1. This an application by Habib Ahmed Rizvi, Retired Extra-Assistant Commissioner, resident of Raipur, Under Sections 491 and 561-A, Criminal P.C. to set aside the order, dated 21st June 1949, of the Deputy Commissioner, Raipur, directing him to leave India for Western Pakistan within a period of three days.
2. The case of the applicant is that he is a permanent resident of the Central Provinces. He held the position of Extra-Assistant Commissioner and retired in 1939. During the disturbances in 1947, the applicant's mother-in-law took his daughter to Karachi when her family shifted there. In March 1916 he went to Karachi to see his daughter and to make arrangements for her marriage. His wife and children remain, ed at Raipur which is his permanent home. In September 1948 when he was about to return to Raipur he found that the permit system had been introduced. He, therefore, made an application to the High Commissioner for India for a permit to return to Raipur on the ground that he is a national of the Indian Dominion. He was informed by the office of the High Com-missioner that it would take a fairly long time to grant a permanent permit. It, therefore, issued a temporary permit to the applicant for his return to Raipur. The permit was to expire on 80th December 1948.
3. He came to Raipur in the beginning of October 1948 but left for Pakistan before the expiry of the permit. He first went to Dacca to see Some of his relations and then to Karachi where he stayed for a short time. He went back to Dacca and as he wanted to return to Raipur he saw the Deputy High Commissioner for India and informed him that he was returning to his permanent residence at Raipur. He gave the applicant an introductory letter addressed to the Deputy Commissioner, Raipur. He went to Raipur in the first week of February 1949 and saw Mr. R. D. Beohar, the Deputy Commissioner at Raipur, and gave him the letter of the Deputy High Commissioner, He told him that there was no objection to his stay in view of the letter of the Deputy High Commissioner. He has been living in Raipur since that time with his brother Shri S. W. A. Rizvi, M. t. A' He was arrested on 3rd June 1949 by the police Under Section 3 read with Section 6 of the Influx from Pakistan (Control) Ordinance, 1948 and removed to the Raipur Jail, Ha was released on bail by Shri N. P. Bharadwaj Magistrate, First Class. An incomplete challan was filed on 18th Juno 1949 and on 20th June 1949 the Magistrate directed him to appear before the District Magistrate between 9 and U A. M. at his bungalow or between and l p. M. in his Court on the same day. On 2isfc June 1919, ha was served with memorandum No. 0 146 over the signature of the D. S. P., Raipur, conveying to him the order of the Deputy Commissioner Raipur, to leave the Dominion of India for Western Pakistan within three days. The bail bond wa3 cancelled by the Magistrate who passed the following order:
Put up the case on 25tb June 1949 on which data application for withdrawing the proceedings be put up on fulfilment of the condition of the memo aforesaid. The accused is allowed to proceed to Pakistan as per memo received by him.
4. The application to this Court was made on 23rd June 1919 on which date he was not in detention. An affidavit was filed in support of the application. The main grounds on which the order of the Deputy Commissioner dated 21st June 1949 is challenged are as follows ; (i) That a National of the Indian Dominion cannot be sent away from India in the manner the Deputy Commissioner is sending away the applicant, (ii) That the Deputy Commissioner has failed to see that the applicant is a subject of the Indian Dominion and that he had gone temporarily to Pakistan in March 1948 for a specific purpose when no restrictions existed on the movement of persons between Western Pakistan and the Indian Dominion and he was only caught by the permit rules when he intended to return to India, (iii) That the applicant has never renounced his Indian domicile, because in bis application for a permit to the High Commissioner for India at Karachi he baa specifically and expressly stated that he was a natural bom subject of the Indian Dominion, (iv) That the order of the Deputy Commissioner is wrong, illegal and ultra vires and constitute an invasion on the applicant's liberty and seeks to impose on him a nationality other than that which he possesses.
