JUDGMENT

Iqbal Ahmad, C. J.

1. This is an application u/s 491, Criminal P. C. and the prayer contained in the application is that an order be passed directing that the applicant be set at liberty. The applicant is one Harish Chandra who was a student of the Medical College, Benares Hindu University. The applicant is a resident of Kaimganj in the District of Farrukhabad. He was arrested at Rudain Railway Station on 6th November 1942, under the orders of Raza Ahmad Rizvi, Circle Inspector of Police, Parrukhabad, and has been in custody ever since. Various applications for bail were presented on behalf of the applicant in the Court of the Magistrate and of the Sessions Judge, but those applications were rejected. The application filed by the applicant was supported by an affidavit and it was stated in the affidavit that "the applicant is a respectable young man and is not previous convict for any political activity" and that "the applicant is being wrongfully detained under pretext of Sections 4 and 5, Explosive Substances Act, or Defence of India Rules, Section 129."

2. Two counter-affidavits were filed by Raza Ahmad Rizvi, Circle Inspector, and it appears from those affidavits that revolutionary activities have been in progress on a serious scale in the District of Parrukhabad and that bombs were thrown at certain railway stations and on the Kotwali at Parrukhabad. It further appears from those affidavits that "a reliable person had informed the police officers at Parrukhabad that one revolutionary named Jogesh Chatterji, an ex-convict of the Kakori train dacoity case, had started work in the District with Kaimganj as his work centre and he had also given the names of 5 or 6 persons including that of Harish Chandra as the persons who were taking and introducing others at Kaimganj to Jogesh Chatterji."

3. The counter-affidavits further disclose the fact that, even though Harish Chandra was at first arrested under the Explosive Substances Act, he is since 17th February 1943, under detention in pursuance of an order passed by the Commissioner of Allahabad Division under Rule 26, Defence of India Rules. This fact is not controverted on behalf of the applicant and, in my judgment, the order of detention passed by the Commissioner constitutes a complete answer to the present application. Sir Tej Bahadur Sapru who argued the case on behalf of the applicant stated that the application was in pursuance of the provisions of Section 491 (b), Criminal P. C., which provides that:

Any High Court may, whenever it thinks fit, direct (b) that a person illegally or improperly detained in public or private custody... be set at liberty.

4. It is not, and cannot, be disputed that the powers conferred on this Court by Section 491 are very wide, and impose upon this Court the duty of protecting the liberty of His Majesty's subjects. That power and duty has, however, to be exercised and discharged on certain fixed judicial principles and not in an arbitrary manner. It is manifest that the jurisdiction vested by Clause (b) can be exercised only if this Court is satisfied that the detention is illegal or improper. In the consideration of this question, all that this Court has to see is whether or not the detention is in conformity with the dictates of law, but it is not within the province of this Court to embark on an enquiry as to whether the enactment under which a person is detained is a proper and well-advised legislation. Such considerations are within the exclusive competence of the Legislature and it is the duty of this Court to faithfully interpret and give effect to enactments passed by a competent Legislature and to scrupulously refrain from questioning the wisdom of the Legislature. It is, however, clear that, in cases in which, even though the forms of law have been observed, the detention constitutes a clear fraud on an enactment or amounts to an abuse of the powers given to the executive by the Legislature, it is the duty of this Court to step