1. These two petitions are filed on behalf of the detenus who have been detained under Section 3(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 as amended and both have been detained by the Order of the Central Government. The petition itself contains several prayers like granting a writ of certiorari for calling the records and quashing the order, or a writ of mandamus, but the petitions read as whole are primarily and mainly for the release of the petitioners from custody which is described as a prison. In essence, therefore, these are petitions for a writ of habeas corpus.
2. Such petitions till now were registered by the Office of this Court as criminal applications. The parties also clearly presented them as criminal applications and till the two petitions were so presented as Spl. C. As. they were always numbered as criminal applications. It appears that the understanding, or as is now being styled as misunderstanding, was that such petitions fell under Chapter XXVIII of the Bombay High Court Appellate Side Rules, 1960 and should be marked and registered as criminal applications. It is also supposed that in terms of Rules under that Chapter such applications were to be made to the Division Court taking criminal business of the Appellate Side and accordingly they were being dealt with. When these two petitions were specifically field as Spl. C. As. and were sought to be moved before a Bench of this Court taking constitutional matters, the question arose whether these petitions should be entertained by that Bench at all or they should be marked as Criminal Applications and directed to be presented before the Bench doing criminal business on the Appellate Side.
3. The parties pointed out that according to them, the prevalent practice was wrong and illegal. They were right in filling the applications as Spl. C. As. They were, therefore, referred to the learned Chief Justice for seeking appropriate orders. After hearing them, the learned Chief Justice passed the following order:
Spl. C. A. No. 2212 of 1975 and Spl. C. A. No. 2213 of 1975 should be placed before Mr. Justice Deshmukh and Mr. Justice Joshi with liberty to the petitioners or any other party to contend that such matter should be heard by the Division bench taking Constitutional matters. If the learned Judges accept the contention that they should be heard by a Division Bench taking Constitutional matters, then they will give directions for placing them before such a Bench.'
4. Since liberty was reserved in these directions to other parties also to contribute their say in the matter, we put up a notice in the two Bar Rooms, the Original and Appellate Side Bar Rooms, as also on the Board of this Court and accordingly we have heard these petitions. In addition to the learned Counsel representing the parties, Mr. Diwan on behalf of the petitioner in Spl. C. A. No. 1899/75 also appeared and argued.
5. Prima facie the question may look purely technical but we must state that considerable erudition and much more industries were expended by the learned Counsel on both sides to give us sufficient information to find out whether the existing Rules in Chapter XXVIII of the Bombay High Court Appellate Side Rules of 1960 are no more in operation from 1st April, 1974, so as to treat such applications, even though they may appear to be habeas corpus petitions, under Article 226 of the Constitution for being classified as Constitutional matters falling under Chapter XVII of the said Rules. We are really grateful to the learned Counsel who have taken us through not only various decisions of the Indian Courts but also some of the judgments of English and American Courts as also some writers from America.
6. To state very briefly the question raised is this: After the establishment of the High Courts in three different places in this country, it was supposed that the High Courts have inherited the common law jurisdiction of the English Judges in the matter of issuing habeas corpus is concerned, it is almost settled by an authoritative pronouncement of the Privy Council so far as the Indian high Courts are concerned. After the provisions of the code of Criminal Procedure 11898 came into force, their jurisdiction to issue directions in the nature of habeas corpus stemmed from and confined to the provisions of Chapter XXXVII of that Code. In other words, the source of power to issue writs in the nature of habeas corpus as also the extent and the manner of issuing habeas corpus were both provided by Section 491 of that Code.
7. It is further stated that while this position continued to be the law governing the habeas corpus jurisdiction of the High Court, this country became independent and the Constituent Assembly gave to his country a new Constitution. Confining ourselves to the question of powers of the High Court to grant certain types of writs including the habeas corpus writ, or direction or order of that nature, the same was codified under Art. 226 of the Constitution. It is not being doubted by both the sides that the scope of Article 226 is undoubtedly larger than the scope of Section 491 of the Criminal Procedure Code, 1898, (for brevity the 'old Code'). However, for the purposes of entertaining the petitions for seeking directions or writs of habeas corpus Rules have been made by this court and a certain classification of petitions is brought about with further directions to move certain Benches of this Court.
8. The Bombay High Court Appellate Side Rules which are pointedly brought to our notice are of the year 1936 which were prevalent upto 14th April 1950, 1950 Rules which were operative until they were further revised in the year 1960 and the revised Rules of 1960 are still in force from 11th March, 1960. It is stated that so long as the old Code was in force the rules were logical and the parties were properly directed to move the Division Bench doing criminal business of the Appellate Side. This is primarily because of the presence of Section 491 of the old Code.
9. The Rules of 1936 Section 491 were contained in Chapter XI and consisted or Rules 60 to 62. They were revised by correction slip dated 16th April, 1948, and became Rules Nos. 60 to 65 and a further correction was made by Slip No. 50 as from 29th August, 1949. Chapter XI bore the title 'Rules framed by the High Court under Section 491 (2) of the Code of Criminal Procedure'. These Rules were in order and neither the correctness, legality or operation thereof is being doubted or challenged by either side before us.
10. Then came the revision of those Rules in April 1950. This revision became necessary because the Constitution by its Article 226 vested the High Courts with powers which are wider than those contained in Section 491 of the old Code. Those powers are for the purpose of issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. This was provided by sub-Article (1) of Article 226 of the Constitution.
11. The powers to issue writs under this sub-Article were confined to the territorial jurisdiction of the High Court. It was, however, found that the High Court ought to be authorised to issue writs of the above nature, when the cause of action substantially arises in the State, but the seat of the Government or the Authority or residence of the person against whom such directions or writs be issued falls outside the territorial limits of the High Court. Hence by the Constitution (Fifteenth Amendment) Act 1963 Section 8 sub-article (1-A) was introduced. It therefore became clear that from 26th January, 1950, there was already on the statute book Section 491 of the old Code which vested certain rights in the High Court to issue directions in the nature of habeas corpus but there were also additional provisions contained in the Constitution itself enlarging the powers of the High Court and vesting them with the authority to issue not only directions but also orders and writs themselves of various types. The High Court, therefore, found it necessary to amend its Rules contained in Chapter XI of 1936 Rules. The same Rules were revised and reprinted on 10th April, 1950, where the same Chapter XI contained those Rules. In the body of the Rules there is some change, but the main change brought about is in the title of that Chapter which is as follows:
Rules framed by the High Court for issue of writs of habeas corpus under Article 226 of the Constitution of India read with Section 491 (2) of the Code of Criminal Procedure, V of 1898.'
12. In the preface to the 1950 Edition amongst other things mentioned by the then Registrar, the following paragraph appeared:-
'The establishment of Supreme Court under the new Constitution necessitated the framing of a set of Rule by this Court to govern appeals to that Court in consonance with the Rules framed by the Supreme Court. A set of Rules was also evolved by the High Court under Article 226 of the Constitution of India.' The provisions of this book show that the High Court purported to apply its mind to the changes brought about by the Constitution and accordingly revised the Rules in order to suit the additional requirement under Constitution.
13. In the body of the Rules in Chapter XXI, the first Rule which was then 64, was as follows:
'64. All applications by or on behalf of persons for orders under Section 491 of the Code of Criminal Procedure shall be made to the Division Court taking the criminal business of the Appellate Side of the High Court, duly certified by oath or affidavit, setting forth the circumstance under which the order is sought.'
It is also not being doubted that these were good enough Rules and though Article 226 widened the powers of this court in the matter of issuing writs including writ of habeas corpus, the provisions of Section 491 of the old Code which were in vogue immediately before coming into force of the Constitution and which provisions were also continued thereafter required a party apply to 'any High Court' for issuing all directions described in clauses (a) to (f) of sub-section (1) of Section 491. It is immediately stated that the expression 'High Court' referred to in Section 491 has been defined by clause (i) of Section 4 of the old Code and that definition says that in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta, and, in relation to any other local area, means the highest court of criminal appeal for that area other than the Supreme Court or, where no such court is established under any law for the time being in force, such officer as the State Government may appoint in this behalf.
14. Since the provisions of the statute required that an application be made to the High Court which means highest court of criminal appeal it was but appropriate that even the application under Article 226 of the Constitution but in the nature of habeas corpus should be required to be filed before a Bench doing criminal work of the Appellate Side. The Rules were therefore in order, according to the petitioners, so long as the provisions of the old Code continued to be operative.
