JUDGMENT

Spens, C.J.

These are appeals by certain detenus against orders passed by the High Court at Patna dismissing applications filed by them or on their behalf for their release under Section 491, Criminal P.C. Two of the petitions, from which Criminal Appeals nos. 3 and 5 arise, were dealt with by one Division Bench, in a judgment which has discussed the contentions urged in support of the petitions. The petitions in the other two cases were disposed of by two other Benches which have followed that judgment. On behalf of the Crown it was urged before the High Court that Ordinance 3 of 1944which had been promulgated during the pendency of some of these petitionshad taken away the power of the Court to pass any order under Section 491, Criminal P.C. in these cases. By way of reply to that argument, the validity of the Ordinance was impugned on behalf of the detenus; certain contentions as to the constraction and effect of the Ordinance were also advanced. The High Court upheld the objection raised on behalf of the Crown but granted a certificate under Section 205, Constitution Act. In the main judgment under appeal, the learned Judges rejected the limited interpretation which counsel for the detenus sought to place on Sections. 6 (2) and 10 of the Ordinance. They also held that there was nothing to suggest that the Governor of Bihar had not duly passed the orders for detention. Before this Court, the objection based on the Ordinance has been relied on by the Advocate-General of Bihar and counsel for the appellants have urged several contentions both in respect of the validity of the Ordinance and in respect of its meaning and effect. It will facilitate the appreciation as well as the discussion of these arguments to begin with a brief narration of the circumstances that led to the promulgation of the Ordinance.

2. Immediately after the outbreak of the war, provision was made by an Ordinance (ordinance 5 of 1939) promulgated by the Governor-General and by rules framed thereunder for the administration taking all necessary measures to ensure the public safety and interest and the defence of British India. On 29th September 1939, an Act (Defence of India Act 35 of 1939) was passed by the Legislature itself, making necessary provision in this behalf and the Ordinance was repealed. Section 2 of this Act enabled the Central Government to make rules for securing 'the defence of British India, the public safety, the maintenance of public order' etc. Clause 2 of this section contained some further provisions relating to the rules to be so made. One of the rules framed by the Central Government was Rule 26, Defence of India Rules, enabling certain authorities to make orders for detention, if they were satisfied with respect to any particular person that it was necessary to make such an order with a view to preventing him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of public order, etc.

3. In Keshav Talpade v. Emeror ('43) 30 A.I.R. 1943 F.C. 1 this Court held that Rule 26, Defence of India Rules, went further than the rule-making powers conferred by Section 2 of the Act, warranted. As it would have followed from this decision that persons detained at the time under orders passed on the basis of Rule 26 must be released, the Governor-General promulgated Ordinance 14 of 1943 whose material provisions were:

Section 2. For Clause (x) of Sub-section (2) of Section 2, Defence of India Act, 1939 (35 of 1939) the following Clause shall be substituted, and shall be deemed always to have been substituted, namely: (x) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain as the case may be suspects, on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence o