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Anant Bhaskar Lagu Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported inAIR1950MP60; 1950CriLJ1352
AppellantAnant Bhaskar Lagu
RespondentState
Cases ReferredLe Mesurier v. Wajid Bossain
Excerpt:
- - it was also slated before us that a fresh-order for his detention under act 4 of 1950. preventive detention act was passed against the petitioner by the district magistrate, indore, on 7th march 1960. after some adjournment for reasons which it is not necessary to enter into, the case was taken up on 14th april 1950. on that date the counsel for the petitioner as well as the advocate-general who appeared for the state both prayed that this case be heard by a-division bench, this prayer was allowed and it was accordingly fixed before a bench consist' ing of two judges on 19th april 1950. 4. a preliminary objection was taken by the learned advocate. 6. it is accordingly necessary to consider which of the two contentions, that put forward by the advocate-general or the one advanced by.....orderkaul, c.j.1. anant bhaskar lagu (who is-said to be a resident of indore and ujjain as he divides his time between the two please made the present application under section 491, criminal p. 0, by a subsequent application it was prayed on his behalf that it might be treated as an application under article 226 of the constitution.2. the material facts are as follows: on lab april 1949, the district magistrate, indore, passed an order under madhya bharat maintenance of public order act, samvat 2005, 3.3 (1) that lagu be detained for a period of three months. it is-alleged that in enforcement of this order the petitioner waa arrested but he escaped from police custody. on 3rd december 1949, a constable saw him in indore distributing some leaflets as part of propaganda for the communist.....
Judgment:
ORDER

Kaul, C.J.

1. Anant Bhaskar Lagu (who is-said to be a resident of Indore and Ujjain as he divides his time between the two please made the present application Under Section 491, Criminal P. 0, By a subsequent application it was prayed on his behalf that it might be treated as an application under Article 226 of the Constitution.

2. The material facts are as follows: On lab April 1949, the District Magistrate, Indore, passed an order under Madhya Bharat Maintenance of Public Order Act, samvat 2005, 3.3 (1) that Lagu be detained for a period of three months. It is-alleged that in enforcement of this order the petitioner waa arrested but he escaped from police custody. On 3rd December 1949, a constable saw him in Indore distributing some leaflets as part of propaganda for the communist party an association which was- declared unlawful in Indore. He was ultimately arrested in Indore on the night between 14th and 15th December 1949. On 15th December 1949, the District Magistrate Indore passed another order for his detention for three months. The grounds on which the order was passed were supplied to him on 25th December 1949. On 1st April 1950 the present petition for habeas corpus was made. On 2nd March 1950 the Second Magistrate, Indore, issued a warrant for his arrest on a charge Under Section 4 of Prohibition of Associations Dangerous to Public Peace Act No. 19 of 1949 and he is being prosecuted Under Section 4 (1) of that Act.

3. A case has also been started against him for the offence of having escaped from lawful custody after arrest, but in connection with that offence he was ordered to be released on bail. It was also slated before us that a fresh-order for his detention under Act 4 of 1950. Preventive Detention Act was passed against the petitioner by the District Magistrate, Indore, on 7th March 1960. After some adjournment for reasons which it is not necessary to enter into, the case was taken up on 14th April 1950. On that date the counsel for the petitioner as well as the Advocate-General who appeared for the State both prayed that this case be heard by a-Division Bench, This prayer was allowed and it was accordingly fixed before a bench consist' ing of two Judges on 19th April 1950.

4. A preliminary objection was taken by the learned Advocate. General to the hearing of this application under Article 226 of the Constitution. He contended that unlike Article 32 of the Constitution Article 226 does not provide for any remedy which apart from the existing law could be available to a person for enforcement of any of the rights dealt with in part in of the Constitution i. e , fundamental rights. His argument was that Article 326 only laid down the powers which the High Courts in different State could exercise in appropriate cases under the existing law but not outside it. He referred to Section 191, Criminal F. C, and painted out that the present petition being one for issue of a direction in the nature of habeas corpus could be heard and determined under that section which wag the existing law applicable to the matter in hand, but not apart from it. He conceded that subject to the terms of that section the High Court could in giving relief under that provision of law exercise any of the powers conferred upon it by Article 226 and if there be any other existing law besides Section 491, Criminal P.C. which gave the applicant a right to come direct to the High Court and seek relief the High Court could exercise any of the powers conferred upon it by Article 226 to grant such relief, but so long as no action was taken by Parliament under Article 32(3) of the Constitution the only case in which a person can approach a High Court for enforcement of any of the fundamental rights could ba where the existing law provides for such a remedy. If the applicant however desired to avail himself of the 'constitutional remedy' for enforcement of a fundamental right he should approach the Supreme Court under Article 32(1).

5. Mr. Daji counsel for the petitioner on the other hand contended that the Constitution had in addition to the remedy expressly granted by Article 32(i) provided for another similar remedy by Article 226 which entitled every citizen of the republic to approach the appropriate High Court direct if any of his fundamental rights was violated and seek relief. To use the words of the learned Counsel Article 226 was 'supplementary to Article 82.' He argued that Article 226(2) expressly provided that exercise by High Courts of the powers conferred upon them by Article 226(1) would not be in derogation of the powers conferred by Article 32(2) upon the Supreme Court.' He further streseed the words 'notwithstanding anything in Article 32' with which Article 226 opens and contended that these made it abundantly clear that the two remedies (1) the right to approach the Supreme Coilrt and (2) the right to approach the High Court were concurrent and that either of them can-apart from the provisions of any existing law-be availed of by virtue of the Constitution even before any action was taken by the Parliament under Article 32(3). His contention was that reference in Article 32(3) to 'any other Court' could not be intended to refer to the existing High Courts. According to him those words referred to any Courts that might be created under Article 366(U)(b) or possibly to Courts created under Art 217 but they could not according to the learned Counsel refer to any of the existing High Courts. A view favourable to the contention of the petitioner's learned Counsel was taken by a Division Bench of this Court in Sarendranath Sliarma v. State Civil Misc. Appln. No. 8 of 1950 : A.I.R. (37) 19SO Madh. b. 46 but as after hearing the counsel for parties a doubt was entertained as to the correctness of that decision the matter was ordered to be placed before a Full Bench. Hones this matter comes up before us.