15. The situation, however, radically changed from 1-4-1974 when the Code of Criminal Procedure 1973 (Act 2 of 1974) came into force. The new Code repeals the old Code and also provides for the consequence of repeal and enacts the savings in Section 484. The new Code can be described in the legal language as the Procedure Code for criminal matters repealed and re-enacted. Section 492 of the old Code does not find place at all in the new Code. In fact Chapter XXXVII of the old Code is not re-enacted. A provision like Section 491 of the old Code is not on the statute book of this country from 1-4-1974. The only provision under which a citizen can now apply from 1-4-1974 for a writ of habeas corpus is contained in Article 226 of the Constitution. If that is so, and if there are no Rules in existence framed by the High Court for the guidance of citizens as to how they shall move the High Court for obtaining writs of habeas corpus, the citizens are entitled to apply directly under Article 226 of the Constitution and such applications would ordinarily be marked as constitutional matters. If they are applications under the Constitution and there is no Rule in existence which gives them no other classification, it is but logical that the citizens would apply before the Bench of this Court doing Constitutional Work appointed for that purpose by the learned Chief Justice.
16. The principal point for which the whole debate was organised is this, viz., that the rules of business of this court contained in Chapter XXVIII which are nothing but the reproduction of the old provisions of Chapter XI of the earlier Rules - may be with some modifications - are the only Rules framed by this court for the purpose of filing applications for issue of writs of habeas corpus, and they are no longer in force after 1-4-1974.
17. In order to better understand the point canvassed before us we would reproduce for ready reference the title of Chapter XXVIII together with Rule 1 along with its marginal note:-
Rules for the issue of Writs of Habeas Corpus under Article 226 of the Constitution of India read with Section 491 (2) of the Code of Criminal Procedure V of 1898. 1. Application under S. 491 Cri. P. C. - All applications by or on behalf of persons for orders under Section 491 of the Code of Criminal Procedure shall be made to the Division Court taking the criminal business of the Appellate Side of the High Court, duly verified by oath or affidavit, setting forth the circumstances under which the order is sought.'
What is stated is that Rule 1 is the only Rule in this Chapter which must be read specifically for the purpose of understanding how and where one has to apply for obtaining the relief provided by that Chapter. A plain reading or Rule 1 along with its marginal note shows that whoever wants an order under Section 491 of the old Code has to move a Division Court taking criminal business of the Appellate Side. If from 1-4-1974 the old Code and Section 491 thereof stand repealed how can this Rule and the rules that follow be made applicable to any application seeking a writ of habeas corpus. it may be that the title of the Chapter describes them as Rules for the issue of writs of habeas corpus under Article 226 of the Constitution read with Section 491 of the old Code.
18. Two arguments are placed before us for our consideration. One if that the title of Chapter cannot be read at all for the purpose of interpreting the sections or the Rules when they are clear and unambiguous. It may be that there is authority for the proposition that when a Rule or a section is ambiguous or where two meanings are possible in order to obtain clarification reference may be made to the title of the Chapters or Marginal notes of the section. The title of the Chapter in no case can be used for restricting the meaning of rules or sections that follow. Further if the Rule or the section is clear enough no reference at all need be made and no help derived from the title of the Chapter. This is the first part of the argument. The logical conclusion of this argument is that we do not read the title of the chapter at all and when the rule is read which refers to Section 491 of the old Code, which obviously means Criminal Procedure Code 1898, the rule itself becomes inoperative from 1-4-1974, i. e., the day when the whole of the old Code stood repealed.
19. The second part of the argument is that even assuming that the title has to be read for some purpose, a plain reading of the title shows that these are the Rules made by the High Court under Article 226 'read with' Section 491 (2) of the old Code. The language used by the High Court clearly restricts the scope of meaning of the title and it at best means that these applications are only under Section 491 (2) though they may refer to certain matters contained in Art. 226 of the Constitution. The expression 'read with' is an expression of limitation and it cannot be extended to read into the rules themselves as if they were the rules made under Article 226 of the Constitution. Even if the title were to be read in this restricted manner, the result would still be the same, viz., there is no effective rule in Chapter 28 which guides or compels citizen to apply to this court by way of writ of habeas corpus before its Division Bench taking criminal business of the Appellate Side.
20. As against this the main argument addressed to us on behalf of the respondents by the learned Counsel M/s. Bhanuka and Advani and the Government Pleader Shri Gumaste is that the High Court was fully aware of the Constitution which came into force on 26th January, 1950. It was further aware that its powers of issuing writs have been enlarged, and the Constitution has made a specific provision under Article 226 for the issuance of several writs. It may be that after the passing of the old Code till the new Constitution came into force, the High Courts had limited powers defined by the Statute. However, the Constitution has now vested them with full powers to issue to any person or authority including in appropriate cases any Government directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. This provision considerably enlarges the jurisdiction of the High Court. Writs as well as orders are now of different types and writs as well as orders and directions can be issued not only for the enforcement of fundamental rights guaranteed by Part III of the Constitution but for any other purpose as well.
21. Knowing this, the High Court amended Chapter XI of the rules framed in 1936. Regarding the extended jurisdiction of the High Court under Article 226 provision has been made in three different places. So far as writs of habeas corpus are concerned the provisions of title when these Rules were further revised after experience in 1960 and considerably enlarged, many detailed Rules came to be passed. However, the provisions of Chapter XI have now been placed Chapter XXVIII in the new arrangement of Rules. We have already pointed out that these provisions are virtually the same except for some incidental corrections. The learned Counsel for the respondents argued that the High Court has devised detailed rules for guiding the citizens as to where they should apply if they want reliefs which Article 226 can offer by asking for certain writs from the High Court.
22. So far as the territorial jurisdiction of the High Court in the matter of issuance of writs is concerned, it obviously runs throughout the State itself, but after the Constitution Amendment of 1963 the writs of this court now can run even beyond the territorial jurisdiction for the purpose of issuing directions and orders and writs to any Government or authority or person outside the territorial limits of this State provided the cause of action for the writ wholly or in part arises within the jurisdiction of this Court.
23. The High Court in framing the Rules adopted a scheme. It divided the territory susceptible to its jurisdiction into two parts. One was the limits of Greater Bombay, which is the Ordinary Original Civil Jurisdiction of this Court. The other is rest of the territory whether within or without the State of Maharashtra. Having so divided the territory in respect of the writs to run, the High Court provided three categories of courts for entertaining writ applications depending upon the place of cause of action. If the cause of action for seeking writ under Article 226 except claiming a writ of habeas corpus, arose within the limits of Greater Bombay, the party is directed to present his petition before a single Judge on the Original Side of this Court. This is contained in Rule 623 of the Original Side Rules. The rules then provide for making an application under Article 226 when the cause of action substantially arose outside Greater Bombay but within the State and Chapter 17 of 1960 Rules provides that an application be presented before a Division Bench to be appointed by the learned Chief Justice in that behalf. This Bench is known as a Bench doing constitutional work or constitutional business of this court. It is true that the language of Chapter 17 does not specifically exclude, as in the case of Rule 623 of the Original Side Rules, the applications for writs of habeas corpus. The provisions of that Chapter and those of Chapter XXVIII as well as Rule 623 of the Original Rules must be read together for finding out what was really intended and what were the directions given to the citizens to approach this Court. The third place where the provisions for the purpose of application for a writ under Article 226 is to be found is in Chapter XXVIII which deals with Rules for issue of writs of habeas corpus under Article 226 of the Constitution read with Section 491 (2) of the old Code. It is being argued that these three provisions must be read together which cover within themselves the notified scheme provided by the High Court for the purpose of making application of various types before carious Benches when writs claimable under Article 226 are being agitated.
24. Thus read, according to the respondents, Chapter XXVIII must be read as Rules under Article 226 of the Constitution primarily, and the reference to Section 491 of the old Code, so long as that section was on the statute book, must be deemed to be a subordinate reference. From this point of view, not only the title should be read for understanding the real nature of the Rule 1 and the Rules that follow, but if necessary it should be treated as a case of obvious error and some words may be added to Rule 1 for the purpose of bringing out the real intention of the High Court in enacting or passing that Rule. Otherwise, it is pointed out, that a citizen having substantially or mainly his cause of action in the Island of Bombay will be having no court at all under the Rules where he can file his petition for obtaining a writ of habeas corpus. when the literal reading of the Rules or the provisions of law lead to such unforeseen results, the provisions of harmonious construction must be resorted to and rules must be rationally construed to enable a citizen to resort to appropriate remedies before a relevant bench or a Judge provided by the Rules. It is the correctness of these two rival propositions which we are supposed to examine. We may incidentally note that Mr. Mehta for the petitioner who led the main argument also added that a peculiar eventuality may develop where no Rule is available for approaching this court by a citizen of Bombay in view of the narrow construction proposed by the other side. That may also be an obvious case of omission or error. It cannot however be said that because a High Court has failed to make a Rule covering the citizens' right to approach this court under Article 226, his application be held in abeyance. He undoubtedly has a right under the Constitution to apply and if it is found that for a particular purpose no specific rule is framed, the matter must be placed before the learned Chief Justice for appropriate direction and if this court so finds it should note the lacuna in the Rules and sooner lacuna in the Rules and sooner the lacuna is filled up it is better for the guidance of the Citizens.
