1. This is an appeal which purports to have been brought under Clause 10 of the Letters Patent of this Court under the following circumstances. A minor, Mazhar Ali Shah, is the child of Syed Jawad Ali Shah as the father and Mt. Haidri Begam as the mother. A dispute arose between the father and mother as to the custody of the minor. An application was made before this Court under Section 491 of the Criminal P.C., by Mt. Haidari Begam against Syed Jawad Ali Shah and it prayed that Mazhar Ali Shah should be brought before the Court and delivered to the applicant. The application was beard by one of the learned Judges of this Court and was dismissed on 20th September 1933. The present appeal is against that order.
2. A preliminary point is taken by Mr. Ismail, the learned Counsel for the respondent Syed Jawad Ali Shah. It is to the effect that no appeal is maintainable under Clause 10 of the Letters Patent. Briefly, his argument is as follows. Clause 10 of the Letters Patent of the Allahabad High Court allows an appeal from a judgment of a single Judge of the Court provided such judgment is not, inter alia, "in the exercise of Criminal jurisdiction". It is urged on behalf of the respondent that the order was passed by the learned Single Judge in the exercise of Criminal jurisdiction.
3. We have to consider whether this contention is right. Mr. Ismail argues that Section 491 of the Criminal P.C. allows an application to be made before the High Court in respect of a person residing within the limits of the appellate criminal jurisdiction of the Court. Then, Mr. Ismail points out that the provision under which the application was made is to be found in the Criminal P.C. and further he points out that the High Court which is to exercise jurisdiction invoked under Section 491 is defined in Section 4(j) of the Criminal P.C. as "the highest Court of Criminal appeal or revision for any local area". If the learned Single Judge of this Court acted as the High Court, it is urged, he must have acted as a court of criminal appeal or revision. If this argument be sound, the order complained of was passed "in the exercise of criminal jurisdiction" within the meaning of Clause 10 of the Letters Patent of this Court.
4. As against this argument, the learned Counsel for the appellant has argued that it matters little whether the order was passed in the exercise of criminal jurisdiction or not, the matter was essentially of a civil nature, and therefore an appeal should be allowed to be maintained, It was further argued that the mere fact that the provision relating to the production of a person is contained in the Criminal P.C. was by itself not conclusive. The learned Counsel relied on several cases decided by the Madras and the Calcutta High Courts. It is conceded by learned Counsel for the parties that no direct decision of this Court is available on the point. We shall now proceed to consider the cases which were cited by the learned Counsel for the respondent in support of his argument. He conceded that he has got no direct decision in his favour, but he contends that in three cases at least, the Calcutta High Court has held that power given under Section 491 of the Criminal P.C. is exercised on the criminal side of the Court.
5. It will be remembered that the clause relating to an appeal, in the Letters Patent of several High Courts underwent a change in the year 1919. Before that year; the material words which prohibited an appeal ran as follows : "not being a sentence or order passed or made in any criminal trial." The change that was brought about by the amendment of 1919 has already been read out by us, and the material words now are as follows, "in the exercise of criminal jurisdiction". This change should be borne in mind in reading the several decisions to be noticed later. The oases relied on by Mr. Ismail are all oases decided after the amendment of 1919. In Rameshwar v. Emperor A.I.R. 1928 Cal. 367 at p. 368, occurs the following sentence.
The High Court which by Section 491 is invested with certain powers, is defined by Section 4(j) to mean the Lightest Court of criminal appeal or revision for any local area.