6. It is accordingly necessary to consider which of the two contentions, that put forward by the Advocate-General or the one advanced by the petitioner's counsel as regards the correct import and right construction of Article 226 is well founded.

7. I may state however that after giving the matter much anxious thought I have reluctantly come to the conclusion that the contention put forward by the petitioner's counsel cannot be accepted. Article 226 reads as follows:

(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which It exercise jurisdiction, to to any person or authority, including in appropriate eases any Government, within those territories directions, orders or writs, including writs in-the nature of habeas corpus, mandamus, prohibition, quotaarran -to and cartiorari, Or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.

2. The power conferred on a High Court by 01. (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 33.

8. This article read in isolation might possibly at first sight create an impression that it gives the High Courts simultaneously with the Supreme Court jurisdiction to entertain applications for enforcement of fundamental rights as a constitutional remedy even before any action is taken by Parliament under Article 32(3). But in order to understand the correct import of Art. 226 and to put the right interpretation thereon it is necessary to see it in its proper perspective in the scheme of the Constitution. The Constitution opens with a preamble. Then we have part I which is devoted to the naming of the Union and laying down certain provisions as regards its territory. The next part (part II) duals with the subject of citizenship, Then follows part III which deals with what are called Fundamental rights. These are certain rights,. right to equality, right to freedom, right against extortion, right to freedom of religion, certain cultural rights and right to property to which special sanotity is attached by the constitution, and these are called fundamental rights. This- part (ill) concludes with a bunch of four Articles 32 to 36 under a separate beading Constitutional Remedies- Article 31 the first of the set reads thus:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rigutg tonferrtd by this part is guaranteed,

(2) The Supreme Court shall have power to issue -director or orders or writs, including write in the nature of habeas corpus, mandamus, prohibition, quo tvarranto e.nd certiorari, whichever may be appropriate, for the enforcement of any of the tights conferred by this part,

(3) Without prejudice to the powers conferred on the Supreme Court by cla, (1) and (2) Parliament may by law empower any other Court to exercise within the local limits of its juried action all or any of the powers exercisable by the Supreme Court under Clause (3).

(4) The right guaranteed by this article shall cot be uapsndud except as otherwise provided for by this Constitution

Part iv of the Constitution deals with directive principles of State policy, Fact V is devoted to the Union Executive, Union Legislature and the Union Judiacy. Then we come to Fart VI which deals with the States, in Part (a). After dealing with various matters relating to the State Executive and State Legislatures Chapt. V of this part deals with-'the High Court in the States'. After providing for the establishment of the High Courts, appointment of the Judges thereof and certain other matters we have Article 225 which deals with the jurisdiction of the existing High Courts. It runs as follows:

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in any existing High Court, and the respective powers of the Judges thereof in relation ta the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:Provided that any restriction to which the exercise of original jurisdiction by any of the High Court with respect to any matter concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

9. Then we have 226 which has already been reproduced in an earlier part of this judgment.

10. The above vary general analysis of the relevant portion of the Constitution will throw some light on the position which Articles 32 and 26, respectively occupy in the constitutional scheme. The Constitution it will be noticed contemplates two kinds of remedies for enforcement of fundamental rights-(i) constitutional re me dies i. e., remedies expressly given by the constitution and (a) remedies available under the ordinary law of the land. Article a deals with a remedy expressly given by the Constitution and called Constitutional remedy. While Article 6, relates to a different subject altogether. It certain powers upon High Courts which they may use in the exercise of any jurisdiction vested in them by virtue of Article 325 or any other provision of the Constitution. The subject-matter of Article 226, is not any jurisdiction which the High Court can exercise, nor any relief which it can give in exorcise of a jurisdiction vested in it. It does not deal with either of those matters. On the other hand, it confers upon High Courts certain powers which they may use for giving relief in exercise of their jurisdiction. The extent of the jurisdiction of High Courts, the cases in which it can be exercised and the procedure by which it can be invoked are matters wholly outside the purview of Article 226. Article 226 does not find place in part HI which deals with fundamental rights and the constitutional remedies for enforcement thereof. This article belongs to a set of articles which deal with judiciary in the States.

