The Judgment of the Court was delivered by
Kumaraswami Sastri, J.:— This is an application for the issue of a Writ of Habeas corpus by the petitioner, who is charged with having committed offences under sections 121, 395, 431, 436 and 380 of the Indian Penal Code, alleged to have been committed by him within the area proclaimed to be under, Martial Law. He was arrested by the police while he was in Palghat, a place outside the area, and was remanded to jail by Mr. Batty (who is the Sub-divisional Magistrate of the Palghat division and also a Magistrate invested with summary powers of trial under the Martial Law Ordinance under orders of the Military Commander, for the purpose of the petitioner being sent for trial before the Special Tribunal constituted under Ordinance No. II of 1921. The grounds urged on petitioner's behalf are (1) that the police had no power to arrest a person who commits an offence within the Martial Law area, but is found outside, (2) that the jurisdiction of Summary Courts, and of Magistrates empowered to try offences, conferred by Ordinance No. II of 1921, is purely territorial and that consequently Mr. Batty who purported to act as a Martial Law Magistrate outside the Martial Law area was without jurisdiction, thus making the detention in jail illegal. It was also contended that the Special Tribunal constituted under Ordinance No. II would have no power to try offenders who are found outside the. Martial Law area, even though the offences were committed within the area. I do not think it necessary to go into this question which is one to be decided by the Tribunal when the petitioner is placed before it for trial.
The power of the High Court, as an abstract question of law, to issue a Writ of Habeas corpus in the present case is not contested by the Public Prosecutor though he contends that the facts of the case will not justify the High Court in issuing the Writ. It has been held in In re Nataraja lyer and In the matter of Amir Khan, that the Court has jurisdiction, having inherited the power from the Supreme Court. This jurisdiction is apart from the power conferred by section 491 of the Code of Criminal Procedure and is in no way curtailed by the provisions of the section. The Martial Law Ordinance excludes powers conferred by section 491 and does not refer to the general jurisdiction to issue the writ. Moreover, clause (16) cannot apply to cases where the acts of the Martial Law Magistrate are wholly without jurisdiction, for example, when he proceeds to places outside the Martial Law area and tries persons or passes sentences. It only applies to acts done within the jurisdiction and powers conferred by the Ordinance, however illegal or irregular such acts may be, and not to proceedings passed wholly without jurisdiction.
As regards the first contention, I do not see anything in the Martial Law Ordinance which prohibits the arrest of persons who commit offences inside the Martial Law area but escape outside. The Penal Code has not been abrogated within such areas and so far as the arrest of such offenders is concerned the provisions of the Code of Criminal Procedure will apply so far as the arrest outside is concerned. Section 54 of the Code of Criminal Procedure gives the police the power to arrest without a warrant a person who is charged with the offences with which the petitioner is charged and it seems to me that it makes no difference where the offence was committed so long as it was within British India. Section 60 directs that the person arrested should be produced without unnecessary delay before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. Under section 167 a Magistrate, whether he has jurisdiction or not to try the case, can order detention of the accused in custody for a period not exceeding 15 days and if he has no jurisdiction to try the case he can order the accused to be taken to the Magistrate having jurisdiction. Mr. Batty, as Sub-divisional Magistrate, had power to remand the petitioner.
As regards the second objection it must fee borne in mind that under clause (6) of the Ordinance it is only persons who are already Magistrates under the provisions of the Code of Criminal Procedure that are appointed to exorcise the power of Summary Courts. It is a specific power conferred on one who had the other ordinary powers of a Magistrate. There can be little doubt that their powers to sit as Magistrates trying offenders brought before the Summary Courts for trial are purely territorial and that they cannot exercise their powers of trial outside the Martial Law area. Clause (2) provides that Martial Law shall be in force and the provisions of the Ordinances shall apply in the area specified in the schedule and such other area as the Governor-General in Council may by notification direct. Clause (3) refers to the administration of Martial Law in any area in which Martial Law is in force. Section 6 provides for the establishment of Summary Courts in any administrative area. Section 7 directs that no Summary Court shall try any offence unless such offence was committed in the administration area in which the Court is constituted. These provisions make it clear that a Magistrate appointed under clause (6), cannot try offences' committed outside the area or hold Court outside. There is however nothing in the Ordinance to show that as Magistrates appointed under, the Code of Criminal Procedure, he cannot exercise the functions assigned to such Magistrates outside the area when the proceedings have not reached the stage of a trial but are only in the course of investigation preliminary to the offender being charged before a Magistrate. When a Divisional Magistrate is also appointed to try offences under clause (6), there is nothing to prevent his exercising the ordinary powers of a Magistrate outside the area and arresting or remanding persons who are charged with offences inside the Martial Law area with a view to their being brought to trial inside the area or before the Special Tribunal.
Even if Mr. Batty was technically wrong in acting ??? his capacity of Special Magistrate, I think the defect would only be an irregularity as his act would have been perfectly legal if he had acted as Sub-divisional Magistrate. When a Magistrate vested with more than one power under one of which only he has power to order a remand purports to act in the exercise of another power which gives him no authority to do so the case is one of irregularity which can be cured by the amendment of the order, where there is no prejudice to the accused. It is not shown that the accused would be in a better position if Mr. Batty had issued the order in his capacity of Sub-divisional Magistrate.
In cases like the present, when the arrest itself is not illegal and the offences are not non-bailable, I do not think the High Court will be exercising a proper discretion in directing the issue of a Writ and directing the accused to be brought before it. Even assuming that the remand is irregular, there is nothing to prevent the police from arresting the accused the moment after his release is ordered and taking him before the nearest Magistrate and getting a remand. If it is brought to the notice of the Court that the Magistrate ordering the remand ought to have acted in one capacity rather than in another the proper course will be for the High Court to direct the Magistrate to remand the accused according to law.
There is also another reason why I do not think I ought to interfere at this stage. While the case was being argued the Government constituted the Special Tribunal before which the petitioner would be sent for trial. Clause (6), sub-clause (1) of Ordinance No. II of 1921, dispenses with the committal the accused for trial and all that has to be done is for petitioner to be taken before it for trial. He can apply for bail to the Tribunal as it has all the powers of a Court of Sessions having original jurisdiction and as appeals from the Tribunal ??? to the High Court he can move this Court if bail is wrongly refused. He has therefore an adequate remedy I dismiss the petition for a Habeas corpus.
The petition for the issue of a writ of certiorari is not pressed and is dismissed.
I do not think that ought, at this stage and on the scanty materials before me, to direct the release of the petitioner on bail, and I accordingly dismiss the petition without prejudice to his applying later on if he is so advised.
M.H.H