1. An application under Section 491, Criminal P. C., made by the petitioner came before Dixit and Shah JJ. and was rejected by them on 12-6-1950. This application is made by the petitioner for a review of that order. It is very fairly conceded by Mr. Sule that in view of the decision of a Full Bench of this Court reported in Emperor v. Malhari 50 Bom. L. R. 188 : A. I. R. 1948 Bom 826: 49 Cri. L. J. 460 , such a review application would not lie. A further application is made bythe petitioner that although a review may not lie it is the right of the petitioner to make an application for a writ of habeas corpus under Article 226 of the Constitution to successive Judges of this Court, and in pursuance of that right he is entitled to be heard by Judges other than Judges who made the order.
2. A very able argument has been advanced before us by Mr. Sule which deserves very careful consideration at our hands. It is argued that although under Section 491 successive applications may not be permissible to a petitioner, Article 226 of the Constitution enhances the rights of the citizen and under that article he has the right in enforcement of his fundamental rights to present successive applications to different Judges of this Court; Article 226 empowers every High Court to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III and for any other purpose. In this category of directions, orders or writs are included writs in the nature of habeas corpus and it is clear that the writs in the nature of habeas corpus are the orders that the High Court makes under Section 491, Criminal P. C. It has now been well settled by a decision of the Privy Council in C. P. Matthen v. District Magistrate, Trivandrum that on the enactment of Section 491, Criminal P. C., the power of the High Court to issue the common law writ of habeas corpus was taken away and in place of that common law writ the only power that the High Courts had was to pass orders under Section 491. The Privy Council fully approved the considered judgment of the Full Bench of the Madras High Court reported in the same volume at p. 708, District Magistrate, Trivandrum v. Mammen Mappillai I. L. R. 1989 Mad. 708 : A. I. R. 1989 Mad. 120 : 40 Cri. L. J. 320 . Therefore, before the Constitution was enacted it is clear that the High Courts had no longer the power to issue the common law writ of habeas corpus. The question that we have to consider is whether Article 226 has made any change in the powers of the High Court. The power of the High Court under Article 226 is no longer confined to issuing writs in the nature of habeas corpus. It has been given the power to issue any direction, any order, or any writ for the purpose of enforcing fundamental rights, and it seems to us that Mr. Sule is right to the extent that the High Court may think it necessary to issue the common law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that that power may be outside Section 491 and may be wider than the power conferred under that section.
8. It is next contended that the right to approach by successive applications different Judges of the High Court, is a right which is a substantial light and a part of the right which a citizen in England enjoys under the common law writ of habeas corpus. It is necessary to examine this argument. Halsbury in vol. IX, p. 727, Para. 1289, formulates that right in these words :
'The applicant has a right to apply successively to every Court competent to issue a writ of habeas corpus and each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of co-ordinate jurisdiction, even though the grounds urged are exactly the same.'
It will, therefore, be noticed that the right to which Halsbury in this para, gives recognition is the right, not to approach every Judge of a Court, but to approach every Court and every tribunal. There is no right to approach the same Court or the same tribunal. Then in the very para, the author goes on to state :
'Thus, each Judge of the High Court of Justice has jurisdiction to entertain an application for a writ in term time or vacation, and he is bound to hear and determine the application on its merits, notwithstanding that some other Judge has already refused a similar application.'
Therefore, each Judge of the High Court of Justice in England is constituted a Court or a tribunal for the purpose of issuing writs of habeas corpus, and as each Judge is a separate Court or a separate tribunal for that purpose, the subject has a right to approach each Judge successively as if each Judge was a different Court or a different tribunal.
4. The position in England was carefully considered by the Privy Council in Eshugbayi Eleko v. Government of Nigeria (1928) A. C. 459 : A.I.R. 1928 P. c. 300 : 30 Cri. L. J. 113. That was an appeal from the Supreme Court of Nigeria and the Acting Chief Justice of the Supreme Court had refused to issue a writ of habeas corpus on the ground that the detention of the applicant was lawful. The applicant then gave a fresh notice of motion in the Supreme Court to the same effect before another Judge of that Court, and that Judge dismissed the application holding that such an application did not lie. There was an appeal to the Full Court and that Court also dismissed the application. It was under these circumstances that the Privy Council came to consider what the rights of the applicant were. The Privy Council considered Section 10 of 31 Car. II, c. 2, which gave the right to a citizen in England to move any Division of the High Court in England and every Judge of such Division in the vacation for a writ of habeas corpus and a refusal by a Judge to hear such an application was made penal. It was urged upon their Lordships byMr. Strafford Crippg, as he then was, that judicial opinion which was of a formidable character clearly showed that the right to make successive applications was not to different Judges of the same Court but to different Courts. What weighed with and considerably influenced the Privy Council was the provisions of this Act passed in the reign of Charles II. Their Lordships felt that if a citizen had the right to move every Judge of the High Court in the vacation, it was difficult to believe that that right did not exist while the Court was in session. But in coming to this conclusion--and it is very important to note this--the Privy Council proceeded on the assumption that every Judge of the High Court in England had jurisdiction to order the writ to issue. It was not as if the Court itself had the jurisdiction to issue the writ, but each Judge in his own right had that jurisdiction. Having laid down this principle, their Lordships applied that principle to the Supreme Court of Nigeria. Unfortunately, reading the report of this case we are not in a position to say as to what was the constitution of the Supreme Court of Nigeria. But we assume, reading the judgment of their Lordships and deducing the ratio of that judgment, that their Lordships came to the conclusion that a citizen of Nigeria had the right to move every Judge of the Supreme Court on the ground that every Judge of that Court constituted a Court or tribunal for the purpose of issuing a writ of habeas corpus and that each Judge of that Court had the jurisdiction so to issue a writ.