11. With these observations of a general character I will proceed to examine that article.

12. To my mind the argument advanced by Mr. Ddji confuses the jurisdiction of High Courts with the powers which they can exercise, The two are distinct and separate concepts and the difference between the two which is essential should not be blurred, Jurisdiction in the authority conferred upon a tribunal to determine a matter. Powers are the means by which effect is given by Courts to their determinations. Jurisdiction as we know may be, original, appellate, revisional or a Court may exercise jurisdiction as a Court of reference. Again it may be civil or criminal. It may have reference to the status of the persons over whom it is exercised. In short there may be various criteria with reference to which the jurisdiction of a Court might be fixed. The Indian High Courts have their jurisdictions defined generally by the instruments under which they were created and by various legislative enactments. Oar Codes of Civil and Criminal Procedure contain many provisions dealing with the jurisdiction of Courts including High Courts, Article 225 of the Constitution provides that the jurisdiction and the law to be administered in any existing High Court and the respective powers of the Judges these of in relation to administration of justice, shall be the same as immediately before commencement of the Constitution and all the laws in for a in the territory of India immediately before the commencement of the Constitution are to continue in force therein until altered or repsaled or amended by a competent Legislature or other competent authority. Thus, it would ap- pear that the Constitution did not intend to introduce any radial changes in the jurisdiction of the Indian High Courts except in so far a3 indicated by the proviso to that article or other .provisions of the Constitution.

13. But if we accept the contention of the petitioner's counsel with regard to Article 226 it would follow that the whole basis of the various jurisdictions exercised by different High Courts in the country is completely altered. That article gives power to eyery High Court throughout the territories in relation to which they exercise jurisdiction to issue to any person or authority including in appropriate cases the Government within those territories orders, directions or writs, including the writs in the nature of habeas corpus, mindxmus, prohibition, quo warrant and certiorari or any of them for any purpose whatsoever including enforcement of fundamental rights. Aocording to the learned Counsel for the petitioner not only does this article confirm upon every High Court original jurisdiction in respect of every conceivable matter but also an obligation to exercise whenever moved to do ao by an original motion. The jurisdiction can according to him be invoked by an application in any case irrespective of whether it needs the exercise of matrimonial, testamentary, Insolvency, Admiralty or any other jurisdiction and whether the matter in question is civil or criminal. Such a contention must, for obvious reasons be carefully scrutinised before it is ao-cepfcid.

14. The first thing which attraots attention in Art 826 is the extremely wide scope of the language used to indicate the purposes for which 4he powers conferred thereby may be exercised. These powers may be exeroiaed for enforcement of fundamental rights or 'for any other purpose.' For obvious reasons, these words if taken (in their widest signification would include even purpose3 not necessarily legal. Such an interpretation would reduce the article to absurdity. Some limitation must, therefore, be found to give the words used their legitimate meaning and proper significance in the oontext in which they occur. As powers are by the article in question conferred upon High Courts and they deal only with legal matters it would be legitimate to infer that the purposes here contemplated must be legal purposes only as distinct from moral, social or religious purposes. The question may well be asked here how are we to ascertain the legal purpose for which the very wide powers conferred upon High Courts under this article may be exercised. There oan be only one answer to soon, a query-by reference to the law-that is existing law, the law of the country which by virkn of Articles 225 and 872 continue in force.

15. Under the existing law, we have a number of Courts of different grades each with different jurisdiction and exercising different powers. The law lays down tha purposes for which different Courts oan be approached. For instanoe, if a person wants to recover the rent of an agricultural holding which has fallen due in Madhya Bharat or Uttar Pradesh he mast go to the Rent Court. He cannot recover it in civil or criminal Court, Similarly, if a person wants to file an appeal or revision application he cannot go to the Court which exercises only original jurisdiction. The purposes for which various High Courts exercise original jurisdiction are also specified. For instance, the Calcutta High Court is invested with ordinary original civil jurisdiction in respect of certain olasses of suits and it has also an extraordinary original civil jurisdiction. But our High Court like some others, for instance Allahabad High Court does not possess ordinary Civil jurisdiction and consequently neither of them can be asked to entertain or exercise any of the powers vested ia them for the purpose of an original civil matter. Even if a power is conferred upon a High Court for any purpose it cannot be invoked unless the Court has jurisdiction in respeot of the mattse for which the power is to be exercised,

16. I have already stated that originally tha present application was made Under Section 191, Criminal F. 0 , but the next day after the application was presented, Mr. Da,ji counsel for the petitioner prayed for leave to amend it 'so as to read as Under Section 226 of the Constitution of India.' I find that no formal order allowing this application was passed. The proceeding has, however, continued throughout as if the amendment had been allowed and given effect to, This is only a formal matter and I direet that an order allowing the application of and Maroh 1950 ba reoorded thereon and Mr. Daji be asked to m&ka; the necessary amendment.

17. The object of the amendment sought as was olear from the trend of the learned Counsel's argument, was that ha wanted this Court to exercise not only its powers Under Section 491, Criminal P.C., but to proceed as if this Court wu invested with all the jurisdiction and powers of the English Court of King's Banoh Diviaion and as if the present case was one before a Benoh of that Court. He further asked us to apply to hii case the whole of the English law of habeas corpus as it obtains in England. His argument may be put thus. Section 191, Criminal P.C., gives a person illegally detained in India only a, right to apply for what the learned Counsel called 'a truncated habaas corpus'. But the Constitution has from 26th January 1950 whan it came into foros made available to the citizen of the Indian Republic a constitutional remedy for enforcement of any of the rights dealt with in Fart III of the Constitution and by virtue of Article 226, a writ of habeas corpus can now be applied for by any person who alleges that he is illegally detained and he can ask the High Court to apply to his case all the principles of English law as applicable to such cases in England to-day.

18. I will dispose of this contention on the short ground that Article 226 under which the application is made does not provide for any 'constitutional remedy.' Constitutional remedies are dealt with only in Part III of the Constitution which has by Article 32 guaranteed only the right to approach the Supreme Court. It is true that under el. (3) of that article Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2) of that article. Sub Parliament has Bo far not empowered any other Court to do so.

