1. The above two petitions relate to the arrest of one Ramanath Bholgothra of the State of Jammu and Kashmir. He was taken into custody by the Madras Police on 6-2-1953 and released on bail by an order of this Court dated 11-2-1953, At the time of the arrest the only information which the Madras Police had was a communication from the Hyderabad Police to the Madras Police that the person was wanted by the Jammu and Kashmir Police. The Madras Police arrest-ed him under Section 54, Cr. P. C. and, as already stated, he was released on bail on order of this Court dated 11-2-1953. After the release he mute an application to the Chief Presidency Magistrate on 26-2-1953 for cancellation of the bonds executed by him and the sureties. As bail was granted by this Court, the Chief Presidency Magistrate declined to cancel the bonds holding that he bad no-power to do so and referred the petitioner to this Court. Against this order the petition Crl. R. C. No. 208 of 1953 is preferred for cancellation of the bonds. In the meantime, a warrant for the arrest of Ramanath Bholgothra issued by the Additional District Magistrate of Jammu in Kashmir State has been received by the Commissioner of Police, Madras city. The State Prosecutor has made an application in Crl. M. P. No. 371 of 1853 for the cancellation of the bail granted to the said person and for permission to arrest. After notice to the other side both the applications were heard together.
2. The warrant that has been issued by theAdditional District Magistrate of Jammu is inUrdu and a translation of it was furnished by theState Prosecutor. I had it translated in Englishby the Court translator also, and according to theCourt translation the warrant reads as follows;
For the arrest of accused Warrant for the arrest of accused In the Court of the Additional District Magistrate, Jammu
Ramnath and Ors.
Offence under Section 40(7) of the Public Security Act, 1934 (?) Jammu-Kashmir Defence Act.
Court Inspector, Jammu
One Mussamath Ram Nith Bhalgetra, Advocate, son of Amamath, Khatri by caste, resident Jammu is charged for the aforesaid offence. Therefore, you are hereby ordered to cause the arrest of the said Ramnath Bholgothra, Advocate, Jammu, and to produce him before me. You are hereby warned to carry out this Dated 2nd Bhogi .... .... .... ....
The Commissioner of Police, Jammu The original is retained for the purpose of keeping on the file.
It is dear from the terms of the warrant that it is addressed to the Court Inspector, Jammu. This has been forwarded to the Commissioner of Police, Madras, by the Inspector General of Police, Jammu and Kashmir Government with a covering letter. The Commissioner of Police thereupon entrusted it to the Inspector of Police for execution. The warrant is now sought to be executed after getting the bail granted to Ramanath Bholgothra cancelled.
3. The procedure which governs the execution of such warrants is laid down in Section 93-A, Cr. P. C. Clause (3) of Section 93-A relates to warrants issued by an external Court and it is as follows :
'(3) Where an internal Court has received for service or execution a summons to, or a warrant for the arrest of, an accused person, issued by an external Court, it shall cause the same to be served or executed as if it were a summons or warrant received by it from another internal Court for service or execution within the local limits of its jurisdiction; and
Where any such warrant of arrest has been so executed the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by Sections 85 end 86.'
That the Court of the Additional District Magistrate. Jammu and Kashmir is an external Court within the meaning of the Criminal Procedure Code is not disputed. Such a warrant can be executed only by the internal Court when it is received by it for execution. The warrant shows that it is addressed only to the Court Inspector, Jammu, and it is not addressed to any internal Court within the meaning of that term contained in Section 93-A,
4. It is contended by the State Prosecutor that by the covering letter of the Inspector General of police, Jammu and Kashmir Government the warrant has been received by the Commissioner of Police and as under Section 7 of the City Police Act, he is a Presidency Magistrate, he must be considered to be a Court within the meaning of Section 93-A of the Code, and therefore, the Commissioner of Police in his capacity as a Presidency Magistrate can execute the warrant.
5. The question to be considered is whether the Commissioner of Police who by virtue of his office is a Presidency Magistrate, is a Court to which the Criminal Procedure Code applies.
6. There is no definition of 'Court' in any of the Acts, and certainly, there is none in the Criminal Procedure Code. But a 'Court' is ordinarily understood as 'a place where justice is judicially administered'. (See Stroud's Judicial Dictionary). In -- 'Clarke v. Brojendra Kishore Roy', 39 Cal. 953 (A) their Lordships of the Privy Council have stated that
'For the sake of brevity the Code uses the ferm'Court' and 'Magistrate' generally if not always,as convertible terms.'
Under the Code, apart from the High Court onlyfive classes of criminal Courts are constitutedand they are mentioned in Section 6 of the Code.The Court of the Presidency Magistrate is one ofthem. Sections 9 to 12, Cr. P. C. deal with theestablishment of Courts and appointment ofMagistrates. Section 18 deals with the appointment of presidency Magistrates. Section 18(1) is asfollows :
'The Provincial Government shall from time to time appoint a sufficient number of persons (hereinafter called Presidency Magistrates) to be Magistrates for each of the presidency towns and shall appoint one of such persons to, be Chief Presidency Magistrate for each such town.'
