Alfred Henry Lionel Leach, C.J.
1. This Full Bench has been constituted to decide a matter referred under Rule 2 of the Rules applying to this Court in its appellate jurisdiction by Burn and Stodart, JJ., sitting as a Bench dealing with criminal cases. The matter involves the important question whether this Court has the power to issue a writ of habeas corpus as known to the English Common Law or whether its powers are confined in this respect to those conferred by Section 491 of the Code of Criminal Procedure, which gives authority to issue directions 'of the nature of a habeas corpus''. There are other questions involved in the reference and for their proper appreciation it is necessary to set out the course of events.
2. The respondents are the directors of the Travancore National and Quilon Bank, Limited, a company registered under the laws of the State of Travancore. A petition for the compulsory winding up of the company was recently granted by this Court and official liquidators have been appointed. On the night of the 20th October, 1938, the respondents were arrested in Madras in pursuance of extradition warrants issued under Section 7 of the Indian Extradition Act, 1903, for their arrest and surrender to the police of the Travancore State for production before the District Magistrate, Trivandrum, which is the capital of the State. It was alleged that the respondents had committed within the State of Travancore offences under the sections of the Travancore Penal Code corresponding to Sections 409, 418, 420, 477-A. 109 and 114 of the Indian Penal Code and the District Magistrate at Trivandrum ordered their arrest. The extradition warrants were directed to the Chief Presidency Magistrate, Madras, and under his orders the Assistant Commissioner of Police, Crime Branch, Madras, arrested the respondents. The respondents were produced before the Chief Presidency Magistrate at 8-30 A.M. on the 21st October and the intention was to send them under arrest to the frontier of the Travancore State by the train leaving Madras at 11 A.M. Before the respondents were brought before the Chief Presidency Magistrate an application had been made to Pandrang Row, J., for theMssue of a writ of habeas corpus and for an interim order prohibiting their removal from Madras. The application was made under Section 491 of the Code of Criminal Procedure as the heading of the petition shows. The matter being urgent the learned Judge granted the interim order asked for and directed the Chief Presidency Magistrate to detain the respondents in his custody pending the further orders of the High Court, which meant pending the hearing of the main application. The interim order was served on the Chief Presidency Magistrate and the respondents were detained in accordance with the order. Later in the day the Crown Prosecutor presented a petition asking that the interim order be vacated on the ground that it had been passed without jurisdiction and was therefore null and void. The petition having been filed the Crown Prosecutor applied to me in Chambers to hear it. As I considered that sitting alone I had no power to deal with the matter I declined to do so. The Crown Prosecutor then applied to Pandrang Row, J., to vacate his own order. The learned Judge heard the arguments the next morning, the 22nd October, but refused to withdraw the interim order, intimating that he would give his reasons on Monday, the 24th October. The main application was in the list for that day of Burn and Stodart, JJ., who composed the Bench dealing with criminal matters. Rule 2-A of the Rules of this Court in its appellate jurisdiction requires an application for a writ of habeas corpus to be placed before the Bench dealing with criminal matters. The Court usually sits at 10-45 A.M., but Pandrang Row, J., delivered his judgment at 10-30 A.M. on the 24th October. Not only did he refuse to vacate the interim order but he held that Rule 2-A of the Appellate Side Rules was ultra vires and that he alone had power to deal with the main application, which he treated as an application for the issue of the prerogative writ of habeas corpus and not as an application under Section 491 of the Code of Criminal Procedure. He considered that he had power to issue a writ of habeas corpus as known to the Common Law and based this decision on Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1928) A.C. 459. and on Govindan Nair, In re : (1922)43MLJ396 . In the first case the Privy Council held that each Judge of the High Court of Justice established by the Judicature Act, 1873, has jurisdiction to issue a writ of habeas corpus and is bound to hear and determine the application on its merits, even when another Judge has refused a similar application. The same principle applied in the case of Judges of the Supreme Court of Nigeria. In the second case a Full Bench of this Court (Schwabe, C.J., Oldfield and Coutts-Trotter, J J.) held that this Court had power to issue a writ of habeas corpus outside Madras.