19. Mr. Daji contended that independently of anything said in Article 82, Article 226 vested every High Court with the jurisdiction to grant the relief prayed for by him and in doing so it could exercise any of the powers conferred upon the Supreme Court by Article 32; because the same powers are conferred by Article 226 on every High Court. I am unable to accept this contention. In the first place, if it wece intended that the constitutional remedy for which a person can approach the Supreme Court under Article 32(1) should without any further action by Parliament in that behalf be also available in the High Courts we would except a reference to High Courts also in cl. l of Art 32. Moreover the words 'any other Court' occurring in Article 92(3) could not exclude the High Courts from their purview. It is in the highest degree unlikely that the Constitution should confer upon Parliament authority to empower any of the Subordinate Courts or any of the Courts not yet in existence but which might be created under Article 366(14)(b) or Article 217, but not the High Courts.

20. It was argued that it was unnecessary to include High Courts within the purview of the words 'any other Court' used in Article 32(3), because the High Courts were already empowered by Article 226 to exercise the powers mentioned in Article 32(2). It will be seen that in order to give a person relief by way of whit is called a constitutional remedy, a Court must be invested with original jurisdiction for that purpose so as to be able to issue orders, directions or writs such as are referred to in Article 33(2). This would imply possession of both civil and criminal original jurisdiction for such purposes. For instance, if it is sought to enforce a, right to religious freedom the Court might have to exercise original civil jurisdiction. While if it is to punish an act which has been declared an offence by Part III the Court would have to exercise original criminal jurisdiction. But before this could be done, the Court must be Vested with this jurisdiction. Most of the High Courts including our own do not possess these jurisdictions. Accordingly, mere conferment of powers by Article 226 would be ineffective. The jurisdiction in exercise of which those powers could be used would be lacking.

21. An argument was put forward that if a-powar is conferred upon a tribunal for the bane tit of the public, there is a corresponding obligation to exercise it and the obligation necessarily implies the existence of the requisite jurisdiction. In short, it was contended that the Constitution by conferring upon every High Court the powers mentioned in Article 226 impliedly conferred upon them the jurisdiction to uae those powers in appropriate cases. I need not repeal; what I have said in an earlier portion of thia judgment concerning the wide scope of the expressions used in Article 226 to indicate the scope-of the purposes for which the powers conferred thereby oan be exercised. I am unable to persuade myself to hold that luch a wide and extensive jurisdiction as is implied in the contention put forward by the petitioner's counsel, could be conferred upon High Courts in this indirect manner.

22. Apart from that, I am unable to subscribe to the broad proposition enunciated by the learned Counsel that conferment of powers necessarily implies the oonferment of jurisdiction to exercise those powers. No authority haj been oited for this proposition. Even if 3ucb a proposition be accepted with regard to the powers conferred by ordinary legislative enactments on a Municipal tribunal, it is not shown that the same would apply to the interpretation of an article in the Constitution of a oountry. Of course no hard and fast rule cam be laid down as to what should or should not find place in a Constitution. But the Constitution of a republic is primarily concerned with defining the various organs by which the business of its Government is to be carried on and allocating the sovereign power which vesta in the people among those organs. Our Constitution indicates unequivocally by Article 225 that the jurisdiction which Madhya Bharat High Court can exercise after 26ih January 1950, shall be the same as it exercised immediately before that date. This High Court had no ordinary original civil jurisdiction and the extraordinary jurisdiction it possessed under 6. 21 of the High Court of Judicature Act No.'a of 1919 could not possibly cover such a wide field as is necessarily implied in the language of Article 226 To read Article 326 in the sense suggested by Mr. Daji would give rise to a conflict between that article and the one immediately proceeding it-a conflict: which it would be impossible to reconcile,

23. It was pointed out that there is no express provision in the Constitution investing the Supreme Court with original jurisdiction to entertain an application for enforcement of fundamental rights. This is trust. But the language of Article 32(1) by necessary implication confers such jurisdiction on that Court. It is noteworthy that no provision corresponding to Article 32(1) is found in Art 226. The absence of any such olause in Article 226 is highly significant and indirectly lends strong support to the view taken by me as to the correct import and right meaning of that article.

24. Again under Article 35(b) any law in force immediately before the commencement of the Constitution 'for enforcement of what are called fundamental rights or foe punishment of any act declared to be an offence in Fart III continues in force even after 36th January 1950. Thus 8, 491, Criminal P.C. and Section 45, Specific Belief Act must be deemed to have independently of the general provision contained in Article 372, been kept in force by this special provision. They give a right to apply for what was called by Mr. Daji ''a truncated habeas corpus and a truncated mandamus'. It is difficult to reconcile the conflict to which Article 35(b) and Article 226 would give rise if the -latter be interpreted in the manner argued by the learned Counsel. If the petitioner's contention be accepted both the sections above referred to are rendered wholly redundant.

25. It is significant to note that the powers referred to in Section 15, Specific Relief Act, can be exercised only by the High Courts of Calcutta, Bombay and Madras and not by any other High Court, and though by Adaptation of Laws Order of January 1950 promulgated by the President a new section is substituted for 8. GO, Specific Belief Act, Section 45 of that Act continues in its old form and has not been altered, If the interpretation put by the petitioner's counsel on Article 226 be correct, viz., that every High Court can now issue the writ of mandamus and other writs Section 45, Specific Relief Act, would become altogether superfluous and we would find some reference to this in the Adaptation of Liws Order. But as already observed Section 45, Specific Belief Act, as well as Section 491, Criminal P.C. remain on our statute book unaltered. It is therefore legitimate to infer that Article 326 only mentions some of the powers which, if law made by Parliament or other appropriate legislature so provides may be exercised by the High Courts under circumstances and conditions prescribed by such law. But so long as this is not done, the powers conferred by Article 226 must remain ineffective except in so far as they can be exercised under the existing law. Section 45 and the new Section 50, Specific Relief Act, illustrate how the powers conferred by Article 226 can become effective.

