JUDGMENT Misra and Madeley, JJ. - This is an application u/s 491 Cr. P. C. submitted to this Court by Lakshman Prasad bharma from the District Jail, Fyzabad. He alleges that he is being illegally detained by the jail, authorities and prays that he may be ordered to be released. The applicant is a resident of Sikandrabad in the district of Bulandshahr. 2. In the beginning of 1942 he was in Bombay when under clauses (d) and (e) of rule 26 of Defence of India Rules framed under-~Section 2 of the Defence of India Act he was called upon by an order of the Central Government to proceed from Bombay and remain within the town of Sikandrabad, to report himself in the first instance to the Superintend of Police Bulandshahr on arrival, and thereafter to report his presence at weekly internals at police station Sikandrabad. Lakshman Prasad alleges that he reached Sikandrabad in compliance with the aforesaid order, but that on June 2, 1942, he was convicted and sentenced to a term of two years R. I. and a fine of Rs. 500 for breach of the order. It is said that after serving the sentence and allowing for remission earned by him for good work and conduct he was due to be relased on January 27, 1944. We gather from certain papers filed by the Government Advocate that on 14th January, 1944, the Provincial Government being satisfied that in order to prevent the applicant from acting in a manner prejudicial to the efficient prosecution of the war, to the defence of British India, or to the public order, found it necessary to detain the applicant and passed an order, No. 295 C. X., in exercise of the powers conferred on it by clause (b) of Sub-rule (1) of rule 26 of the Defence of India Rules, directing that he be detained in the custody of the Superintendent District Jail, Fyzabad, until further orders. On the expiry of a period of six months from the date of the above order while the applicant was still in custody, His Excellency the Governor in exercise of the powers conferred by the proviso to Section 9 of the Restriction and Detention Ordinance 1944 (III of:-1944) after a further consideration of all the circumstances of the case directed that under clause (b) of sub-Section (1) of Section 3 of the aforementioned Ordinance the detention of the applicant be continued. Both these orders were signed by the Home Secretary to the U. P. Government, and their true copies are before us. By a communication dated December 23, 1944, made u/s 7 of the Ordinance (III of 1944) the detenue was informed of the ground for his detention. This was that he actively supported and helped the underground organisation of the mass movement sanctioned by the Congress in the resolution of August 8, 1942, which resolution was calculated to impede the successful prosecution of the war. It was intimated to him that he had a right to make a representation in writing through the Superintendent of Jail if he so desired. The petitioner alleges that he has not so far been served either with the actual order of further detention under the Ordinance or with the communication u/s 7 and that his detention by the Superintendent of the District Jail Fyzabad is unlawful. 3. The only question which we have to consider at this stage arises out of a preliminary objection that the application u/s 491 Cr. P. C. is incompetent in view of Section 10 (1) of Ordinance III of 1944. In support of the objection the learned Government Advocate has cited AIR 1944 142 (Lahore) and Jatindra Gupta v. Emperor A I R 1944 Cal 384. In the former of these case1! it was laid down by a Full Bench of the Lahore High Court that The ordinance deprives the High Court of jurisdiction to consider applications u/s 491, Cr. P. C, in respect of orders of detention under rule 26, Defence of India Rules, having effect by virtue of Section ,6 of the Ordinance as if they had been made under the Ordinance even though those applications were pending before the High Court when the Ordinance came into force. 4. P. C, in respect of orders of detention under rule 26, Defence of India Rules, having effect by virtue of Section ,6 of the Ordinance as if they had been made under the Ordinance even though those applications were pending before the High Court when the Ordinance came into force. 4. In the Calcutta case a Division Bench of that Court was of opinion that Section 10, clause 1, of the Ordinance is valid and is not beyond the powers of the Governor General. Even assuming that the cutting down of the) powers of the High Court by Section 10 (2) amounts to cutting down of the powers of the Crown in its relation to the administration of justice it cannot be said to affect the sovereignty or dominion or suzerainty of the Crown. 