25. In order to convince us of the point of view canvassed by Mr. Mehta, he started his argument by telling us as to the real nature of a dispute in a petition where writ of habeas corpus is claimed. If the real nature of the dispute is once understood it would be easier to follow whether Chapter XVII of the High Court Rules of 1960 are attracted to a petition of the present type or Chap. XXVIII. All these argument are of course confined to the period after 1-4-1974. He endeavoured to point out, and he was supported in this approach by the two other learned Counsel Mr. Bhabha and Mr. Divan that a petition of the present type claiming a writ of hebeas corpus against the unlawful detention under the preventive detention laws, like the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, is essentially a civil dispute and is not a criminal matter. The petition challenging the preventive detention is in essence a civil proceeding and could not be described as a criminal proceeding.
26. The gist of his argument is that it may be that the detention is being effected for the prevention of certain acts, which if committed might constitute offences under some of the laws of this country. However, those offences are not yet committed, but on the basis of the jurisdiction of suspicion a detention order has been passed for the purpose of prevention. In the challenge held out to such an order, the subject-matter of the dispute is personal liberty of the detenu which is a civil right. Irrespective of the allegations of the detaining Authority or irrespective of their suspicion, the real subject-matter in dispute is the liberty of citizen which is a civil right.
27. He of course told us that such an extreme view is taken by the American jurists and American courts and not by the English Courts from whom we have inherited considerable procedure as well as traditions of the administration of justice. He said that Ferris in his Law of Extraordinary Legal Remedies. 1926 E, A 5.11 states that habeas corpus is a high personal liberty. The Supreme Court of United States in the matter of Ex parte Tom Tong, 27 Lawyers' Edition 826 observes that the writ of habeas corpus is a civil, separate proceeding to enforce a civil right, the right to personal liberty whether the restraint be by virtue of criminal or civil process. Resort to the writ sometimes becomes necessary because of what is done to enforce laws for the punishment of crimes, but the judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act. having brought to our notice the legal position in America, Mr. Mehta was good enough to tell us that in England the view taken is slightly different. He referred us to the judgment of House Lords in Clifford and O'Sullivan (1921) 2 AC 570. The question regarding the nature of the cause or matter whether criminal or civil did not arise before the House of Lords directly in a habeas corpus proceeding but it arose indirectly while considering the right of appeal to a party against a judgment of the High Court in writ jurisdiction.
28. The law in England obviously seems to be that from an order in writ petition passed by the High Court, there is right of appeal only where the matter is of a civil nature but there is no right of appeal if the cause or matter is of a criminal nature. Under martial law administration in the County Cork by the orders of Lord Lieutenant of Ire carrying of arms without licence was declared unlawful. The petitioners were found with arms without a licence or a permit and were hauled up before military court and were convicted and sentenced to death subject to confirmation having been found guilty. They moved by an application before Mr. Justice Powell who refused the application. An appeal was carried when an objection was raised that the matter before Powell, J., was of Criminal nature and no appeal lay to the Court of Appeal. This was upheld and the appeal came to be rejected on that technical ground. Against this order an appeal was carried to the House of Lords. What their Lordships observed is that under the Judicature Act if the cause or matter is criminal in nature no appeal lay, but if it was a Civil matter an appeal did lie. In the context of the right of appeal it became necessary to lay down how to find a cause or matter which is civil or criminal. Their Lordships observed that two conditions must be satisfied before a matter could be connoted or described as 'criminal'. The matter must involve some charge of crime, that is to say, of an offence against the public law and that charge must have been preferred or be about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or the alleged offence. Having thus formulated the proposition, the House of Lords found that the so called court martial held on the orders of Lord-Lieutenant under the martial law administration was neither a court nor the allegations amounted to offence against any public law. since the matter before Powell, J., could not be described as criminal in nature but otherwise than criminal, appeal did lie and the Appeal Court ought to have entertained the appeal on merits. Having come to this conclusion they proceed to decide and dispose of the appeal itself on merits by taking a particular view, viz., that a writ of prohibition runs only against Tribunal and the authority under martial law could not be described as Tribunal. Apart from the result of that case the principle on which Mr. Mehta wants to draw support is that if you can say that a cause or matter fulfils the two conditions laid down by the House of Lords, then that matter would be criminal and a petition agitated in respect of such matters might legitimately be filed or directed to be filed before a Bench doing criminal business of this court. He also brought to our notice another judgment of the House of Lords in Amand v. Home Secretary 1943 AC 147. The same view has been accepted and what matter is criminal has been illustrated by their Lordships in those words. Mr. Mehta cited this case to point out how the English courts applied the principle of the matter being criminal to facts and circumstances contained in Amand's case.
29. The petitioner in the case of Amand c. Home Secretary 1943 AC 147 who was a Natherland subject was arrested in England as a deserter in army and was to be handed over obviously for the purpose of being prosecuted as a deserter. The divisional Court refused his application for a writ of habeas corpus and the Appeal Court held that it had no jurisdiction. When further appeal was carried to the House of Lords, they say that the law was properly laid down in Clifford and O'Sullivan's case (1921) 2 AC 570. In the case of this petitioner if he were handed over to his home country it would land him in criminal prosecution, being a deserter and that prosecution may end in his imprisonment. That being the real nature of the cause or matter, it was essentially a criminal matter and it was essentially a criminal matter and it was essentially a criminal matter and it was settled law that in respect of such a matter there is no appellate remedy available to the petitioner.
30. Mr. Mehta told us that these judgments of the House of Lords may not be binding on this court. However, looking to the fact that there is a historical continuity in the matter of administration of justice inherited by us from the English courts, they would be of considerable assistance in determining the nature of a dispute raised by a detenu of the present type. He told us that these view have been accepted and relied upon by some Indian High Courts even after the Constitution came into force.
31. As an example, he referred us to the judgment of the Punjab High Court in Dalimia Jain Airways Ltd. v. Union of India, AIR Punj 1. The report of the Registrar of the Companies ultimately led to the filing of the complaint which was being investigated by the police. After filing two abortive proceedings, one in the High Court and another in the Supreme Court, the petitioners again filed an application under Article 226 of the Constitution for prohibiting the investigation by the police and for quashing the proceedings. When this application was rejected by the Punjab High Court, the petitioners applied for leave to appeal to the Supreme Court in an omnibus manner under Arts. 132, 133 and 134 of the Constitution. This gave rise to the consideration by the Punjab High Court as to Whether they should grant leave under Art. 133 or 134 of the Constitution. The learned Judges rely upon the House of Lords judgment in Amand v. Secretary of State (1943) AC 147 and held that Article 133 has no application for the obvious reason that the matter or proceeding was criminal in nature. They say that if allowed to go ahead, the investigation by the police will lead to a criminal charge before a criminal court and it may lead to conviction.
32. On another occasion a Division Bench of this court was considering the question of an appeal before them from the judgment of a single Judge. In Mohomedalli Allabux v. Isamailji Abdullali, : AIR1926Bom332 an appeal was preferred before a Division Bench under Clause 15 of the letters Patent against an order of the learned single Judge issuing writ against the appellants directing them to produce three minors for considering the legal nature of the custody by the respondents. The original application was undoubtedly under Section 491 of the old Code. After granting rule nisi and after hearing the rule the learned single Judge directed the respondents to produce the minors. That order was being challenged. One of the questions was whether the order was appealable. If it was an order in the criminal jurisdiction of this court, even the order of the single Judge would be the order of the court and would not be appealable to a Bench of two Judges. On page 480 of the report, the learned Judges rely upon an earlier decision in the matter of narrondas Dhanji ILR (1890) 14 Bom 555. A conclusion is drawn that a Judge directing a writ of habeas corpus to issue for the production of minors to determine the legality of their custody which is essentially a civil dispute, could not be described as an order made 'in the exercise of criminal jurisdiction'. The learned Chief Justice further observed that the sole foundation for that argument is that the office of the High Court, which concerns itself with the issue of such a writ, is the office of the Clerk of the Crown. A conclusion is therefore drawn that not being an order in the exercise of criminal jurisdiction, the order was susceptible of being revised in appeal. Mr. Bhaba also relies on the discussion in Halsbury's Laws of England, Vo. 11, particularly to para 97 on page 49 while Mr. Dhanuka for the respondents cited before us the Judgment of the Calcutta High Court in Hiharenddu v. Porter, : AIR1945Cal107 for another purpose. Mr. Mehta drew our attention to the observation of Mitter, J., on page 118 right hand side column. The peculiar position was that a writ petition succeeded and the detenu was directed to be released. While he was in the court compound itself, he was arrested under Regulation 3 of 1818 Regulation. This led to the commencement of two proceedings, one in contempt and the other challenging the arrest itself.