26. Reference was made by Mr. Daji as well as by Mr. Rege (to whom we are indebted for an able argument amicus curiae) to the words 'notwithstanding anything in Article 33' in the opening portion and further, to the words 'for the enforcement of the rights conferred by Part III' in the concluding portion of Article 226 and it was argued that these words make it abundantly clear that though Article 32(1) makes reference only to the Supreme Court the powers mentioned in the articles which are expressed in almost identical terms could be used by that Court as well as by the High Courts concurrently. It must be conceded that the words 'notwithstanding anything in Article 32' imply that there was some conflict apparent or real between the two articles which might give rise to a doubt and therefore the Constituent Assembly made it dear that 'notwithstanding anything said in that Article' the High Court shall have the powers mentioned in Article 226 for enforcement of fundamental rights aa well as for other purposes. This would not affect the main objection to the argument of the petitioner's counsel viz., that the powers conferred can become effective only after the necessary provision as to the circumstances and conditions in which they can be exercised and the requisite jurisdiction to exercise them is made by appropriate legislation.

27. It is however pertinent to inquire what the apparent or real confliot between the two articles was which rendered the use of the opening words of Article 226 necessary. Article 32 consists of four clauses. There is nothing corresponding to els. i, 3 and 4 of that article in Article 226 which uses language very similar to that of 32(2) for the purpose of conferring powers, The opening words of Article 32(2) are : 'The Supreme Court shall have the powers...'. This should ordinarily lead to the inference that no other Court except the one mentioned in that clause shall have the powers enumerated therein. The framers'Of the Constitution however intended that similar powers could in certain circumstances be exercised by High Courts also. Hence the use of the words 'notwithstanding anything in Article 89' in the opening portion of Act. 838. Bat care was taken to make it dear that the constitutional remedy provided by Art. S3 (t) could be sought only in the Supreme Court. Parliament was however authorised to make pro vision for the exercise of all or some of those powers by the High Court also. This is provided by el. (8). This explains the nee of the words found in the opening portion of Article 3H6.

28. Reference was made by the learned Advocate General to Article 145(a) which expressly empowers the Supreme Court to make rules as to the proceedings in the Oourk for enforcement of ny of the rights conferred by part 8 He argued that if as contended by the petitioner's counsel the High Courts Gould by virtue of Article 326 independently, of any provision in existing law or any law that might be made by Parliament or other appropriate Legislature forthwith exercise all the powers for enforcement of fundamental rights which can be exercised by the Supreme Court under Art. S3, we would expect some provision similar to Art. US (c) authorising the High Courts to make rules for regulating the proceedings under Art. lilifi. Perhaps this argument can be met by reference to Section 34 of Madbya Bharat High Court of Judicature Act of Bamvat SOOfi (Act 8 of 1919) under which the High Court has already the power to regulate its own procedure and the procedure of the Courts subordinate to it.

29. A reference to entries No. 96 in list 1 and 6fi in List a of Boh. 7 will show that if which unlimited original jurisdiction as is contended for by the petitioner's counsel is already conferred by Art. 326 of the Constitution on every High Court there is hardly any room left for the Parliament or any State Legislature to make any law with regard to the jurisdiction of the High Court. It is in the highest degree unlikely that this could be the intention of the framers of the Constitution.

30. There is one argument contained in the judgment of Dixit J. in the case of Harendra. naih Sharma, (A.I.R. (37) 1950 M. B. 46) about which I should like to say a few words. At p. 13 of his judgment; the learned Judge refers to the rule of construction laid down in Le Mesurier v. Wajid Bossain 39 Cal. 890 : 6 C. W. N. 666 F. B. and observes:

Applying this principle here I think that there is nothing in Article 226 to suggest that the words ''any other purpose' were intended to be used in any other than their ordinary and larger sense. The word 'purpose' has no relation to the nature or character of the tights mentioned in Pait. Nor has it, in connection with the rights conferred by Part III obviously any reference to a purpose other than 'enforcement'. The object of the Article In giving to the High Court the discretionary jurisdiction to issue certain directions or write is to secure the protection of the rights of the public and to ampliate justice and redress grievances its any matter which the ordinary course of law is too defective to reach. Its purpose la not merely to prevent the Infringement only of those rights mentioned In Part III,. , , Consistently therefore, with the object of the article the words 'any other purpose' roast be construed to refer to all purposes for which at English common Law the Ugh prerogative writs are 'waned tat wit, for the protection of the rights of the individual, to other excess and abuse of power?,

31. I have already stated my reasons for not giving the words 'or for any other purpose' the widest signification of which they are capable in ordinary parlance. I have also indicated how the scope of those words should be restricted for give them their right signification in the context in which they occur. I do not want to anything to what I have said already of that point.

32. I should however, like to point out that there appears to be no good reason why tha scope of these words should be restrained to the purposes for which the five high prerogative writs mentioned in the article were issued by the English Courts. In the first plane the list of writs specifically named in the article is sot intended to be exhaustive. This is clear from tha use of the word 'including' which precedes their enumeration. But apart from that the powers) which are conferred upon High Courts by Art 326 are not limited to is3ue of writs only. They can issue any directions or orders which may be considered necessary or appropriate And it would unjustifiably restrict the scope of the powers conferred to limit them to the oases in which the five writs specifically named were issued by Courts in England. Tbe language employed in the article is of the widest possible significance. There is no restriction placed on the nature or form of the orders or directions or writs that might be issued, nor is any limitu-tion put on the purposes for which the High Court might issue them....

