1. On behalf of one Shiva Prasad Naithani this Court is moved to revise an order of the District Magistrate of Garhwal directing a warrant issued by the Native State of Tehri to be executed within his jurisdiction. The application in one way may be summarily dismissed, because the information placed before the Court by the learned Assistant Government Advocate is that Shiva Prasad Naithani was arrested in pursuance of a warrant endorsed by the District Magistrate of Saharanpur and not in pursuance of the order of the District Magistrate of Garhwal dated 9th December of which revision is sought. This mistake, however, may be due to the want of information of the person who has sworn an affidavit, and an application of this importance I would not like to dismiss on a technical ground. In whatever way Shiva Prasad Naithani may have been arrested in British India, it is admitted in the affidavit that he is no longer within the limits of the jurisdiction of this Court, but is in custody in a Native State over which this Court does not exercise jurisdiction. For that reason the power of this Court to issue directions of the nature of a habeas corpus under Section 49.1(1) cannot be exercised.
2. It was next argued that directions could be issued to a person within the jurisdiction of this Court to produce Shiva Prasad Naithani in this Court even though Shiva Prasad Naithani may himself be in custody in a Foreign State. I requested Mr. Malaviya to disclose the name of the person to whom such notice may be issued by this Court, and he suggested that a direction may be issued to the Political Agent of the Tehri State at Garhwal. The affidavit, however, shows that Shiva Prasad Naithani is not in custody under his direction or his control. In the case quoted by the learned Counsel of Mahomedally Allabux v. Ismailji Abdul Alt : AIR1926Bom332 there was a person within the jurisdiction of the Bombay High Court who had sent minor children who had been in his custody to Junagadh, a Native State, and the Court held that it had jurisdiction to direct the person within the Court's jurisdiction to produce the minors whom he had sent away to a Foreign State. We need not inquire whether the jurisdiction of the Bombay High Court under the Supreme Court Charter gives it more extensive powers than are open to this Court, because the circumstances are entirely different, and in the present case there is no person within the jurisdiction of this Court who may be said to have vicarious custody of Shiva Prasad Naithani. Under these circumstances the remedy of the applicant does not lie to this Court. The stage of inquiry as to whether the warrant issued for his arrest in British India was legal or not is long past, because the warrant has been executed and the applicant has been taken away outside the jurisdiction of this Court. The learned Assistant Government Advocate informed the Court that the allegations made in the affidavit are not accurate. It is not my province, however, when there is no jurisdiction, to determine whether they are correct or not. The only observation possible in a case of this nature is that, if the allegations are correct, the applicant ought to seek redress through the British Government.
3. I dismiss this application.