33. The main controversy was whether the arrest under Regulation 3 could be described as the arrest in relation to criminal matters. If it is so described there can be no contempt because the exemption from arrest immediately after the release would confine itself to civil proceedings. The observations of Mitter, J., undoubtedly are that the petitioner could not be arrested on a civil process on his way home after his release on a writ of habeas corpus, as a proceeding under that writ is in essence a civil proceeding. These and other references which need not be duplicated are made for the purpose of pointing out that the distinction made by the English Judges has been accepted by and large in India as providing a good guide for the purpose of classifying the matters as civil or criminal.
34. In addition Mr. Mehta particularly relied upon the observations of the Supreme Court in H. Saha v. State of West Bengal, : 1974CriLJ1479 . This was a case of preventive detention and the Supreme Court had made observations in paragraphs 19, 32 and 33 which now form the settled law in relation to the preventive detention. In paragraph 19 they point out that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. There cannot be a parallel between prosecution in a court of law and a detention order under the Preventive Act. In paragraph 32 of the report they point out that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. In paragraph 33 they again point out that preventive detention and prosecution are not synonymous. Their purpose are different, the authorities are different, the nature of proceedings is different, and whereas the one undertake to punish for the past acts, the other is resorted to for preventing mischief in the nature.
35. By taking such a survey of legal position Mr. Mehta argued that the proceedings before this court challenging the preventive detention cannot be described a criminal matter or a criminal cause. He has no quarrel with the proposition that the High Court in its rule-making power any made clear Rules of business by which a matter which may have civil content may be directed to be placed for hearing and disposal before any Bench of this court whether it is doing civil or criminal work. All Judges of the High Court have the same powers and it is only for the convenience of the disposal of business that Rules are made and the Chief Justice forms Benches for hearing and disposal of various matters. However, if Chapter XXVIII is essentially based on the assumption that an application under Article 226 read with Section 491 of the old Code was a criminal matter liable to be placed before a Division Bench of the Appellate Side taking criminal business; that assumption is no more available for the reasons already adverted above, as Section 491 of the old Code is no more available on the statute book and the Rules in Chapter XXVIII have become inapt and inapplicable. The petitioners cannot be asked to present their petitions before a Division Bench taking criminal matters on the Appellate Side.
36. On behalf of the respondents, the learned Counsel also made an effort to satisfy us that contrary view seems to have been taken either by express discussion or by necessary implication in some other judgments. Reliance was placed upon two judgments of the Madras High Court. In Re. M. R. Venkataraman, : AIR1951Mad267 a Division Bench of the Madras High Court was called upon to consider the prayer of the detenu who has practically succeeded before them for an order of costs against the respondent. It became necessary to consider whether the writ proceeding in which the petitioner succeeded was of a civil or criminal nature. The view taken by the Madras High Court is that in a proceeding relating to criminal matter the High Court had no inherent power to award costs to a successful detenu whether the proceeding is founded on Section 491 of the old Code or Article 226 of the Constitution. Before them the petitioner was detained under the Madras Maintenance of Public Order Act (Act 23) of 1949. While discussing the nature of the proceedings the learned Judges observed on page 268 of the report that the detention of the detenu became necessary because in the opinion of the Government of the State he was acting, or about to act, or likely to act, in a manner prejudicial to public order in the province. They further observed that it could not be seriously contended that such a detention would not be to prevent a crime. If that is so, the case is one of a criminal nature and it seemed to them that even if that Court has inherited all the powers of the King's Bench Division, apart from the statute, there is no inherent power to award costs in a criminal case. They further relied upon their own earlier judgment in Venkatachalal Thevar, AIR 1949 Mad 192 where it was held that since orders passed under S. 491 of the old Code are in the nature of criminal proceedings there can be no right of appeal to the Federal Court as it then existed. The learned Judges further compared the proceedings under Section 491 of the old Code with the proceedings under Sections 107 and 108 of that Code for binding a person to keep peace and said that they are also considered to be of criminal nature. Having come to the conclusion and having found that no Rules have been made by the Madras High Court for warding costs in a criminal matter they refused to pass an order with respect to costs. A few days later while delivering another judgment which included the same Judge who Wrote the leading judgment in the earlier case, a similar view was taken in Re: T. Venkateswara Rao, : AIR1951Mad611 .
37. Mr. Dhanuka as also Mr. Advani led considerable stress upon a Division Bench judgment of this Court in Re: Prahlad Krishna Kurne, : AIR1951Bom25 (FB). The petitioner has already applied under Section 491 of the old Code and his application was already rejected applied under Section 491 of the old Code and his application was already rejected by the Division Bench consisting of Dixit and Shan, JJ. For the same relief but by repeating the old allegations together with addition of some new material the petitioner applied again before this Court calling it an application under Article 226 of the Constitution. Two prayers were made in that application. One was to review the decision in the old case and to reconsider the whole matter in the light of the additional matter supplied. If that was not possible, the second prayer was that this petition be independently considered on merits because a citizen has a right to approach successive Benches for obtaining writ of habeas corpus. That was the right available in England and since the jurisdiction of this Court under Art. 226 is similar to the writ jurisdiction of the English courts, the matter should be heard again and the second Bench should independently consider the material placed before it. Since it appeared to be an important point the petition itself was referred to the Full Bench of three Judges. Speaking for the Court the learned Chief Justice observed that whether the application was under Section 491 of the old Code or whether it was under Art. 226 of the Constitution, the application was one of a criminal nature. It was a criminal matter. So far as criminal matters are concerned, there is no inherent right of review. The right of review has to be supplied by the statute like right of appeal. In this manner prayer for review was rejected. The judgment proceeded further to hold that it was a wrong supposition that a detenu can approach from Judge to Judge or from Bench to Bench of the same Court. It may be that the earlier petition was heard by a Bench consisting of two Judges. However, under the Rules of business of this court when a matter is heard in that manner by a Division Bench and they delivered the judgment, it is not the judgment of the Division Bench but it is a decision of the High Court. The Benches constituted under the Rules of business by the Chief Justice represent the High Court as such and whoever decides the petition, the decision is of the High Court. The High Court having thus entertained and decided it, a second application to the same court cannot lie.
38. From the discussion regarding the nature of the remedy, it is sought to be argued that the Bombay High Court has already decided that an application for habeas corpus was a criminal matter or a criminal proceeding and that question is no more open for discussion. We are afraid that construction cannot be put upon the Full Bench judgment because the judgment proceeds almost on the assumption by all sides that the proceedings is one of a criminal nature. Under the Rules made by the High Court Article 226 of the Constitution read with Section 491 of the old Code, it was incumbent upon the petitioner to approach a Division Bench doing criminal business on the Appellate Side and that being so, the proceedings would be criminal proceedings. When a certain basis is assumed by all concerned, it is difficult to say that it represents a considered judgment or decision of the High Court. If there is a dispute raised and both sides are represented and the court decides, it could be said that the point canvassed has been decided and a view taken.
39. Apart from that the main reply that is being given on behalf of the petitioners is that so long as Section 491 of the old Code was in force and the Rules in Chapter 28 were applicable nobody can quarrel with the proposition that the application had to be numbered as criminal application and under the Rules of business it had to be placed before a Division Bench taking criminal business. Occasion never arose for raising the dispute and it cannot be assumed that the question was ever raised and was concluded by mere assumption of all concerned.