Presidency Magistrates appointed under the above section are tne Counts of Presidency Magistrates mentioned in Section 6 and the Presidency Magistrates mentioned in Section 6 are appointed under Section 19. In the Code wherever there is reference to the Presidency ' Magistrate it could only mean and refer to the Presidency Magistrate appointed under Section 18 of the Code. The Commissioner and his deputies who are Presidency Magistrates by virtue of their office are not Presidency Magistrates appointed under Section 18. Though they may have the powers of Presidency Magistrates by virtue of Section 7 they are not Courts of Presidency Magistrates under the Code.
7. In Section 93-A the expression 'internal Court' is defined as 'any court in the territories to which this Code extends'. Section 1 Clause (2) defines the scope end extent of the Code and it is as follows :
'It extends to the whole of India except the States of Jammu and Kashmir & Manipur; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form or procedure prescribed by any other law for the time being in force, or shall apply to--
(a) the Commissioners of Police in the towns of Calcutta, Madras and Bombay, or the Police in the towns of Calcutta and Bombay;
(b) heads of villages in the State of Madras or
(c) village police officers in the State of Bombay; Provided that the Provincial Government may, if it thinks fit, by notification in the Official Gazette, extend any of the provisions of this Code, with any necessary modifications, to such excepted persons.'
8. According to the above clause, unless there is a specific provision to the contrary the Code does not apply to the Commissioners of Police in the City of Madras. It is needless to mention that a specific provision to the contrary must be made in the Code itself. In fact, wherever the Code is extended to the Police at Calcutta, it is specially mentioned. See Sections 54, Clause (2), 55 (2), 56 (2), 83, 84 (4) & 85 of the Code. The above sections are special provisions 'to the contrary to Clause (2) of Section 1. Unless, therefore, there is a special provision making Section 93-A applicable to the Commissioner of Police, it will fall within the general prohibition, and the Code will not apply to the Commissioner of police. It is not contended that there is any notification by the Provincial Government extending the provisions of this Code to the Commissioner of Police. There is no provision in the Madras City Police Act by which the Code is made applicable to the Commissioner of Police. By Section 31 of the Madras City Police Act, certain sections of the Criminal Procedure Code such as Sections 523,524 and 525 have been made applicable to the Police in the City. Similarly by Section 51-A Clause (3) of the Act, the Commissioner or the Deputy Commissioner has been empowered to exercise all or any of the powers of Court under Sections 75 to 77, Cr. P. C. This shows that the Madras City Police Act may provide for the application of any of the provisions of the Criminal 'Procedure Code to the Commissioner of Police. In the absence of such a provision the alternative is that there should be a notification as required by the proviso to Section 1 Clause (2) of the Code. There are no provisions in the City Police Act making Section 93-A apply to the Commissioner of Police. Nor is there any notification of the Government under Section 1 clause (2) proviso. In these circumstances apart from the fact that the Commissioner of Police, though he may be a Presidency Magistrate by virtue of Section 7 of the Madras City Police Act cannot by any means be called a Court on account of the prohibition contained in Clause (2) of Section 1. The provisions of the Code do not apply to him. Hence Section 93-A does not apply to the Commissioner of Police, and Section 93-A is the only provision under which warrants received from external courts can be executed. If it does not apply to the Commissioner of Police, he cannot execute the warrant. Both for the reason that the Commissioner of police is not a court and that Section 93-A of the Code does not apply to him, the warrant that is now sought to be executed by him cannot be executed against the person for whose arrest the warrant has been issued.
9. There is one other reason which stands in the way of the warrant being executed against the respondent in Cr. M. P. No. 371 of 1953. It is clear from the warrant issued by the Additional District Magistrate, Jammu and Kashmir Government that the person sought to be arrested is wanted under the Public Safety Act, No. 32, Jammu and Kashmir Government rules. The section of the Act under which he is sought to be arrested is Section 29 according to the copy given by the State Prosecutor and Section 49 according to the Court translation. The warrant as already stated is in Urdu. Whether it is Section 29 or 49 there is nothing to indicate what that offence is. The particulars of the offence are not mentioned, nor is there any description of the offence. But it is apparent that the person sought to be arrested is wanted under the Public Safety Act of that State. Generally under the Public Safety Act persons are arrested for detention and not for trial for any offence. In such cases, it has been held by a Bench of this Court consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. in -- 'Mohan Kumaramangalam In re', : AIR1951Mad583 (B) that if a person is arrested in one state because he is wanted by another State for detention in that State such an arrest is illegal. If this is so, in the case of State 'inter se' within the Union 'a fortiori' the respondent in Crl. M. P. No, 371 of 1953 cannot be arrested in Madras for the purpose of detention in the State of Jammu and Kashmir. If the person, is wanted for an offence, it must be clearly stated in the warrant, with necessary particulars and descriptions and Section 93-A must be strictly followed.
10. For the above reasons, I am of opinion that the warrant that has been sent by the Additional District Magistrate, Jammu and Kashmir Government under which Ramanath Bhalgothra is now sought to be arrested cannot be executed against him in this State. The petition preferred by the State Prosecutor, Crl. M. P. No. 371 of 1953 is therefore dismissed.
11. In view of the order in Crl. M. P. No. 371 of 1953 I must allow the petition Crl. B. C. No. 206 of 1953. The bail bonds executed by the petitioner and by the sureties will be cancelled.