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Birpal Singh Vs. King Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1946)48BOMLR493
AppellantBirpal Singh
RespondentKing Emperor
Excerpt:
.....to deal with him in accordance with the orders of the government and the provisions of the bengal state prisoners regulation of 1818. the warrant was expressed to be 'by order of the governor general in council' and was signed by an additional secretary to the government of india in the home department. it is, however, in our judgment clear that once the court is satisfied that a person, is being detained under regulation iii, there is no jurisdiction under section 491 which the court can exercise in the matter. is the appellant a person detained under regulation iii ? if he is, this application must fail. it seems to us therefore to follow that something more than allegations that a person is being 'illegally or improperly' detained under regulation iii is necessary before the court..........its issue by the appropriate officials was required before a court could hold the warrant a valid warrant under regulation iii.7. in spite of the fact that section 491 of the code of criminal procedure, on which the appellant's application to the court was founded, contains in sub-section (3) thereof the provision: ' nothing in this section applies to persons detained under the bengal state prisoners regulation, 1818,' we thought it desirable that mr. gauba should be permitted to argue all his points. it is, however, in our judgment clear that once the court is satisfied that a person, is being detained under regulation iii, there is no jurisdiction under section 491 which the court can exercise in the matter. and throughout there has been no suggestion that there is any other.....
Judgment:

Patrick Spens, Kt., C.J.

1. Prior to September 8, 1940, the appellant in this case, Birpal Singh, had been for some time the Rana of the State of Bhajji, one of the Simla Hill States, and duly recognised as the ruler thereof. On September 8, 1940, he was brought to Simla and was lodged in the Ripon Hospital there. On September 9, 1940, a warrant addressed to the Deputy Commissioner, Simla, was issued under the provisions of the Bengal State Prisoners Regulation, 1818, in the following terms:-

Whereas the Governor General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has seen fit to determine that Birpal Singh, ex-Rana of Bhajji, shall be placed under personal restraint at Simla, you are hereby required and commanded in pursuance of that determination to receive the person above named into your custody and to deal with him in accordance with the orders of the Government and provisions of the Bengal States Prisoners Regulation, 1818.

By order of the Governor-General in Council.

(Sd.) R. Tottenham.

Additional Secretary to the Government of India.

In pursuance of this warrant, the appellant continued to be lodged in the said Ripon Hospital. There, on September 21, 1940, he was personally examined by Lieut. Col. A. Sargood Fry, I.M.S., Civil Surgeon, Simla East, who forthwith issued a certificate that the appellant was 'a lunatic and proper person to be taken charge of and detained under care and treatment.' It is not without importance to notice that Col. Fry's certificate on the face of it refers to Sections 18 and 19 of the Indian Lunacy Act (IV of 1912), and is obviously in the form prescribed by that Act, Some time seems to have elapsed before any action was taken on this certificate. On April 11, 1941, a second warrant was issued under the provisions of the Bengal State Prisoners Regulation, 1818, addressed to the Superintendent of the Indian Mental Hospital at Lahore in the following terms:-

Whereas the Governor General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has seen fit to determine that Birpal Singh, ex-Rana of Bhajji, shall be placed under personal restraint at the Indian Mental Hospital at Lahore, you are hereby required and commanded, in pursuance of that determination, to receive the person above named into your custody and to deal with him in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulation of 1818.

The warrant was expressed to be 'By order of the Governor General in Council' and was signed by an additional Secretary to the Government of India in the Home Department. In pursuance of this warrant, the appellant was removed from Simla and lodged in the said Mental Hospital at Lahore, and there he has been detained ever since.

2. It would appear, that shortly after the issue of the warrant of April 11, 1941, some doubts (were felt by the issuing authority as to the validity of such a warrant, particularly as to whether it constituted a proper authority to the Medical Superintendent or other responsible official in charge of a Mental Hospital, for the reception and detention of the appellant and others, if any others there were in simili case, having regard to the provisions of Section 4 and other provisions of the Indian Lunacy Act, 1912. Accordingly, on June 26, 1941, an Ordinance (No. V of 1941) was made and promulgated by His Excellency the Governor General in the following terms:-

The State Prisoners (Detention of Lunatics) Ordinance, 1941.

{Ordinance No. V of 1941.)

26th June, 1941.

An Ordinance to authorise the reception and detention in an asylum of individuals committed by warrants issued under the Bengal State Prisoners Regulations, 1818, to detention in that asylum. Whereas an emergency has arisen which makes it necessary to authorise the reception and detention in an asylum of individuals committed by warrants issued under the Bengal State Prisoners Regulation, 1818 (Ben. Reg. Ill of 1818), to detention in that asylum; . Now, therefore, in exercise of the powers conferred by Section 721 of the Government of India Act as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor General is pleased to make and promulgate the following Ordinance:__1. (1) This Ordinance may be called THE STATE PRISONERS (DETENTION OF Short title, LUNATICS) ORDINANCE, 1941.extent & (2) It extends to the whole of British India.commencement (3) it shall come into force at once.2. Notwithstanding anything contained in the Indian Lunacy Act, 1912, a warrant Power to receive of commitment issued under Section 2 of the Bengal State and detain in asy- Prisoners Regulation, 1818, (Ben. Reg. III of 1818), direc-tum persons res- ting the direction in an asylum of an individual placed trained under Re- under personal restraint in pursuance of that section, who gulation III of is, in the opinion of the authority issuing that warrant, 1818. insane, shall be and shall be deemed to have been from the time such warrant was issued sufficient authority for the reception and detention of that individual in that asylum or in any other asylum to which he may be lawfully transferred.

