Haridas Damaji Awade v. Provincial Government, C.P. And Berar

1. The applicant, Haridas Damaji Awade, is a final LL. B. student in the Univer-sity College of Law, Nagpur. He is an Activ& worker and one of the chief organizers of the Samata Sainik Dal.

2. In exercise of the powers vested under Section 16, Criminal Law Amendment Act, 1908, the Provincial Government, by a notification dated 10th February 1948, declared the said Dal as an unlawful association. By another notification it specified in a schedule the places which are used for the purpose of. unlawful association. Nagpur district was one of the places so mentioned.

3. After I&'said Dal was declared unlawful, the applicant was detained under an order of the District Magistrate, Nagpur, under Section 2(2), Central Provinces and Berar Public Safety Act 1947. The applicant is now detained under an order of detention passed by the Provincial Government on 9th March 1948 under Section 3(l)(a) of the Act. The detention is for a period of six months from 9th March 1948. The Provin-cial Government as-required by Section 5 of the Act served on him the grounds on which the order-was made and gave the necessary particulars which were sufficient, in its opinion, to enable- him to make a representation to the Provincial Government against the order.

4. Awade made an application (Criminal Miscellaneous Case No. 228 of 1948) under 8. 491, Criminal P. C. 1898, for hie release on the ground that the order for his detention was illegal and otherwise improper, The Division Bench consist-ing of Hemeon and Sheode JJ. dismissed the application by the order dated 16th April 1948. It is not necessary to set out the grounds for dismissal.

5. Awade made a second application under Section 491, Criminal P. C, 1898, for his release on 11th June 1948. The application was in respect of the same order of detention, viz., 9th March 1948, passed by the Provincial Government and the ground urged was that once the power of detention had been exercised by the District .Magistrate, Nagpur, under Section 2(a) of the Act, the power was exhausted, and it was no longer open to the Provincial Government to exercise the power .under Section 2(l)(a) of the Act. This was not one of the grounds urged by him in his pre-vious application.

6. Notice of this application was issued to the Provincial Government on 15th June 1948. The Provincial Government filed a return on 26th June 1948 and submitted that the second application under Section 491, Criminal P. C, 1898, in respect of the same order of detention after the dismissal of the first application was not maintainable, that the Provincial Government had an independent power of detention under the Central Provinces and Berar Public Safety Act, 1947, and that the order passed 9th March 1948, was not liable to be challenged on the ground that the power had been exhausted and could not be exercised.

7. Shri B. L. Gupta, the learned Advocate General, appearing on behalf of the Crown raised a preliminary objection, that the second application under section 491 of the code was not ton able because of the order dated 16th April .1918, which was passed in Miscellaneous criminal Case NO. 228 of 1948 on his first application made on 5th April 1948.

8. The learned Counsel for the applicant submitted that the second application was maintainable and that, in any case, it was not barred because it raised the point which was not raised in the earlier application.

9. The question for decision is whether the second application made by the applicant on 11th June 1948 was barred because of the order of dismissal dated 16th April 1948, passed by the Division Bench in Miscellaneous Criminal case NO. 228 of 1948.

10. According to the English common law, an applicant has a right to apply successively to every Court competent to issue a writ of habeas corpus, and each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of co-ordinate jurisdiction, even though the grounds urged are exactly the same. Thus each Judge of the High Court of Justice has jurisdiction to entertain an application for a writ in term time or vacation, and he is be und to hear and determine the application on its merits, notwithstanding that some other Judge has already refused a similar, application: vide, 9th volume of Hals-bury's Laws of England (Hailsham Edition) para. 1289, p, 727; Cox v. Hakes, (1890) 15 A. C. 606,514 : (60L. J. Q. B. 89) and Eshugbayi Eleko v. Nigeria Government {Administering Officer), 1928 A. C. 459 : (A.I.R. (15) 1928 P. C. 300: SO Cr. L. j. 119). The right to make successive applications has been recognised in Australia and Canada. In Eshugbayi Eleko's case (1928 A. C. 459: A.I.R. (15) 1928 P. C. 300: 30 Cr. L. J. 113), it was held that is was applicable to Nigeria also.

