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In Re: M.R. Venkataraman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. No. 283 of 1950
Judge
Reported inAIR1951Mad267; (1950)1MLJ344
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 491 and 561A; Constitution of India - Article 226; Madras Maintenance of Public Order Act, 1949
AppellantIn Re: M.R. Venkataraman
Appellant AdvocateA. Ramachandran, Adv. for ;Row and Reddy, Advs.
Respondent AdvocateGovernment Prosecutor
Cases ReferredBasudeva v. Rex A. I. R.
Excerpt:
.....- petitioner demanded that state should pay cost of application - court has no inherent power to award costs in criminal case - court had no power to award costs in habeas corpus proceedings because such proceedings were criminal in nature - petitioner request declined as court had no power to award costs in proceeding which are criminal in nature. - - arguments were heard as to the powers of this court to award costs in matters like this and since the point raised is bereft of authority in the indian courts--at least, no indian decision was brought to our notice, we reserved judgment on the question of costs alone. the detention complained of was under madras act xxiii [23] of 1949 which though not punitive was preventive is character. it is also interesting to note that a full..........to pay the costs of this application. arguments were heard as to the powers of this court to award costs in matters like this and since the point raised is bereft of authority in the indian courts--at least, no indian decision was brought to our notice, we reserved judgment on the question of costs alone. 2. order 35, rule 5 of the supreme court rule which came into operation on the 26th january 1950 is to the following effect: 'in disposing of any such rule, the courts may in its discretion make such order for costs as it may consider just.' rules 1 to 5 of order 35, deal with application: in the nature of habeas corpus provided for under article 32 of the constitution of india and rules 6 to 10 deal with mandamus, prohibition, certiorari, quo warranto etc. applications. from this.....
Judgment:

Govinda Menon, J.

1. At the close of deli-very of our judgment, the learned counsel for the petitioner submitted that in view of the circumstance that the application has been practically allowed, as in oar opinion the detention of the petitioner under Madras Act XXIII [23] of 1949 after 26th January 1960 was Illegal, the State should be directed to pay the costs of this application. Arguments were heard as to the powers of this Court to award costs in matters like this and since the point raised is bereft of authority in the Indian Courts--at least, no Indian decision was brought to our notice, we reserved judgment on the question of costs alone.

2. Order 35, Rule 5 of the Supreme Court Rule which came into operation on the 26th January 1950 is to the following effect:

'In disposing of any such Rule, the Courts may in its discretion make such order for costs as it may consider just.'

Rules 1 to 5 of Order 35, deal with application: in the nature of habeas corpus provided for under Article 32 of the Constitution of India and Rules 6 to 10 deal with Mandamus, Prohibition, Certiorari, Quo warranto etc. applications. From this it is clear that the Supreme Court, when hearing an application under Article 32 has the power to make such orders as to coats as the Court thinks fit. So far as the Madras High Court is concerned no such rule has yet been framed and in the absence of any such provision, the learned counsel for the petitioner lays emphasis on the inherent powers of the Court to award coats. In Shankarlinga Mudaliar v. Narayana Mudaliar, 45 Mad. 913; A. i. r. 1922 Mad 502: 23 Cr. tJ. J. 583 a Full Bench had to consider whether the High Court has jurisdiction to grant costs in criminal cases except where the Code of Criminal Procedure makes express provision and the conclusion arrived at by the learned Judges was that it has no such jurisdiction, relying upon the maxim expressio unus est exclusio alterious, Schwabe C. J. in his judgment has noted the provisions of the Criminal Procedure Code where the power to award coats is expressly provided for and came to the conclusion that as the Code gives specific right of granting costs in certain instances, it excludes any other right of granting coats, though the learned Chief Justice, following the decision in Guardians of West Ham Union v. St. Mathew Bethnal Green, 1896 A.C 477 : 65 L. J. M. C. 201 and In re Bombay Civil Fund Act, 1882, Pringle v. Secy of State, for India, (1889) 40 Ch. D. 288 ; 68 L. J. Ch. 815, was of the view that though a Court may have inherent power to grant costs such a power must always be restricted and limited to this; that if the power of granting costs in any kind of proceeding is provided for in some way by statute, the Court cannot, by invoking its inherent powers extend the power which have been granted to it by the statute, Coutts-Trotter J. referred to the judgment of Hardwicke L. C. in Corporation of Burford v. Lenthall, (1743) 2-Atk 55L : 26 E. B. 730, and held that Courts of Equity in England always asserted their possession of such jurisdiction and constantly used it. But he also held that in England the common law Courts did not attempt to assert any such inherent jurisdiction, though the House of Lords in Guardians of West Ham Union v. Churchwardens etc. of St. Mathew Bothnal Green, (1896) A, C. 477 65 L. J. M. 0. 201, held that the House has such power. Such being the case, if the present application was founded on Section 491, Criminal P. C., this Court would have no power to award costs. But it is contended that since the application under Article 226 of the Constitution of India which corresponds to Article 32 relating to the powers of the Supreme Court and since the Supreme Court has made rules investing the power to grant coats, this Court must also do likewise. It cannot be disputed that the High Court has power to frame rules to award costs in such matters. But the question is whether, without any such express rule being framed after the coming into operation of the Con-stitution there is an inherent power vested in the High Court to act in that manner. Their Lordships of the Judicial Committee in Royts of Garbhanda v. Zamindar of Parlakimedi have laid down that the Madras Supreme Court Charter (1800), Clause 8 invested the Supreme Court with the powers exercised by the King's Bench in England but such powers are restricted in their application to the City of Madras and therefore the High Court had no power to issue a writ outside the Presidency town. In C.P. Mathen v. District Magistrate, Trivahdrum , the Judicial Committee has also held that the High Court has no jurisdiction to issue the common law writ of habeas corpus in cases falling within Section 491, Criminal P. C. and since Section 491 enables the High Court to issue such writs within the limits of its appellate jurisdiction the power to issue common law writ must be deemed to have been impliedly taken away. In view of these authorities, it is abundantly clear that this Court has not inherited all the powers which the Court of King's Bench in England at common law has especially since 26th January 1950 the power to issue writs has been conferred by an Article of the Constitution.