3. When the main application was called for hearing before Burn and Stodart, JJ., counsel for the respondents took the objection that the Court had no power to deal with the matter as Pandrang Row, J., was seized of it and a copy of the judgment of Pandrang Row, J., was produced. Counsel who appeared for the District Magistrate of Trivandrum on the other hand contended that Pandrang Row, J., had never directed that the substantive petition should be placed before him and he had never intended to dispose of it sitting alone. In view of the conflicting contentions, Burn and Stodart, JJ., communicated with Pandrang Row, J., with a view to ascertaining how the matter really stood. Pandrang Row, J., replied that the main application was pending before him and that in his view he had power to dispose of it. In these circumstances the learned Judges who formed the Bench decided that they could not go on with the hearing of the application as it was already before another Judge. On the 26th October, Pandrang Row, J., ordered that a writ of habeas corpus should issue to the Chief Presidency Magistrate directing him to produce the respondents before him at 10-45 A.M. on the 28th October. In view of this order the District Magistrate of Trivandrum filed an application asking the Court to declare that the orders passed by Pandrang Row, J., on the 21st, 24th and 26th October had been passed without jurisdiction and were void and of no legal effect and to quash them. The application was placed in the list for the 27th October of Burn and Stodart, JJ., who still composed the Bench dealing with criminal matters. The hearing commenced that day but as there was no time to hear the arguments advanced on behalf of the respondents and as Pandrang Row, J., had made the writ returnable the next day the Court directed that the operation of the writ should be stayed till the further orders of the Court. At the request of Counsel for the respondents the Bench adjourned the further hearing of the case until the 31st October. The hearing was concluded on the 1st November.
4. It was contended on behalf of the District Magistrate that the issue of a writ of habeas corpus was without jurisdiction. The Legislature had taken away the right of the Court to issue a writ of habeas corpus and the powers of the Court were confined to those conferred by Section 491 of the Code of Criminal Procedure. If the Court had power to issue a Common Law Writ of Habeas Corpus, Rule 2-A of the Appellate Side Rules was nevertheless intra vires the power of the Court and binding on all the Judges. It was further contended that even if a single Judge had power to issue a Common Law writ the proper procedure had not been followed in the present case. The learned Judges were satisfied that the Legislature had taken away the power of the Court to issue a writ of habeas corpus in a case like the present one and were also satisfied that Rule 2-A of the Appellate Side Rules was intra vires, but as they were bound by Govindan Nair's Case : (1922)43MLJ396 and as the matter involved a decision on three important questions, they referred the application for decision by a Full Bench under Rule 2 of the Appellate Side Rules. In their judgment referring the matter the learned Judges stated the three questions as follows:
1. Can this High Court or any Judge of it issue the Common Law Writ of Habeas Corpus in any of the cases covered by Section 491 of the Criminal Procedure Code?
2. Can an application for a Common Law Writ of Habeas Corpus or for directions under Section 491 of the Criminal Procedure Code be heard and disposed of by a single Judge of this Court. In other words are Rules 2 and 2-A of the Appellate Side Rules intra or ultra vires?
3. If a single Judge has power to issue a Common Law Writ of Habeas Corpus, is the writ issued by our learned brother Pandrang Row, J., on the 26th October liable to be quashed by this Court for the reason that it has been issued in contravention of the rules in force in the High Court in England?
4. The answers to the first two questions depend upon the interpretation to be placed on legislation in England and in India and in view of the judgment in Govindan Nair's case : (1922)43MLJ396 and other decisions of this Court I propose to examine the various enactments in some detail.
5. In 1861 the Parliament passed an Act (24 and 25 Vict., c. 104) authorising the establishment of High Courts of Judicature in India. Section 1 declared it to be lawful for the Crown, by Letters Patent under the great seal of the United Kingdom, to erect and establish High Courts at Fort William in Bengal, Madras and Bombay for the respective Presidencies. Section 9 of the Act stated that each of the High Courts to be established under the Act:
Shall have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdiction, Original and Appellate, and all such powers and authority for and in relation to the Administration of Justice in the Presidency for which it is Established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of Original, Civil and Criminal Jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby ; and, save as by such Letters Patent may be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last-mentioned Courts.