11. The law to be applied in connection with appeals from decisions of the High Court, or of a single Judge, on an application for a writ of habeas corpus is well established in England. When a person has been discharged from custody by an order of the High Court under a habeas corpus, the Court of appeal has no jurisdiction to entertain the appeal. No appeal lies from an order of a competent Court for the issue of a writ of habeas corpus where the Court determines the illegality of the applicant's detention and his right to liberty, although the order does not direct his discharge: vide Cox v. Hakes, (1890) is a. c. 506 : (60 l. J. R. B. 89), Secretary of State for Home Affairs v. O'Brien, 1923 A. 0. 603 : (92 Jj. J. K. B. 830) and Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government, 1943 A. G. 147 at 166 : (1942-2 ALL E. E. 381).

12. If, however, the application for the writ of habeas corpus is refused in any criminal cause or matter, no appeal lies. If it is not, an appeal is competent and he who applies unsuccessfully for the issue of the writ may appeal from Court to Court until he reaches the highest tribunal in the land.

13. It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so, the matter is criminal Amand v. Home Secretary and Minister of Defence of Royal Nether' land's Government, 1943 A. C. 147, 166 : (1942-2 ALL B. B. 381).

14. The English common law relating to habeas corpus, however, does not apply to India. It is now well established that a High Court in India has no jurisdiction to issue3h"opmmon",' "law writ of habeas corpus: Miranda Math Saner jee and another v. Birmdra Nath Pal, 64 cal. 727 : ; District Magistrate, Trivandrum v. K. C. Mammen Mappillai and five others I. L R. (1939) Mad. 708 : (A.I.R. (26) 1939 Mad. 120: 40 Cr. L. J 320 P. B.); Matthen and others v. The District Magistrate of Tnvandrum and another, I. L. R (1939) Mad. 744 : (A. I. R. (26) 1989 P. C. 213: 40 Cr. L.J. 676); King Emperor v. Sibnath ~Sdnerji and others, 72 I. A. 241 : (a. i, b. (32) 1946 P. c. 1B6); Haidan Begam v. Jawad Alt Shah, ; Kishori Lai v. The Crown, i. L, B. (1946) Lab 573 and Vimldbai Desh- pande v. Crown, I. L. R. (1945) Nag. 6, at 43 : A.I.R. (32) 1945 Nag. 3). The decision to the \contrary in In re Qovmda, Iyer, 46 Mad. 922 : (A.I.R. (9) 1922 Mad. 499: 23 Cr. L. J. 614 . B.) and Mahomed Alii Allabux v. Ismatlji Abdul- all, 60 be m. 616 : (A.I.R. (13) 1926 bom 832: 37 Cr. L. J. 72l), is not good law because of the two decisions oil the Judicial Committee cited above.

15. The power to issue directions of the nature of habeas corpus is derived from Section 491, Criminal P. C, 1898, which is in these terms:

(1) Any High Court may, whenever it thinks fit, direct

(a) that an; person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this Section.

Sub-section (3) enacts that the section will not apply to persons detained under State Regulations mentioned therein.

16. The power is derived under the statute and not under the English common law and is to be exercised in accordance with the provisions of the section.

17. This Court has not framed rules under Sub section (2) to regulate the procedure in oases under 8. 491. It is open to a High Court in exercise of the rule-making power to make a rule providing for. successive applications. No such rule has been framed by any High Court permitting successive applications under the section.

18. Under the rules of this Court, an application under 8. 491, Criminal P. C 1898. is heard by two Judges of the Division Bench exercising appellate criminal jurisdiction.

19. The learned Counsel for the applicant stressed the word "whenever" in the expression "whenever it thinks fit" in the section and sub mitted that it provides for successive applications and permits a High Court to pass an order under the Section as often as required. The contention of the learned Counsel was that if the applicant satisfies the Court that he is illegally or improperly detained he is entitled to be released, notwithstanding that he was unsuccessful in his previous application.

20. The meanings of the word "whenever"' as given in the Oxford Dictionary are at any time, every time, as often as. The question is whether the word is used in the sense of 'm-often as' in the section.

