JUDGMENT

Varadachariar, C.J. - At this stage, it does not seem necessary to recapitulate the facts of the case. It is sufficient to state that the appellant had preferred an appeal to this Court against an order of the High Court at Bombay dismissing his application Under Section 491, Criminal P.C. The dismissal was based on the view that the Defence of India Act, 1939 and Rule 26 framed thereunder were valid and that the appellant's detention under that rule was therefore not illegal or improper. At the hearing of the appeal, this Court agreed with the High Court that legislation providing for the "preventive detention" of persons for reasons of State connected with defence, etc., was within the competence of the Indian Legislature; but, as regards Rule 26 of the Defence of India Rules, the Court held that it was invalid as going beyond the rule-making power conferred upon the Central Government by para. (10) of Section 2(2), Defence of India Act. It was further held that where a matter is specifically covered by any of the paragraphs of Sub-section (2), rules relating to that matter must conform strictly to the conditions laid down in the paragraph and that it is not permissible to pray in aid the more general language of Sub-section (1) to justify a departure from or disregard of those conditions. The order of the Court dated 22nd, April 1948, concluded as follows:

The appeal will be allowed and the case remitted to the High Court of Bombay with a direction to the Court to dispose of the appellant's application in the light of the observations made in our judgment.

2. At the further hearing, the High Court by a majority, has referred the case back to this Court, with a request that it

will be so good as to comply with the terms of Section 209(1), Government of India Act, and make a declaration as to the order which is to be substituted for the order appealed against.

3. It does not appear from the order of the High Court whether this reference was rendered necessary by any objections or arguments urged on behalf of the parties. The parties were however notified of the hearing of this reference. The Advocate-General of India has appeared on behalf of the Government of Bombay. He argues that as the case is pending before this Court on this date, the Court must take note of events that have happened since 22nd April when its order was made and in particular of the promulgation of ordinance No. 14 of 1948 on 28th April. The reference is not before us under any provision of law but only out of a desire of the learned Judges of the High Court to be more clearly informed as to the meaning and effect of our order of 22nd April. This is all that we propose to do and we are entitled to do and our present order will speak only as on 22nd April 1943.

4. This Court did not anticipate that the learned Judges would have felt so much difficulty in apprehending the meaning or effect of this Court's order having regard to the nature of the proceedings before them. This Court did not direct what final order should be passed in the case, because it could not be done at that stage. Exception has been taken by the learned Chief Justice to this Court basing its decision on a "point not pleaded, argued or decided in the lower Court nor raised in the memorandum of appeal," but raised by this Court itself when the respondent was arguing. As this course deprived the High Court of the opportunity of stating its reasons against the view adopted by this Court and as the reasons given by this Court seemed to the learned Chief Justice "unconvincing," he has taken "the opportunity provided by this reference to repair the omission from the original judgment" and to put on record the view on which the High Court acted. This Court could not be expected to go back upon its original judgment at this stage and the remarks of the learned Chief Justice could obviously have not been intended for this Court. This inference is strengthened by his observation in another par