JUDGMENT
Weston, J.
1. This is-an application under S. 491, Criminal P. 0., 189S, made on behalf of Eana Birpal Singh who is now under detention in the Central Mental Hospital) Yeravda. Birpal Singh was the Ruler of Bhajji, one of the Simla Hill States, for a number of years up to the year 1940, and it is claimed that thereafter he continued de jure to be the Ruler of that State, In September 1940 he was detained in the Bipon Hospital, Simla, undec warrant bearing the signature of an Additional Secretary to the Government of India, issued under the Bengal State Prisoners Regulation, 1818. Since that time he has remained under detention, In the year 1941 he was removed from Simla to the Mental Hospital at Lahore under a further warrant issued under the same Regulation, and in that year an Ordinance was promulgated to remove doubts as to the validity of the detention in Mental Hospitals of persons on warrants issued under the Bengal State Prisoners Regulation. In the year 1943, a habeas corpus application was preferred to the Lahore High Court by or on behalf of Birpal Singh, but the High Court and the Federal Court in appeal declined to interfere. In consequence of certain observations made by the Lahore High Court as to the desirability of transferring Birpal Singh to a more congenial climate, he was transferred to the Central Mental Hospital, Yeravda, by war-rant dated 21st January 1940, also under the Bengal State Prisoners Regulation, 1813, and addressed to the Superintendent of that Hospital. Since then he has remained there, and his present detention is claimed on behalf of the Government to be justified by the warrant of 21st January 1946. We understand that prior to 15th August 1947, two applications were preferred to this Court by Birpal Singh himself which were summarily rejected.
2. It is now urged on behalf of Birpal Singh that by reason of the constitutional changes which took place in August 1947 the warrant under which he is being detained has ceased to have effect and that his detention is sow illegal, [8] The warrant of 2lst January 1946, is in the following terms:
Whereas the Governor-General in Council, for good and sufficient reasons, being reasons connected with the discharge of the functions of the Grown in ita relations with Indian States, has seen fit to determine that Birpal Singh, ox-Rana of Bhajji, shall be placed under ‘personal restraint at the Central Mental Hospital, Yervada, Poona, you are hereby required and commanded, in pursuance of that determination, to receive the person abovenamed into your custody, and to deal with him in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulation, 1818.
4. Under 8. 1, which is the preamble, of the Bengal State Prisoners Regulation, 1818, as it stood when the warrant with which we are concerned was issued, the very exceptional powers of detention provided by the Regulation were exereisable:
For reasons of State, embracing the due maintenance of the alliances formed b; the British Government with foreign powers, the preservation of tranquillity in territories of Native Princes entitled to its protection and the security of the British dominions from foreign hostility and from internal commotion.
5. Section 2 sets out that the detention, or personal restraint as it is termed, shall be by warrant of commitment issued by the Government to the officer in whose custody such person is to be placed, and provides that the warrant shall be in one of the forms, set out in the Appendix to this Regulation, which is appropriate to the case. Two forms of warrant are set out in the Appendix, The first reads as follows;
Forms of commitment for reasons connected with defence, external affairs, or the’ discharge of the functions of the Crown in its relations with Indian States.
To the (hare insert the officer’s designation).
Whereas the (Governor-General in Council)(Governor-General)(omit the inappropriate words) for good and sufficient reasons being reasons connected with (defence, external aSairs, and the discharge of the functions of the Crown in its relations with Indian States)(omit any inappropriate words) has seen (it to determine that (here insert the State prisoner’s name) shall be placed under personal restraint at (here insert the name of the place) you are hereby required and commanded in pursuance of that determination to receive the person abovenamed into your custody and to deal with him in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulation, 1818,
The second form of warrant is to be used when the “good and sufficient reasons,” are reasons connected with the maintenance of the public order, and issue of this form of warrant could also be made by or under the order of the Governor of a Provinoe.
6. The warrant of 2lst January 1946, was in the first form, and the basis of the warrant was the third of the ‘good and sufficient reasons’ which could justify such a warrant being issued, namely, reasons connected with the discharge of the functions of the Crown in ita relations with Indian States.
