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Nazir HussaIn Vs. the State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 139 of 1951 and Matter No. 155 of 1951
Judge
Reported inAIR1952Cal853
ActsConstitution of India - Article 226; ; Code of Criminal Procedure (CrPC) , 1898 - Section 439
AppellantNazir Hussain
RespondentThe State of West Bengal and anr.
Appellant AdvocateSachin Chaudhuri, Adv.
Respondent AdvocateS.D. Banerjea and ; A.K. Sen, Advs.
DispositionAppeal dismissed
Cases ReferredRashid Ahmed v. Municipal Board
Excerpt:
- .....conferred by part iii and for any other purpose.'9. this article gives this court the right to issue writs in the nature of the old english high prerogative writs of habeas corpus, mandamus etc. but it is contended that this court has wider powers. it can issue to any person or authority directions or orders or writs other than those named. it is very difficult to say what the framers of this article really meant. these writs according to article 226 can be addressed to any person or authority. did the framers of this article intend that the writ, for example, of mandamus or prohibition should issue to persons other than persons to whom such writs could legitimately be directed under english law? there is, as far as i know, no pure indian law relating to these writs and if any law at.....
Judgment:

Harries, C.J.

1. This is an appeal from a judgment and order of Bose J. dated 16-8-1951 dismissing an application for writs in the nature of mandamus. The appellant is at the moment being prosecuted in the Court of the Chief Presidency Magistrate of Calcutta for an offence of staying in India longer than a permit which he had been granted permitted him so to stay.

2. The defence is that the petitioner is a subject of the Indian Republic and that he is entitled to remain in British India. Further it is said that the statute and rules under which he is being prosecuted can have no application to him whatsoever and further that they are ultra vires the Constitution of India.

3. The petitioner therefore moved this Court under Article 226 of the Constitution for a writ or order in the nature of a mandamus calling upon the State of West Bengal not to proceed with this prosecution. The matter came before Bose J. who dismissed the petition holding that there was no force whatsoever in it. From that order the present appeal has been preferred.

4. It appears to me that this appeal can be disposed of on a preliminary ground, namely, that this is not a case in which this Court should be asked to exercise the powers given to it under Article 226 of the Constitution because there is a remedy equally effective, beneficial and convenient open to the petitioner. As I have said, a prosecution has been launched against the petitioner in the Court of the Presidency Magistrate and it is contended that the complaint made against the petitioner discloses no offence of any kind either in fact or in law. The proceedings therefore are liable to be quashed if the petitioner could establish that they cannot lie.

5. The proper method of moving to quash proceedings in the Court of a Magistrate is to apply to this Court under the provisions of Section 439, Criminal P. C. and such petitions are of common occurrence. They are moved before the Criminal Bench of this Court and if a Rule is issued the Bench can hear the parties and if no offence is disclosed by the facts or there is ho offence in law then this Court under Section 439, Criminal P. C. may there and then quash the whole proceedings.

6. What Bose J. was asked to do was really something less than quashing the proceedings. He was asked to issue a writ calling upon the Government to refrain from further prosecuting this offence. The criminal Court could give the petitioner very much better relief if he was entitled to it, because as I have said that Bench could quash the proceedings altogether.

7. There can be no doubt that in England a Court would not issue a writ of mandamus if the party applying for the writ had an alternative remedy equally effective, beneficial and convenient. By the provisions of Section 45, Specific Relief Act, this Court cannot make an order under that section if the applicant for such an order had another specific and convenient remedy.

8. Mr. Sachin Chaudhuri who appears on behalf of the appellant, has to concede that the remedy under Section 439, Criminal P. C. is an equally effective, beneficial and convenient remedy. In fact, as I have pointed out, it is a more effective remedy than any this Court could give under Article 226 of the Constitution. Mr. Chaudhuri however has contended that this Court is not bound by the English rule because the powers given to it under Article 226 are extremely wide. Clause (l) of Article 226 of the Constitution reads as follows:

'Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate eases any Government, within whose territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.'

