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TMI Blog1927 (3) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... police-station of a certain village in that District and to reside until further orders in that village. He was directed to reside in premises defined and approved by the Superintendent of Police; he was prohibited from leaving such premises at night or from interviewing visitors : he was also directed to report himself twice daily to the officer at the police-station. He was prohibited from receiving visits without permission and was not to converse, communicate or associate with school boys or school masters or to attend at any meeting. He had to deliver unopened to the officer in charge of the police-station all communications sent to him by letter, telegram or otherwise. In particular he was directed not to go beyond certain limits defined in the order. 2. The applicant at the day of his application to this Court was the subject of another order made by the Government of Bengal under the same Act and dated the 29th November 1926. That order was similar in its terms to the one I have already referred to and it directed him in effect, to go to the Canning Town police-station in the District of the 24-Perganas and to reside in premises defined and approved by the Superintendent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake his chance of that Court finding that under Section 15 ha hid committed an offence which rendered him liable to imprisonment for a term which might extend to thra9 years. 5. It is important, to notice that the applicant at the time of his application was not within the limits of Calcutta and the person who is said to have him in custody was a member of the police force who was not within the limits of Calcutta. Both of these persons were at Port Canning in the District of the 24-Parganas. The only connexion with Calcutta which this matter would appear to have is that the applicant says (and it is not contradicted) that ha is a person whose ordinary residence is within the limits of this Court's Original Jurisdiction. The circumstance that some years ago when ha was first arrested, not under this Act but under a different enactment, he was at the time at Calcutta, would appear to have nothing to do with this case. The circumstance that he is a person who is an ordinary resident of Calcutta may have something to do with this case. If it be true that a parson ordinarily resident within the Original Jurisdiction of this Court although he be an Indian is clothed with certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons than the applicant in the situation created by the Act of 1925 it was hardly consistent with the proper conduct of the public business that this question raised by him should be avoided by reason of pleas in bar directed to the particular relief claimed. It seemed to us that it would be more reasonable to examine the matter as a whole because whether this applicant has a right of appeal or not, whether or not habeas corpus is the correct form of remedy in this case, it must be the duty of this Court sooner or later to determine the very important question whether a certain number of people are being illegally detained under a void Act of the local legislature. 9. I propose partly as a matter of convenience and partly for other reasons to deal first with the careful and elaborate argument of Mr. Chatterjee on the question whether or not the Act of 1925 is ultra vires of the authority which purported to make it. I would point out Wit in doing so, I shall treat this applicant according to the true facts of his position and not as a person committed to custody in jail. I am going to treat him as a person against whom an order has been made under Section 11, who is obeying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the history of the present question nothing which need detain us. It is quite true that the matters covered by the Act in question were previously dealt with by ordinances made by the Governor-General under Section 72. That in no way complicates or affects the question of law which is now before us. The local legislature has not purported to control or supersede any ordinance so far as the applicant is concerned or at all. 15. The main argument of Mr. Chatterjee - in my judgment the only argument upon this point which the Court requires to examine at any length - is the argument to the effect that the Act of 1925 is obnoxious to the 4th clause of Section 80A. That clause runs: The local legislature of any province has not power to make any law affecting any Act o Parliament. 16. Now before proceeding to consider this matter concretely it may be as well to refer to certain passages in the Government of India Act which have or may be thought to have some importance for the interpretation of Clause 4. The phrase here is affecting any Act of Parliament and we have to consider carefully the implications of those words. It is clear enough from the second clause of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out in many books of reference and it is no part of my indention to burden this judgment with an historical disquisition, but it is quite true that ever since the Charter of 1726 which established the Mayor's Court of Calcutta it has been generally accepted that the law which prevails within the Original Jurisdiction -began as I have stated. English statute and English common law as it stood in 1726 was applied to Englishmen in this town and with certain special modifications, in certain respects which do not now matter, to the Indian inhabitants as well. But at this time Calcutta was a factory, and part of the, territory over which the Mogul Emperor was the sovereign. The cases to which I will refer as showing the nature of the introduction of the law of England as id stood in 1726 are three only. 20. The first is the well-known judgment of Lord Stowell in the case of The Indian Chief (1801) 3 Rob.Adm. 28 which is perhaps the most accurate of all the statements of the history of this matter. The second is the case of Mayor of Lyons v. E.I. Co. [1836] 1 Moo.P.C. 175 in which Lord Brougham-delivered the judgment of the Privy Council in 1836.upon the question whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. That is not the case with Calcutta. English common law and statute law as in 1726 was not imported into Calcutta by virtue of any right of sovereignty in the British Crown nor by virtue of the fact that Englishmen at international law or otherwise carried with them their own statutes, but because by the sanction and permission of the sovereign of the place the community was allowed to practice its own law and to introduce in part the laws to which they had been accustomed. These laws were applied even to Englishmen only in part and only with adaptation to the local circumstances. It was on those propositions that the cases to which I have referred were decided. 