5. The Provincial Government in its return, dated 30th August 1949, stated that the applicant not being in custody his application Under Section 491, Criminal P.C. wa9 incompetent, that the order of the Deputy Commissioner was passed in his executive capacity, that there had been no abuse of the process of any Court nor any injustice by breach of any law to the applicant and that the inherent power Under Section 561A could not be invoked. The Provincial Government also re. presented that the applicant, who migrated to West Pakistan in 1948, went to Dacca only for the purpose of circumventing the terms of the temporary permit. It claimed that any person who wants to enter India from West Pakistan via any place in East Bengal must have the necessary permit issued in accordance with the rules of the Permit Issuing Authority and that the applicant could be sent back to West Pakistan under the rules.
6. The order of the Deputy Commissioner, Raipur, is as follows:
No. C/I46, dated Raipur 21st June 1949.
Shri H, A. Rizvi,
Retired E. A. C, Raipur.
* * * *I am directed by the Deputy Commissioner Raipur to inform you that you should leave the Dominion of India for Western Pakistan within a period of three days of the receipt of this order, failing which you will be prosecuted in Court under Influx from Pakistan (Control) Ordinance, 1948.
Please acknowledge the order. * * * *
The question is whether this order is illegal. We may point out that the reference to the Ordinance is wrong as it had been repealed by Act XXIII  of 1949.
7. Here we may give a short account of the law regulating the control of admission into India of persons from Pakistan. The first Ordinance (ordinance XVII  of 1948) was promulgated on 19th July 1948. Its object was to control admission into India of persons from West Pakistan. The Permit System Rules, 1948, were framed under this Ordinance on 7th September 1948. This Ordinance was repealed by Ordinance XXXIV  of 1948 which was promulgated on 10th November 1948, but the rules remained in force by virtue of Section 9 of the Ordinance. On 10th November 1948, the Permit System Rules of 1948 were amended by insertion of Section 19 which is in the following terms:
No person entering India from any place in that part of Pakistan which lies to the east of India shall be required to be in possession of a permit.
Ordinance xxxiv  of 1948 was repealed and replaced by Act XXIII  of 1943 which Came into force from 22nd April 1949.
8. In exercise of the powers conferred by Section 4, Influx from Pakistan (Control) Act, (Act XXIII  of 1949), the Central Government framed rules entitled 'Permit System Rules 1949', on 20th May 1949. These repealed the Permit System Rules of 1948, Analogous to Section 10 of the rules of 1948 in the present R, 31 which is in the following terms:
Notwithstanding anything to the contrary in these-rules, no person entering India, from any prison in the Province of East Bengal shall ordinarily be required to be in possession of a permit:Provided that in the case of persons who are ordinarily resident In Western Pakistan and who want to enter India via any place in East Bengal it shall be necessary to be in possession of a permit issued in accordance with these rules by the permit Issuing authority mentioned in Rule 8.
9. The applicant; contends that be cannot be ordered to leave India as he is a national of the Indian Dominion.
10. The Provincial Government in its turn and in affidavit has admitted the allegations made in para, 1 of the application which are as follows:
That the applicant is a permanent resident of Raipur in the Central Provinces where he has passed fractionally all his life. He was born and brought up in this Province, He is a retired Government servant of this Province having retired as an Extra-Assistant Commissioner and has been drawing his pension from the Raipur Treasury since 1989.
11. In answer to the allegations in paras. 9 and 3 of the application dealing with the circumstances leading to the applicant's visit to Karachi, the Provincial Government stated that it did not know whether the contents of Paras. 9 and 3 of the application were true and added that even if they were true they were quite irrelevant. The allegations of the applicant are supported by his affidavit which we have no reason to disbelieve. On the material before us we hold that he is a permanent resident of the Central Provinces where he served as Extra-Assistant Commissioner until his retirement. He has been drawing his pension from the Raipur Treasury. We accept his explanation regarding his visit to Karachi. There is no evidence to show that he has abandoned his domicile or his nationality. He has not made Pakistan his permanent home. A person cannot have two domiciles and the domicile of origin prevails until a new domicile has been acquired. There is a presumption in favour of the continuance of an existing domicile. Therefore, the burden of proving a change lies in all oases upon those who allege that the change has occurred : Munro v. Munro 1840 7 cl. & F. 842 : 51 R. R, 103 The relevant rules for the ascertainment of domicile are Br. 1-8 and 12-16, Dioey'a Conflict of Laws 6th Edn., 1949, (pages 77 to 97 and 111 to lie) and they support our view. There is nothing to indicate that the applicant in going to Karachi intended to abandon his domicile and to reside in Pakistan permanently. He has all the rights of a subject of the Dominion of India and as Such has a right to move freely throughout the territory of India and to reside and settle in any part of India until his rights are taken away by due process of law.