40. Mr. Dhanuka also referred to the Public Prosecutor v. A. K. Gopalan, : AIR1953Mad66 where leave was sought to file an appeal to the Supreme Court against the judgment of the High Court in a writ petition for habeas corpus. The detenu was released. When the State's right of appeal was being considered that a reference was made to Articles 132 and 134 of the Constitution. However, paragraph 11 of the report says that the question of referring to the constitutional issues does not arise as the case before the Madras High Court proceeded on the express basis that the jurisdiction invoked was a criminal jurisdiction under Article 134(10)(c) of the Constitution. Here again on the assumption that the jurisdiction is criminal that the matter was argued and there was no occasion to decide on a dispute being raised whether it was of a civil or criminal nature.
41. Before the Lahore High Court again in an indirect manner while deciding the right of appeal the order passed by the Single Judge of the High Court under S. 491 of the old Code came up for consideration. In Kishori Lal v. The Crown ILR (1945) Lah 573, the petitioner whose petition under Section 491 of the old Code was rejected for a writ in the nature of habeas corpus, had presented a Letters Patent Appeal under Clause 10 thereof. Naturally the question arose whether such an appeal could lie from one Judge of the High Court to a bench of two judges. It has been held that no Letters Patent was competent as the single Judge acting under the provisions of Sections 491 and 491-A of the old Cole was exercising a criminal and not civil jurisdiction. While coming to that conclusion the Lahore High Court refers to the Privy Council decision in Matthen v. Dist. Magistrate, of Trivandrum, and points out that the English cases on which reliance was placed by the petitioner's Advocate were not relevant in India as the powers of the High Court to issue directions in the nature of habeas corpus were all contained in Section 491 and 491-A of the old Code. That was the effect of the Privy Council's judgment. Reference is then made to judgments of House of Lords and it is concluded that English law of deciphering a matter either criminal or civil is not applicable to India and the proceedings under Section 491 of the old Code would naturally be criminal proceedings.
42. The Full Bench of the Allahabad High Court in Basudeva v. Rex, : AIR1949All513 was considering the question of costs after the detenu succeeded in a petition for a writ of habeas corpus. The petitioner in the case was detained under preventive detention on the allegation of black-marketing. It is not clear from the report whether black-marketing was defined as some criminal offence by some provisions of the Act. However, the application for release was undoubtedly one under Section 491 of the old Code. When the detenu succeeded he claimed that costs be awarded to him. It is again in this indirect manner for the purpose of considering the question of costs that Allahabad High Court was required to consider the nature of the proceeding. In paras. 11 and 12 of the report Wanchoo, J., who delivered the leading judgment was required to consider the argument that habeas corpus application can fall under two categories. If the matter with which they are concerned is a civil one, they are civil proceedings, while if the matter with which they are concerned is connected with a crime or likely commission of a crime, they are criminal proceedings. On that footing an argument was raised before the court that black-marketing is not connected with the commission of a crime or likely commission of a crime and as such it would be a civil proceeding. Without giving much weight to this approach, the Allahabad High Court comes to the conclusion that the application for habeas corpus is one under Section 491 of the old Code and says that the matter may be civil but since the word 'High Court' has been defined by Criminal Procedure Code and to such High Court one has to apply under Section 491 of the old Code the proceeding would still be criminal in nature even though the contents of the proceeding may be civil. In that matter the Allahabad High Court held that an application for habeas corpus was a criminal matter even though black-marketing was not shown to be connected with some crime.
43. Besides relying upon these judgments Mr. Hanuka also argued that the classification of business by the High Court for the purpose of its administration would not decide the real nature of the dispute. Apart from what classification the High Court will make the legislature has sometimes directed criminal court to decide civil disputes. It is well know that under Municipal laws, disputes like fixation of ratable value are taken to a Magistrate of the First Class by way of an appeal. Against the Magistrate's order there is a revision application before a Sessions Judge and against the order of the Sessions Judge the matters many times come to the High Court. It has been uniformly held by the pronouncements of this Court that such an application to the High Court that such an application to the High Court must be treated as revisional application under Section 115 of the Code of Civil Procedure.
44. While we look at the entire argument presented before us for the purpose of deciding whether the Rules in Chapter XXVIII of the Bombay High Court Rules still survive as operative rules after 1-4-1974, it does not really seem to be necessary to decide this question. We have placed all this material together along with the observations of the learned Counsel on both the sides because it was urged before us that whatever the decision of this court be, the Rules in Chapter XXVIII of the Bombay High Court Rules require re-drafting and revision. If the High Court wants to undertake that, the rival points should be available for the drafting committee so that proper Rules will be made. Incidentally, however, we will indicate what we think of applications where the petitioners are detained under the preventive detention laws and seek a relief on various grounds. We will, however, do that a little later. Mr. Diwan, learned Counsel for the petitioner whose petition was not notified for hearing indicated a possibility that the matter may not be either civil or criminal but it will be as if the question will have to be considered whether it should be classified either as civil or criminal or should be treated independently for the purpose of the classification of business by the High Court.
45. Before all this is undertaken it would be appropriate to find out the real nature of the Rules framed by the High Court under Chapter XXVIII from time to time. It would also be appropriate to consider them against their historical background for the purpose of appreciating the real nature and the implication of those Rules. Without going much behind, we would first look at the Rules made in the year 1936 which came into force on 1st of March, 1936. They were to replace the existing Rules of the Appellate Side of the High Court at Bombay in respect of all the matters contained in the said Rules and all the them existing Rules stood annulled. In the summary of the provisions given earlier we have referred to Chapter II of 1936 Rules which deals with the Rules framed by the High Court under Section 491 (2) of the old Code. At that stage the only provision available for issuing writs of the habeas corpus or direction in the nature of habeas corpus or direction in the nature of habeas corpus was Section 491 of the old Code. The Rules in Chapter II of 1936 Rules would therefore be the only Rules for the purpose of making applications. Since Section 491 of the old Code required that petition was to be made to any 'High Court' it was obvious that the petition lay before the Bench doing criminal business as the High Court itself was defined under clause (i) of Section 4 to mean the highest court of criminal appeal for the local area. That point was further emphasised by the composite provisions in the body of section which referred to the territorial jurisdiction of the High Court for the purpose of issuing direction of the nature of habeas corpus. That has been indicated to be the appellate criminal jurisdiction of the High Court. The position, however, changed when the Constitution became operative and the writ jurisdiction of the High Court was determined by the provisions of Article 226 of the Constitution.
46. We have also summarised the provisions of sub-articles (1) and (1-A) of Article 226 earlier. Undoubtedly this is a much wider jurisdiction. Not only in terms of the authority of the High Court to issue substantive writs but also in the matter of territorial jurisdiction. Even if a Government, authority or a person against whom writ was claimed was outside territorial jurisdiction of the High Court, a writ would still run provided the cause of action for claiming the writ wholly or in part arose within the jurisdiction of the High Court. Then again in the language in these Articles with respect to the jurisdiction of the High Court 'throughout the territories in relation to which it exercises the jurisdiction', the restricted reference to criminal jurisdiction in Section 491 of the old Code is also not to be found in this Article. Article 226 conceives of the High Court as constituted by the Constitution and no distinction is made to divide the High Court as if on its criminal side or civil side. It is the High Court that is vested with the power and the power of issuing writs of habeas corpus after January 26, 1960, would be exercised by the High Court as such. Which Bench is provided for by the Rules of business is an internal matter, but the court is one and it is this court which is vested with the powers conceived of by Article 226.
47. The 1936 Rules which need not and could not ever refer to Article 226 ought to be changed. They were changed and the change brought about has also been indicated by us. The title of the Chapter alone referred to both the provisions, viz., Article 226 of the Constitution and Section 491 (2) of the old Code by joining with the expression 'read with'. With is precisely the meaning of these Rules in Chapter II? The same phraseology has been continued in the 1960 Rules where the title is in identical terms as also the body of the rules is practically the same. It has been very strenuously argued that in view of the title containing the expression 'read with' Section 491 (2) of the old Code the Rules are only under Section 491 alone as if and not under Article 226 of the Constitution. It is a term of restriction and not of expansion. Considerable emphasis is laid upon the wording of the rule. It is Rule 1 0f 1960 Rules which directly refers to the making of an application. The subsequent Rules deal with the issuance of Rule nisi and the further disposal of the Rules once issued. Rule 1 however clearly says that all applications by or on behalf of persons for orders under Section 491 of the old Code shall be made to the Division Court taking criminal business of the Appellate Side of the High Court. It was therefore urged that even if Art. 226 is referred in the application and even if the application may have contained prayers for reliefs under Section 491 which also squarely fall under Art. 226, the petition would still be one under the provisions of Section 491 of the old Code alone. There is an obvious distinction between the two provisions. Section 491 of the old Code merely authorises the High Court to issue directions of the nature of the habeas corpus, and then various topics are enumerated in clauses (a) to (f) thereof in respect of which such directions in the nature of habeas corpus would be issued by the High Court. We presume that there is some difference between a direction in the nature of habeas corpus and a writ of habeas corpus itself. Unless the dispute raised fell under either of the clauses of Section 491, an application for a direction in the nature of habeas corpus was not possible earlier as the Privy Council clarified the position that the total jurisdiction of the High Court was restricted to the provisions of Section 491 alone. Even if a matter fell outside these clauses but could be shown to be one properly under Article 226 and the matter required that a writ of habeas corpus be issued, the High Court is undoubtedly authorised now after the passing of the Constitution to entertain and dispose of such application. If the view canvassed before us by the learned Counsel for the petitioners is to be accepted, its effect would be that the High Court never made Rules at all under Article 226. If the reference to Section 491 (2) were a reference for the purpose of restricting the meaning of the title and the Chapter, or restricting the scope of the rules themselves, then the High Court has not made any rules under Article 226.