33. To my mind the very generality of that powers and the unlimited scope of the purposes for which they might be used, necessitates that there should be found some standard by refer, enoe to which the exercise of those powers could be regulated. I am clear, however, that for this we must look to the law of the land and not to the English or any other foreign law. I can find no satisfactory answer to the question, why should, the orders or direction which the High Courts can issue under Article 226, be limited to tha purposes for which the five prerogative writs specifically named therein were issued in England. I would on the other hand hold that the powers conferred can be exercised for any purpose in. respect of which jurisdiction is rested in the High Courts by our law.

34. With the greatest respect for the learned Judge, I find nothing in the article which would justify the observation of Dixit J. that the object of the article in giving to the High Courts the discretionary jurisdiction to issue certain directions or writs was etc etc The article does not confer any jurisdiction upon the High Courts. It does not purport to do be. It is Article 986 which deals with the jurisdiction which the High Courts can exercise. Article 326 mentions only the powers which in addition to those referred to in Article 2'iB can be exercised by High Courts. The Constituent Assembly did not consider that the powers which the High Courts could already exercise were enough and made this provision extending the scope of those powers But that article does not touch the question of jurisdiction of the High Courts at all. To my mind it is this error i. e., mistaking of powers for the jurisdiction to exercise those powers, which is responsible for all the controversy that has arisen aa to the correct interpretation of this article. All doubts as to the true meaning of Article 226 would disappear if it is realised that the question of jurisdiction of High Courts and of the powers which they were invested with under the existing law for exercise of that jurisdiction are dealt with in Art. ass. All the old jurisdiction and powers of every High Court as they existed on 28th January 1950 were preserved. But it was considered desirable to oonfer certain fresh powers upon the High Courts to enable them to exercise their jurisdiction more effectively than before- This was done by Article 826. That article does nothing more. The question of effecting any change in the jurisdiction of High Courts apart from such jurisdiction as was already vested in them was left to be dealt with by Parliament or other appropriate Legislature as is dear from the entries in lists I and II of Sch 7.

35. For the reasons given above I am of opinion that the contention put forward by the petitioner's counsel cannot be accepted.

36. Though the amendment application made by Mr. Diji is inartistically worded and suggests that the petitioner seeks relief only under Article 236 of the Constitution I do not think that is a good reason to refuse to consider his application Under Section 491, Criminal P. C But Mr. Daji requested that consideration of his application under that section be postponed pending the decision of the cases for which his client was being tried in the Magistrate's Court. I am of opinion that this request may be granted and the hearing of this application postponed sine die at the request of Mr. Daji.

Shinde, J.

37. I agree with my Lord the Chief Justice and have nothing more to add.

Mehta, J.

38. I have had the advantage of reading the judgment of the learned Object Justice but I regret I do not agree with him as regards the interpretation of Art. Jifl of the Constitution of India. In civil Misc. Appln. no. a of 1980, Harendranath Sharma, (A. I. R (87) I960 M B. 46) a Division Bench consisting of Dixit J and myself have held that Article 981 has conferred in prasenti the power on every State High Court to issue write mentioned therein both for enforcement of fundamental rights referred to in part HI and also for any other purpose. Any other purpose must be cob. sbrued to refer to all purposes for which at English Common Law the high prerogative writs are issued to wit the protection of the rights of the individuals, to check excess or abum of powers.

39. I adhere to this decision as laying correct interpretation of Article 226 oi the Constitution. It was contended by the learned Advocate-General that though Article 226 of the Constitution has conferred power to every Higk Court to issue the direction, orders and writ mentioned therein, still no constitutional remedy is provided in Article 226 and unless the Parliament devises some suitable machinery for the exercise of these powers, the High Courts cannot exeioise the powers to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto certiorari. It was contended that Article 220 does not include a guarantee for constitutional remedy as is provided for in Article 32, cl. 1 with regard to enforcement of fundamental rights by the Supreme Court. It was urged that the provisions of Article 32, cl. 3 would go to indicate that Parliament may by law empower any other Court to exercise within the local limits of it jurisdiction any of the powers exercisable by the Supreme Court under Clause 3, Article 39 with regard to the enforcement of fundamental rights.

