1. Varadachariar, C.J.:—At this stage, it does not seem necessary to recapitulate the facts of the case. It is sufficient to state that the appellant had preferred an appeal to this Court against an order of the High Court at Bombay dismissing his application under s. 491 of the Criminal Procedure Code. The dismissal was based on the view that the Defence of India Act, 1939, and rule 26 framed thereunder were valid and that the appellant's detention under that rule was therefore not illegal or improper. At the hearing of the appeal, this Court agreed with the High Court that legislation providing for the “preventive detention” of persons for reasons of State connected with defence, etc., was within the competence of the Indian Legislature; but, as regards rule 26 of the Defence of India Rules, the Court held that it was invalid as going beyond the rule-making power conferred upon the Central Government by paragraph (x) of s. 2 (2) of the Defence of India Act. It was further held that where a matter is specifically covered by any of the paragraphs of sub-section (2), rules relating to that matter must conform strictly to the conditions laid down in the paragraph and that it is not permissible to pray in aid the more general language of subsection (1) to justify a departure from or disregard of those conditions. The order of the Court dated April 22nd, 1943, concluded as follows: “The appeal will be allowed and the case remitted to the High Court of Bombay with a direction to the Court to dispose of the appellant's application in the light of the observations made in our judgment”.

2. At the further hearing, the High Court, by a majority, has referred the case back to this Court, with a request that it “will be so good as to comply with the terms of s. 209 (1) of the Government of India Act and make a declaration as to the order which is to be substituted for the order appealed against”. It does not appear from the order of the High Court whether this reference was rendered necessary by any objections or arguments urged on behalf of the parties. The parties were however notified of the hearing of this reference. The Advocate-General of India has appeared on behalf of the Government of Bombay. He argues that as the case is pending before this Court on this date, the Court must take note of events that have happened since the 22nd April when its order was made and in particular of the promulgation of Ordinance No. XIV of 1943 on the 28th April. The reference is not before us under any provision of law but only out of a desire of the learned Judges of the High Court to be more clearly informed as to the meaning and effect of our order of the 22nd April. This is all that we propose to do and we are entitled to do and our present order will speak only as on the 22nd April 1943.

3. This Court did not anticipate that the learned Judges would have felt so much difficulty in apprehending the meaning or effect of this Court's order, having regard to the nature of the proceedings before them. This Court did not direct what final order should be passed in the case, because it could not be done at that stage. Exception has been taken by the learned Chief Justice to this Court basing its decision on a “point not pleaded, argued or decided in the lower Court nor raised in the memorandum of appeal”, but raised by this Court itself when the respondent was arguing. As this course deprived the High Court of the opportunity of stating its reasons against the view adopted by this Court and as the reasons given by this Court seemed to the learned Chief Justice “unconvincing”, he has taken “the opportunity provided by this reference to repair the omission from the original judgment” and to put on record the view on which the High Court acted. This Court could not be expected to go back upon its original judgment at this stage and the remarks of the learned Chief Justice could obviously have not been intended for this Court. This inference is strengthened by his observation in another part of the judgment, where he reminds himself — and perhaps others too — that the order of this Court may be the subject of an appeal to His Majesty in Council. We do not therefore pause to consider whether the reasons now recorded by him are convincing or not. He makes a point that “there may be difficulty in bringing an effective appeal” to the Privy Council “against a mere direction” of the kind contained in this Court's former order. It will be time enough to consider this point when an application is made to this Court for leave to appeal. The learned Chief Justice also puts in a plea on behalf of counsel who might have been taken by surprise when this Court sprung a new question upon them in the course of the argument. We should have thought that the Advocate-G-eneral of Bombay and the Advocate-General of India might well be trusted to take care of themselves. We may state that when the question was raised, they did not represent that it took them by surprise nor did they ask for time to look into the matter further before closing their arguments.