5. The clause therefore the learned Judges went on to say, cannot be said to be contrary to the provisions of Section 110 of the Government of India Act. It will be observed that none of these decisions dealt directly with clause 1 of Section 10 of the Ordinance. In so far as by implication they decided that by virtue of that clause the jurisdiction of the High Court u/s 491 Cr. P. C. is repealed they must be taken to have been overruled by the subsequent decisions of the Federal Court to which we will here- after refer. 6. Before we do so, we would like to relate briefly the events which led to the passing of the Restriction and Detention Ordinance 1944 (III of 1944). By rule 26 of the rules framed u/s 2 of the Defence of India Act, 1939, the Central Government and the Provincial Government, were empowered to make certain orders including detention of. any particular person, if they were satisfied that such orders were necessary in order to prevent him from acting in a manner pre- judicial to the defence of British India, the public safety, the maintenance of public order, the relations of His Majesty with" foreign powers or Indian States, the maintenance of peaceful conditions in the tribal areas or the efficient prosecution of the war. Section 16 of the Defence of India Act provided that no order made in exercise of any power conferred by or under the Act shall be called in question in any Court. Section 16 of the Defence of India Act provided that no order made in exercise of any power conferred by or under the Act shall be called in question in any Court. The legality of the rule and the interpretation of Section 16, clause (1) had to be considered by the Federal Court in 1943 and the opinion which their Lord- ships arrived at was that Section 16 (1) bad no application where an order was made under or by virtue of a rule which was alleged to be invalid and it was therefore devoid of efficacy. It was held that the form in which rule 26 stood transgressed the rule making power conferred on the Central Go eminent by Section 2 of the Act, and it was therefore ultra vires vide AIR 1943 1 (Federal Court) . This decision was pronounced on 22nd April, 1943, and within a week of it the Governor General, acting in the exercise of powers conferred by Section 72 of the Government of India Act ( 26 Geo. 5, c. 2) as set out in the 5th Schedule, promulgated a fresh ordinance known as Defence of India (Amendment) Ordinance (XIV of 1943) making certain substitutions in place of the previous clause 10 of sub-Section 2 of Section 2 of the Defence of India Act in order to remove all doubts regarding the validity of the rules framed under that clause: It was enacted that no order hereto made against any person under rule 26 of Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of those that might at the time the said rule was made "be lawfully conferred by the rule made or defined to have been made u/s 2 of the Act. This ordinance also fell to be considered by the Federal Court of India. In AIR 1943 75 (Federal Court) , their Lord- ships were called upon to consider the validity of the ordinance and the expressed a doubt regarding the provisions by which the substitution of a new clause in place of clause 10 was affected. As regards the clause by which the previous orders under rule 26 bad been given retrospective validity it was found to be within the ordinance making power of the Governor General. As regards the clause by which the previous orders under rule 26 bad been given retrospective validity it was found to be within the ordinance making power of the Governor General. In course of their judgment their Lordships apparently gave their tacit approval to the proposition that the Court could not investigate the sufficiency of the material or the reasonableness of the grounds upon which the Governor had been satisfied in passing the order under rule 26 but they definitely laid down that whenever powers ,of this kind or indeed other special statutory powers are conferred, they must, to the extent to which specific provisions bid been made in the statute conferring the powers, be exercised by the authority arid in the manner specified in the statute and in the strict conformity with the provisions thereof. 7. Varadachariar and Zafrullah Khan also held that In the absence of a delegation made u/s 2 (5), Defence of India Act, the authority to be satisfied under rule 26 must be the Governor. It does not mean the .Governor or officers subordinate to him u/s 49 (I) Constitution Act, or the authority or officers to whom this function may have been allotted by Rules of Business framed in accordance with Section 59 (3) of the Act. The executive action or authority dealt with in Sections 49 and 59 must relate to matters with respect to which the Legislature of the province has power to make laws. 8. The decision of the Federal Court in Sibnath Banerjee's case was followed by the Restriction and Detention Ordinance III of 1944 whereby the detention can take place by force of the ordinance itself. The detenue is given a chance of making