1. The petitioner came to Indore from West Pakistan on 4th September 1948, under a permit issued by the Deputy High Commissioner for India in West Pakistan under Ordinance No. 17 of 1948 made by the Governor-General of India Under Section 42, Government of India Act, 1935. In the permit the duration of the visit to India is stated to be for a period of six weeks. The applicant, sot having left Indore on the expiry of the six weeks, was arrested on 6th November 1948, by the Sub-Inspector of Police in charge Sadar Bazar Police Station House in the city of Indore for having contravened the provisions of Section 8 of the Ordinance. On the following day, he was produced before the District Magistrate, Indore City who ordered his release on bail. The District Magistrate is awaiting the police challan. On 9th December 1948, the petitioner made a petition to this Court Under Section 491, Criminal P.C. alleging that his arrest was illegal and that bis bail should be cancelled. He alleged that he was a subject of the Madhya Bharat Government as he owned immovable property situated in Indore.
2. The learned Counsel for the applicant submitted that the arrest was illegal as the Ordinance made and promulgated by the Governor-General of India bad not the force of law in the state of Madhya Bharat. His Highness the Raj-pramukba of the United State of Gwalior, Indore and Malwa States (Madhya Bharat) by an instrument dated 19th July 1948 offered to accede to the Dominion of India, The Instrument of Accession was accepted by the Governor-General of India on 13th September 1948 and Under Section 6, Government of India Act, 1935, the United State of Madhya Bharat should be deemed to have acceded to the Dominion of India on this date. The Instrument of Accession was published in the local official gazette dated 30th october 1948. It is provided by Clause (a) of Sub-section (1) of S. C, Government of India Act, 1935 that a Dominon authority (the Governor.General, the Dominon Legislature, the Federal Courtor any other) shall exercise such function as may be vested in it by or under the Act but subject always to the terms of the Instrument of Accession. In Act. 3 of the Instrument of Accession the Rajpramukh accepts 'all matters enumerated in List I and List III of Section vii to the Act as matters in respect on which the Dominion Legislature may make laws for the United State' Thus, it is clear beyond the shadow of a doubt that of the several Dominion Authorities, the United State of Madhya Bharat has accepted the power of the Dominion Legislature only to make laws for it. The Governor-General of India cannot, therefore, exercise in relation to the state the functions vested in him by Section 42, Government of India Act, 1935. He cannot make and promulgate an Ordinance having force in the state of Madhya Bharat. It was urged by the learned Public Prosecutor that Under Section 42, Government of India Act, an Ordinance made and promulgated by the Governor. General shall have the like force of law as an Act passed by the Dominion Legislature, and there-fore, the Ordinance No. 17 of 1948 should be deemed to be an Act of the Dominion Legislature. This simply means that an Ordinance, though not made by the Dominion Legislature shall have force of law; In relation to the United State, the question is which authority has made the law for it. The Dominion Legislature alone has the power under Article 3 of the Instrument of Accession to make laws for the United State. The Ordinance was published for 'general information' and in the official gazette of the United State dated 14th August 1918. This fact can have no bearing on its having the force of law in the state, Under s 1 the Ordinance extends to the whole of India and India as defined in Section 5, Government of India Act, 1935, includes an Indian state acceding to the Dominion of India in the manner provided in the Act. The manner of accession is laid down in B. 6 of the Act as explained above. So far as Ordinances made Under Section 42 of the Act by the Governor-General are concerned, India would include only those acceding states whose rulers have accepted by the Instruments of Accession the authority of the Governor-General of exercise his functions under the Act in relation. to their states. I, for these, reasons, hold that Ordinance no. 17 of 1948 made by the Governor-General of India has not the force of law in the United State of Gwalior, Indore and Malwa states and the arrest of the applicant under it was illegal.