12. The applicant has not contravened the terms of the Permit System Rules as he loft India before 80th December 1948. He proceeded to Dacca and later returned to Raipur in February 1949. No permit was necessary in view of Rule 19.
13. The Central Government in pursuance of the powers of removal Under Section 7 of the Influx from Pakistan (Control) Ordinance, 1948, passed a general order on 8th February 1919 in the following terms:
* * * *the Central Government is pleased to direct the removal from India of every person: (a) who has entered India from West Pakistan in contravention o( Section 8 of the said Ordinance; or (b) who, having lawfully entered India, contravenes the provisions of an; rule made Under Section 4 of the said Ordinance, or commits a breach of any of the conditions of his permit ; or (c) who has obtained his permit on the strength of a statement made by him which is false and which he either knew or believed to be false, or did not believe to be true.
This order is still in force by virtue of Section 9 of the Act.
14. Clauses (a), (b) and (c) have no application in this case. The applicant entered India from West Pakistan in pursuance of the permit and not in contravention of 8, 3 of the said Ordinance He did not contravene the provisions of any rule made Under Section 4 of the Ordinance or commit a breach of any of the conditions of his permit. As the applicant does not fall in the category of persona described in clauses (a), (b) and (c)i the Deputy Commissioner had no power to order the applicant to leave India and proceed to West Pakistan.
15. The learned Advocate-General baa referred us to a copy of letter ho. 468/19 N & I, dated 8th February 1949, from the Assistant Secretary to the Government of India, Ministry of Relief and Rehabilitation to the High Commissioner foe India in Pakistan, Karachi. The relevant portion of the letter is as follows:
I am directed...to state that Under Section 3 of the Influx from Pakistan (Control) Ordinance 1948 read with Rule 19 of the Permit System Rules, any person coming from West Pakistan whether directly or indirectly, who is not in possession of a permit, is liable to be prosecuted and sent back to Pakistan....
On the basis of this letter the contention of the learned Advocate-General is that the applicant who entered India from West Pakistan via-Dacca should have been in possession of the necessary permit. This letter is only in the nature of advice and has no force of law and its is Section 31 which will govern the position. In oat opinion this letter did not supersede B, 19 which was in born in February 1949. The order of the Deputy Commissioner is not warranted by Section 7 of the Act and the relevant Permit System Rules. We have no power, however, to set aside the order for the reasons stated in the following paragraphs.
16. Section 491, Criminal P. 0,, has clearly no application. It is only when a person is illegally or improperly detained in public Or private custody that the High Court may direct that he beset at liberty. It is true that the applicant was arrested on 3rd June 1919. He was, however, released on bail on the same date and on 25th June 1919 he was discharged. There are no criminal proceedings pending against him in a criminal Court. On 25th June 1949 the Magistrate discharged the applicant on the ground that 'no communication from the prosecution and no evidence adduced. It is, therefore, presumed that the prosecution has no reasons to proceed.' Later, on the same date, the police applied for an adjournment till 3rd July 1949 for making enquiries if he had really gone to Pakistan, but no action was taken on the application.
17. The applicant is not in detention, actual or constructive, and the question of setting him at liberty cannot arise. The words 'detain' and 'custody' imply some sort of confinement or physical restraint on the liberty of movements of the detenu. The use of the words 'be set at liberty' also supports this construction. The power conferred by Clause (b) of Section 491, Criminal P.C. cannot therefore be exercised in respect of the applicant.