3. For some considerable time thereafter no legal action was taken by or on behalf of the appellant. On December 10, 1943, however, one Dr. P. N. Seth of Lahore, as next friend of the appellant, made an application for directions in the nature of habeas corpus under Sections 491 and 561A of the Code of Criminal Procedure in the matter of the detention of the appellant. These proceedings are reported in A. I. R. (32). Lah 274 at qeq. Eventually on June 7, 1944, after various questions had been referred to and decided by a full bench, the application was dismissed. A certificate under Section 205 of the Government of India Act, '1935, having been granted by the full bench, Dr, Seth filed a belated petition of appeal in this Court which on December 12, 1944, was dismissed on account of the undue delay in filing the petition.

4. Meantime, on October 7, 12 and 27, 1944, the appellant personally wrote and addressed a series of communications to the Chief Justice of the High Court at Lahore, which were duly forwarded through the Medical Superintendent of the Mental Hospital in which the appellant [was detained. These somewhat confused communications, the learned Chief Justice decided should be treated as further applications by the appellant under Section 491 of the Code of Criminal Procedure, and they were referred to a Division Bench (Abdul Rehman and Munir JJ.), for disposal. At a preliminary hearing on January 26, 1945, the Division' Bench directed that Mr. Gauba, who appeared for the appellant, should put into more formal shape the points which he desired to argue and give notice of them to the Crown and adjourned the applications. This having been done and points of reply put in on behalf of the Crown, the applications were heard on June 4 and 5, 1945, and judgment was delivered dismissing the applications on June 12, 1945. On June 22, 1945, a certificate was granted to the appellant under Section 205 of the Government of India Act, 1935. On August 9, 1945, this petition of appeal was filed in this Court during the vacation. On October 5, 1945, the appellant filed an application under Order XL, Rules 1, 3, and 5 of the Federal Court rules and Section 151 of the Code of Civil Procedure praying that the delay, if any, in filing the appeal might be condoned. That application the Court ordered to be put down for hearing with the petition of the appeal in this case. On November 21, 1945, at the request of the appellant, the Court made an order that the appellant should be produced at the hearing of the appeal to appear and plead in person. The appellant was so produced, but upon the appeal being called on for hearing, Mr. Gauba appeared on behalf of the appellant.

5. The first matter raised was whether or not, having regard to the provisions of Order XVII, Rules 1 and 2, and Order II, Rule 3, of the Federal Court Rules, the petition of appeal had been presented in due time. It was urged by the Advocate General of India that the order appealed against must be taken to have been made in the exercise of the criminal jurisdiction of the Lahore High Court, and that accordingly the thirty days period prescribed by Order XVII, Rule 1 applied. He further contended that this Court was not ' closed ' within the meaning of Section 4 of the Indian Limitation Act, 1908, during the vacation, since in compliance with Order II, Rule 3, the offices of the Court were open during the vacation. At the same time the Advocate General admitted that even if he succeeded in all his contentions, the Court could still in the exercise of its discretion condone the delay, if any. The Court accordingly, without a Ml discussion and without deciding whether the order had been made in the exercise of the criminal jurisdiction of the Lahore High Court or whether the Court was or not ' closed ' during the material period, decided to hear the appeal on its merits.

6. On being asked to indicate the points which he wished to argue, including the constitutional points in respect of which the certificate under Section 205 of the Government of India Act, 1935, had been granted, Mr. Gauba stated that he desired to submit (a) that the appellant was still de jure the ruler of Bhajji State, and as such not within the category of persons in respect of whom any warrant of commitment could be issued under the Bengal State Prisoners Regulation (III of 1818), (hereafter referred to as 'Regulation III'), (b) that Ordinance V of 1941 was ultra vires the ordinance making powers conferred on the Governor General by Section 72 of the Ninth Schedule to the Government of India Act, 1935, and (c) that in any event the conditions of Sub-clause (2) of the Ordinance had not been carried out, as no further warrant had been issued after the promulgation of the Ordinance and there was no evidence, or not sufficient evidence that the issuing authority of the previous warrants ever held the opinion that the appellant was insane. At one stage Mr. Gauba also urged that the form of the warrant of April 11, 1941, did not on the. face of it sufficiently indicate that it was a warrant issued by the Central Government as required by Section 7A of Regulation III, and that positive evidence that the matter had been considered and orders given for its issue by the appropriate officials was required before a Court could hold the warrant a valid warrant under Regulation III.