21. section 491 of the code confers a wide-discretion on a High Court to issue a direction, of the nature of habeas corpus and the word 'whenever' has been used to emphasize that it may be done at any time without any limitation of time, and not in the sense that it maybe exercised as often as it may be required.

21a] In the Code of Criminal Procedure, 1861, there was no provision regarding habeas corpus. In the matter of Ameer Khan, 6 Beng L b. 392, it was held that the Supreme Court had power to issue writs of habeas corpus to persons in the mofussil, and that the same power was continued' to the High Court.

22. Section 81 of the Code of 1872 enabled a--European British subject detainer in custody,, whether within the limits of the High Court's original jurisdiction or outside these limits, to apply for an order for his production. The procedure indicated in the section was in these-terms:

The High Court, if it thinks fit, may. before Issuing such order, enquire, on affidavit or otherwise, into the-grounds on which it is applied for, and grant or refuse Such application; or it may issue the order in the first-instance, and, whan the person applying for it is brought before it, it may make such further order in the case as it thinks fit, after such inquiry as it thinks necessary.

The expression therein used was 'if it thinks fit" in order to show that the High Court bad a discretion in the matter as regards the nature of the order to be passed.

23. Section 82 enacted that neither the High) Courts nor any Judge of such High Courts shall issue any writ of habeas corpus, nor any other writ of tie like nature, beyond the Presidency towns.

24. The Code of 1875 regulated the procedure of the High Courts in the exercise of original criminal jurisdiction. Section 148 dealt with habeas corpus and was in these terms Any of the High Courts of Judicature at Fort William, Madras and Bombay may, whenever it thinks fit, direct

(b) that a person within such limits (ordinary original criminal jurisdiction) be brought up before the Court to be dealt with according to law ;

(c) that a person illegally or improperly detained in public or private custody within such limits be set at liberty.

and neither the High Court nor any Judge thereof shall hereafter issue any writ of habeas corpus for any of above purposes.

The section empowered the High Courts to frame rules to regulate the procedure in cases under the section and till such rulea were framed, the practice of such Courts as to the obtaining, granting and serving of writs of habeas corpus, and as to the returns, were to apply in such oases.

25. The expression 'whenever it thinks fit' was reproduced in the Codes of Criminal Proce-dure which were passed subsequently.

26. The Code of 1882 omitted the prohibition against: the writ of habeas corpus and repealed the Codes of 1872 and 1875, but provided in S. S that it did not restore any jurisdiction or form of procedure not then existing or followed. Section 491 made provisions for issuing directions of the nature of habeas corpus which were substantially the same as in Section 148 with this exception that the power was to be exercised within the limits of its ordinary original civil jurisdiction and not the original criminal jurisdiction.

27. The Criminal Procedure Code of 1898 repealed the Code of 1882, but reproduced Section 491 as it stood in the Code of 1882 and 3. 2 was to the same effect as Section 2 of the earlier Code. Section 2 of the Code of 1898 was repealed by the Amending and Repealing Act of 1914, but the prohibition against the prerogative writs contained in the Code of 1875 still continues by reason of Section 4 of the Amending and Repealing Act of 1914 and Section 6, General Clauses Act of 1897.

28. The Criminal Procedure Code, 1898, was amended by the Criminal Law Amendment Act, xi [ii] of 1923. The effect of the amendment was two-fold : (1) Instead of restricting it to the three High Courts of Judicature at Fort William, Madras and Bombay, it empowered all the High Courts to issue directions of the nature of habeas corpus ; (2) that the person who was to be produced before the High Court must be within the appellate criminal jurisdiction and not merely original civil jurisdiction.

29. The expression 'whenever it thinks fit which ocourred in Section 148, Criminal P. C., 1875 was reproduced in 3. 491, Criminal P. C, 1882 and forms i-art of Section 491 of the present Code. The expression has been used in the sense that a High Court has a discretion in the matter as regards the nature of the order to be passed and to emphasize that a High Court may pass an order under the section at any time and not in the sense that it may pass an order as often a& required notwithstanding that it had dealt with the matter previously.

30. If the intention of the legislature was to empower a High Court to deal with the matter on a fresh application, notwithstanding the dismissal of a previous application made under the-section, it would have said so in clear and unambiguous terms and not left it to be gathered by implication.

