1. MAKHAN SINGH V STATE OF PUNJAB Factual Matrix There are 26 criminal appeals in this case.

Nine of these appeals have been preferred against the decisions of the Punjab High Court, whereas seventeen have been preferred against the decisions of the Bombay High Court. All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance, 1962 (No. 4 of 1962) (hereinafter called the Ordinance).

They applied to the Punjab and the Bombay High Courts respectively under section 491 (1)(b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act, 1962 (No. 51 of 1962) (hereinafter called 'the Act ') and Rule 30(1)(b) under which they have been detained are constitutionally invalid, because they contravene their fundamental rights under Articles 14, 21 and 22(4), (5) & (7) of the Constitution. Therefore they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty.

High Courts have dismissed the appeals on the ground that the Presidential Order which has been issued under Art. 359 of the Constitution creates a bar which precludes them from moving the High Court under s. 491(1)(b) Cr. P. C.

Therefore the questions before this court are:1. What is the true scope and effect of the Presidential Order which has been issued under Art. 359(1)? 2. Does the bar created by the Presidential Order issued under Art. 359(1) operate in respect of applications made by detenues under section 491(1)(b) of the Code ?

Background of issuing presidential referential order:-

On the 8th September, 1962, the Chinese aggressive attacked the northern border of India and that constituted a threat to the security of India. That is why on the 26 the October 1962, the President issued a proclamation under Art. 352 of the Constitution. This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression. On the same day, the Ordinance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3, 1962. On this day, the President issued the Order under Art. 359(1),suspending the rights of citizens to move any Court for the enforcement of the rights conferred by Art. 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26, 1962 would be in force.