a representation to certain authorities, the latter being vested with a power of review. Sections 6 and 10 of the Ordinance provide Section 6 (1). No order made before the commencement of this Ordinance under rule 26 of the Defence of India Rules shall after such commencement be deemed to invalid or be called in question on the ground merely that the said rule purported to confer power in excess of the powers that might at the time the said order was made be legally conferred by a rule made u/s 2 of the Defence of India Ordinance, ' 1939, (V of 1939) or u/s 2 of the Defence of. India Act, 1939 (XXXV of 1939) (2) Every such order shall on the commencement of this Ordinance be deemed to have been and shall have effect-as if it had been made under this Ordinance and as if this Ordinance had been in force at the time the order was made: Provided that Section 7 and Section 9 of this Ordinance shall apply in relation to any order made under clause (b) of sub-rule (1) of rule 26 of the Defence of India Rules as if that order had been made on the d the of the commencement of this Ordinance, and Section 8 of this Ordinance shall not apply to any such order. (3) Nothing in the foregoing provisions of this section shall apply to any such order which has already been cancelled by or in consequence of an order of a competent Court* Provided that any such cancellation shall not prevent the making under this Ordinance of a fresh order to the same effect as the order can- celled." Section 10 (1). No order made under this Ordinance and no order having effect by virtue of Section 6 as if it had been made under this Ordinance shall be called in question in any Court, and no Court shall have power to make any order u/s 491 of the Code of Criminal Procedure, 1898 (V of 1898) in respect of any order made under or having effect under this Ordinance, or in respect of any person the subject of such an order. (2) If at the commencement of this Ordinance there is pending in any Court any proceeding by which the validity of an order having ' effect by virtue of Section 6 as if it had been, made under this Ordinance is called in question, that proceeding is hereby discharged. (3) Where an order purports to have been made by -.any authority in exercise pf any power conferred by or under this Ordinance the Court shall within the meaning of the Indian Evidence Act, 1872 (1 of 1873) presume that such order was so made by that authority. 9. The argument in support of the preliminary objection depends upon the interpretation of clause 1 of Section 10. 10. 9. The argument in support of the preliminary objection depends upon the interpretation of clause 1 of Section 10. 10. In AIR 1944 86 (Federal Court) , their Lordships of the Federal Court had to consider the effect of Sections 6 and 10 and to decide about the validity of the ordinance or at least some of its provisions including Section 10. It was urged that the latter Section was beyond the ordinance making power of the Governor General on the ground amongst others that-it could not operate to repeal Section 491 Cr. P. C. On the arguments the conclusion that was reached by their Lordships was that Section 10 did not purport to repeal Section 491 Cr. P. C. They held that all it did "is to interdict the High Court from exercising that power of jurisdiction in a certain class of cases". In examining the provisions of the Ordinance it was pointed out that clauses 1 and 3 of Section 10 have not introduced any new principle of immunity. The following observations contained in the judgment of the Federal Court in Basanta Chandra Ghose v. Emperor5, delivered by Sir Patrick Spens, C. J. is conclusive for disposing of the preliminary objection in the case before us Except for the reference to Section 491 Cr. P- C they only re-enact clauses (1) and (2) of Section 16, Defence of India Act, and they had to be so re-enacted because all future orders of detention would be made under the Ordinance itself and could not therefore attract the benefit of Section 16 Defence of India Act. The verbal change effected by the omissions of the words 'and signed' found in, Section 16 (2) of the Act is. explained by the inappropriateness of that requirement in the case of orders purporting to be passed by a "Governor' because u/s 69 Constitution Act such an order is. not 'signed' by the Governor. It is material to note that while clause (3) of Section 10 of the Ordinance enacts a presumption in favour of any order purporting to have been made by any authority etc. not 'signed' by the Governor. It is material to note that while clause (3) of Section 10 of the Ordinance enacts a presumption in favour of any order purporting to have been made by any authority etc. clause (i) of Section 10 and clause (I) of Section 6 which is imported into clause (2) of Section 6 refer only to an order made and do not include orders 'purporting to be