1. In this case Rameswar Khiroriwalla Has obtained a rule calling upon the Commissioner of Police and the Superintendent of the Presidency Jail to show cause why the petitioner should not be brought up before the Court under the provisions of S, 491, Criminal P.C.
2. The applicant was committed by the Chief Presidency Magistrate for trial by the High Court at Sessions in its ordinary original criminal jurisdiction upon charges under several sections of the Indian Penal Code. Each of the charges relates to an offence described as bailable in Schedule 2, Criminal P.C. On 24th January 1928, the applicant was released on bail by the order of Mr. Justice Page. Thereafter an application was made to Mr. Justice Buckland on behalf of the Crown for an order cancelling such bail upon the ground that, on 13th, 14th and 15th February 1928, the applicant had approached certain witnesses for the purpose of influencing their evidence at the trial. Mr. Justice Buckland, on 24th February 1928, made an order cancelling the bail, discharging the bail bond and committing the applicant to custody pending his trial.
3. The learned Judge in his judgment has carefully considered the meaning and effect of Section 496 and 561 A, Criminal P.C. He has come to the conclusion that the Court has power under the latter section to make such an order, assuming there to be no power otherwise. It is apparent from his judgment that this question was fully argued before him.
4. This rule came on for hearing before us on the 8th March, by which time the trial of the applicant had begun and was proceeding de die in diem. There can be no doubt, therefore, that the applicant is at present properly and lawfully detained in public custody while the trial proceeds. The only order which we have been asked on behalf of the applicant to make is an order that would direct him to be brought before this Bench after the High Court Sessions had adjourned for the day and which would provide for the applicant to be set at liberty (upon his giving sufficient security) during the adjournments of the Sessions Court.
5. The argument on behalf of the applicant is first that in view of Section 496, Criminal P.C., the learned Judge exercising the ordinary original criminal jurisdiction of the Court had no jurisdiction in the circumstances to direct the cancellation of the applicant's bail or to direct his re-arrest; secondly, accordingly, the applicant is a person illegally detained in public custody. If these points be made out, then, by the terms of Section 491, the High Court may, if it thinks fit, direct that the applicant be set at liberty or be dealt with according to law.
6. The High Court, which by Section 491 is invested with certain powers, is defined by Section 4(j) to mean 'the highest Court of criminal appeal or revision for any local area.' This means for the present purpose the High Court of Judicature at Fort William in Bengal, which may act under 01. 36 of its Letters Patent by any Judge or any Division Bench thereof, subject to any rules that may be made or directions that may be given by competent authority. In practice, until recently, the powers conferred by Section 491, which before 1923 were exercisable only over persons within the limits of the ordinary original civil jurisdiction of the Court, were exercised by the Judge taking Sessions, that is, by the Judge exercising the ordinary original criminal jurisdiction o the Court. Now that the powers are applicable to persons within the limits of the Court's appellate criminal jurisdiction, it is certainly more convenient that they should be exercised by the Division Bench appointed to deal with criminal cases. It is not, however, evident to me upon the face of the Criminal Procedure Code that the powers of the High Court under Section 491 might not, apart from any special rule made under the Letters Patent or any directions given by the Chief Justice, competently be discharged by a single Judge. This Bench is in no way a Court of appeal from the learned Judge exercising the ordinary original criminal jurisdiction, and grave inconvenience would arise if the same High Court should make an order for arrest and also an order for release upon divergent views upon a question of jurisdiction. If this be possibly, so far as the statute is concerned, it would be possible for a single Judge to make an order overriding and nullifying an order Division Bench. A Judge or a1 Bench which exercises powers under Section 491 has no claim to any particular precedence so as to require that the Sheriff should execute no order made by another Judge or Bench inconsistent therewith. It would introduce an incurable confusion into practice and theory, if it were laid down that a considered judgment of the High Court upon a question of its jurisdiction could be challenged before the same High Court under Section 491. In my judgment the circumstance' that certain orders of this Court in its ordinary original criminal jurisdiction are not appealable does not affect this matter. It appears to me that a case such as the present should be viewed on the principle that it would be a good return to a writ in the nature of habeas corpus to show that the applicant, during his trial at Sessions, was being detained under an order of this High Court which has not been set aside or varied. These considerations do not apply to orders made by, Courts other than the High Court.
7. It is sufficient for purposes of the present case to say that it seems to me to be wrong that this Bench should think fit under Section 491 to retry for itself the question which has already been determined by this Court in its ordinary original criminal jurisdiction, or to pass an order overriding an order already made by this High Court. In this view the rule will be discharged.
C.C. Ghose, J.
8. I agree.