40. In my opinion Article 89, Clause S does no refer to existing High Courts already constituted in every State because notwithstanding any. thing contained in Article 3a every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to directions, orders or writs as mentioned i Article 236 for enforcement of fundamental rights and for any other purpose. Therefore the reference to any other Court in Article 33, el. 8 isiv relation to Article 217. Article S47 states that Parliament may by law provide for establishment of any additional Courts for the better administration of law made by Parliament or of any existing law with respect to a matter enumerated in the Union list. The definition of High Court- in Article 361, el. 14 is: (a) Any Court in the territory of India constituted or reconstituted under this constitution as a High Court and (b). Any other Court in territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this constitution; Clearly, therefore, Article 32, cl 8 has no reference to the High Courts already existing or reconstituted under the constitution. It is in connection with any other Court which may be declared by Parliament to be a High Court that Article 32, cl. 3 was intended. To such Courts as may be declared by Parliament by law to be a High Court, that Parliament may empower such Courts to exercise within the local limits of its jurisdiction all or any of the powers exercisable by Supreme Court under Article 82. cl. 2. Article 32, cl. 3 speaks of empowering any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by supreme Court under cl. 2. This is in sharp contrast to Article 226 which authorises the High Court to exercise its jurisdiction throughout the territories in relation to which it exercises jurisdiction. Thus, Article 32, cl. S has no reference to existing High Courts. Under Article 226 High Court of every State has been empowered notwithstanding anything contained in Article 32 to exercise concurrently power of Supreme Court as indicated in Article 32, cl. 2 with regard to enforcement of fundamental rights throughout the territories in relation to which it exercises jurisdiction. In my opinion, it is not correct to contend that though Article 336 states in categorical terms that High Courts shall have power to issue the various writs, the exercise of those powers should remain suspended or in abeyance till it is harnessed through future legislation by Parliament. It runs counter to the whole scheme and position of Article 226 as a term of compact, between the State and the Centre. The new Constitution Act has not attempted to describe in detail the powers and duties of the High 'Court. The Constitution Act has contended itself with continuing the existing powers, privileges and functions of the High Court, vide Article 225. But certain restrictions to which the exercise of such jurisdiction was previously subject have been removed. The Constitution >has given added powers to the High Courts of every State. Articles 226, 227 and 228 have widened and enlarged the jurisdiction of the High Courts. A far reaching change introduced by the new Constitution is the provision contained in Article 226 empowering the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto. Formerly, only the High Courts of Calcutta, Bombay and Madras, as -successors to old Supreme Courts exercised the powers of issuing writs and it was only confined to the limits of the cities of Calcutta, Bombay and Madras, within the limits of its original civil jurisdiction. Article 226 enacts that High Courts shall have such power through, out the territories in relation to which it exercises jurisdiction. Such a provision is also a natural sequel to the enactment of fundamental rights in part Hi of the Constitution, Article 32 makes it the responsibility of the Supreme Court to give all appropriate remedies for the enforcement of rights, conferred by part III bat without prejudice to this power of the Supreme Court, the power is conferred on High Courts as well. There iB no doubt in my mind that by the very nature of federation, every State High Court has been given concurrent jurisdiction for the enforcement of fundamental rights and for other purposes by the issue of appropriate writs in the nature of habeas corpus, mandamus certiorari, prohibition and quo warranto.

41. It was argued that though by Article 226, the High Courts shall have power to issue high prerogative writs, no obligation was cast on the High Courts to exercise the powers of issuing the writs. In my opinion this argument i3 not tenable. When once the power is conferred on High Courts under Article 226 for enforcement of fundamental rights or for any other purpose by issue of appropriate writs, then a citizen of a State residing within the jurisdiction of State High Court whose fundamental rights are in-fringed is entitled to approach the High Court for the vindication or enforcement of that right or obligation and the High Court has discretion whether to grant relief or not. The High Court cannot state that it has not got the power to exercise any of the powers exercisable by the Supreme Court under Art. as, cl. 2. In my opinion Article 226 provides remedy and having regard to the language of Article 226 the framots of the constitution never contemplated with regard to the existing High Courts and the High Courts reconstituted under the constitution that Parliament may by law empower the High Courts to exercise within the limits of its jurisdiction any of the powers exercieable by the Supreme Court under Clause (2), Article 82. Article 226 would be superfluous, if the exercise of the powers conferred were left to future legislation. In my opinion the conferment of power necessarily involves the exercise of those powers unless the exercise of powers has been curtailed or taken away by expre3s language to that effect. Discretion is left to the High Court whether to grant relief or not according to the nature and Circumstances of the case.

42. I am of opinion that Article 286 provides remedy and in the exercise of the powers conferred by Article S35 of the Constitution, and of all other powers enabling it in that behalf the State High Courts have power to make rules to regulate the proceedings under Article 336 of the Constitution.

43. It was argued by the learned Advocate General that Article 145 of the Constitution em. powers the Supreme Court with the approval of the President, to make rules for regulating the practice and procedure and to frame rules relating to the proceedings in Court for enforcement of any of the rights conferred by Part in (fundamental rights). However the rule-making power of the High Court is preserved and continued by Art. SSG of the Constitution. The Constitution has not attempted to describe in detail the powers and duties of the High Court.

44. The Supreme Court is the creature of the new Constitution and therefore the framers of the constitution have taken pains to lay down in minute particulars about the establishment and Constitution of the Supreme Court; about the seat of Supreme Court; about its original jurisdiction, appellate jurisdiction; its ancillary powers; power of the President to consult Supreme Court, about rules of the Supreme Court eta.

45. It was not necessary to do so in the -case of High Courts. The High Courts' power to frame rules under Article 925 are not in any way fettered or restricted. The High Court can frame rules under Article 225 relating to the proceedings for enforcement of fundamental rights and to regulate it3 proceedings under Article 926 of the Constitution. The High Court of Allahabad has framed rules under Art. S2S.

