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 the e