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Satish Gupta Gurha and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1949CriLJ212
AppellantSatish Gupta Gurha and anr.
RespondentRex
Excerpt:
- .....more.3. on 8th june 1948 a fresh application was filed on behalf of the applicants and the point urged in this application is that the grounds and particulars that were supplied to the applicants under section 5 of the act were vague and, as such, the detention of the applicants was illegal. it may be mentioned that the grounds and particulars had been supplied to the applicants long before the date when they moved their first application under section 491, criminal p. c. so that they could have also urged, if they so desired, that point before this court when the first application was heard and disposed of on 11th may 1948. the application came up before wanchoo j. on 20th july 1948 and as he considered that the point raised a question of general importance he directed that the.....
Judgment:
ORDER

Malik C.J.

1. Satish Gopal Gurha and Jag-dish Prasad were taken into custody arid detained under Section 3, U. P. Maintenance of Public Order (Temporary) Act, 1947 (U. p. Act IV [4] of 1947) by orders dated 26th February 1948 and 22nd March 1948, respectively. In either case the period of detention was six months.

2. Both the applicants filed applications under Section 491, Criminal P. C, which came up for orders before my brother Wanchoo who dismissed them on 11th May 1948. The only point then urged before him was that the order of detention was illegal as the authority detaining the applicants could pass an order for detention for a period of fifteen days only and no more.

3. On 8th June 1948 a fresh application was filed on behalf of the applicants and the point urged in this application is that the grounds and particulars that were supplied to the applicants under Section 5 of the Act were vague and, as such, the detention of the applicants was illegal. It may be mentioned that the grounds and particulars had been supplied to the applicants long before the date when they moved their first application under Section 491, Criminal P. C. so that they could have also urged, if they so desired, that point before this Court when the first application was heard and disposed of on 11th May 1948. The application came up before Wanchoo J. on 20th July 1948 and as he considered that the point raised a question of general importance he directed that the question whether a second application can be heard in the circumstances mentioned above may be decided by a larger Bench.

4. learned Counsel for the applicants had relied on a decision of this Court in Mt. Haidari Begam v. Jawad Ali Shah : AIR1934All22 and reliance has also been placed before us on the same case. In that case it was decided that:

The rule of English Common law viz., that each Judge of the High Court of Justice has jurisdiction to entertain an application for a writ of habeas corpus in term time or vacation, and he is bound to hear and determine the application on its merits notwithstanding that some other Judge has already refused a similar application, is not applicable to the exercise of the analogous statutory power conferred on the High Courts in India under Section 491, Criminal P. C. It is apparently open to the High Court under Section 491 (2) to make special rules permitting successive identical applications for a direction under Section 491, Criminal P.C., and in the absence of such special rules effect must be given to E. 8, Chap. I of the Rules of Court, which expressly prohibits the presentation of a second application to the same effect and with the same object as the previous application which has been rejected by a Judge.

The above quotation would ordinarily have meant that successive applications under Section 491, Criminal P. C. are not entertainable unless the provisions of b. 8, chap. I of the Rules of the Court are varied or modified. learned Counsel, however, has urged that this rule refers to a case where a second application is made to another learned Judge and does not refer to a case where the same learned Judge who decided the first application is asked again to reconsider his previous decision. Reliance is placed on the observations of King J. at p. 1412 of the same report that

Prima facie an application for the exercise of powers conferred under Section 491 should be regulated by the procedure governing an application for the exercise of powers conferred under any other section of the Code, e, g. an application for bail.

5. learned Counsel has urged that as bail applications are moved in this Court from time to time, as circumstances alter, an application for a writ of habeas corpus can also be moved on fresh grounds. There is, however, fundamental difference between a bail application and an application under Section 491, Criminal P. C. In a bail application the legality of the detention is not in question; the Judge is moved to release a person on bail pending the determination of the question whether he has or has not been rightly convicted. In the case of an application under Section 491 on the Code, the Court has to determine whether the detention order is legal, and once the Court has pronounced on the legality of the detention order, Section 869, Criminal P. 0. bars the reconsideration of the same matter. If an order is held to be valid, the Court, after it has signed its judgment has no power, save as otherwise provided by the Code or by any other law for the time being in force, to alter or review the same except to correct a clerical error. It may, however, be that a detention order is valid on a particular date and on that finding an application under Section 491, Criminal P. C. is dismissed by this Court; but by something that may transpire later, the further detention of a person becomes invalid. In such a case he would have the right to move a second application under Section 491 of the Code. It is, however, not open to a detenu to move an application which would amount to an application for review of the previous order on the ground that the Court had wrongly decided that the order of detention was valid, when on that date on grounds that were not brought to the notice of the Court the order of detention was really invalid. I want to make it clear, however, that a dismissal of an application under Section 491 of the Code will not bar a second application where the further detention of a person bas become illegal after the first application was disposed of.

6. My answer to the question referred to the Full Bench is, therefore, as indicated above.

Raghubar Dayal, J.

7. I agree.

Wanchoo, J.

8. I agree.


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