18. The learned Counsel for the applicant cited Leo Zepantisv. Emperor : AIR1944Cal76 , Sandal Singh v. Dist. Mag, & Stipdt., Dehra Dun : AIR1934All148 , In re Jagerdeo 49 Bom 222 : A.I.R. 1925 Bom. 139 : 26 Cri. L.J. 458 Miss Mabel Ferris v. Emperor 53 Bom. 149 : A.I.R 1929 Bom. 81 : 30 Cri. L.J. 772 and Vimalabai Desh-pande V. Emperor I. L. R. (1945) Nag. 6 : A. I. R. 1945 Nag. 8 These cases are, however, distinguishable. In Leo Zepantis v. Emperor : AIR1944Cal76 , Nicholas Schinas was arrested by officers of the Calcutta Police Force on 24th January 1943 at 1 P. M. An application was made on 26th January 1943 by one Leo Zepantis Under Section 491, Criminal P.C. The Commissioner of Police was directed to produce Nicholas in Court on 28th Januray 1943 and show cause why he should not be set at liberty. The same was not produced as he wa3 on board the ship ' S. S. Maria L' which had left Calcutta. The High Court held that 'the Greek Consul had no right in Calcutta to order bis removal from Calcutta, the ship's agents had no right to order his removal from Calcutta. The police had mo right to order his removal from Calcutta unless they did it under an authority from the Central Government or perhaps the Provincial Government or a proper Court o law. The police had no such authority; the ship's agents had no such authority. This was a piece of lawlessness on the part of the ship's agents, the police and the Greek Counsel regret that we are not in a position to help this man as ha is out of the jurisdiction.' The rule was discharged. In that case the man was detained. It is not the case here. In Sandal Singh v. Dist, Mag. & Supdt; Deihra Dun A. I. R. 1931 ALL. 148 : 35 Cri. L.J. 1296 the High Court took the view that temporary release on bail pending further enquiry did not oust the jurisdiction of the High Court Under Section 491. That was a case of a person who was arrested under an illegal extradition warrant. There were proceedings pending relating to the arrest of the accused in pursuance of the illegal warrant and these were quashed. There are no criminal proceedings against the applicant in the present case. In re Jagerdeo 49 Bom. 222 : A.I.R. 1926 Bom. 139 : 26 Cri. L J. 458 the accused were under detention and in Miss Mabel Ferris v. Emperor 53 Bom. 149 : A.I.R. 1929 Bom. 81 : 30 Cri. L.J. 772 the order of the Chief Presidency Magistrate was held to be judicial. In Vimalabai Deshpande v. Crown I.L.R. (1945) Nag. 6 : A.I.R. 1945 Nag. 8 Deshpande was in detention when the application was made and the order was passed. We hold that the application Under Section 491 i3 not tenable.
19. Shri Rizvi contended that the order could be revised Under Section 439, Criminal F, C. The power of revision can be exercised in respect of proceedings pending in an inferior criminal Court, The order was passed by the Deputy Commissioner in his executive capacity and is an administrative and not a judicial order. We respectfully agree with the following observations in Sandal Singh v. Dist. Mag. & Supdt., Dehra Dun : AIR1934All148 . 'The High Court would have no power to interfere with orders passed by a District Magistrate in his executive capacity.' We may also refer to the oases reported in Qhulam Sadiduddin v. Emperor A.I.R. 1911 Lah. 71 : 42 Cri. L.J. 448 and Bhimraj v. Emperor 61 cal. 460 : : AIR1924Cal698 on the question of the limits of revisional jurisdiction. The case in Bikaru v. Emperor is distinguishable, as the proceedings in respect of which powers of revision were sought were disposed of by the criminal Court.
20. In the present case the Deputy Commissioner passed the order not as a Court nor as a District Magistrate but as an officer of Government within the meaning of Section 2 (b) of the Act. The order is not, therefore, revisable.
21. Nor do we consider that the provisions of Section 561-A, Criminal P.C., apply to a case of this kind. That this Court has power to interfere thereunder at an interlocutory stage of criminal proceedings in a subordinate Court in order to prevent the harassment of a person by an illegal prosecution was laid down in Abdul Wali v. Emperor A.I.R. 1933 Oudh 887 : 36 Cri. L.J. 148 by Wazir Hasan, C. J. Here, however, the applicant is not being prosecuted now and there is no warrant for interference on our part, although the position might well be otherwise if an attempt is made to enforce the illegal order of 21st June 1949 or to issue a fresh order of a similar character against him.
22. The application is dismissed.