made.' The same distinction was made in' clauses (1) and (2) of Section 16 Defence of India Act (35 of 1939). The circumstances that even in the new Ordinance the presumption is laid down in clause 3 of Section 10 only as a rebuttable presumption is significant. Such a presumption can be rebutted; but it would be meaningless to allow it to be rebutted if, by reason of clause (1) of the same section, the party is not to get any relief even after rebutting the presumption. The addition in clause (1) of Section 10 of the words which preclude the exercise of the power u/s 491 Cr. P. C. involves no change in the legal position. That part of the clause is only consequential upon and must be held . to be co-extensive in operation with the preceding part of the clause. Its scope is also limited by the repetition of the words any order having effect under this Ordinance. In our judgment no further curtailment of the power of the Court to investigate and interfers with orders for detention has been imposed by Ordinance 3 of 1944. The Court is and will be still at liberty to investigate whether an order purporting to have been made under rule 26 and now deemed to be made under Ordinance 3 of a new order purporting to be made under Ordinance 3 was in fact validly made, in exactly the same way as immediately before the promulgation of the Ordinance. If on consideration the Court comes to the conclusion that it was not validly made on any of the grounds indicated in any of the long line of decisions in England and this country on the subject,' other than the ground that rule 26 was ultra vires, Section 10 of Ordinance 3 will no more prevent it from so finding than Section 16, Defence of India Act, did. Such an invalid order, though purporting to be an order will not in fact be an "order made under this Ordinance" or having effect by virtue of Section 6 as if made under this Ordinance at all for the purposes of Section 10. We are accordingly of the opinion that the learned Judges who pronounced the main judgment (in Criminal Misc. Cases Nos. 60/43 and 204/43) erred in holding that the new. Ordinance has taken away the power of the High Court to pass any orders u/s 491, Cr. P, C. and that the proceedings must be treated as discharged under the provisions of Section 10 (2) of the Ordinance. 11. As the learned Judges of the Patna High Court had held in Basant Kumar's case that they were deprived by the Ordinance of the power to pass any order u/s 491, Cr. P. C. the case was remitted for disposal on merits in the light of the observations of the Federal Court as to the nature of the powers. When the case went back a fresh order was passed by His Excellency the Governor of Bihar purporting to be under the same ordinance. The bona fides of this subsequent order as also questioned but the contention was determined by a Full Bench of the Patna High Court against the detenues vide Basanta Chandra Ghosh and Others Vs. Emperor, AIR 1945 Patna 44 . The matter was again taken up to the Federal Court and we may use- fully reproduce the following observations of Sir Patrick Spons, C. J, who delivered the judgment of that Court vide Basanta Chandra Ghosh v. The King-Emperor 8 FLJ 40. It was no doubt open to the. detenue to show that the order was not in fact made by the Governor of Bihar or that it was a fraudulent, exercise of the power. The observations in Liversidge v. Anderson, (1942 A. C 206) and Green v. Secretary of State for Home Affairs, (1942 A. C. 284) establish that the burden of substantiating these pleas ties on the detenue. In the words of Viscount Maugham once the order is proved or admitted " it must be taken prima facie, that is until the contrary is proved to have been properly made and that the requisite as to the belief of the Secretary of State (here, the Governor) was complied with. 12. In the words of Viscount Maugham once the order is proved or admitted " it must be taken prima facie, that is until the contrary is proved to have been properly made and that the requisite as to the belief of the Secretary of State (here, the Governor) was complied with. 12. It is said on behalf, of Lakshman Prasad Sharma applicant that the order No. 3720 C. X. passed by His" Excellency the Governor under Restriction and Detention Ordinance 1944 (III of 1944) was passed malafide and that he 'desired to produce proof in that behalf. By Section 212 of the Government of India Act the law declared by the Federal Court is binding on all Courts in India, and we must hold that Section 10 of Ordinance III of 1944 does not preclude this Court from considering the petition upon any of the grounds indicated therein including the one which is , now taken on behalf of the applicant. 13. The preliminary objection must therefore fail. Let a date be fixed for hearing of the petition. A separate date shall be fixed for filing documents before the Deputy Registrar.