48. The rival point of view placed for our consideration is that the title of the Chapter as also the marginal note is occasionally referred to for the purpose of better understanding the section and the Rule itself and can always be deferred to with advantage if the Rule and section lead us to an anomaly or was capable of two constructions. The learned Counsel for the petitioners, however, argued that this is not a case where the Rules are not clear or the Rules are ambiguous. Rule 1, according to them, is vary clear and it merely refers to Section 491 of the old Code and nothing more. If we, therefore, look at the heading of the Chapter XI of 1950 Rules or Chapter XXVIII of the 1960 Rules the intention of the High Court is clear. It did not want to improve the Rules and indicate that the applications for habeas corpus within the wider jurisdiction, which is now acquired under Article 226 should be made under some rules. that was intended by Rule 234 of Chapter XXIV of 1950 Rules now re-numbered as Rule 1 of Chapter XVII of 1960 Rules. This intention of the High Court has been made clear in the Rules. In fact that Chapter is meant to lay down Rules which are meant to deal with all applications under Article 226. In our view the reference to Section 491 (2) in the heading of Chapter XXVIII could not control the nature of the Rule for the simple reason that Section 491 had practically became superfluous after passing of the Constitution.,
49. One has to look to the various laws passed, amendments and rules made from time to time in the transitory period, after introduction of the Constitution, in the historical setting and interpreter them in the realistic manner. The Constitution makers in their wisdom have provided Art. 13 to suggest that all laws in this country which were then in force and which were not inconsistent with the Constitution would continue to be in operation. You could not have a void because the Constitution was passed, Section 491 of the old Code was one such section which was not inconsistent with the Art., 226, though it was now subordinate in its importance and practically of no use in view of the larger jurisdiction vested in the High Court under Art. 226. A section of this type along with Article 226 cannot be said to control the provisions of Art. 226 of restrict the same.
50. Shri Diwan himself referred to the Forty-First Report of the Law Commission and Chapter 37 thereof. In sub-paras, 1, 2, and 3 of para. 37 the Commission discusses the impact of Article 226 upon the provisions of Section 491 of the old Code. Having pointed out that the High Court's jurisdiction is now much wider and how at least clauses (a) and (b) of sub-section (1) of Section 491 of the old Code are rendered practically of no use. This is what the commission observed in sub-para. (3) of para. 37 of the report:
'37.3 It will be noticed that Article 226 of the Constitution confers wide and comprehensive powers on the High Courts of States 'to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari' for any purpose. In view of this provision, clauses (a) and (b) of Section 491 (1) have been practically rendered superfluous and can be safely omitted.'
51. Can it be said that that a reference to a provision which is practically rendered superfluous, in the title of Rules purporting to be Rules under Article 226 of the Constitution would be so read as to control that Article and to convert the Rules only under Section 491 and not under Article 226 at all? That according to us, would be inappropriate and would not be the proper manner in which the Rules can be read or construed. The learned Counsel on both the sides took us through some of the judgments as also some references in Maxwell on the Interpretation of Statutes relating to use to be made of headings of sections or Chapters and marginal notes.
52. If necessary we may refer to these judgments, but to us it appears that the main purpose of the Rules of interpretation of statutes is to bring out the real intention of the legislature or the law making body. It is true that under the guise of finding out the so-called intention of the legislature the courts are not supposed to do violence to the plain language of the statute nor to legislate themselves. But where the intention appears to be clear from the manner of drafting and the historical process accompanying it, but there is some obvious lacuna, what are the courts supposed to do? Would it be proper for the courts to say that they are helpless because the Rules had not been properly framed. If cases of this type arise the expected norms of rules of interpretation authorise the court sometimes to do violence to the section of the legislature or sometime to add a few words or to subtract a portion thereof. In other words the cannons of construction are not supposed to be so right as to prevent the realistic solution of the problem. Maxwell on the Interpretation of Statutes in his 12th Edition Refers to a recent judgment of the Queen's Bench in the case of Adler v. George (1964) a QB 7. The provisions of an Act declared obstruction of certain persons on duty 'in the vicinity of any prohibited place' to be an offence. ................... The position was that the persons on duty were obstructed within the prohibited area itself and when the prosecution was undertaken a question was raised about the real meaning of the rule. It was undoubtedly an offence to obstruct a person on duty, but it was so declared by the Rules if the obstruction was cause, in the vicinity of the prohibited place'. Now obstructing within the place itself is something different, it was argued, than obstructing in the vicinity of the place. Vicinity would be round about and not within the place itself. When the learned Judges found that the literal meaning of the words was leading to that absurd result but the intention was clear enough as to make obstruction penal whether within or without, they added the words 'in or' before the expression 'in the vicinity of'.
53. We are of the view that the rules of interpretation of the statute undoubtedly require the statute undoubtedly require the courts to take a rationally realistic view of the situation but that must be done consistently with the avowed object of the legislation which must be readable on the face of it. An instance which can come very near the type of argument we are considering is to be found in Official Assignee v. Chimniram : AIR1933Bom51 . This was a case of a mortgage of moveable property and the question was whether Order 34, Rule 14 of the Civil P. C. could be invoked without the leave of the court under Order 2, Rule 2. The entire argument was based upon the fact that the title of Order 34 merely relates to suits relating to mortgages of immovable property, but in the Rules below the only reference is to property. Property can be immovable as well as movable. It was therefore argued for the purpose of construing the Rules that reference cannot be made to the title of chapter so as to control the meaning of sections or to hold that all the rules that follow[KT1] only related to mortgages of immovable property and not to any other movable property and not to any other kind of property. This argument was rejected by both the learned Judges in their independent judgments. The learned Chief Justice referred to the various judgments cited before him by Counsel Coltman to support the argument that the court can only took at a heading in order to assist in the construction of some word or phrase which is doubtful or ambiguous and further that the words of Order 34 'mortgage', 'mortgage security' and so forth are not ambiguous. Referring to this argument the learned Chief Justice says that they were entitled to look at the heading in order to confine the generality of the language used in the body of the order. In the concurring judgment delivered by another learned Judge reference is made to the history of the order for the purpose of fixing the meaning of words which may have more than one meaning and for the purpose of keeping the effect of the Act within its real scope.
54. It is true that the generality of the provision was being restricted to a certain type of property by reference to the title of the chapter of the order as also the history thereof. However, looking to the approach of this court as also the English Judges in Adler v. George (1964) 2 QB 7 the real meaning and content of these Rules contained in Chapter XXVIII will have to be seen.
55. We have already pointed out that a section which was practically rendered ineffective and superfluous cannot control the much wider power under Article 226 so as to restrict the operation of the rules to Section 491 alone and not to treat them as Rules under Article 226. The reference in the title and Chapter XXVIII of 1960 Rules of this Court is also worth nothing. Id does not refer to the entire Article 226 but merely confines itself to the issuance of writs of habeas corpus under Article 226. Article 226 generally permits writs of various types including writs of habeas corpus and it is this one writ of habeas corpus which alone is provided for by the rules contained in Chapter XXVIII. In order to understand the meaning of Rules of Chapter XXVIII the first thing that is to be borne in mind is that this is an amended rule for the purpose of providing for the moving of applications for the issuance of writs of habeas corpus under Article 226. Even if that was alone stated it would have been enough. Reference to Section 491 of the old Code merely suggested that the High Court took cognizance of another provision which was still subsisting on the statute book and which covers the same subject. If this is the real meaning of the title and the reference to Section 491 (2) of the old Code is required to be deleted because that section is now repealed by the new Code, the meaning of the title or the scope of the Rules made under that Chapter change. From 1-4-1974 it will only mean that Chapter XXVIII habeas corpus under Articles 226 of the Constitution alone.