46. From the fact that Article 82 finds place in chap. Ill after the enumeration of fundamental rights, it was argued that the right to constitutional remedy is the sole and exclusive responsibility of the Supreme Court, la my opinion, this argument is not tenable. The right to constitutional remedy is provided in Article 32 chap, in and does not find place in Chap, iv which deals with the establishment and constitution of the Supreme Court, for the simple reason that after declaring the fundamental rights, the framers of the Constitution thought it necessary immediately to specify that the right of any citizen to move the Supreme Court for enforcement of fundamental rights is guaranteed. The framers of the Constitution also provided that the right guaranteed by Article 32 Bhall not be suspended except as otherwise provided by this Constitution. But from this it does not follow that a citizen cannot move the High Court for appro- priate constitutional remedies. This is mads clear by Article 826 which states that notwithstanding anything in Art. S2 every High Court shall have power to issue certain writs and powers conferred on a High Court by Clause (1) shall not be in derogation of the powers conferred on the Supreme Court by cl. 3 of Article 3a, This definitely confers a concurrent jurisdiction on State High Courts to grant constitutional remedy. The argument that the right to constitutional remedy vests alone in Supreme Court runs counter to the very scheme of a Federation and that of Indian Constitution. A Federal Constitution being the Supreme law of the land every remedy by it would be a constitutional remedy. Articles 256, 227 and 228 are all such remedies. Articles 326, 337 and 228 have widened and enlarged the jurisdiction of the High Courts.

47. It was urged that by virtue of item No. 95 in List 1, Union List, the Parliament can make laws with regard to the jurisdiction and powers of all Courts except the Supreme Court in respect of any matters in List l, and similarly by virtue of Entry 66, in List 2, State List, the State Legislature can make laws with respect to any of the matters stated in this List 2.

48. In my opinion Entry 95 in the Union List 1 and Entry no. 65 in State List cannot trench upon the powers already conferred on High Courts by Article 226 of the Constitution. I fully endorse the observations made by my learned brother Dixifc J, in case of Haren-dranath Sfcarma (Civil Misc. case no. 8 of 1950 (A I. R. (37) 1960 M. B. 46) that the mean, ing and scope of the Articles in the Constitution is not controlled by various items in the List of Boh. vii,

49. On the contrary, the scope and mean, ing of the various items in the List is controlled by various Articles in the Constitution. This is made clear by Article 245 of the Constitution which states that the power of Parliament and the State Legislature to make laws is subject to the provisions of this Constitution. The Legislative power therefore of Parliament and State Legislature to make laws with regard to entry no. 95 in List I and entry No, 65 in List Ii is subject to the provisions of Article 226 of the Constitution. It was urged that Section 45, Specific Belief Act continues in its old form and has not been altered. The section applies only to High Courts of Calcutta, Bombay and Madras. However, in Adaptation of Laws Order 1960 ol 26th January 1950 at p. 473 for Section 50, Specific Relief Act the following substitution has been made:

Saving power of High Court to issue mandamus:Nothing in this Chapter shall affect the power conferred on a High Court by 01. (1) of Article 826 of the Constitution.

50. This Adaptation of Laws Order gives a clear interpretation that nothing in Chap. VIII which includes Section 45 shall affect the powers conferred on High Court to issue writs of mandamus irrespective of Section 45. The immediate effect of this adaptation is to dilate the provision of Section 46, Specific Belief Act. By virtue of Clause (1), Article 336 the provisions of Section 16, Specific Belief Act, have become superfluous, in so far as the application to all State High Courts is concerned,

51. The Adaptation of Laws Order with regard to Section 1, Specific) Belief Act, can be easily explained from the fact that the Specific Belief Act extended to Provinces of India which was equivalent to British India or to part A States. It makes clear that Specific Belief Act would apply to provinces for which it was enacted. It was not enacted for B States and that as no Specific Belief Act was prevalent in Indian States which are now known as Part B States. Hence Part B States are excluded. But the interpretation to S. go, Specific Belief Act, clearly states that nothing contained in chap, Vlll shall affect the powers conferred on a High Court by Clause (1), Article 236 of the Constitution. The fratners of the Constitution did not want to make any difference between part I and part II States High Courts with regard to the provisions of Clause (1), Article 226 of the Constitution. I would go to the length of saying that the power of the High Court to issue the writ of mandamus under Clause (1), Article 326 is independent of the provisions of Section 46, Specific Belie Act.

52. In my opinion :Art. 386 (1) confers immediate powers on every State High Court to issue directions, orders and writs. They can-not remain in abeyance for the uncertainty of future legislation. Articles 326 & 82 of the Constitution are independent and parallel to each other, neither limits nor controls the other. This is made dear by the significant words 'notwithstanding anything in Article 32 and also subcl. a of Article 326. Article 226 Clause (1) by necessary implication confers jurisdiction on every State High Court which it can exercise throughout the territories in relation to which it exercises jurisdiction. It indicates the relief which it can give by enforcement of fundamental rights and for enforcement of ancillary rights procedure is indicated in Art 226, that is by framing appropriate rules relating to the proceedings for issue of writs.

53. Article 926 is self, contained providing for the extent of jurisdiction to be exercised by High Court and also indicating the relief which can be granted by issue of appropriate writs. The procedure is indicated by rule-making1 power under Article 220. The circumstances under which the powers can be invoked are also indicated. The framers of the Constitution did not contemplate that under Article 296 only remedies available under the ordinary law of the land should be exercised by High Courts, in view of the provisions contained in Article 226. It has widened and enlarged the jurisdiction and powers of the High Court and has provided remedy. The framers of the Constitution did not intend that the powers by Article 326 can become effective only after the necessary provision as to the circumstances and conditions in which they can be exercised and the requisite jurisdiction to exercise them is made by appropriate legislation. The exercise of powers conferred by Article 226 is not left to the uncertainty of future legislation. I am clearly of opinion that this Court can entertain petitions for habeas corpus under Article 226 of the Constitution.

54. Order of the Court--In the result the opinion of the majority prevails and this Court has no jurisdiction under Article 226 of the Constitution to entertain petition for writ of habeas corpus. The petition Under Section 491, Criminal P.C. is adjourned sine die.


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