Kan Singh, J.
1. A telegram purporting to be from one Om Prakash Gupta, Convenor, Railway Strikers Association, Jaipur was received by Hon'ble the Chief Justice at Mt. Abu. it is alleged therein that 7 named persons and 38 other Railway employees were illegally detained at Jaipur under the Defence of India Rules. Their immediate release was, therefore, sought for. The contents of the telegram were conveyed by the Secretary to Hon'ble the Chief Justice on phone to the Deputy Registrar who has, in turn, placed the matter before us for orders.
2 The question (hat calls our attention of the outset is whether we should take action on such a telegram. It is true, an application for habeas corpus or for writ in the nature of habeas corpus could be moved by a person other than the detenue, but we are afraid there is no provision for the making of an application by a telegram. Section 491 of the Code of Criminal Procedure (old), inter alia, laid down that the High Court may from time to time frame rules to regulate the procedure in cases under Section 491 Cr.P.C. The rules regulating the Procedure under Section 491 Cr.P.C. are contained in Part IV of the Rajasthan High Court Rules, 1952 Rule 363 occurring therein lays down that an application under Sub-section (1) of Section 491 of the Code of Criminal Procedure or for a writ in the nature of habeas corpus, if not sent by post, shall be presented to the Registrar who shall direct that the application be laid before a Division Bench for orders Rule 364 provides that the application if received by post shall be put up as soon as possible after the receipt thereof before a Division Bench for orders. Rule 366 lays down the contents of the application and the affidavit by which it has to be supported and we may read this rule in full:
Rule 365. Contents of Application and affidavit--The application shall be accompanied by an affidavit of the person restrained stating that it is made at his instance and setting out the nature and the circumstances of such restrain. It shall also state if any previous application had been filed or not on his behalf and in case such application had been filed, its result:Provided that where the person restrained is unable owing to the restraint to make the affidavit, the application shall be accompanied by an affidavit to the like effect made by some other person and such affidavit shall also state the reason why the person restrained is unable to make the affidavit himself.
3. The above rule unmistakably shows that there are only two modes of making an application under Section 491 Cr.P.C. or for a writ in the nature of habeas corpus; the one is the sending of an application by post, and the other by presenting such application to the Registrar. Further the application has to be accompanied by an affidavit of the person who is under detention and it has to be stated therein that the application was being made at his instance and further the application has to set out the nature and the circumstances of detention. Where, however, the person under detention is unable to make the affidavit the application shall be accompanied by an affidavit to the like effect made by some other person and such affidavit shall also state the reason why the person restrained is unable to make the affidavit himself. The rules, therefore, do not contemplate the making of an application by a telegram as has been done in the present case.. Apart from this it is to be noticed that the names of only 7 persons who were alleged to be under unlawful detention were given and the names of the ether 33 Railway employees were not disclosed.
4. We may mention that there is no provision analogous to Section 491 Cr.P.C. in the Criminal Procedure Code of 1973 and, therefore, an application for a writ in the nature of habeas corpus could be made only under Article 226 of the Constitution. The rules laid down in Part IV of the High Court Rules will yet govern the procedure for the making of such an application.
5. That being so, we are unable to take any action on the aforesaid telegram. The same may, therefore, be filed.