1. This was an appeal from an order of the Bombay High Court dated July 2, 1943, in Criminal Application No. 86 of 1943. The facts are stated in the argument of counsel for the appellant.

2. 1943 Nov. 1. G.N. Joshi (D.P. Dhupkar with him) for the appellant. The appellant was arrested on the 24th August, 1942, under r. 129 of the Defence of India Rules and detained under r. 26 of the said Rules. He filed an application in the nature of a writ of habeas corpus under s. 491, Cr.P.C. being Criminal Application No. 86 of 1943, for his release. This application was dismissed on the 10th March, 1943, and an appeal was preferred to the Federal Court. The Federal Court decided on the 22nd April, 1943, that r. 26 was ultra vires and remitted the case to the High Court for disposal of the case in the light of the observations made in judgment of the Federal Court. Ordinance XIV of 1943 was promulgated on the 28th April, 1943, to validate r. 26. The Bombay High Court referred the case back to the Federal Court for a declaration as to the nature of the order that was to be substituted for the order appealed against. The Federal Court by their order of the 31st May, 1943, confirmed their previous order of the 22nd April, 1943, and returned the papers to the Bombay High Court observing that it will be for that Court to adopt such course as it deemed most convenient in the light of the observations contained in their order. The matter was again heard by the Bombay High Court and in a judgment dated 2nd July, 1943, the High Court, by a majority, held that the detention of the appellant was not invalid in view of the Ordinance dated the 28th April, 1943, which in their view had retrospective effect. The appellant has preferred an appeal to this Court and it is now before your Lordships. The appeal was filed on the 10th August, 1943. Under s. 209 of the Constitution Act the decision of this Court must be given effect to by the High Court. The detention of the appellant from the 22nd April till his release was illegal.

3. [Spens, C.J. If the appellant has been set free, how can this appeal be proceeded with]

4. Though my client has been released, I want a pronouncement by this Hon'ble Court that his detention from the 22nd April till his release was illegal.

5. N.P. Engineer, A.-G. of Bombay, (M.M. Desai with him) for the respondent. The appellant was released on the 10th of August, 1943.

6. Nov 2. The judgment of the Court was delivered by

7. Spens, C.J.:—This appeal arises out of an application for a writ of habeas corpus made by the appellant to the Bombay High Court in February, 1943. The matter had come before this Court on two previous occasions in April and May, 1943, but the orders of this Court on those occasions did not finally dispose of the matter. By its order dated 2nd July, 1943, the High Court (by a majority judgment) dismissed the application and this appeal has been preferred against that rder.

8. The appellant takes exception to the grounds on which the High Court has rested its judgment, including its view as to the effect of the orders of this Court. But it is admitted that the appellant has already been released. This appeal was filed on the 10th of August and it is stated by the Advocate-General of Bombay that the appellant was released on that very day, though it is not quite clear whether the order of release was passed on that date or the appellant was in fact set free on that date. As the appellant is no longer in custody, his learned counsel admits that no order can hereafter be made on the habeas corpus application; but he nevertheless asks us to pronounce an opinion on the correctness of the High Court's judgment. We do not see our way to adopt any such course. All that can be done to this stage is to dismiss the appeal on the ground that no order on the application can now be made.