6. The Supreme Court at Madras which had been created by Letters Patent granted on the 26th December, 1800, was abolished and the High Court was constituted under Letters Patent issued under the Act on the 26th June, 1862. The preamble to the Letters Patent followed the provisions of Section 9 of the Act and the operative clauses were also in accordance with the statute. On the 28th December, 1865, fresh Letters Patent were issued to the Court. They embodied the provisions of the original Letters Patent but contained this further Clause (44):
And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the Legislative powers of the Governor-General in Council, exercised at meetings for the purpose of making laws and regulations, and also of the Governor-General in cases of emergency under the provisions of an Act of the twenty-fourth and twenty-fifth years of Our Reign, chapter sixty-seven, and may be in all respects amended and altered thereby.
7. It is manifest that the Court was given the same jurisdiction, power and authority which the Supreme Court possessed, but subject and without prejudice to the legislative powers of the Governor-General in Council. Counsel who appears for the first respondent would have the Court hold that the Indian High Courts Act does not contemplate the abolition of the right to issue prerogative writs, but only confers the power of regulating the issue. This contention ignores the express words of the statute and of the Letters Patent, and therefore is obviously fallacious. It is not necessary for the purpose of deciding the present application to consider whether the Supreme Court did in fact possess the power of issuing prerogative writs and I will assume that it had.
8. Section 81 of the Code of Criminal Procedure of 1872 provided that any European British subject who was detained in custody by any person, and who considered such detention unlawful, might apply to the High Court for an order directing the person detaining him to bring him before the Court to abide such further order as might be made by it. The section also provided that the High Court might issue such orders throughout the territories over which it had jurisdiction, and over such other places as the Governor-General in Council might direct. The section, however, only applied to European British subjects. Section 82 prohibited a High Court or any Judge thereof issuing a writ of habeas corpus, mainprise, de homine replegiando, or any other writ of the like nature, beyond the Presidency towns. The section was inserted as the result of the decision of Norman, J., in In the matter of Ameer Khan (1870) 6 Beng. L.R. 392. that the Supreme Court at Calcutta had power to issue writs of habeas corpus to persons in the mofussil and that the same power was continued to the High Court. In inserting Section 82 the Legislature wished to make sure that prerogative writs should not issue beyond Presidency towns.
9. The Criminal Procedure Code of 1872 was followed by the Criminal Procedure Code of 1875. In that year the High Courts were empowered to issue directions of the nature of a habeas corpus. The section conferring these powers was Section 148 and as it has a very important bearing I will quote it in full. It read as follows:
Any of the High Courts of Judicature at Fort William, Madras, and Bombay may, whenever it thinks fit, direct:
(a) that a prisoner, legally committed and within the local limits of its ordinary original criminal jurisdiction be brought before it to be bailed ;
(b) that a person within such limits be brought up before the Court to be dealt with according to law;
(c) that a person illegally or improperly detained in public or private custody within such limits be set at liberty ;
(d) that a prisoner detained in any gaol situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(e) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners acting under the authority of any commission from the Governor-General in Council, for trial, or to be examined touching any matter depending before such Court-martial or Commissioners respectively ;
(f) that a prisoner within such limits be removed from one custody to another for the purpose of trial;
(g) that the body of a defendant within such limits may be brought in on the Sheriff's return of cepi corpus to a writ of attachment;
and neither the High Court nor any Judge thereof shall hereafter issue any writ of habeas corpus for any of the above purposes.
Each of the said High Courts shall, as soon as conveniently may be, frame rules to regulate the procedure in cases under this section ; and till such rules are framed, the practice of such Courts as to the obtaining, granting and serving of writs of habeas corpus, and as to the returns thereto, shall apply in such cases.
