1. One Ishwarbhai Somabhai Patel is detained in His Majesty's Central Prison at Yerawada by the Government of Bombay under Rule 26 of the Defence of India Rules framed under the Defence of India Act, 1939. The plaintiffs have filed this suit and they wish Ishwarbhai Somabhai Patel to be examined as a witness in this case; and they have made an application to me under Section 35 of the Prisoners Act, 1900, for the production of this person in Court so that he could give evidence in this case.
2. The Advocate General on behalf of the Government of Bombay contends that the Prisoners Act has no application and the Court has no jurisdiction to make this order. MR. Taraporewalla on behalf of the applicants, the plaintiffs in this case, argues that Section 35 is wide enough to cover the case not only of a person confined to a prison by an order of the Court but also of a person confined to a prison by an executive order. Mr. Taraporewalla contends that Section 35 does not lay down that only a prisoner could be produced under this section but it applies to any person confined in any prison and the language of the section is wide enough tot cover the case of Ishwarbhai Somabhai Patel who has been confined to the Yerawada Jail under the Defence of India Rules. Mr. Taraporewalla further argues that the word 'prisoner' is not defined under the Act and that I must construe that word in the widest sense. It is possible that if the matter rested there, I might have acceded to Mr. Taraporewalla's argument and held that a prisoner would mean any person who is confined and whose liberty has been fettered or restricted.
3. The word 'prison' is defined in the Act not in a comprehensive way but merely to point out that it includes any place which has been declared by the Provincial Government, by general or special order, to be a subsidiary jail; and therefore if a person is confined in any particular place, that place of confinement might be argued to mean the prison to which the Act would apply. But when one turns to the preamble of the Act, the matter is made clear beyond any doubt. The preamble of the Act runs as follows :-
Whereas it is expedient to consolidate the law relating to prisoners confined by order of a Court.
Therefore, as far as the preamble is concerned, the Legislature intended the scope of the statute to be confined to those prisoners who were confined to a prison by an order of the Court and not by an executive order. It is undoubtedly true that if the language of a section is clear, the preamble cannot control its effect or extend or restrict its meaning. But as pointed out by Maxwell on the Interpretation of Statutes, Eighth Edition, p. 40 :-
The preamble of a statute has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and, as it usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt.
4. Now the question that arises under Section 35 of the Prisoners Act is whether a person confined to any prison referred to in that section is a person confined only by an order of the Court or also a person confined under an executive order]. The section throws no light on the construction of these words and, therefore, it is perfectly competent to the Court to look to the preamble in order, to use the language of Maxwell, 'to fix the meaning of these words and also to keep the effect of the Act within its real scope.' Looking to the preamble, I have no doubt that a person confined to any prison referred to in Section 35 is a person who has been so confined by an order of the Court and it does not apply to a person confined under an executive order under the Defence of India, Rules.
5. Mr. Taraporewalla has argued that in many sections of the Act the Legislature has used the word 'prisoner' whereas in Section 35 the Legislature has advisedly used the words 'any person' and, therefore, I must give a wider meaning to the words 'any person' than if I would have given if the Legislature had used the word 'prisoner.' The reason for the Legislature using the words 'any person' in Section 35 is made clear if one looks at Section 34 of the Act. Section 34 provides that in this Part all references to prisons or to imprisonment or confinement shall be construed as referring also to Reformatory Schools or to detention therein. Therefore, this Part in which Section 35 occurs applies not only to persons confined to prison under an' order of the Court but it also applies to persons who may be detained in a Reformatory School. Section 35, therefore, would apply to persons detained in a Reformatory School. If that were so, the Legislature could not have used the word 'prisoner' as applying to a person detained in a Reformatory School. Therefore, the wider word 'person' had to be used in order that the provisions of the section might apply not only to persons confined in a prison but also to persons confined in a Reformatory School.
6. Apart from the preamble and Section 34 to which. I have drawn attention, looking: at the whole scheme of the Act, I have no doubt in my mind that it was intended to apply only to those persons who are confined under an order of the Court. It could not possibly have been intended that when a person is detained or confined not by a judicial authority but by an executive authority his movements should be regulated by a Court of Law. It is only when the confinement is the result of a judicial order that the movements of the prisoner or the person confined can be regulated by a Court of Law under the provisions of the Prisoners Act.
7. Under the circumstances I must dismiss the application.