4. It remains to deal with the criticism that the order passed by this Court does not comply with the requirements of s. 209 (1) of the Constitution Act. This criticism seems to us to rest on a misapprehension. The use of the word “shall” in that sub-section cannot reasonably be construed to mean that in every case, this Court is under an obligation to declare the judgment, decree or order which is to be substituted for the judgment, decree or order appealed against. The form of the order to be passed by this Court must necessarily vary according to the circumstances and requirements of each case. One or two illustrations will help to make this clear. A suit instituted by a public officer or by a citizen against the Government might be dismissed by the High Court on a particular interpretation of some provision of the Constitution Act. On appeal, this Court might take a different view. If, as a result of the decision on the preliminary point, the High Court or the trial court had not recorded findings on other questions arising in the case or had not even recorded evidence, it would be impossible for this Court to make a declaration as to the judgment or decree to be substituted for the judgment of the High Court in the sense in which the learned Judges of the Bombay High Court seem to understand it, namely, in the shape of an executable decree. On the trial of the other issues, there may be a decree for the defendant again, notwithstanding this Court's decision in plaintiff's favour on the preliminary question. In a case of the kind above suggested, the only course open to this Court would be to remand the case to the High Court for trial of the other issues and it would be hardly fair in those circumstances for this Court to dictate to the High Court whether the High Court should itself deal with the case on remand or remit it to the trial court. The discretion in that matter naturally belongs to the High Court: (vide Civil Procedure Code, Order XLI, rr. 23, 24 and 25). Again when an appeal is preferred to this Court on a constitutional question, the parties are entitled to raise other questions as well, at the hearing of the appeal. It may happen that this Court takes a different view from that which found favour with the High Court on a point of limitation or res judicata or even on the merits, with the result that other issues may have to be heard and determined by the High Court. Here, again, it will not be practicable for this Court to make a declaration which can straightway be embodied by the High Court in an executable decree. The observations made by their Lordships of the Judicial Committee in the Punjab Co-operative Bank v. Commissioner of Income-tax, Lahore are equally applicable to the present case. It was there argued that the latter part of s. 205 (1) of the Constitution Act — which provides that it shall be the duty of the High Court in every case — cast an obligation on the High Court in every case to consider whether or not a constitutional question was involved in the case and of its own motion to give or to withhold a certificate accordingly. Their Lordships pointed out that the provision was only “directory” in the sense explained in the judgment and that the plain object of the provision should be carried out in cases in which this could reasonably and conveniently be done and it could not have been intended to impose an obligation on the Court to do so even when that could not be done.

5. The learned Judges construe the concluding words of s. 209 (1) of the Constitution Act as placing the High Court merely in the position of an “executing” court. This seems to us to be an unnecessarily narrow interpretation of the words used. It was no doubt intended that the Federal Court should make a declaration and not itself pass an executable decree, because it had no machinery for executing its decrees. But it does not follow that the High Court had only the status of an executing court, in respect of all matters heard on appeal by the Federal Court.

6. A few words explaining why the former order of this Court was framed in the terms already set out will also help to explain why even at this stage this Court is not in a position to pass an order in any substantially different form. Under the English practice, it would appear that on an application for a writ of habeas corpus, the respondent might state his reasons justification of the detention, either when showing cause on the order nisi or when making a return to the writ of habeas corpus. (See Halsbury's Laws of England, Vol. IX, paragraphs 1234, 1235 and 1248.) When the justification depends upon the validity of a regulation, the question of its validity may be allowed to be discussed at the hearing of the rule nisi itself [see per Lord Atkinson in Bex v. Halliday. Section 491 of the Indian Criminal Procedure Code empowers the High Court to make rules to regulate its procedure in dealing with applications under that section; and the rules framed by the Bombay High Court provide for the issue of a rule nisi” on a prima facie case”. The respondent is called upon “to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in court the body of the person or persons alleged to be illegally or improperly detained”: (rule 62). The next rule says: “On the return day of such rule or on any day to which the hearing thereof may be adjourned, if no cause is shown or if cause is shown and disallowed, the Court shall pass an order that the person or persons improperly detained shall be set at liberty or delivered to the person, entitled to custody. If cause is allowed, the rule shall be discharged.” This seems to suggest that all matters of defence or justification are to be considered at the time cause is shown against the rule nisi.

7. From the record before this Court, it did not appear that the Bombay Government had filed anything in writing setting forth their objections or their reasons for the detention of the applicant. So far as could be gathered from the order of the High Court, it seemed to have been argued as a point of law, arising on the application itself, that the rule under which the applicant had been detained was not invalid as contended in the application. At the time the order of this Court was pronounced on the last occasion, the Advocate-General of Bombay was not before the Court and the Court had no means of knowing whether the Government of Bombay intended to plead any other ground of defence or justification. On the one hand, this Court expected that if there were no other defence, the Government of Bombay would take the necessary action without waiting for or insisting on the issue of the writ, when once r. 26 had been declared invalid by this Court. They were of course entitled to take steps to question the correctness of this Court's decision; but that is a different matter. If, on the other hand, the Government had other grounds to plead, it seemed to us right that it should be left to the Bombay High Court to decide whether they should be allowed to be urged at the rule nisi stage itself or when making the return to the writ; and the ambiguity in the Bombay rule pointed out above made such a course all the more necessary, because if this Court had itself directed the issue of a writ, it might conceivably have implied that no further grounds pf justification could be pleaded. After all, the power to issue a writ in the nature of habeas corpus is a high privilege which the Legislature has entrusted to the High Court and it seemed to us only fair that the discretion to suggest the most convenient course to be adopted should be left to that Court. Nothing that has since happened has caused us to change our opinion in this respect. It will be for the High Court to adopt the course it deems most convenient in the circumstances of the case, in the light of the foregoing observations. It is difficult to take seriously the observation of the learned Chief Justice that he was not prepared to take the responsibility of making any order in the case except in so far as he was bound to do so under s. 209 of the Government of India Act. In any case, this Court can frame its order only in such terms as the circumstances of the case warrant. The papers will be returned to the High Court of Bombay.

8. Rowland, J.:—Not having been a party to the former proceedings in this case, I have only to say that I assent to the order proposed.

9. Agent for the Appellant: R.G. Naik.

 10. Agent for the Respondent: B. Barterji.