Nothing in this section applies to persons detained under Bengal Regulation III of 1818, Madras Regulation II of 1819, or Bombay Regulation XXV of 1827, or the Acts of the Governor-General in Council No. XXXIV of 1850 or No. III of 1858.
10. It will be observed here that the power of the High Court or any Judge to issue a writ of habeas corpus for any of the purposes mentioned in the section was expressly taken away and the High Courts were given legislative authority to frame rules to regulate the procedure contemplated by the section. Clauses (b) and (c) correspond to Clauses (a) and (b) of Section 491 of the Code now in force.
11. The Criminal Procedure Code of 1882 omitted the prohibition against the writ of habeas corpus and also made the rule making clause read:
Each of the said High Courts may from time to time frame rules to regulate the procedure in cases under this section.
12. In other respects Section 148 of the Act was reproduced. The omission of the words:
Neither the High Court nor any Judge thereof shall hereafter issue any writ of habeas corpus for any of the above purposes.
did not, however, alter the law. Section 2 of the Act provided that the enactments mentioned in the first schedule should be repealed to the extent specified,
but not so as to restore any jurisdiction or form of procedure not then existing or followed or to render unlawful the continuance of any confinement which is then lawful.
13. The whole of the Act of 1875 was repealed except Section 144 and so much of Section 146 as related to informations, but by virtue of Section 2 of the new Act the repeal of Section 148 did not restore any former jurisdiction or procedure and in effect continued the prohibition in the Act of 1875 against the issue of prerogative writs.
14. The Criminal Procedure Code of 1898 repealed the Code of 1882 but reproduced Section 491 as it stood in the Code of 1882 and Section 2 was to the same effect as Section 2 of the earlier Code. Section 2 of the Code of 1898 has since been repealed but the prohibition against the issue of prerogative writs contained in the Code of 1875 still continues. Section 6 of the General Clauses Act of 1897 provides that where the Act, or any Act of the Governor-General in Council or Regulation made after the commencement of the Act, repeals any enactment the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect unless a different intention appears and Section 7 says that in any Act of the Governor-General in Council or Regulation made after the commencement of the General Clauses Act, it shall be necessary for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. Section 7 applies also to all Acts of the Governor-General in Council made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. Section 2 of the Code of Criminal Procedure of 1898 was repealed by the Amending and Repealing Act of 1914, but Section 4 provided that the repeal should not affect the existing position. The object of the repeal of Section 2 of the Code of 1898 was to remove from the statute book a redundant provision. The effect of the General Clauses Act and the Repealing and Amending Act of 1914 is therefore to keep in operation the prohibition of the Code of 1875.
15. By Section 30 of the Criminal Law Amendment Act of 1923, Sub-section (1) and Clause (a) of Section 491 of the Code of 1898 were altered to read as follows:
Any High Court may, whenever it thinks fit, direct:
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law.
16. Previously, Clause (a) only referred to the ordinary original civil jurisdiction of the High Court. The Act of 1923 extended the clause to cover its appellate criminal jurisdiction. The effect is that any High Court can now give directions of the nature of habeas corpus throughout the whole of its jurisdiction. The Act of 1923 also did away with the distinction between European and British Indian subjects in such matters.
17. The High Courts Act of 1861 authorised the legislature if it thought fit to take away the powers which this Court obtained as the successor of the Supreme Court and Acts of the Legislature lawfully passed in 1875 and subsequent years leave no doubt in my mind that the legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by Section 491 of the Code of Criminal Procedure of 1893. Rankin, C.J. and Majumdar, J., came to the same conclusion in Girindra Nath Banerjee v. Birendra Nath Pal I.L.R. (1927) 54 Cal. 727 and I respectfully agree with them that the Legislature has used the most specific terms in carrying out its intention. The respondents have their remedy under the Code of Criminal Procedure and it is admitted that their case comes within Clause (a) or Clause (b) of Section 491.