23. Now the argument of Mr. Chatterjee is that the 4th clause of Section 80A which says that the local legislature has no power to make a law affecting any Act of Parliament prevents it from making any law which would affect the operation of any of the statutes, prior to 1726 which were introduced into the area of Calcutta at the time when the Mayor's Court Charter was first granted. I am of opinion that that argument distorts the meaning of the 4th clause of Section 80A. Such a clause as that is doubtless wider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere have been various arrangements for giving local laws to Calcutta and to other parts of India. There were the old Regulations which had to be registered by the Supreme Court. By 3 and 4 Will. Section 4, C. 85 legislative powers were given to the Governor-General in Council. The chief land-marks in recent years have been the East India Councils Act of 1861 and and the Government of India Act of 1919. It has to be observed that when the High Courts in 1861 were founded to be one Court for the whole province the introduction of such Courts was part of a much wider scheme. The Indian Penal Code, the Code of Civil Procedure and the Code of Criminal Procedure date from about the same time, and I need only refer to the Letters Patents of 1862 and 1865 to show how these things went together. Since then, one by one the territories which formerly used to be occupied by this system of English laws introduced by practice or by consent or by the prerogative have been conquered by definite provisions made by competent legislative authority in India itself. A very good instance is the Contract Act. 26. At one time the English law of contract was applied in India; then that was changed. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other Indian whom he meets. In my judgment the contention that the Magna Charta and the other statutes to which reference has been made entitle this Court to hold the Act of 1925 to be ultra vires is a contention which fails. 18. I propose next to consider whether the various enactments of the Indian legislature leading up to the Code of Criminal Procedure, in its present form, have in providing a form of procedure applicable to a case of this class abolished expressly or impliedly any right there would have been in the Supreme Court to grant the high prerogative writ of habeas corpus. Now that question was adverted to in 1911 in the case of Rudolph Stallman (1911) 39 Cal. 164 and it was adverted to in terms which were intended to cast grave doubt upon the authority of the Indian legislature to make any provision which would take away the old writ of habeas corpus. One of the learned Judges said that: If the question arose for consideration we should have to examine the principles recognised in the cases of Ameer Khan (1870) 6 B.L.R. 392, Maharanee of Lahore (1848) Taylor 428 and Surendra Nath Banerjee v. Chief Justice and Judges of the High Court of Bengal (1883) 10 Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has given rise to difficulty is apparently this that in the East India Councils Act of the same year there was a provision in Section 22 that the Governor-General in Council shall not have the power of making any laws or Regulations which shall repeal or in any way affect any provisions of any Act passed in this present Session of Parliament, etc. This provision gave rise to discussion in two cases : Queen v. Meares [1874] 14 B.L.R. 106 and Emperess v. Burah [1879] 4 Cal. 172. An examination of these decisions and of the statutes and Letters Patents convinces me that the doubts thrown upon the power of the Indian legislature prior to the Government of India Act to make enactments which should modify the exercise by the High Court of the powers previously possessed by the Supreme Court are unfounded. I see no reason whatever for holding that the old writs or forms of procedure were put beyond the reach of the Indian legislature. 23. I proceed, therefore, to enquire whether according to the law in India as it now stands there is or is not power in the High Court to grant the writ of habeas corpus at common law independently of Section 491 of the Criminal procedure Code. Now in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court to make an application under Section 491 of the present Criminal Procedure Code. 26. The question which arises is whether for any of the purposes mentioned in what is now Section 491, it is open to an applicant still to say that he will make his application, independently of that section altogether, for the prerogative writ of habeas corpus on the civil side of the High Court. I observe that it has been stated in certain cases that if there is to be any question of the abolition of this right then the legislature must say so in the most specific terms. Whether that be a correct view in a matter of procedure of this kind, need not be discussed, for the legislature has used the most specific terms; and it is plain that the Indian Legislature never intended that the Courts in giving relief of this character should for any of the purposes mentioned in Section 491 be at liberty to act under it or under the old procedure. 27. There may or may not be purposes for which habeas corpus is available and which are not within Section 491. For any purposes which are not within Section 148 of Act 10 of 1875 the old writ may survive within the limits of the Original Jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in deciding In re R. Nataraja Iyer (1912) 36 Mad. 72, Re Kochunni Elaya Nair A.I.R. 1922 Mad. 215, In re E.P. Govindan Nair A.I.R. 1922 Mad. 499 or the case of Mahomedalli v. Ismailji . 31. It can serve no useful purpose now to discuss the correctness of Mr. Justice Norman's decision in the case of Ameer Khan (1870) 6 B.L.R. 392 that habeas corpus could issue to the Mofussil, but in so far as he proceeded upon the 4th clause of the Charter of 1774 the opinion of Sundara Ayyar, J., in In re R. Nataraja Iyer (1912) 36 Mad. 72 that he misconstrued that clause coincides with the views of Sir Lawrence Jenkins, C.J., and Stephen, J., in Governor of Bengal v. Motilal Ghosh [1913] 41 Cal. 173. 32. With regard to the question whether the Respondent has been shown to have such custody or control of the appellant as would entitle this Court to direct a writ of habeas corpus, I am of opinion that this matter lies very close to the border-line. After examining the position which is disclosed by the affidavits I am not, however, satisfied that this particular respondent is shown to have such custody or control of the applicant as would entitle the applicant to get a direction to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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