56. Bearing this in mind if we go to Rule 1 how Rule 1 is to be construed or read? That rule says that all applications by or on behalf of persons for orders under Section 491 of the Code of Criminal Procedure shall be made to a certain court. If this Rule is to be construed literally it will mean that only an application under Section 491 is to be made under this Chapter and not an application under Article 226 of the Constitution for the writ of habeas corpus. The learned Counsel for the petitioners argued that it would mean in that case that a writ of habeas corpus, which the High Court is authorised to issue under Article 226, which specifically falls under Section 491 of the old Code is alone provided for by Rule 1 and if there is a writ which goes beyond the scope of that section, one may have to go to other Rules to find out where the application should be made. We will consider this argument at this stage so that the real manner in which the rules require to be interpreted would become obvious.
57. Another well-known rule of interpretation is that all the provisions of a statute or allied rules which are made for that purpose must be read harmoniously to find out what they provide for and deal with. So far as Article 226 is concerned, these Rules are covered by the High Court Rules on the Appellate Side, as well as the Original Side, at three different places. Rule 623 of the Rules of the High Court on the Original Side (1957 Edition) lays down that every application for the issue of a direction, order or writ under Art. 226 of the Constitution 'other than an application for a writ of Habeas Corpus' shall, if the matter in dispute is or has arisen substantially within Greater Bombay, be heard and disposed of by such one of the Judges sitting on the Original Side or by any specially constituted Bench as the Chief Justice may appoint. It is clear that Rule 623 of the Original Side Rules normally requires that a writ petition under Article 226 where the cause of action arises substantially within Greater Bombay should be presented before a Single Judge on the Original Side of the High Court except an application for a writ of habeas corpus. All constitutional applications under Article 226, except those for writs of Habeas Corpus in relation to the cause of action arising in Greater Bombay have been thus provided for by the Rule. The second reference to Article 226 along with Arts. 227 and 228 is to be found in Chapter XVII of 1960 Rules and in the title thereof. The title of the Chapter refers to applications under Articles 226, 227 and 228 of the Constitution and the rules for issuance of writs and orders under the said articles. Sub-rule (1) of Rule 1 says that every application for the issue of a direction, orders or writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. This Bench is known in common parlance as the Bench doing constitutional work or constitutional business or the constitution Bench. Here the cause of action is to arise substantially outside Greater Bombay. We have already seen that Rule 623 comes into play when the cause of action substantially has arisen within Greater Bombay. The cause of action for making an application under this Rule before a Division Bench has to arise substantially outside Greater Bombay. It is true that this Rule does not exclude expressly applications for writs of habeas corpus under Article 226 as Rule 623 of the Original Side itself does. This will have to be borne in mind when we go to the third place in Rules for making application under Article 226 including writs of habeas corpus provided the cause of action has substantially arisen outside Greater Bombay. One of the points raised before us was that if the provisions of Chapter XVII are read as a whole they seem to apply where the proceeding is of a civil nature and not of a criminal nature, like the proceeding for habeas corpus of the present type. Before considering all the relevant provisions together, let us refer to the provisions of Chapter XXVIII.
58. Prima facie they are provisions for making applications for claiming writs of habeas corpus under Art. 226 of the Constitution. It is important to note that that Chap. XXVIII does not refer to the jurisdictional factor whether in relation to the cause of action or otherwise. When reference is not be found in the Rules it is obvious that the Rules in that chapter rely for that purpose upon the substantive provisions of Article 226 itself, we have already pointed out that that Article vests the High Court with powers to issue various writs in relation to the entire territory for which they have jurisdiction. The distinction between civil jurisdiction and criminal jurisdiction is not be found in Article 226 at all. Prima facie therefore the Rules in Chapter XXVIII provide for making application by any one who wants a writ of habeas corpus from this court and it makes no difference whether the cause of action arose substantially or outside Greater Bombay within the State of Maharashtra. It also makes no reference whether the authority or the Government or the person concerned against whom the writ has to run is located within or without the territorial limits of the State where the High Court is located as the High Court for the local area. We may refer to only one more provision contained in Chapter XXVI headed 'Criminal Business'.
59. Several Rules are contained in this Chapter with regard to the Rules that should apply to criminal business of this Court. Rule 4 may be of some relevance. It deals with Registers. This is a provision for maintaining registers under the criminal business of this court. Six different types of registers are directed to be maintained. The first reference is to appeal, the second reference, fifth is to miscellaneous applications under the Criminal Business is required to be maintained to contain applications under the Constitution. The applications under the Constitution for criminal business could be the applications of the present type where writ of habeas corpus is claimed under Article 226 of the Constitution. In other words all applications which are required to be made under Chapter XXVIII are to be registered in the register for applications under the Constitution maintained under the criminal business of this court as pointed out by Chapter XXVI.
60. These seem to be all the provisions referred to by the High Court in its Rules to cover the applications under Article 226. If we accept the argument of the learned Counsel for the petitioners that after 1-4-1974 application under Article 226 of the Constitution for the issue of writs of habeas corpus does not fall under Chapter XVIII, but must fall under Chapter XVII, which is general in terms, we think an anomalous position will develop. On that construction where a cause of action has arisen outside the island of Bombay for claiming a writ of habeas corpus Chapter XVII will provide a court. When a cause of action arises within Greater Bombay for claiming writ of habeas corpus presentation of application on the original side before a single Judge is not possible because this jurisdiction is specifically excluded by the provisions of Rule 623 of the Original Side Rules are the only rules in the field for the purpose of making applications under Article 226 of the Constitution for habeas corpus, It would obviously mean that so far as the Rules made by the High Court are concerned no court is provided for when the cause of action substantially arises within the limits of Greater Bombay. It was then argued that even if that was the consequence, it is Article 226 that vests power in the court and equally clothes a citizen with a right to apply to the High Court. If there is no Rule today the High Court may make Rules as and when it is inclined to make in view of the fact that that particular position is now being highlighted by these petitions. In the absence of any specific rule, the petition relating to the cause of action in Greater Bombay may still be treated as an independent application under Article 226 and so classified by the court. In that context the powers of the Chief Justice are invoked and it is suggested that he may give applications or generally in relation to them before the High Court makes a rule in that behalf.
61. We are not at all impressed by this argument. The existing Rules have been understood by every one concerned including the present petitioners when they made an earlier application to provide for a proper court. It is only when they make a second application that some how they found a difficulty in finding a proper court for presentation of their application. If the provisions of Rule 623 of the Original Side Rules and Chapters XVII, XVIII and Rule 4 of Chapter XXVII of the Appellate Side Rules of 1960 are read together it will be clear that the intention of the High Court was to provide a specific court for application for habeas corpus which is one and uniform court for all the petitions whether the cause of action arose within or without Greater Bombay. So far as other business is concerned the court of a single Judge on the original side was to be resorted to when the cause of action arose substantially within Greater Bombay and a Division Court appointed in that behalf by the Chief Justice under Chapter XVII was to be resorted to when the cause of action substantially arose outside Greater Bombay. For the procedural part application for the habeas corpus was treated an application before a Division Bench doing criminal business on the Appellate Side and was so provided by Chapter XXVIII uniformly for all petitions irrespective of the places where the cause of action arose. So read the Rules present a completes scheme for presentation of all kinds of application under Article 226 whether for writs of habeas corpus or otherwise and in relation to all causes of action wherever they arise.
62. It is true that the wording of Rules 1 in Chapter XXVIII as it now stand after 1-4-1974 is likely to lead to some misunderstanding of the present petitioners which has led them to raise the question for our consideration. Looking to Rule 1 of Chapter XXVIII by itself which Chapter, as we have said, is meant for making Rules for applications for writs of habeas corpus under Article 226, it is being argued that the Rule is not meant at all for applications under Article 226. If the title refers to Article 226 together with Section 491 of the old Code, it may be that the Rule will cover both kinds of applications but it cannot be said that the Rule does not cover applications under Article 226 at all. That is the meaning which is likely to be canvassed on the plain wording of the Rule.
