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Emperor Vs. Malhari Ramaji Chikate - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application No. 630 of 1947
Judge
Reported in(1948)50BOMLR188
AppellantEmperor
RespondentMalhari Ramaji Chikate
DispositionAppeal allowed
Excerpt:
criminal procedure code (act v of 1898), section 491 - habeas corpus-successive applications for such writ-whether applications maintainable.;the powers of the courts in india to issue the writ of habeas corpus are controlled and circumscribed by section 491 of the criminal procedure code, and they have no longer the jurisdiction to issue the common law writ of habeas corpus and to exercise the powers which the courts in england exercise.;under section 491, criminal procedure code, a detenue cannot make successive applications for a writ of habeas corpus. it is not open to him to ask for a review of an order already made under section 491.;haidari begam v. jawad ali shah < i.l.r. (1933) all. 271 and kishori lal v the crown [1945] lah. 573, followed. - - justice jahagirdar on october..........of that code. the same view of the law has been taken by both the allahabad and the lahore high courts. in haidari begam v. jawad ali shah i.l.r. (1933) all. 271, a division bench of that court consisting of mr. justice king and mr. justice collister held that the common law practice of english courts, permit-ting successive identical applications for a writ of habeas corpus to be made to the judges, one after another, of the high court of justice, is not applicable to the high court of allahabad in the case of applications under section 491 of the criminal procedure code. it is true that in the judgment the learned judges relied on a rule framed by that court which prohibited applications to the same effect being presented to any judge after having been disposed of by one judge......
Judgment:

M.C. Chagla, Ag. C.J.

1. This application raises a further question whether it is open to a detenue to ask for a review of an order already made under Section 491, or in other words whether successive applications can he made for a writ of habeas corpus on behalf of a detenue. The application on behalf of this detenue was dismissed by Mr. Justice Rajadhyaksha and Mr. Justice Jahagirdar on October 9, 1947.

2. It is now well established that the Courts in India have no longer the jurisdiction to issue the common law writ of habeas corpus and to exercise the powers which the Courts in England exercise. The powers of the Courts are now controlled and circumscribed by Section 491 of the Criminal Procedure Code which has taken the place of the old common law writ of habeas corpus. If that be so, then we must look to the Criminal Procedure Code for the procedure to be followed once an order is made under Section 491.

3. Section 369 of the Code contains a prohibition against altering or reviewing a judgment of the Court once it is signed, except to correct a clerical error; unless it is otherwise provided by the Code or by any other law for the time being in force. Our attention has not been drawn to any provision in the Code or to any other law which permits the Court to review an order once made under Section 491. Mr. Patel has contended that an exception should be made in the case of orders under Section 491 because they involve the liberty of the subject. Anxious as we may be to do nothing which would impair or curtail that liberty, we do not find that the law attaches any greater sanctity to an order made under Section 491 of the Code than any other order under any other provision of that Code. The same view of the law has been taken by both the Allahabad and the Lahore High Courts. In Haidari Begam v. Jawad Ali Shah I.L.R. (1933) All. 271, a division bench of that Court consisting of Mr. Justice King and Mr. Justice Collister held that the common law practice of English Courts, permit-ting successive identical applications for a writ of habeas corpus to be made to the Judges, one after another, of the High Court of Justice, is not applicable to the High Court of Allahabad in the case of applications under Section 491 of the Criminal Procedure Code. It is true that in the judgment the learned Judges relied on a rule framed by that Court which prohibited applications to the same effect being presented to any Judge after having been disposed of by one Judge. But the decision is also based on the broad principle that the High Court had not the common law right of issuing a writ of habeas corpus but has only the power which was conferred upon it by Section 491 of the Code.

4. In the Lahore High Court in Kishori Lal v. The Crown [1945] Lah. 573 in the first instance it was sought to be argued that a Letters Patent Appeal lay under clause 10 of the Letters Patent from the decision of a single Judge rejecting an application under Section 491. That argument was rejected by the bench. Then it was sought to be argued that there was a right of successive applications to different Judges. That contention was also negatived on the ground that the entertaining of a second application on the same facts would amount to a review of the earlier judgment and would be clearly barred by Section 869. It was emphasised that the common law was no longer applicable and that the relief claimed was solely available under the Criminal Procedure Code and the matters at issue must be decided according to the provisions of that Code. With respect, we agree with the view taken by the Allahabad and the Lahore High Courts and we are therefore of the opinion that an order once made under Section 491 is not open to review.

5. We therefore discharge the rule. Rule discharged.


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