5. Now turning to the position in India, orders under Section 491 are passed by the High Court of Bombay. It is true that the High Court acts through a Judge or Judges nominated by the Chief Justice for that purpose, and although an application under Section 491 may be heard by a Division Bench of this Court the judgment that it ultimately pronounces is not the judgment of that Division Bench but the judgment of the High Court. The Division Bench acts on behalf of the High Court and as the High Court for the purpose of hearing and disposing of an application under Section 491. Therefore when the decision is given, it is the decision of the High Court. There is no provision either in the Letters Patent or in any of the rules framed by the High Court for a Judge or Judges of the High Court to exercise independent jurisdiction in matters coming under Section 491. The question still remains whether in cases that may not fall under Section 491 and which may fall under Article 226 there is any independent jurisdiction conferred upon any Judge of the High Court to issue writs contemplated byArticle 226. It is clear that even under Article 226 it is only the High Court that can issue a writ for the enforcement of a fundamental right. The jurisdiction is conferred upon the High Court as such and not upon any Judge or Judges of that Court, and therefore when a Division Bench of this Court hears an application under Article 226, it is hearing that application as the High Court, and its ultimate decision is not their decision but the decision of the High Court.
6. Therefore, when Disit and Shah JJ. rejected the application of the applicant on 12-6-1950, it was the decision of the High Court, and the question is whether it is open to the applicant to approach any other Judge of the High Court for a similar purpose not withstanding the decision of the High Court to the contrary. When one analyses the situation, the effect of the argument of the applicant comes to this that the decision of the High Court on an application for a writ for the enforcement of the fundamental rights under Article 226 is subject to review by the High Court. It is clear that no Court has an inherent power of review. A power of review like a power of appeal must be conferred by statute. As far as the Criminal Procedure Code is concerned, no power of review is given to the High Court in criminal matters, and there is nothing in Article 226 which would induce an to hold that the constitution has conferred a power upon the High Court of review in matters falling under that article. The reason why no power of review is given in criminal cases is obvious; it is to give a finality to a judgment of a criminal Court; and we see nothing in Article 226 which impliedly goes contrary to that fundamental principle which applies to all criminal trials and all criminal judgments. Indeed, Mr. Sule partially concedes the principle of finality because he admits that he would have no right to approach the same Judge who has once decided the application either under Section 491 or under Article 226. If the principle of finality applies to a Judge of this Court, it is difficult to understand why the principle of finality should not apply to the High Court as such. As I said before, under Article 226 it is the High Court that is dealing with applications under Article 226 and not a Judge or Judges of that High Court.
7. Mr. Sule has made an appeal to us in the interest of individual liberty and in the cause of fundamental rights which have been guaranteed to the citizens under the Constitution. Mr. Sule says that the High Court should see to it that these rights are not rendered infructuous by any view that we might take which is of a purely technical and procedural character. Such an appeal is very often irresistible, but fortunately in this case, as I shall presently point out, it is unnecessary to be apprehensive as to the right of a citizen to enforce his fundamental rights. Although the decision of the High Court refusing a writ or an order under Article 226 may become final qua the High Court, it is not as if the Constitution does not provide other remedies to the citizen. He has a right, an independent right, to approach the Supreme Court) under Article 32. The powers of the High Court and the Supreme Court in this respect are concurrent, and notwithstanding the refusal of the High Court to enforce the fundamental rights of the citizen, he can approach the Supreme Court in its primary jurisdiction. Apart from that there is a right of appeal given to the citizen from an order of refusal of the High Court to enforce his fundamental rights. He has the right to ask the Supreme Court to grant him special leave to appeal under Article 186. Therefore it is not as if the citizen is without a remedy in the event of the High Court refusing to review its own judgment, however erroneous that judgment may be.
8. The result, therefore, will be that, the application will be refused as being incompetent. Although we are refusing this application as incompetent, we must frankly confess that we are impressed by the fact that this application arises by reason of a decision of this Court given on identical grounds and which decision was arrived at after elaborate arguments were presented to the Court. My brothers Dixit and Shah JJ. were under this handicap that when the application came before them the matter was not fully argued and they very rightly, judging by materials presented to them at that moment, came to a conclusion which was contrary to the conclusion taken by a Division Bench subsequently. Although we have held that we are not entitled to review the decision of Dixit and Shah JJ. or to permit the applicant to present this application to any other Judge of this High Court, we feel certain that Government will not take its stand on any technical ground, but will review this case, and if it is satisfied that the case falls within the four corners of the judgment delivered by the Division Bench subsequently, it will not hesitate to set the detenus free.
9. Leave to Mr. Sule under Article 132 of the Constitution.