31. Section 369, Criminal P. C, 1898, enact that save as otherwise provided by the Code-or by any other law for the time being in force-or, in the case of a High Court, by the Letters' Patent of such High Court, no Court, whea it has signed its judgment, shall alter or review the same, except to correct a clerical error An-order passed under section 491 of the code is a judgment within the meaning of Section 869, because ifc finally determines the legality or the propriety of the detention and the question whether the-applicant is entitled to be released. section 401 of the code mak no provision for review.

32. There is no provision in the Code for review of a sentence or order passed by a cri-minal Court similar to o. 47, Rule 1, Civil P. C, 1908, which empowers a civil Court to review a deoree or order passed by it on the fulfilment of the conditions stated therein.

33. In Dabu Raut v. Emperor, it was held that a Criminal Bench of a High Court, when it has once signed its judgment, has no power to alter or review it, even if made without jurisdiction, except to correct a clerical error. The case was reversed by the Judicial Committee in The King Emperor v. Dabu Baut, 62 Cal. 983 : A.I.R. (22) 1933 P. C. 89: 86 Or. L. J. 838) on another point. The proposition set out above however, remains true.

34. In Emperor v. Banwarilal, 57 ALL. 867: : (A.I.R. (32) 1935 ALL. 466: 36 Cr. L. J. 1286) it was held that the High Court had no jurisdiction to entertain a fresh application for revision after it had dismissed a previous application made through jail.

35. In Laxman Bao v. The Grown, I. L. R. (1940) Nag 267 (A.I.R. (25) 1938 Nag. 74: 39 Or. L. j. 116) Pollock J. held that it had no-power to review an order passed by him in a criminal case.

36. Section 561A was inserted in the Code of Criminal Procedure, 1898, by an amendment made in 1923. The section stated that nothing', in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order made under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice.

37. As stated by the Judicial Committee in The King Emperor v. Khwaja, Nasir Ahmad, I.L.R. (1945) Lah. 1 at p. 7 : (A.I.R. (32) 1945 P.O. 18: 46 Cr. L. J. 418) the section gives no new powers; it only provides that these which the Court already inherently possessed shall be preserved and is inserted, lest it should be considered that the only powers possessed by the -Court are these expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Code.

38. In Emperor v. Banwarilal, ; Dabu Said v. Emperor, ; Raju v. Grown, 10 Lah. l : (A.I.R. (15) 1928 Lah. 462: 29 Cr. L. J. 669) and Laxman Rao v. The Grown, I. L. R (1940) Nag. 267: A I.R (25) 1938 Nag. 74: 89 Cr. L. J. 116) it was held that a High Court had no inherent power to alter or review a judgment in a criminal case and that Section 561A did not modify or alter Section 369, 'Criminal P. C, 1898, and did not autherise a High Court to review or alter its judgment or order in a criminal case.

39. Clause 18 of our Letters Patent enacts that there shall be no appeal to the High Court from -any sentence or order passed by the Courts of original criminal jurisdiction which may be con. stituted by one or more Judges of this Court. The clause further states that it shall be at the discretion of any such Court to reserve any point or points of law for the opinion of this Court.

40. Clause 19, which enables this Court to review the case, finally determine such point or points of law and thereupon to alter the sentence passed by the Court of original jurisdiction and to pass such judgment and sentence as to this Court may seem right, has clearly no application as no point of law was "reserved for the opinion of the High Court and as the previous Order in Miscellaneous Criminal case No. 228 of 1948 was not passed in the exeroise of its original criminal jurisdiction. If, howeveti the order be treated as one passed in the exercise of original criminal jurisdiction, Clause 18 is attracted and no appeal lies against the order.

41. No appeal lies against an order passed under section 491 of the code except to a Federal Court in cases falling under Section 205, Government of India Act, 1935, when a certificate is granted by a High Court that the case involves a substantial question of law as to the interpretation of the Act or any Order in Council made thereunder and from the Federal Court to the Privy Council under Section 208 of the Act: vide King Emperor v. Sibnath Bannerji, . With special leave of the Judicial Committee, an appeal lies against an order of discharge passed under Section 491, Criminal P. C, 1898: vide King Emperor v. Vimala-bai Deshpande, .

