but when the Magistrate purports to have been satisfied that the petitioner was acting in a manner prejudicial to public safety, we cannot import into that order that the District Magistrate meant to say that the petitioner was about to act in a manner prejudicial to public safety. The use of the word acting in contradistinction with about to act, which should apply to acts in future, could only be interpreted to mean to relate to something done in the recent past if not in the immediate present, i.e., the recent past in relation to 5-3-1948, the date of the order. Since the petitioner was in judicial custody from 25-10-1947, that recent past was absent and could not have been considered by the District Magistrate. We are not concerned now whether that was a sufficient reason for the District Magistrate to be satisfied; but we are only on the question whether such an exercise of power was in good faith or in bad faith. As we have already pointed out, the materials placed before us clearly indicate that it was not in the exercise of good faith that the order of detention was passed on 5-3-1948.

We allow the petition and direct that the petitioner be set at liberty unless he is detained for a valid reason.