WALI ULLAH, J. - (1.) THIS is an application under Section 491, Criminal Procedure Code The applicant, Sir Gulab Singh, is the ex -Maharaja, Rewa State. The Rewa State acceded to the Indian Union in August 1947. On 20th May 1948, the Governor -General passed an order addressed to the Superintendent of Police, Dehra Dun. It is an order passed under the provisions of the Bengal State Prisoners Regulation, 1818, as adapted by the Bengal State Prisoners Regulation (Adaptation) Order, 1947, promulgated on 26th August 1947, and directs that Sir Gulab Singh, the applicant, shall be placed under personal restraint at No. 10, Dolialwala, Dehra Dun, and be dealt with in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulations, 1818. In pursuance of this order -the warrant of commitment the applicant is being kept in personal restraint at Dehra Dun. By means of this application, it is prayed that the applicant may be set at liberty inasmuch as his detention is contrary to law.
(2.) IN the application many grounds were set out for attacking the order of detention, but, in the course of arguments, only one main point has been urged. It is to the effect that the new provisions of the Bengal State Prisoners Regulation, 1818, under which the order of detention hag been passed, were introduced into the old Regulation as it stood prior to 15th August 1947, by means of the Bengal State Prisoners Regulation (Adaptation Order), 1947, passed on 26th August 1947. According to the contention of the learned counsel for the applicant, this Adaptation Order made by the Governor -General was a nullity inasmuch as the Governor -General had no power to introduce the relevant provisions into the Regulation on 26th August 1947. It may be noted here that sub sections (3) of Section 491, Criminal Procedure Code, inter alia, provides that nothing in the section applies to persons detained under the Bengal State Prisoners Regulation, 1818. It is obvious, therefore, that if the order of detention of the applicant is covered by the provisions of the Bengal State Prisoners Regulation, this Court will have no power to interfere with it in these proceedings.
(3.) THE crucial question in the case is whether the Bengal State Prisoners Regulation (Adaptation Order), 1947, of 26th August 1947, (hereinafter referred to as the impugned adaptation order) is ultra vires of the powers of the Governor -General. This Adaptation Order purports to have been made "In exercise of the powers conferred on the Governor -General by Section 9, Indian Independence Act, 1947, and of all other powers enabling him in that behalf." Article 1 (2) of the Order provides that it is to take effect from 15th August 1947, Article 2 introduces many 'adaptations' into the various sections as well as the appendix of the Regulation of 1818. In substance, for the words 'the discharge of the functions of the Crown in it relations with Indian States' wherever they occur, the words 'relations with acceding States' or words 'reasons of State connected with relations with acceding States ..." have been substituted. Lastly, Article 3, Adaptation Order declares that this Adaptation Order, i. e,. the Adaptation Order dated 26th August 1947, shall have effect notwithstanding anything to the contrary contained in the India (Adaptation of Existing Indian Laws) Order, 1947, dated 14th August 1947. In order to appreciate the contentions of the learned counsel, it is necessary, first of all, to refer to the relevant provisions of the Indian Independence Act. This Act was passed by British Parliament on 18th July 1947. The main object of it was to set up two independent dominions with Sovereign powers. Section 2 of the Act, which deals with the territories of the two dominions, in sub clause (4), lays down : "Without prejudice to the generality of the provisions of sub sections (3) of this section, nothing in this section shall be construed as preventing the accession of Indian States to either of the new Dominions." Section 7 deals with the consequences of the setting up of the new Dominions. In effect, it provides that the paramountcy over Indian States would lapse and along with it the suzerainty of His Majesty together with all obligations of His Majesty towards the Indian States shall cease. It is also provided that treaties and agreements in force at the date of the passing of this Act shall lapse. It was, however, provided that agreements relating to customs, transit and communications, posts and telegraphs etc., shall continue until such agreements are denounced by the ruler of the Indian State or by the Dominion or Province concerned. Section 8, sub clause (2) inter alia provides : "Except in so far as other provision is made by or in accordance with the law made by the Constituent Assembly of the Dominion under sub sections (1) of this section, each of the new Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor -General under the next succeeding section, have effect accordingly." Section 9, inter alia, provides : "The Governor -General shall by order make such provision as appears to him to be necessary or expedient - (a) for bringing the provisions of this Act into effective operation ; * * * * * (o) for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935, and the Orders in Council, rules and other instruments made thereunder, in their application to the separate new Dominions ; (d) for removing difficulties arising in connection with the transition to the provisions of this Act." Sub -section (3) of Section 9 provides in effect that Section 9 shall have retrospective effect and shall be deemed to have come into effect on 3rd June 1947, and any order of the Governor -General or any Governor made on or after that date as to any matter shall have effect accordingly. Sub -section (5) in effect provides that the Governor -General may exercise the powers conferred upon him till 31st March 1948, or such earlier date as may be determined in the case of either Dominion by any law of the Legislature of that Dominion.;