9. This Article gives this Court the right to issue writs in the nature of the old English high prerogative writs of habeas corpus, mandamus etc. But it is contended that this Court has wider powers. It can issue to any person or authority directions or orders or writs other than those named. It is very difficult to say what the framers of this Article really meant. These writs according to Article 226 can be addressed to any person or authority. Did the framers of this Article intend that the writ, for example, of mandamus or prohibition should issue to persons other than persons to whom such writs could legitimately be directed under English law? There is, as far as I know, no pure Indian law relating to these writs and if any law at all applies to them it must be English law, and by English law these high prerogative writs could only be legitimately directed to certain persons; for example, the writ of prohibition could only be directed to a Court and to parties actually litigating a cause in that Court. But if the writ of prohibition could be addressed to any person then it becomes a sort of application for an injunction. Further it appears to me very difficult to say what limit should be placed on the power of this Court to issue directions, orders or writs other than the named writs. To whom should such directions, orders or writs be issued and in what circumstances? Can a Court issue a direction, order or writ on any person in any ease where it thinks that it should interfere If that be so it appears to me that very soon there will be as many directions and writs as there are Courts in India or possibly judges in India.

10. I do not propose to attempt to place any construction on Article 226(1) of the Constitution beyond saying that the powers given to the Court should not be abused. If there is an adequate and specific remedy other than by a writ and such a remedy is equally convenient then it appears to me that it would be an abuse of Article 226 to ask the Court to interfere under that Article.

11. Mr. Chaudhuri however relied upon a decision of the Supreme Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 S. C. R. 566 and contended that that case was an authority for the proposition that the English rule that no mandamus should issue if there was another adequate and specific remedy had no application whatsoever to India under the Constitution.

12. It is true that in that case the Supreme Court did interfere in a prosecution which was pending. It had been contended that the petitioner had an adequate remedy by way of appeal under a section of the Municipal Act under which he was being prosecuted./ Dealing with this aspect of the case Das J. who delivered the judgment of the Court observed :

'Learned Advocate General of Utter Pradesh appearing for the intervener drew our attention to Section 318, U. P. Municipalities Act, 19'16, and submitted that the petitioner having adequate remedy by way of appeal, this Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari. There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much, wider and are not confined to issuing prerogative writs only. The respondent Board having admittedly put it out of its power to grant a license and having regard to the fact that there is no specific bye law authorising the issue of a license, we do not consider that the. appeal under Section 318 to the Local Government which sanctioned the bye laws is, in the circumstances of this case, an adequate legal remedy.'

13. Mr. Ohaudhuri contended that the Supreme Court held that the existence of an alternative adequate legal remedy was really immaterial because the Courts in India had been given powers to issue unnamed and indefinite writs and orders by this Article and such power was not governed by any rules of English law.

14. However, as I read the observations of Das J. it seems clear that he did regard the existence of an adequate remedy as material in that case. He however was of opinion that the remedy by way of appeal, suggested as being an adequate remedy, was really no remedy at all to meet the complaint made by the petitioner in that case. The matter however is very different in this case, because here the alternative remedy under Section 439, Criminal P. C. is a specific remedy and indeed is a better and wider remedy than that given by way of mandamus or other prerogative writs. Further, it is equally convenient and is really more effective and beneficial than the relief now sought for.

15. In the present case the remedy under Section 439, Criminal P. C. would be more effective and beneficial because if the petitioner is right the proceedings which have been instituted would be quashed and no further proceedings could be instituted on the same facts. Further the proceeding under Section 439 would be equally convenient as all that requires to be done is a petition moving the Criminal Bench of this Court. Further the remedy by way of moving to quash these proceedings at this stage will not be the only remedy available to the petitioner. If he fails to quash the proceedings at this stage he will still be able to question the propriety of any conviction either by way of appeal or revision. As there is an obvious remedy open to the petitioner in which he can obtain better relief than any Court, could give under Article 226 of the Constitution we do not think that any Court should make an order under that Article. That being so this appeal must fail on this preliminary point.

16. However we wish to make it clear that we express no opinion whatsoever upon the merits. Bose J. expressed his opinion upon the facts and upon the law. But as we are disposing of this Appeal on a preliminary point we wish to make it clear that no other Court will be bound by the expression of opinion contained in Bose J's judgment. As we are not considering this appeal on the merits the points raised by the appellant are entirely at large and it will be open to the Criminal Court, if moved, to decide the points without in any way being bound by any decision given on those points by the learned Judge.

17. In the result therefore this appeal fails and is dismissed with costs. Certified for two Counsel.

Das, J.

18. I agree.


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