6. This sentence implies that the learned Judges who decided the case thought that an application under Section 491 was to be dealt by a Bench constituted to hear criminal matters. It was pointed out in that case that it was also possible that a Single Judge hearing criminal cases might hear an application under Section 491 of the Criminal P.C. The point that directly arose before their Lordships was whether a bail bond which had been cancelled by a learned Single Judge of the Court sitting as the Sessions Court could be restored by a Bench hearing Criminal appeals or revisions. As already stated this case is no direct authority for the proposition whjch arises before us, but it certainly does indicate that the powers to be exercised under Section 491 is power to be exercised on the criminal side of the jurisdiction of the Court. The next case is that of Subodh Chandra v. Emperor A.I.R. 1925 Cal. 278. The passages relied on by Mr. Ismali are to be found at pp. 324 and 325 (of 52 Calcutta). The matter before the Court was being heard by a criminal Bench, as the hearing of the report shows, and Walmsley, J., makes the following remark at p. 324 (of 52 Cal.) It appears to me that the Amending Act of last year, Act 12 o 1923, (amending the Criminal Procedure Code) made such a great change that the rules framed under the Code, as it stood before the amendment, and the practice that formerly obtained, have now become out of date, and in my opinion the terms of Section 491, Criminal P.C. as it now stands give this Bench jurisdiction to entertain and dispose of the application.
7. It appears that the practice in the Calcutta High Court before the Amending Act 12 of 1923 was passed, was that the application was made on the original criminal side and not before a Division Bench hearing criminal matters. Mr. Justice Mukerji at pp. 324 and 325 (of 52 Cal.), expressed himself to the same effect. The last case relied on by Mr. Ismail is that of Girindra Nath v. Birendra Nath A.I.R. 1927 Cal. 496. The relevant passage is at p. 763. It runs as follows, in the judgment of Rankin, Chief Justice:
In my judgment the right to the relief sought in this case would have been solely under the Criminal Procedure Code. This would have been an exercise of criminal jurisdiction and no appeal would lie under Clause 15, Letters Patent.
8. This quotation shows that the learned Chief Justice was of opinion that an application under Section 491 would be on the criminal jurisdiction of the High Court and in view of the amendment Clause 15 of the Letters Patent of the Calcutta High Court no appeal would be competent. The Bt. Hon'ble Sir Tej Bahadur Sapru appearing on behalf of the appellant has relied on five cases. Three of these were de-sided before the amendment of the Letters Patent in 1919 and two subsequently to the Letters Patent. The first case is that of "In the matter of Narrondas Dhanji (1890) 14 Bom. 555. The question there related to the custody of a minor, and the point to be decided was whether an appeal was maintainable against the order of a learned Single Judge of the High Court under the Letters Patent. At. p. 558 the learned Judges remark as follows:
We think that this order of discharge (of the rule) was a judgment within the meaning of the words in Clause 15, Letters Patent, 1865.
9. It will be remembered that before this amendment, the material words in Clause 15 of the Letters Patent which prohibited an appeal were, "not being a sentence or order passed or made in any criminal trial". Now, an order passed on an application under Section 491 was not an order in any criminal trial and was not a sentence, and therefore obviously an appeal was maintainable. This case was followed in In the matter of Horace Lyali (1902) 29 Cal. 286 which is a Full Bench decision. At p. 293 Maclean, Chief Justice, is reported to have said:
In dealing with the question whether an appeal does or does not lie, we must first consider whether the decision of Stevens, J., was 'judgment,' (not being a sentence or order passed or made in any criminal trial) within the meaning of Section 15, Letters Patent. In my opinion the decision was certainly a judgment.... It is contended by the learned Advocate-General that the appeal provided for by Clause 15, Letters Patent, is confined to judgments passed in civil cases, and that there is no appeal under this section from any judgment passed in any criminal matter, or by a Judge exercising the ordinary original criminal jurisdiction of the Court.... For the appellant, on the other hand, it is contended that the expession 'judgment' must mean every judgment which is not a sentence or order passed or made in any criminal trial, and that the order in the present case dismissing the application was not one made in a criminal trial.... It is clear that by making his application before Stevens, J. the applicant regarded it as one made in a criminal proceeding, and in this he would appear to be right.... I do not see why, in the present case, we should not construe Clause 15 literally, and upon the best consideration I can give to this part of the case, I think the argument of the appellant should prevail, and that an appeal will lie.