7. In spite of the fact that Section 491 of the Code of Criminal Procedure, on which the appellant's application to the Court was founded, contains in Sub-section (3) thereof the provision: ' Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818,' we thought it desirable that Mr. Gauba should be permitted to argue all his points. It is, however, in our judgment clear that once the Court is satisfied that a person, is being detained under Regulation III, there is no jurisdiction under Section 491 which the Court can exercise in the matter. And throughout there has been no suggestion that there is any other jurisdiction which could be exercised by the Court in these proceedings. Accordingly, in our judgment, the material question in this case is: Is the appellant a person detained under Regulation III If he is, this application must fail. The jurisdiction under Section 491 is wholly statutory and governed by the terms of the section. Moreover, it must be appreciated that the very basis of jurisdiction under Sub-section (1) (b) of Section 49.1, which is the only sub-section under which the Court could be asked to assist the appellant in this case, is expressed to be ' illegal or improper detention in public or private custody,' and yet by virtue of Sub-section (3) in cases of persons detained under Regulation 3, Sub-section (1) (b)1 has no application. It seems to us therefore to follow that something more than allegations that a person is being ' illegally or improperly' detained under Regulation III is necessary before the Court can get over the bar to jurisdiction under the section imposed by Sub-section (3), Complaints as to the illegality or impropriety of the detention, if the detention be under Regulation III, can be dealt with under the procedure laid down in Sections 3, 4 and 5 of Regulation III and may well be the basis of other claims which a' Court can properly entertain, but such allegations cannot in our judgment be sufficient to give the Court jurisdiction under Section 491. If on the facts of the ease it is clear that a person is being detained under Regulation III, even though a Court might think if it investigated those facts, it might find that the detention was illegal or improper, still the Court cannot id our judgment interfere under Section 491. In this case it is clear that the Government has been claiming to detain the appellant from September 9, 1940, onwards under Regulation III.

8. Only one point therefore raised on behalf of the appellant in this case could in our judgment possibly have enabled the Court to exercise jurisdiction under Section 491, and that was if 'i fact the appellant is a person to whom Regulation 111 does not or cannot apply at all. Then it might perhaps be possible to hold that there was no detention at all (legal or illegal, proper or improper) under Regulation III. It seemed therefore to us that if the appellant still has the status of ruler of Bhajji State, it might be that he was a person to whom Regulation III had no application whatsoever. After hearing Mr. Gauba fully on this point and the reply of the Advocate General, and perusing a certificate dated May 4, 1945, signed by the Secretary to His Excellency the Crown Representative which we permitted the Advocate General to put upon the record, we are satisfied that neither on September 9, 1940, nor at any date since, has the appellant had the status of a ruler of a State. The certificate referred to is in the following ' terms:-

In the discharge of the functions of the Crown in its relations with the Indian States His Excellency the Crown Representative, on behalf of His Majesty, ceased to recognise Birpal Singh on and from September 8, 1940, as the ruler of the State of Bhajji, and from that date Ram Chander Pal Singh son of Birpal Singh, was recognised by His Excellency the Crown Representative on behalf of His Majesty as the Ruler of that State. Neither on September 9, 1940, nor on any subsequent date was Birpal Singh recognised by or on behalf of His Majesty as the Ruler of the State of Bhajji.

(Sd.) C. L. Griffin,

Secretary to His Excellency the Grown Representative.

But in addition to this it is clear from statements made by the appellant him-self in an affidavit made by him on February 10, 1944, in the earlier proceedings brought by Dr. Seth on his behalf, to which the Advocate General invited our attention, that he admitted that he was deposed on September 8, 1940, and informed of the fact at the time. The appellant has now and then suggested that his removal from the gadi was not legal or proper, but that is not a matter with which the Court can deal. In our judgment it is clear that on September 9, 1940, he was subject to and has since been subject to the provisions of Regulation III, and was and has since September 9, 1940, been a person detained under Regulation III. In our judgment, therefore, there is no jurisdiction under Section 491 of the Code of Criminal Procedure which the Court can exercise in this ease,

9. We do not propose to go into the other questions raised and argued by Mr. Gauba.

10. At most they amount to allegations of illegal or improper detention under Regulation III which even if substantiated would not for the reasons earlier explained give the Court jurisdiction under Section 491. But we would put on record that in no way could we have come to any different conclusions to those arrived at by the learned Judges of the High Court at Lahore.

11. We would add that it is satisfactory that in a case such as this, the Government promptly adopted the suggestions made in the judgment of the High Court now under appeal and have had the appellant again examined by a Medical Board who submitted a report dated the 5th September last. We appreciate its production by the Advocate General to us. For the appellant's sake we regret that the conclusions were not more favourable. But we are satisfied from this and the further statement of the Advocate General made to us that all proper care and attention is being given and is intended to be given to the appellant.

12. The appeal fails and is dismissed.


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