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1946 Supreme(SC) 18
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT JOWITT L.C., LORD WRIGHT, LORD DU PARCO, MORTON L.J. AND SIR JOHN BEAUMONT.
KING-EMPEROR - Appellant
Versus
VIMLABAI DESHPANDE - Respondents
On Appeal from the High Court at Nagpur.
Decided On : May 7, 1946.
Solicitor for appellant:Solicitor, India Office. Solicitors for respondents: Hy. S. L. Polak & Co.
In arrests based on "reasonable suspicion" under the Defence of India Rules, the burden of proving reasonableness lies with the police. If the initial arrest is invalid, subsequent government orders for temporary custody are also void as they depend on a valid arrest under the rule.
Headnote:(A) Defence of India Rules, 1939 - Rule 129 and Rule 26 - Code of Criminal Procedure - Section 491 - Government of India Act, 1935 - Section 16(1) - Arrest and detention on reasonable suspicion - Burden of proof - Validity of subsequent detention orders - Where a police officer makes an arrest under Rule 129, sub-rule 1, the burden rests upon the police officer to satisfy the court that he had reasonable grounds of suspicion to justify the arrest.
(B) Defence of India Rules, 1939 - Rule 129, sub-rule 4 - Temporary custody - If an arrest under sub-rule 1 is invalid due to lack of reasonable suspicion, a subsequent order made by the Provincial Government for temporary custody under sub-rule 4 is also invalid, as the power to order temporary custody applies only to a person validly "arrested under this rule".
(C) Defence of India Act, 1939 - Section 16(1) - Statutory protection against questioning orders in court - Such protection does not extend to orders that were not validly made in the exercise of the power conferred by the Act.
(D) Appeal - Competency - Appeals from decisions of courts in British Dominions to the King in Council are heard under royal prerogative and can only be curtailed by an Act of Parliament.
Facts of the case:
A person was arrested by a police officer under rules allowing arrest on reasonable suspicion. The Provincial Government subsequently issued orders for temporary custody. An application was made to the High Court for release on the ground that the detention was illegal. The High Court ordered the release, finding that the police had failed to prove that the suspicions justifying the arrest were reasonable. The Crown appealed this decision to the Privy Council.
Findings of Court:
The court found that the police officer failed to discharge the burden of proving that the suspicions justifying the arrest were reasonable. Consequently, the arrest was invalid. Since the power to order temporary custody under the rules applied only to persons validly arrested under said rules, the subsequent detention orders were also illegal.
Issues: (i) Whether a police officer making an arrest under Rule 129 is bound to prove to the court that he had reasonable grounds of suspicion; and (ii) whether an order for temporary custody by the Provincial Government is valid if the initial arrest was invalid.
Ratio Decidendi: The court held that the requirement of "reasonable suspicion" for police arrests places the burden of proof on the arresting officer. Furthermore, the authority to order temporary custody is contingent upon a valid arrest under the specific rule; if the arrest is void, the subsequent order for custody lacks a legal basis and cannot be validated by subsequent government orders.
Result: Appeal dismissed.
Legal Category Hierarchy
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administrative law
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preventive detention
- defence of india rules
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preventive detention
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practice and procedure
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criminal procedure
- habeas corpus
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criminal procedure
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constitutional law
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royal prerogative
- appeals to privy council
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royal prerogative
Judgement
Appeal (No. 83 of 1945), by special leave, from an order of the High Court (September 29, 1944) made by it in purported exercise of the powers conferred on it by s. 491 of the Code of Criminal Procedure to issue directions of the nature of habeas corpus. The order directed that the second respondent, Purushottam Yeshwant Deshpande (hereinafter called " the " detenu "), should be set at liberty forthwith on the ground that his detention was illegal.
The following facts are taken from the judgment of the Judicial Committee On August 21, 1944, the detenu was arrested pursuant to an order given by the Deputy Inspector-General of Police, under r. 129. The arrest was made by a police officer, K. C. Diwakar. On August 22, under an order signed by the said K. C. Diwakar, the detenu was committed to the custody of the Superintendent, Central Gaol, Nagpur. The order was expressed to be made under the powers conferred by sub-r. 2 of r. 129. On August 23, a report of the arrest was made to the Provincial Government as required by sub-r. 2. On August 26, the Provincial Government, purporting to act under sub-r. 4 of r. 129, directed that the detenu be detained in police custody for a period expiring on September 4, 1944. On September 2, 1944, the Provincial Government, purporting to act under sub-rr. 2 and 4 of r. 129, directed that the detenu should be detained in police custody for a further period of fifteen days from September 5, 1944. A further order was made by Government on September 19, 1944, for a further extension of the period of detention, but as that order was made after the hearing in the High Court, such order could not affect the position. In the meantime, namely, on August 25, the detenus wife, who was the first respondent, made application to the High Court under s. 491 of the Code of Criminal Pro cedure, complaining that the detention of the detenu was illegal and improper. That application was supported by certain affidavits made by Waman Deshpande, a nephew of the detenu, alleging, amongst other things, that the detenu had been interrogated by the police whilst in prison, that he had been questioned only about one Inamdar, a former employee of the detenu, who was alleged to have been concerned in a dacoity committed in the Province of Bombay, and that no questions were ever put to the detenu about any activities which could have brought him within the operation of r. 129 of the DEFENCE OF INDIA RULES .
No evidence was filed by the police officer who arrested the detenu, or by the Deputy Inspector-General of Police on whose orders the arrest was made, and the only evidence filed on behalf of the Provincial Government dealing with the grounds of suspicion against the detenu was an affidavit sworn by the Chief Secretary of the Provincial Government on September 10, 1944, which said that the report of the arrest of the detenu had been received by the Provincial Government on August 23, and that it revealed reasonable grounds for suspecting that the detenu was actively associated with certain persons engaged in underground activities calculated to pre judice the public safety and efficient prosecution of the war, and that in the opinion of the Provincial Government there were reasons to suspect that they had already acted in a manner which had prejudiced the public safety. That affidavit contained no allegation that the detenu himself had been engaged in any subversive activities, or even that he was aware of such activities on the part of his associates.
The application was heard by the High Court of Nagpur (Bose and Sen JJ.) on September 11, and judgment was given on September 29, holding that the detention of the detenu was illegal, and directing that he be set at liberty forthwith.
By r. 129 of the DEFENCE OF INDIA RULES , 1939 " (1.) Any “police officer .... may arrest without warrant any person “whom he reasonably suspects of having acted ....
" (a) .... in a manner prejudicial to the public safety or to t
