1. This rule was issued on the 11th October last at the instance of Bhimraj Bania calling on the Secretary to the Government of Bengal to show cause why a warrant issued on the 18th September, 1923, by one of the Secretaries to the Government of Bengal under the provisions of Bengal Act I of 1923, (The Goondas Act 1923) for the apprehension of Bhimraj should not be declared illegal and void and why the proceedings there under should not be quashed. The petition upon which the rule was issued was headed in the matter of an application under Sections 435 and 439 of the Code of Criminal Procedure and Clause 28 of the Letters Patent. Under the provisions of the Goondas Act, 1923, Section 3, whenever it shall appear to the Commissioner of Police that any person is a goonda or a member of: a gang or body of goondas and is residing within or habitually visiting or frequenting Calcutta and that such person or that such gang or body is committing or has committed or is about to commit or is assisting or abetting the commission of a non-bailable offence against person or property or the offence of criminal intimidation or an offence involving a breach of the peace so as to be a danger to or cause or to be likely to cause alarm to the inhabitants or to any section of the inhabitants of Calcutta the Commissioner of' Police shall make a report to the Local Government with a recommendation that such person or gang or body of persons be dealt with under the provisions of the Act. Section 4(1) provides that on receipt of the report referred to in Section 3, the Local Government may make an order for the issue of a warrant for the arrest of the person against whom the report has been made. Sub-section 2 of Section 4 provides far the form of the warrant and that it should be issued by a Secretary to the Local Government and that it should contain a statement of the heads of the charges made against such person in the report.
2. The sub-section further provides that the warrant shall further require the person named therein to submit by petition to the advising Judges appointed under Sub-section (1) of Section 5 any representation that he may desire to make by such date as may be specified in the warrant.
3. The portion of the warrant containing the heads of charges in accordance with the provisions of Sub-section 2 of Section 4 is as follows:
The heads of charges made against the said Bhimraj Bania are that he is a goonda and a member of a gang of goondas which has committed or abetted and is about to commit or abet the commission of (i) non-bailable offences against property or persons and (ii) offences o criminal intimidation and that he is a source of danger to the inhabitants of Calcutta.
4. The wording of Section 3(i) is thus reproduced practically word for word, but Bhimraj is given no further information whatsoever of the nature of the charges against him although in accordance with the provisions of Section 4(ii) he was required to submit on the 22nd September, 1923, by petition to the advising Judges any representation he desired to make.
5. Bhimraj contends before us that a warrant in this form does not satisfy the provisions of Section 4(2) as it does not contain 'a statement of the heads of the charges' or at any rate that the statement in the form in the warrant is not a sufficient compliance with the provisions of the sub-section and he contends before us that he has thereby been prejudiced in making his representation to the advising Judges. On behalf of the Government it is contended that the sub-section has been complied with and that in any case this Court has no jurisdiction to interfere in the matter.
6. Reference is necessary to some of the other provisions of the Act but it will be convenient before doing this to state a few facts and dates.
7. Bhimraj was arrested under the warrant on the 19th September, he was released on bail on the 26th September and made his representations to the advising Judges on the 29th September when he was questioned at length and called 3 witnesses. We are told that eight witnesses were produced by the Police and examined by the Judges, Bhimraj not being present at their examination. The Judges made their report to the Local Government under Section 5(4) of the Act on the 4th October and the Local Government passed an order under Section 6 directing the accused to leave Bengal on the 11th October. It is now necessary to consider some of the further provisions of the Act.
8. Section 4(3) provides that (i) for enforcing the attendance of the person against whom the warrant is issued at such time and place as may be specified in the warrant; and thereafter as such officer may direct in order to communicate to such person the final order of the Local Government made under Section 6 and (ii) for the forfeiture under Section 514 of the Code of Criminal Procedure, 1898 of any bond executed for the attendance of such person at such place and time and times the Secretary to the Local Government issuing the warrant shall have all the powers of a Presidency Magistrate under the Code of Criminal Procedure, 1898 and that the warrant shall for the purpose set forth in Sub-clause 3(i) and (ii) of Section 4 be deemed to be a warrant issued by a Presidency Magistrate for the arrest of such person to answer a charge in respect of a bailable offence committed by him within the jurisdiction of such Magistrate and that such person in default of sufficient security being furnished may, unless the Secretary to the Local Government otherwise directs, be detained in. custody until the final order of the Local Government under Section 6 is communicated to him. Under the provisions of Section 5(i) after the warrant is issued the Local Government is bound to cause the report of the Commissioner of Police with all material facts and circumstances in their possession relevant to the same to be placed before two advising Judges who under Sub-section (2) have to consider in camera the report and the other facts and circumstances (if any) and any representation of the person reported against and the Judges are bound to call for any further information that may appear necessary for tendering their advice on the report and they may examine such witnesses as they think necessary for the same purpose. They are also bound to give the person reported against, if he so desires, an opportunity of appearing in person before them to offer his explanation and they may at his instance require the attendance of any other person whose statement may support the explanation. The advising Judges are prohibited from disclosing to the person reported against any fact the communication of which might endanger the safety of any individual and they are not bound to observe the laws of evidence and are prohibited from putting any question which may endanger the safety of any individual.