3. Granting that the Common Law power was vested in the High Court to issue the writ prior to 26th January 1950, and it continued thereafter, the question is whether there was an inherent power to award costs at Common Law vested in the King's Bench in England. At p. 332 of Crown Practice by Short and Miller, Edn. 2, we find the following observation:

'In dealing with cases on habeas corpus the Courts have now power in civil cases to award costs by virtue of Judicature Act, 1890, Section 5. Even where the Court may not be able to award costs generally, they may give the functionary obeying the writ the expenses of bringing up the prisoner.'

The question was considered by a Division Bench of the Queen's Bench Division in The Queen v. Jones, (1894) 2 Q. B. 382 : 63 L J Q. B. 656, where Cave J, after considering the previous authorities, makes the following observation:

'The result, therefore, is that the power is given to the Court for the first time by the Supreme Court of Judicature Act, 1890, to award costs whoa granting an order for a habeas corpus.'

The learned Judge held that prior to that date there was no such power to award costs. Collins J. who was the other Judge constituting the Division Bench was also of the same view. This decision is cited in Vol. 9 Halsbury's Laws of England, Hailsham Edition, in the footnote at p. 727, where the learned author observes as follows:

'In criminal cases the Courts formerly had no power to award costs on habeas corpus. In civil cases the coats of a successful applicant for a writ of habeas corpus were sometimes awarded. ...... Now, however, theCourt has power under Section 50 of the Supreme Court of Judicature (Consolidation) Act, 1925 (15 and 16 Geo. v; c. 49) to award costs to the successful party on an application for a writ of Habeas Corpus.'

The authorities cited are R. v. Jones, (1894) 2 Q. B. 382 : 63 L. J. Q. B. 656 and R. v. Woodhouse, (1906) 2 K. B. 501: 75 L. J. K. B. 745. On the other hand in Dodd's case, (1857) 4d E. R. 1087 : 6 w. R. 207, it is stated that where an inhabitant of Jersey had been imprisoned there for serving upon another inhabitant process in an English action under the Common Law Procedure Act, it was held that the imprisonment was unlawful, and that the prisoner was entitled to be discharged on a habeas corpus. It was further held that the Court has authority to give to the functionary who brings up a prisoner in obedience to a writ of habeas corpus at common law the expenses of so doing, but not his general costs.

4. The cases adverted to by me above were all instances in which an application for a writ of habeas corpus was either granted or refused. But in Rex v. Woodhouse, (1906) 2 K. B. 501 : 76 L. J. K. B. 745, the Court of Appeal held, following Beg v. London County Justices, (1894) 1 Q. B. 453 that the King's Bench Division has jurisdiction to give costs to the successful applicant in a certiorari application. Therein the power to give coats was based upon the inherent common law right. We have already referred to the decision of the House of Lords in Guardians of West Ham Union v. Churchwardens etc. of St. Mathew Bothnal Green, (1896) A. C. 477 : 65 L. J. M. C. 201, and In re Bombay Civil Funds Act, 1822 : Pringle v. Secretary of State for India, (1889) 40 Ch, D. 288 : 58 L. J. Ch. 815, where it has been held that inherent power exists under certain circumstances to award costs. But as we have already remarked, there was no such inherent power to award costs where the right of habeas corpus was in a criminal case. The question therefore is whether, in the present case, we are issuing a writ in a criminal case or in any other matter. The detention complained of was under Madras Act XXIII [23] of 1949 which though not punitive was preventive is character. The petitioner's detention was considered necessary, because in the opinion of the Government of the State he was acting, or about to act, or likely to act, in a manner prejudicial to public safety or the maintenance of public order in the province. It cannot be seriously contended that such a detention would not be to prevent a crime. If that is so, the case is one of a criminal nature and it seems to me that even if this Court has inherited all the powers of the King's Bench Division apart from the statute, there is no inherent power to award costs in this criminal case. In Venkatachala Thevar, In re : (1948)2MLJ76 and Venkataraman, In re : AIR1948Mad100 , it has been held that since orders passed under Section 491, Criminal P. C. are in the nature of criminal proceedings there can be no right of appeal to the Federal Court as it then existed. The true nature of a proceeding by habeas corpus should be determined by its object and as under Sections 107 and 108, Criminal P. C. proceedings against a person who is bound to keep the peace are considered to be of criminal nature, likewise detention to prevents a crime are also in the nature of a warning than of a present punishment. It is also interesting to note that a Full Bench of the Allahabad High Court in Basudeva v. Rex A. I. R. 1949 ALL. 613 : 60 Cr. L. J. 798 has held that the Court has no power to award costs in habeas corpus proceedings because such proceedings are criminal in nature. It seems to us therefore that this Court has no inherent power to award costs in a proceeding which is in essence criminal in nature and we therefore decline to accede to the requeat of the petitioner's counsel.

5. We think it desirable that rules similar to Order 35 of the Supreme Court rules may be framed by this Court providing for procedure to be followed in application under Article 226 of the Constitution.


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