10. It is clear from the sentences quoted above that the learned Chief Justice considered that although the matter before 'Stevens, J., was a criminal one, an appeal was competent because the order was not passed in a criminal trial. Banerji, J., in the same case at p. 301 is reported to have said:
Nor can it be said that the order comes within the exception in Clause 15, for it is not 'a sentence or order passed or made in a criminal trial.'
11. It is evident that the Full Bench allowed an appeal to be maintained, although the proceeding was of a criminal nature, on the ground that an appeal was prohibited in a criminal matter only when it arose out of a criminal trial.
12. The third case decided before the amendment of the Letters Patent in 1919 'is that of Raja of Kalahasti v. P. Narasimha (1907) 17 M.L.J. 158. This case does not throw any greater light than the two previous oases already quoted, Coming to the decisions given after the amendment, we have got two cases. One is Mahomedali v. Ismailji A.I.R. 1926 Bom. 332. In this case originally an application was made under Section 499 of the Criminal P.C., in the year 1926, which is a year falling after the Criminal P.C. was amended in 1923. It was discovered that two of the three minors were residing outside the local limits of the criminal appellate jurisdiction of the High Court. An application therefore was made inviting the High Court to exercise its jurisdiction under its Charter of 1823 and for issuing a writ, of Habeas Corpus. It will therefore be noticed that the appeal was not entertained in spite of the fact that the application was under Section 491 of the Criminal P.C., but because the application was one for issue of a writ of Habeas Corpus and S 15 of the Charter of the Bombay High Court did not stand in the way of the maintenance of an appeal. At p. 619 the following sentence occurs in the judgment of the learned Chief Justice McLeod:
However that may be, I do not think that it can be said that the order of the Judge directing a writ of Habeas Corpus to issue was an order made "in the exorcise of criminal jurisdiction."
13. This case is therefore quite distinguishable from the case before us. The last case is that of Satya Narain v. Emperor A.I.R. 1928 Cal. 675. In this case it appears that the learned Judges of the Criminal Appellate Bench in entertaining the appeal before them had to construe the Rules framed by the Court under the Letters Patent of 1865 It dons not appear that the learned Judges discussed the amendments brought about in 1923 (Criminal P.C.) and 1919 (of the Litters Patent) except in the last paragraph of their judgment. The following occurs in that paragraph:
It may be noticed that so far as appeals from applications under section 491 of the code are concerned, the Letters Patent of 1365 was amended in 1919, so as to prohibit any Letters Patent appeal in a case of criminal jurisdiction, and since 1923 Section 491 itself has been drastically altered, It may well be that these legislative changes make it necessary, for the Court to bring these rules up to date I desire to make it quite clear that nothing that I have said touches in any way upon any question as to what rules should be made. I am concerned only with the correct interpretation of the rules as they are
14. It is important to note that the case before the Court was not an appeal under Clause 15 of the Letters Patent of the Calcutta High Court, but it was a criminal appeal, arising out of a Sessions Trial on the original side. The question to be decided was whether a vakil could represent the appellant. It was held that he could not, in view of the then existing rules. Considering the entire law on the, point and the authorities cited before us, we are of opinion that the present appeal which purports to have been filed under Section 10 of the Letters Patent Appeal of the Allahabad High Court is not maintainable. It is accordingly dismissed. As regards the question of costs, it is urged on behalf of the appellant that if the matter arose out of an application made on the criminal side of the High Court, no costs should be allowed. It may be that in the original proceedings the question of costs could not arise, but the present proceedings are : in the nature of an appeal which purports to have been filed under Section 10 of the Letters Patient of this Court and we do not see any reason why we should be debarred from awarding costs. We hold that costs may be awarded by this Court and we direct that the appellant shall pay the coats of the respondents in the appeal. For the purpose of taxation we fix the counsel's fee at Rs. 250. Counsel for the respondent is permitted to file his certificate of fees in the course of today.