The Chief Justice.-These are applications filed under section 491 of the Code of Criminal Procedure on behalf of certain persons ostensibly detained under the provisions of Madras Act I of 1947, praying that they may be set at liberty on the ground that they were being illegally and improperly detained. Some of the applications were filed on or before 25th May, 1948, while the rest of the applications were filed subsequent to that date. Objection was taken that the applications were not maintainable on account of section 16-A of the Act which was inserted by clause 4 of Ordinance No. II of 1948 promulgated by His Excellency the Governor on 25th May, 1948. It runs thus:

"Nothing in section 491, sub-sections (1) and (2), of the Code of Criminal Procedure, 1898, shall apply to any person detained, or deemed to have been detained, under section 2 of this Act by the Provincial Government or any officer or authority authorized by them in that behalf."

In reply to this objection, learned counsel for the ‘petitioners raised objections to the validity of section 16-A of the Act and also contended that in any event it would not apply to any of the petitions either actually pending on the date of the Ordinance or filed subsequently. He set forth his contentions in the following memorandum:

"In the matter of Criminal Miscellaneous Applications made under section 491 of the Criminal Procedure Code and awaiting disposal or in the process of filing in the Registry of the High Court Office, the New Madras Ordinance ‘The last clause therein’ has been pleaded in Bar and some of the applications recently filed have been returned."

In support of the position, namely, that the High Court’s jurisdiction notwithstanding the new Ordinance remains intact, the following legal submissions are sought to be made:-

1. The New Madras Ordinance, that part of which seeks to exclude the jurisdiction of the High. Court under section 491, Criminal Procedure Code, is ultra vires of the Governor (and the Provincial Legislature) as the High Court’s powers shall remain paramount subject only to the legislative Powers of the Governor-General in Council. The subject’s rights under section 491 are substantive rights and not of the nature of the procedural rights and do not fall under either list 2 or 3 of the Government of India Act.

The clause numbered 16(a) of the New Ordinance is manifestly repugnant to clause 44 of the Letters Patent as well as section 223 of the Government of India Act, 1935. It is also contrary to’ the spirit of the Instrument of Instructions to the Madras Governor.

2. In any event the New Ordinance limiting the powers of the High Court cannot affect the pending cases or the vested right under section 491, Criminal Procedure Code, of the persons already detained.

"If it was meant to apply to the pending cases, or in other words to operate retrospectively, the Ordinance would have stated it as the main Act itself has done in section 16, clause 2, where the pending cases have been expressly referred to.

Under all circumstances the High Court’s Power cannot be taken away and must remain supreme in order to see, by directions of the nature of habeas corpus, that the particular person or persons detained or deemed to be detained actually fall under the provisions of the given Act. Where any case is seen to be outside the four corners of the Act or vitiated by mala fides on the part of the detaining authority, then High Court alone can set matters right under section 491, Criminal Procedure Code."

When the applications came on for hearing before Yahya Ali, J., during the vacation on 1st June, 1948, the learned Judge considered that as the objections raised appeared to be of vast constitutional and public importance, they should be heard and disposed of by a Bench rather than by him sitting singly. He therefore adjourned all the applications and directed that the papers may be placed before me for orders. I thought it desirable that the cases, in so far