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Malhari Bamaji Chikate v. Imperator
Factual and Procedural Background
This application concerns whether a detenue can seek a review of an order already made under Section 491 of the Criminal Procedure Code (CrPC), specifically whether successive applications for a writ of habeas corpus can be made on behalf of a detenue. The initial application on behalf of the detenue was dismissed by Mr. Justice Rajadhyaksha and Mr. Justice Jahagirdar on October 9, 1947.
Legal Issues Presented
- Whether it is permissible for a detenue to request a review of an order already made under Section 491 of the Criminal Procedure Code.
- Whether successive applications for a writ of habeas corpus can be made on behalf of a detenue under the current statutory framework.
Arguments of the Parties
Applicant's Arguments
- Mr. Patel contended that an exception should be made for orders under Section 491 because such orders involve the liberty of the subject.
The opinion does not detail arguments from the opposing party.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Haidari Begam v. Jawad Ali Shah | Common law practice permitting successive identical habeas corpus applications is not applicable under Section 491 of the CrPC. | The court relied on this precedent to support the position that the High Court's power is limited to what is conferred by Section 491 and does not include common law writ powers. |
| Kishori Lal v. The Crown | Successive applications on the same facts under Section 491 are barred as they amount to review, which is prohibited by Section 369 of the CrPC. | The court agreed with this precedent, affirming that common law principles do not apply and that the Criminal Procedure Code governs the matter exclusively. |
Court's Reasoning and Analysis
The court began by recognizing that the Indian courts no longer possess the common law jurisdiction to issue writs of habeas corpus as exercised in England. Instead, their powers are governed strictly by Section 491 of the Criminal Procedure Code. Section 369 of the Code prohibits altering or reviewing any court judgment once signed, except to correct clerical errors, unless otherwise provided by law. The court found no provision in the Code or any other law permitting review of an order made under Section 491.
Despite the applicant’s argument emphasizing the liberty interest involved, the court held that orders under Section 491 do not enjoy any special sanctity beyond that of other orders under the Code. The court aligned itself with the reasoning of the Allahabad and Lahore High Courts, which have rejected the applicability of common law writ practices and successive identical applications under Section 491.
Specifically, the court cited the Allahabad High Court’s decision in Haidari Begam v. Jawad Ali Shah and the Lahore High Court’s ruling in Kishori Lal v. The Crown, both of which emphasize that the power to issue habeas corpus writs is statutory and limited, and successive applications on the same facts amount to impermissible review barred by Section 369.
Consequently, the court concluded that an order once made under Section 491 is final and not open to review or successive identical applications.
Holding and Implications
DISCHARGED
The court discharged the rule, holding that an order made under Section 491 of the Criminal Procedure Code cannot be reviewed and successive applications for habeas corpus on the same facts are barred. This decision directly affects the parties by denying the applicant’s request for review and clarifies that the statutory regime under the CrPC supersedes common law writ practices. No new precedent beyond reaffirming existing authority was established.
Chagla, A.C.J:—
This application raises a further question whether it is open to a detenue to ask for a review of an order already made under s. 491, or in other words whether successive applications can be made for a writ of habeas corpus on behalf of a detenue. The application on behalf of this detenue was dismissed by Mr. Justice Rajadhyaksha and Mr. Justice Jahagirdar on October 9, 1947.
It is now well established that the Courts in India have no longer the jurisdiction to issue the common law writ of habeas corpus and to exercise the powers which the Courts in England exercise. The powers of the Courts are now controlled and circumscribed by s. 491 of the Criminal Procedure Code which has taken the place of the old common law writ of habeas corpus. If that be so, then we must look to the Criminal Procedure Code for the procedure to be followed once an order is made under s. 491.
Section 369 of the Code contains a prohibition against altering or reviewing a judgment of the Court once it is signed, except to correct a clerical error, unless it is otherwise provided by the Code or by any other law for the time being in force. Our attention has not been drawn to any provision in the Code or to any other law which permits the Court to review an order once made under s. 491. Mr. Patel has contended that an exception should be made in the case of orders under s. 491 because they involve the liberty of the subject. Anxious as we may be to do nothing which would impair or curtail that liberty, we do not find that the law attaches any greater sanctity to an order made under s. 491 of the Code than any other order under any other provision of that Code. The same view of the law has been taken by both the Allahabad and the Lahore High Courts. In Haidari Begam v. Jawad Ali Shah, a division bench of that Court consisting of Mr. Justice King and Mr. Justice Collister held that the common law practice of English Courts, permitting successive identical applications for a writ of habeas corpus to be made to the Judges, one after another, of the High Court of Justice, is not applicable to the High Court of Allahabad in the case of applications under s. 491 of the Criminal Procedure Code. It is true that in the judgment the learned Judges relied on a rule framed by that Court which prohibited applications to the same effect being presented to any Judge after having been disposed of by one Judge. But the decision is also based on the broad principle that the High Court had not the common law right of issuing a writ of habeas corpus but has only the power which was conferred upon it by s. 491 of the code.
In the Lahore High Court in Kishori Lal v. The Crown in the first instance it was sought to be argued that a Letters Patent Appeal lay under cl. 10 of the Letters Patent from the decision of a single Judge rejecting an application under s. 491. That argument was rejected by the bench. Then it was sought to be argued that there was a right of successive applications to different Judges. That contention was also negatived on the ground that the entertaining of a second application on the same facts would amount to a review of the earlier judgment and would be clearly barred by s. 369. It was emphasised that the common law was no longer applicable and that the relief claimed was solely available under the Criminal Procedure Code and the matters at issue must be decided according to the provisions of that Code. With respect, we agree with the view taken by the Allahabad and the Lahore High Courts and we are therefore of the opinion that an order once made under s. 491 is not open to review.
We therefore discharge the rule.
Rule discharged.
J.G.R
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