18. Before I leave the question of the powers of the Legislature, I must refer to a further argument advanced by the learned Advocate for the first respondent in this connection. He says that, inasmuch as the last proviso to Section 22 of the Indian Councils Act of 1861 prohibits the Governor-General in Council making laws which may affect any part of the unwritten laws of constitution of the United Kingdom whereon may depend in any degree the allegiance of any person to the Crown, the Legislature has no power to abolish the prerogative writ of habeas corpus. The abolition of the right to issue a prerogative writ is not a matter which can be deemed to affect allegiance to the Crown. This provision only refers to laws,
which directly affect the allegiance of the subject to the Crown as by a transfer or qualification of the allegiance, or a modification of the obligations thereby imposed.
19. The words which I have quoted are taken from the decision of the Privy Council in Bugga v. King-Emperor (1920) 39 M.L.J 1 : I.L.R. 1 Lah. 326 (p.c) where a similar argument was advanced. The learned Advocate has not advanced before us the argument which was raised before Burn and Stodart, JJ., that the penultimate proviso to Section 22 of the Indian Councils Act restricted the powers of the Legislature and affected its right to abolish the prerogative writ of habeas corpus. The argument was not accepted by the learned Judges and their answer has evidently satisfied the respondents. I agree with what the learned Judges say and have only to add that the argument was negatived by the Privy Council in Empress v. Burahs .
20. The decision of the Judicial Committee in Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1928) A.C. 459. on which Pandrang Row, J., so much relied in holding that he had jurisdiction in the matter has in our opinion no application. The decision in that case would, of course, be binding upon this Court if the position were the same in British India as it is in Nigeria. In Nigeria the right to issue the prerogative writ of habeas corpus still exists, but here the right has been taken away. Govindan Nair's case : (1922)43MLJ396 on which the learned Judge also relied was binding on him, but I consider that it was wrongly decided and should be overruled. The attention of the learned Judges who decided Govindan Nair's case : (1922)43MLJ396 was not drawn to the provisions of the Code of 1872, and the succeeding enactments which affected the question under consideration. If attention had been drawn I have no doubt that the decision would have been a different one, but be that as it may, the decision cannot be allowed to stand in the light of the statutory prohibition which exists against the issue of the writ. The same objection applies to In re Kochunni Elaya Nair : AIR1922Mad215 . and Mahomedalli Allabux v. Ismailji Abdulali I.L.R.(1926) 50. Bom. 616. as Rankin, C.J., pointed out in Girindra Nath Banerjee v. Birendra Nath Pali I.L.R.(1927) 54 Cal. 727.
21. This brings me to the question whether Rules 2 and 2-A of the Appellate Side Rules are ultra vires. Rule 2 provides that certain matters which are set out in the rule may be heard and determined by a Bench of two Judges, provided that if both Judges agree that the determination involves a question of law they may order that the matter, or the question of law, be referred to a Full Bench. The rule expressly includes an application for the issue of a writ of habeas corpus. As in my view the Court has no power to issue a prerogative writ of habeas corpus in a matter such as is now before us the rule must be deemed to refer to an application for directions of the nature of habeas corpus, and this observation applies to Rule 2-A. The right to make rules cannot be doubted. Section 13 of the High Courts Act of 1861 empowered a High Court established under the Act to make its own rules and provide for the exercise by one or more Judges, or by Division Courts constituted by two or more Judges, or the original and appellate jurisdiction vested in the Court. Section 14 provided that the Chief Justice should from time to time determine what Judge in each case should sit alone, and what Judge of the Court whether with or without the Chief Justice should constitute the several Division Courts. Similar provisions are embodied in Section 108 of the Government of India Act, 1915, and the provisions of that section remain in force by virtue of Section 223 of the Government of India Act, 1935. Moreover rule-making powers were conferred upon the High Court in matters of the nature of habeas corpus by the Code of 1875 and succeeding Codes have continued the powers. If the right to issue the prerogative writ has been taken away there can be no question that the rules are intra vires but even if the right has not been abolished the Legislature can regulate the procedure which governs its issue. The argument advanced by Counsel for the first respondent when dealing with the High Courts Act of 1861 in effect recognised this. The rule-making powers conferred on the High Court by Legislature are wide and are sufficiently wide to entitle the Court to say that even an application for a prerogative writ shall go before two Judges. The English rules in fact recognise the right to place restrictions. In order of reference it is pointed out that in England no application for a writ of habeas corpus on a warrant of extradition shall be made to a Judge in Chambers during the sittings. I would hold that both rules are intra vires the powers of the Court and in these circumstances it is not necessary to enter upon a discussion of the question whether the writ issued by Pandrang Row, J., on the 26th October, 1938, is liable to be quashed on the ground that it has been issued in contravention of the rules in force in England.