7. There can be no doubt that this was a legal and valid warrant at the time it was issued, and in any event by reason of the decision of the Federal Court, Birpal Singh of Bhajji State v. Emperor A.I.R. (33) 1946 F. C. R : (47 cr. L, J. 588)i no exception could now be taken to its initial validity. But equally there can be no doubt that from 15th August 1947, the basis of the warrant, the reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has ceased to have any existence. For this it is sufficient to refer to Section 7, Indian Independence Act, without setting it out at length, While certain relations between the Dominion of India and the Indian States have come into being after 15th August 1947, those relations are in no way a continuation or delegation of the former relations of the Crown with Indian States. Paramountcy lapsed. It was not transferred to the Dominion.
8. On 14th August 1947, the Governor-General, in exercise of the powers conferred by Section 9 (l), Indian Independence Act, made an order styled: The India (Adaptation of Existing Indian Laws) Order, 1947. It is convenient to set out here certain articles of that Order, namely, Articles 3, 7 and is. Article 3 reads as follows:
As from the appointed day, all existing Indian laws shall until repealed or altered ot amended by a competent legislature or other competent authority, in their application to the Dominion of India and any part or parts thereof, be subject to the adaptations directed in this Order,
Article 7 is as follows:
Any reference in an existing Indian law to the –exercise of the funotions of the Grown in its relation with Indian States (including any provision the operation of which depends on the exercise of such functions) shall be omitted, and references in any such law to the Grown Representative shall be omitted or construed as -reference to the Central Government ag the context may require.
Article 12 provides:
The provisions of this Order shall not render invalid anything duly done before the appointed day .under an existing Indian law, and anything be done for British India or for parta thereof including territories thereafter included in the Dominion of India shall, as from the appointed day and until altered, varied or undone, have effect as if it had been done after the appointed day for the whole of the Dominion of India or, as the case may be, for such territories thereof &9 aforesaid, by a competent authority and under and in accordance with the provisions then applicable to the case.
No adaptation of the Bengal State Prisoners Regulation, 1818, was made in express terms by this Order.
9. On 26th August 1947, the Governor. General in exercise of the same powers under B. 9, Independence Act, made a further Order styled: The Bengal State Prisoners Regulation (Adaptation) Order, 1947. This Order is expressed to have effect from 15th August 1947. The material alterations made are that for the words in s. l of the Regulation, set out earlier in this judgment, beginning with “for reasons of State” and ending with “internal commotion” were substituted the words “for reasons of State connected with defence, external affairs or relations with Acceding States or with the maintenance of public order,” and for the words “the discharge of the functions of the Crown in its relations with Indian States” wherever they occurred including in the Appendix were substituted the words “relations with Acceding States.” ,….
10. Article 3 of this Order states that the provisions of this Order shall have effect notwithstanding anything to the contrary contained in the India (Adaptation of Existing Indian Laws) Order, 1947, and this seems to me to have been made to avoid any difficulty of interpretation by reason of the fact that by Article 7 of the earlier Order all references in existing Indian laws to the exercise of the functions of the Crown in its relation with Indian States have been directed to be omitted. No provision is made in the later Order for the continuing validity of warrants issued under the Bengal State Prisoners Regulation, 1818, prior to 16th August 1947. It is convenient to tabulate the reasons of State by which detention under the Regulation was justified before and after the adaptation by the Order of 26th August 1947.
Reasons of State before the Adaptation.
Connected with defence.
Connected with external affairs.
Connected with the discharge of functions of the Grown in its relation with Indian States.
Connected with the maintenance of public order. Reasons of State after the Adaptation.
Connected with defence.
Connected with external affairs.
Connected with relations with acceding States.
Connected with the maintenance of public order.
Three of the four seta of reasons have remained unaffected. The third set of reasons under the Regulation as it stood prior to 15th August 1947, namely, reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has been replaced by reasons connected with relations with acceding States.
11. If the warrant in the present instance had been issued under any of the three reasons which are common to the Regulation as it stood before and after 15th August 1947, it might be claimed that the warrant remained valid by virtue of Article 12, India (Adaptation of Existing Indian Laws) Order, 1947, notwithstanding the constitutional changes and the adaptations made to the Regulation.