63. It is here that the Rules of construction step in for bringing out in clear perspective what was meant. When the intention is so clearly found, as we have done earlier, may be that interpretation may become necessary for the purpose of understanding the real meaning of R. 1. The relevant portion of the present Rule 1 of Chapter XXVIII is as follows:-
'1. All applications by or on behalf of persons for orders under Section 491 of the Code of Criminal Procedure. ......' In view of the conclusion which we have arrived above, it may be necessary to read the Rule as follows: '1. All applications by or on behalf of persons for orders under 'Article 226 or' under Section 491 of the Code of Criminal Procedure, .......'
So read the real intention of the High Court becomes clear.
64. We may point out that the Rules of business would not ordinarily provide two different courts for the same kind of applications. We say this because the learned Counsel for the petitioners are not challenging the correctness or propriety of the Rules in Chapter XXVIII till 31st March, 1974. This is on the ground that Section 491 of the old Code was still on the statute book. We have that argument in mind when we made the above statement. Till 31st of March, 1974, is it to be supposed that this Rule provided two different courts for presenting an application for writ of habeas corpus? Chapter XVII of 1960 Rules which is pointed out by the learned Counsel for the petitioners as the proper Chapter under which to apply for a writ of habeas corpus undoubtedly deals with the cause of action when it arises substantially outside Greater Bombay. No such distinction is made by Chapter XXVIII, for causes of action outside Greater Bombay where two different courts were available till 31st arch, 2974, viz., the Division Court appointed by the Chief Justice under Chapter XVII as also the Division Court taking criminal business on Appellate Side under Chapter XXVIII. This is the second anomaly to which we will be led if we accept the arguments put forth by the learned Counsel for the petitioners. In one case where cause of action arises in Greater Bombay there is no court and in the other case where the cause of action arises outside Greater Bombay there are two different courts, as if leaving the parties to choose the court they desire.
65. Considered from all points of view the interpretation suggested by the learned Counsel for the petitioners leads us to anomalous results. Considered from the point of view which we have accepted the Rules deal with a uniform and homogeneous procedure and make a Court available for every cause of action whether it arose. Whenever two interpretations are possible, one leading to anomalous result and the other to rational result, it need not be emphasised that the second must be accepted and the first must be rejected. In our view, therefore, Rule 1 of Chapter XXVIII must be read with the amendment we have suggested above for the purpose of understanding the real meaning and the purpose of placing this Rule in Chapter XXVIII. It is, therefore, clear that all the applications where the writ of habeas corpus is being claimed must be presented under Chapter XXVIII of the Appellate Side Rules and before a Division Court taking criminal business of the Appellate Side.
66. We may incidentally add why this appeals to us as a better approach. Historically so far as this country is concerned ever since provisions for writs under habeas corpus were included in the Procedure Code, it is the Division Bench taking criminal business that has always dealt with these matters. We are at the moment considering the writs of detention where the procedure for enforcement of the detention order are mostly the procedures laid down by the Code of Criminal P. C. If a person against whom a detention order is passed is not available, the detention laws provide for approaching a Magistrate for the purpose of attachment and sale of property which are the processes of the Code of Criminal Procedure. It has been observed by the Supreme Court that even under the petitions for habeas corpus interim bail was possible and in appropriate cases bail was granted. It is entirely different that the amended laws now take away the right to grant or obtain bail. The procedure for the enforcement of the preventive detention appears to be essentially the procedure provided by the Code of Criminal Procedure. In addition we may indicate that the two laws dealing with preventive detention at present and under which we are receiving applications are either the Maintenance of Internal Security Act or Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. Both these laws are undoubtedly related to preventive detention but if the contents of both the laws are seen it would appear that they are mostly for preventing commission of an act which if committed would be criminal offences under some laws of this country. When we say that they mostly refer to act which might become offence if committed, we are not deciding whether the contents of the dispute are really civil or criminal in nature.
67. The main anxiety exhibited by Mr. Bhabha, learned Counsel appearing for the petitioners, was that unless it was decided whether the matter under the preventive detention laws is civil or criminal in nature, it would affect the right of appeal of the parties. Until the recent amendment of Article 133 which came into force on 22nd February, 1973, the provisions of Article 133(1)(c) or 134(1)(c) were identical in their language. We are referring to these clauses only because neither clause (a) nor (b) of sub-article (1) of Article 133 nor clause (a) or (b) of sub-article (1) of Article 134 would be attracted when applications for preventive detention are being considered. The language of that clause in both these articles say that an appeal shall lie to the Supreme Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. However, Art. 133 is now amended and a person gets a right to appeal from any judgment, decree or final order in a civil proceeding of the High Court, if the High Court certifies that the case involves substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the High Court. Some argument was addressed to us on behalf of the respondents that the provisions of Art. 134(1)(c) as compared to the present provision of Art. 133(1) (a) and (b) are more liberal. If we call the proceeding a criminal one, the petitioners have a better right of appeal than if the matter is called as civil.
68. We will, however, point out that to mark a particular matter as civil or criminal and to place it before a particular Bench for the purpose of hearing and disposal, is a matter of mere procedure and would not decide or affect the substantive right of appeal. Several judgments were cited before us of which some are already referred to above where in spite of marking the matter as the criminal application arguments were raised that the dispute was essentially of a civil character and therefore either costs be awarded or certain type of leave be granted. Even in these petitions, and such others when the question of appeal arises, it will always be open to the parties to satisfy the Bench about the real nature of the dispute and obtain leave.
69. However, looking to the history of the exercise of habeas corpus jurisdiction by the High Court in this country we think that the Rule requiring such petitions to be filed before a Division Court taking criminal business of the Appellate Side is in consonance with the historical background as also with the historical background as also with the nature of processes that are associated with the enforcement of preventive laws. For these additional reasons we think it would be appropriate and not all unlawful that the present manner of presenting these applications before a Division Court taking criminal business of the Appellate Side is continued.
70. However, we should point out that in view of Section 491 of the old Code no more being available on the statute book, the Rules in Chapter 28 of 1960 Rules require revision. In Rules 6 and 7 of 1960 Rules there is a reference to Sections 428 and 429 of the old Code. Under Rule 6 if the court finds necessary that additional evidence be recorded provision has been made to record or get recorded such evidence under the provisions of Section 428. If the Judges of the Bench are divided regarding their opinion, the case if to be disposed of according to the provisions of Section 429. It may be that this is a reference by incorporation and if the Rules in Chapter XXVIII still apply to habeas corpus petitions, one may have to read Sections 391 of the new Code in place of Sections 428 and 429 of the old Code.
71. However, looking to the structure of the Rules in Chapter XXVIII and in view of the fact that reference to Sections 491 (2) and 491 of the old Code now becomes inappropriate in view of the repeal thereof, it would be better that the rules in Chapter XXVIII are amended by the High Court as early as possible. We have already pointed out that the learned Counsel for the petitioners wanted us to consider all the material placed before us and include it in the judgment so that in case revision of Rules is necessary or is undertaken by the High Court it is apprised of all the points of view which require to be taken into account before the Rules are remodeled.
72. The manner in which we have now read the rule by interpolation of the words Article '226 or' would have a further merit of not only bringing into effect the intention of the High Court when the old Code was in vogue but would also give effect to that intention of the High Court even after the repeal of the old Code and the replacement thereof by the new Code but without the re-enactment of Section 491. if all reference to Section 491 is to be deleted, the new title of Chapter XXVIII and the new Rule 1 would read as follows:-
Rules for the issue of writs of Habeas Corpus under Article 226 of the Constitution of India.
1. All application by or on behalf of persons for orders under Article 226 of the Constitution shall be made to the Division Court taken the criminal business of the Appellate Side of the High Court, duly verified by oath or affidavit, setting forth the circumstances under which the order is sought'.
Even this Rule will have to be read in the manner in which the provisions of Order 34 of the Civil P. C. were read by this Court in the judgment referred to above. Article 226 is much wider in scope and is not confined to writs of habeas corpus only. However, the title which speaks of issue of writs of habeas corpus alone under Article 226 would indicate the limitation governing all applications to be made under Rule 1 as it stands above. This might also be additional reason why High Court should as early as possible amend the Rule and bring it in conformity with their intention by using language which is empress and clear. This, however, does not come into the way of the High Court if it so chooses to decide that the applications for habeas corpus under Article 226 be made in a different manner or before a different bench. However, so far as reference made to us is concerned by the learned Chief Justice, which we have quoted above, it is our view that such petitions ought to be presented before the Division Court taking criminal business of the Appellate Side of the High Court for reasons already state above.
73. We, therefore direct that these two petitions be numbered as Criminal Applications and after so marked they may be placed before this Bench for further orders.
74. Order accordingly.