42. Section 404, Criminal P. C, 1898, enacts that no appeal shall lie from any judgment or order of a oriminal Court except a3 provided for by this Code or by any other law for the time being in force.

43. Section 4U-A provides for an appeal from the sentence of High Court on certajn conditions. This section is not applicable to the case of an order passed by this Court under 8. 491 of the Code. As we have found already, no appeal lies against an order passed by a Division Bench under 8. 491 of the Code to the High Court.

44. On a construction of the terms of Section 491 and consideration of the several provisions in the Code as well as the clauses in the Letters Patent, we have reached the conclusion that we have no power to review the order passed by the Division Bench on 6th April 1948 in' Miscellaneous Criminal case No. 228 of 1948 and to entertain a fresh application under the section for re-consideration of the matter arising out of the same order of detention.

45. We Shall now refer to a few cases: In Haidari Begam v. Jawad Ali Shah, I. L. R. (1934) 56 ALL. 271 : (A.I.R. (21) 1984 ALL. 22: 36 Cr. L. J. 493), a Muhammadan lady after the disposal of her application under Section 491 for custody of her child against her husband filed a fresh application under the section. The question for decision was whether the second application was maintainable. The Allahabad High Court has framed no rules under Sub-section (2) to regulate procedure in cases under section 491 of the code. There was, however, Rule No. 8, Chapter I of the Rules of the High Court which was in these terms:

No application to the same effect or with the same object as a previous application upon which a Judge has passed any order, other than an order of reference to another Judge or Judges, shall, except by way ot appeal, be presented to any other Judge or Judges on behalf of any person on whose behalf alone or with others such previous application was presented.

The rule was framed before the amendment of B. 491 of the Code in 1923. The decision of the High Court was based upon this rule and it was held that the second application was not maintainable. It was further 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 ease of applications under Section 491, Criminal P. C, inasmuch as the common law of England is not in force in the province and the High Court has not the common law right of issuing a writ of habeas corpus, but only the power, conferred upon it by statute for the first time in 1923, of making directions of the nature of a habeas corpus.

46. In

"Kishori Lai v. The Crown, I. L. R (194) 26 Lah. B73, it was held that no appeal lay under Clause 10, Letters Patent, from an order of a single Judge rejecting the application of the petitioner under 3. 491 for a direction in the nature of habeas corpus, because the Single Judge, under 8. 491 of the Code, was exercising a criminal jurisdiction and not a civil jurisdiction. It was further held that the High Courts in India are not competent to issue a prerogative writ of habeas oorpus and their powers are entirely contained in Sections 491 and 491 a, Criminal J?. 0. and that the petitioner could not go under the law to every Judge in spite of a refusal by any on Judge. This was a case of a Letters Patent appeal from an order of the Single Judge "

Which is not the case here, but there are observations that the English common law is not applicable in India and successive applications under 8. 491 of the Code are not permissible.

47. In Emperor v. Malhari Ramaji Chikate, 80 be m. L. E, 188 : (A.I.R. (85) 1948 be m. 826: 49 Cr. L. J. 460 S. E.) it was held that the powers of the Courts in India to issue the writ of 'habeas corpus are controlled and circumscribed by Section 491, Criminal P. C, and they have no Ion-ger the jurisdiction to issue the common law writ of habeas corpus and to exercise the powers which the Courts in England exercise. It was further held that a detenu cannot make successive applications for a writ of habeas corpus and it is not open to him to ask for a review of an order already made under section 491 of the code. These decisions have our respectful concurrence.

48. On principle as well as autherity, we hold that the second application under Section 491, Criminal P. C, 1898, made by the applicant for his release in respect of his order of detention passed by the Provincial Government on 9th March 1948 is not maintainable.

49. The preliminary objection raised by the learned Advocate General prevails and we hold that the second application made under Section 491, was barred because of the order dated 16th April 1948 passed in Miscellaneous Criminal Case no". 238 of 1948.

50. The matter is thus not res novo but res judicata. The application, therefore, fails and is dismissed as not tenable.