[11a] But the warrant in the present instance was issued for reasons of State which have had no existence after 16th August 1947. It is per. fectly true that other reasons of State have taken their place in the Regulation as it now stands, but these other reasons have no legal relation at all to those stated in the warrant. It may be that Government still consider, for any of the reasons of State provided in the Regulation as it now is, that further detention of Birpal Singh is desirable. If this is so it is for Government to effect his detention by valid warrant under the existing Regulation or other appropriate enactment. Obviously it is not within our provinoe to amend the warrant, nor can it possibly be said that one reason of State has become another because of the amendment to the Regulation. I notice from the copy of the Instrument of Accession which has been filed that Bhajji became an acceding State on 26th September 1947. It would appear, therefore, that between 15th August 1947, and 26tb September 1947, no warrant could have been issued against Birpal Singh under the Regulation for reasons of State connected with the relations with Bhajji as an aooeding State, and this is enough to destroy any argument of continuity of the present warrant beyond 15th August 1917.
12. The learned Government Pleader when opposing this application haa relied upon Sub-section (3) of Section 491, Criminal P; C. The material part of this reads as follows: “Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818.”
13. I am not able to accept that this proviso is a bar to our ascertaining whether a detention is in fact a detention under the Bengal State Prisoners Regulation, 1818. If it is such a detention, then of course the proviso prevents our interference, for, it is well settled that it is by reason alone of Section 491, Criminal P. 0,, that the powers of the High Courts to issue writs of the nature of habeas corpus exist, But whether a detention is or is nob a detention under the Regulation is a matter of substance, and is not concluded by the circumstance that the Regulation is mentioned in the warrant. The Regulation provides that detention may be made for one or more of certain specific reasons, which reason or reasons must be stated in the warrant; and if in a warrant one reason only is stated which is not a reason finding place in the Regulation, then the detention is not a detention under the Regulation at all. That is the position here, The present detention is something entirely outside the Regulation as it now stands, and therefore is not a detention under the Regulation, and the third proviso to Section 491 of the Code is no bar to the exercise of our powers under the section.
14. the rule, therefore, is made absolute. Birpal Singh has now been produced before us, and he must be set at liberty.
15. Chainani J.I agree that the detention of Rana Birpal Singh, ex.Euler of Bhajji, is at present unlawful. He is detained in the Mental Hospital at Poona under a warrant dated 2lst January 1916, issued by the Central Government under 8. s, Bengal State Prisoners Regulation,. 1818. The reasons for detention as given in the warrant are “for reasons connected with the discharge of the functions of the Crown in its relations with Indian States.” At the time when the-warrant was issued, this was one of the grounds for which a person could be detained under the Regulation. On 26th August 1947, the Governor-General, in exercise of the powers conferred by 8. 9, Indian Independence Act, issued the Bengal State Prisoners Regulation (Adaptation) Order, 1917. By this Order, the Bengal State Prisoners Regulation, 1818, was amended, and the words “discharge of the functions of the Crown in its relations with Indian States” wore deleted with retrospective effect from 15th August; 1947. After 15th August 1947, it is therefore not open to Government to detain a person for reasons connected with “the discharge of the functions of the Crown in its relations with. Indian States.” The only reasons for which a person can now be detained are “reasons of State connected with defence, external affairs, or relations with acceding States or with the maintenance of public order.” The detenu in this case is admittedly not detained at present for any of these reasons. There is. also no provi. sion in the Bengal States Prisoners Regulation (Adaptation) Order, 1917, validating the warrants issued before 15th August 1947. There is no saving clause similar to Clause 12, India (Adaptation of Existing Indian Laws) Order, 1947. The warrant under which the detenu is now being detained is, therefore, no longer valid, for such a warrant cannot be issued under the Regulation as adapted by the Order of 26th August 1917.
16. It has been urged by the learned Government Pleader that this Court has no jurisdiction, to pass orders in this matter, in view of the provisions of Sub-section (3) of Section 491, Criminal P. 0. This matter was also raised before the Federal Court in Birpal Singh of Bhajji State v0. Emper or A.I.R. (33) 1916 P. 0. S : (47 Or, L, j, 588) and it has been held by that Court that the jurisdiction of the High Court is ousted, only if the Court is satisfied that “the detenu is a person detained under the Regulation.” The material question for determination therefore is whether the detenu in this case can now be said to be a person detained under the Regulation of 1818, This must obviously be answered in the negative, for the detenu is detained for reasons “connected with the discharge of the functions of the Crown in its delations with Indian States.” The Regulation as amended does not authorise detention for these reasons. The detention at present cannot, therefore, be said to be a detention under the Regulation, as it stands today. We have, therefore, jurisdiction to interfere in this case.
17. The rule is, therefore, made’ absolute. The detenu should be released forthwith.