22. Counsel for the first respondent has advanced an argument based on the provisions of the English Extradition Act, 1870. This Act contemplates the right to apply for a writ of habeas corpus in certain circumstances and Section 17(4) directs that a Judge of any Court exercising the like powers as the Court of King's Bench exercises in England may exercise the power of discharging a criminal in the circumstances contemplated by the section. It is said that this Act applies to India and therefore a judge of this Court has the same powers as a Judge of the King's Bench when it is the question of the issue of a writ of habeas corpus in an extradition matter. The Act can only come into operation where an arrangement has been made by the Crown with a foreign state with respect to the surrender to such state of fugitive criminals. By virtue of the provisions of Section 18, a law passed by a British possession may be incorporated in the Act, and Section 23 saves the power of the Governor-General of India in Council to make treaties for the extradition of criminals with Indian Native States and to carry into execution the provisions of such treaties. India has its own Extradition Act, namely, Act XV of 1903, which has been drafted on the assumption that the Native States in India are not foreign within the meaning of the English Act of 1870. The Indian Act contains no reference to habeas corpus and only Chapter II which deals with the surrender of fugitive criminals in the case of Foreign States has been incorporated in the English Act, vide the notification published in the Gazette of India, dated 14th May, 1904. Chapter III of the Indian Act relates to surrender of fugitive criminals in case of States other than Foreign States, and is intended to apply only to the surrender of fugitive criminals to Native States in India. The present case falls under Chapter III and as this chapter has not been made part of the English Act under Section 18 of the English Act, the English Act cannot be deemed to apply here.
23. Counsel for respondents 2 to 4 has advanced the argument that this Court has no power to quash the order of Pandrang Row, J., inasmuch as it was passed in the exercise of criminal jurisdiction and the order of a Judge sitting alone in criminal matters cannot be the subject of an appeal or revision. There is authority for the granting of a motion to quash a writ of habeas corpus wrongly issued - In re The Justices of the Supreme Court of Judicature at Bombay (1829) 1 Knapp's Rep. 1 : 12 E.R, 222 and In the matter of John Crawford (1849) 13 Q.B. 613 - but as I hold that the Common Law Writ of Habeas Corpus does not run in British India it is not necessary for me to discuss this point. The question has to be approached from the point of view of an application under Section 491 of the Code of Criminal Procedure and the answer is that the order passed has been passed without jurisdiction and can be disregarded. If authority for this is wanted it is to be gathered from the decisions in In the matter of Abdool Sobhan I.L.R.(1881) 8 Cal. 63 In re Kunhammad Haji (1922) 44 M.L.J. 450 : I.L.R. 46 Mad. 382 In re Tadi Soma Naidu (1923) 46 M.L.J. 456 : I.L.R. 47 Mad. 428 and Narayan Vithal Samant v. Jankibai I.L.R.(1915) 39 Bom. 604 (F.B).
24. As the order of Pandrang Rao, J., directing a writ of habeas corpus to be issued was an order passed without jurisdiction it must be disregarded and the application which the respondents have filed under Section 491 of the Code of Criminal Procedure must be dealt with by the Bench dealing with criminal matters. As it is within my authority to do so I direct that the application be placed before that Bench on Monday, the 7th November, 1938.
Madhavan Nair, J.
25. I agree.
26. I agree.
27. I agree.
Lakshmana Rao, J.
28. I agree.