1927 (3) TMI 2 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the Bengal Criminal Law Amendment Act, 1925.
2. Jurisdiction of the High Court to issue a writ of habeas corpus.
3. Right of appeal against the order refusing the writ of habeas corpus.
4. Custody or control of the applicant by the respondent.

Detailed Analysis:

1. Legality of the Bengal Criminal Law Amendment Act, 1925:

The applicant was subjected to orders under the Bengal Criminal Law Amendment Act, 1925, which restricted his movement and communication. The main contention was whether this Act was ultra vires of the local legislature. The Court examined Section 80A of the Government of India Act, which grants local legislatures the power to make laws for the peace and good government of their territories. The Court concluded that the words "for the peace and good government" are of the widest significance and do not limit the local legislature's power. The argument that the Act of 1925 was repugnant to Clause 4 of Section 80A, which states that the local legislature has no power to make any law affecting any Act of Parliament, was found to be unconvincing. The Court held that the Act of 1925 was within the jurisdiction of the local legislature and not ultra vires.

2. Jurisdiction of the High Court to issue a writ of habeas corpus:

The Court discussed whether the High Court has the power to issue a writ of habeas corpus independently of Section 491 of the Criminal Procedure Code. Historical references were made to various enactments and judicial decisions, including the Indian High Courts Act of 1861 and subsequent amendments. The Court concluded that the right to seek relief through habeas corpus for purposes mentioned in Section 491 of the Criminal Procedure Code is governed solely by that section. The old prerogative writs are not available for those purposes, and the Indian legislature intended that the Courts should act under the statutory provisions rather than the old procedure.

3. Right of appeal against the order refusing the writ of habeas corpus:

The Advocate-General raised a preliminary objection that no appeal lay against the order refusing the writ of habeas corpus, citing Clause 15 of the Letters Patent, which excepts from the general right of appeal every sentence or order made by a Judge in the exercise of criminal jurisdiction. The Court found that the right to the kind of relief sought would have been solely under the Criminal Procedure Code, and therefore, no appeal would lie under Clause 15 of the Letters Patent. The Bengal Criminal Law Amendment (Supplementary) Act of 1925 expressly provided that the powers conferred by Section 491 of the Code should not be exercised in respect of any person arrested or detained under the Local Act.

4. Custody or control of the applicant by the respondent:

The Court examined whether the respondent had such custody or control of the applicant as would entitle the Court to direct a writ of habeas corpus. After reviewing the affidavits, the Court concluded that the respondent did not have sufficient custody or control over the applicant to warrant such a direction. Therefore, the decision of the learned Judge to refuse the writ of habeas corpus was upheld.

Conclusion:

The appeal was dismissed on the grounds that the Bengal Criminal Law Amendment Act, 1925, was not ultra vires, the High Court's jurisdiction to issue a writ of habeas corpus was limited by the Criminal Procedure Code, no right of appeal existed under the Letters Patent, and the respondent did not have sufficient custody or control over the applicant.