3. The learned Public Prosecutor submitted that the applicant has been released on bail. He was not detained in custody at the time the petition was made and he could not, therefore, invoke B. 491, Criminal P.C., in his aid. The very same argument was put forward by another learned Public Prosecutor before a full Bench of the Indore High Court in the year 1946 but the contention was overruled by the learned Judges on the authority of the case reported in Sandal Singh v. Dist. Magistrate and Supdt; Dehradun A, I. R. (21) 1934 ALL. 143 : 86 Cr.L.J. 1296. An application was made to the More High court Under Section 461, Indore Criminal P.C. corresponding to Section 491, Criminal P.C. by a per3On arrested under the Indore Extradition Rules and bad been released on bail. The case is reported in 1945 indore Law Bep. 143. I reproduce below the relevant portions from the judgment of the learned Chief Justice appearing a a pp. 153 and 151 of the report:
Lastly I may refer to one more point whioh waa urged before us by the learned Publio Proeeoutor, It was contended b,y him that the accused had been let ofl on bail and as he was no longer in any oustody eitheu publio or private, Section 451, Indore Criminal P.C., under which the prf tent application has been made does not apply. A similar argument was advanced in a oase under the corresponding 8. 491, Criminal P.C., In force in British India before a Divisional Bench of the Allahabad High Court in Sandal Singh v. Dist. Magistrate and Supdt., Dehradun A.I.R. (21) 1934 AIL 148 : 38 Cr.L.J. 1296, but waa repelled by the learned Judges (Suleman C. J. and King J.) with the following remarks. 'The mere (act that after his (accused's) arrest, he was temporarily released on bail pending further inquiry doea not oust the jurhdiotion of the High Courts.
The learned Publio Prosecutor urged that the learned Judges have not given any reasons in support of this view. He further urged that in England the writ of Habeas Corpus necessarily implies that the accused is confined somewhere and hia 'body' to ia to be brought up before the Court. But the soopo of Chap. XXXVI, Indore Criminal P.C. ia wider as it does not purport to reproduce the English Law relating to the writ of Habeas Corpus, but merely deals with certain directions in the nature of 'Habeas Corpus'. Clause B) of Section 451, of the Code gives power to the High Court to direofc that a person illegally or improperly detained in public or private custody within the limits of its jurisdiction be set at liberty. All that ihia clause, requires is'illegal' or 'improper' detention in publio or private custody. Even if a person is temporarily released on bail prior to his being extradited, he must, I think, be considered to be detained in the constructive custody of the Court through the surety, as hie liberty is subject to restraint and he has to be produced before the Court by the surety whenever required. I would, therefore, follow the Interpretation placed on the corresponding Section 91, Criminal P.C., in force in British India, by the Allahabad High Court and hold that the oase falls within the scope of Section 451, Indore Criminal P.C.
In civil Beference No. 58 of 1948 it was held by a Full Bench of this High Court that judgments of the Indore High Court are binding on it. The question ia, therefore, not open to discussion and I must hold that, though released on bail, the petitioner ia tntitled to move the Court under B. 491, -Criminal P.C. The learned Publio Prosecutor sought to distinguish that case from the one in hand. He submitted that iu the Indore Extradition Case the release on bail temporary and the applicant's liberty was threatened which in tbe present oase waa not ao. Why it was not so in the present case I could not understand. The applicant's bail may be cancelled and he may, Under Section 6 of the Ordinance be removed from India, In the words of the learned Chief Justice quoted above, in all suoh cases, the petitioner's 'liberty is subject to restraint and he had to be produoced before the Court by the surety whenever required'.
4. In the event it was held that the Ordinance had the force of law in the state, the learned Counsel for the petitioner relied onsaveral other grounds to succeed in his petition. He urged that the Ordinance was made and promulgated before the state acceded to the Dominion of India on 13th September 1948. It was urged that the Ordinance wag ultra vires of the Governor-General as under item No 17 in List I in Sob. Vu to Government of India Act restraint on the immigration of a subject of an Indian State oould not be imposed. He further urged that Section 8 of the Ordinance had not been contravened by the petitioner because he entered India and Indore with a permit in hia possession. Neither S. S nor any rule made thereunder prohibited a person entering India staying in the country beyond the time of stay specified in the permit. Neither Section 8 nor any rule under it authorised or required the authority issuing the permit to specify the duration of stay of the immigrant into India, These are matters which, in view of decision that the ordinance baa not locally the force of law, do not call for consideration. If the Ordinance has the force of law, these are matters to be urged at the trial.
5. I must, before I make the order disposing of the application, record that the subject matter of this judgment cannot, in my opinion, be rendered aptly in Hindi, at any rate, lam unable to do it and hence the English garb of the judg. ment. Since the applicant is on bail I would borrow the words of the learned Chief Justice in the Full Bench ease referred to above, and direct that the petitioner be released from his bail bond and be sot at liberty. The petition is accepted.
6. I agree.