9. Section 6(i) empowers the Local Government, if satisfied on receipt of the report of the advising Judges that the person reported against should be removed elsewhere, by an order reciting the conclusions of the advising Judges as reported by them, to direct the person reported against to leave Bengal within such time and for such period as may be stated in the order.
10. Sub-section (2) of Section 6 provides that the order of the Local Government under Sub-section (1) shall be final and that it shall not be called in question in any subsequent proceeding under Sections 9 and 10.
11. Bhimraj's contention, as already stated, is that he has been prejudiced in making his representations to the advising Judges by reason of the alleged insufficiency of the statement in the warrant of the heads of the charges made against him in the report of the Commissioner of Police. The Government on the other hand contend (1) That Bhimraj has no grievance and that he has not been prejudiced (2) That this Court has no jurisdiction to deal with the application in its revisional jurisdiction and that proceedings under the Act are executive acts done by an authority which is not a Court subject to the superintendence of this Court. (3) That in any case the order which has been passed directing Bhimraj to leave Bengal is a final order which cannot now be called in question.
12. Before dealing with Bhimraj's contention and the 1st contention put forward on behalf of the Government it is necessary to consider whether the 2nd contention of the Government is correct and whether this Court in its revisional jurisdiction can deal with the application.
13. Clause 28 of the Letters Patent (1865) ordains that this High Court shall be a Court of Reference and Revision from the Criminal Courts subject to its appellate jurisdiction and that it shall have power to hear and determine all such cases referred to it by the Sessions Judge or by any other officers authorised at the time of the grant of the Letters Patent to refer cases to this High Court and to revise all such cases tried by any officer or Court possessing criminal jurisdiction as were subject to reference to, or revision by, the said High Court at the time of the grant of the Letters Patent.
14. Section 435 of the Criminal Procedure Code empowers this Court to call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court and Section 439 provides that in the case of any proceeding the record of which has been called for by this Court, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by the sections of the Code referred to in this section. In my opinion, Clause 28 of the Letters Patent, has no application as, assuming that the Secretary to the Local Government named in the Goondas Act is an Officer of Court possessing Criminal jurisdiction, he was not such at the time of the grant of the Letters Patent in 1865, and, our powers of reference and revision under Clause 28, as it would appear are limited to such officers and Courts as were subject to reference or revision by the High Court at the time of the grant.
15. It remains to consider whether the Secretary to the Local Government is by virtue of the powers conferred on him by the Goondas Act an inferior Criminal Court within the meaning of Section 435. It is urged on behalf of Bhimraj that this is so, because he is the person deputed to issue the warrant under Section 4(2) of the Goondas Act and because by Sub-section 3 of Section 4 he is given, for the purposes named in the sub-section, to which I have already referred, all the powers of a Presidency Magistrate under the Code of Criminal Procedure, 1898 and because for those purposes the warrant is to be deemed to be a warrant issued by a Presidency Magistrate for the arrest of the person reported against to answer a charge in respect of a bailable offence committed by him within the jurisdiction of such Magistrate.
16. I find it difficult to understand how these provisions of the Goondas Act convert the Secretary to the Local Government issuing the warrant into an inferior Criminal Court within the provisions of Section 435 of the Code of Criminal Procedure. But it is only if this is so that we have jurisdiction under the section, if it is not so then we have no jurisdiction.
17. In my reading of the Goondas Act, the Act has not created any Court but has only provided a certain procedure for dealing with Goondas.
18. This being so, I think that we have no jurisdiction to deal with the application under our Revisional jurisdiction and the rule must accordingly be discharged.
19. I agree.