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1949 DIGILAW 1 (MP)

Mohammad Zahural Huque v. State

1949-01-08

MEHTA, SANGHI

body1949
JUDGMENT : Sanghi, J. 1. The petitioner came to Indore from West Pakistan on 4th September 1948, under a permit issued by the Deputy High Commissioner for India in West Pakistan under Ordinance No.17 of 1948 made by the Governor-General of India under S.42, Government of India Act, 1935. In the permit the duration of the visit to India is stated to be for a period of six weeks, The applicant, not having left Indore on the expiry of the six weeks, was arrested on 5th November 1948, by the Sub-Inspector of Police in charge Sadar Bazar Police Station-House in the city of Indore for having contravened the provisions of S.3 of the Ordinance. On the following day, he was produced before the District Magistrate, Indore City who ordered his release on bail. The District Magistrate is awaiting the police challan. On 9th December 1948, the petitioner made a petition to this Court under S.491, Criminal Procedure Code alleging that his arrest was illegal and that his bail should be cancelled. He alleged that he was a subject of the Madhya Bharat Government as he owned immovable property situated in Indore. 2. The learned counsel for the applicant submitted that the arrest was illegal as the Ordinance made and promulgated by the Governor-General of India had not the force of law in the state of Madhya Bharat. His Highness the Rajpramukha of the United State of Gwalior, Indore and Malwa States (Madhya Bharat) by an instrument dated 19th July 1948 offered to accede to the Dominion of India. The Instrument of Accession was accepted by the Governor-General of India on 13th September 1948 and under S.6, Government of India Act, 1935, the United State of Madhya Bharat should be deemed to have acceded to the Dominion of India on this date. The Instrument of Accession was published in the local official gazette dated 30th October 1948. It is provided by cl.(a) of Sub-S.(1) of S.6, Government of India Act, 1935 that a Dominon authority (the Governor-General, the Dominon Legislature, the Federal Court or any other) shall exercise such function as may be vested in it by or under the Act but subject always to the terms of the Instrument of Accession. It is provided by cl.(a) of Sub-S.(1) of S.6, Government of India Act, 1935 that a Dominon authority (the Governor-General, the Dominon Legislature, the Federal Court or any other) shall exercise such function as may be vested in it by or under the Act but subject always to the terms of the Instrument of Accession. In Art.3 of the Instrument of Accession the Rajpramukh accepts "all matters enumerated in List I and List III of sch.VII to the Act as matters in respect of which the Dominion Legislature may make laws for the United State" Thus, it is clear beyond the shadow of a doubt that of the several Dominion Authorities, the United State of Madhya Bharat has accepted the power of the Dominion Legislature only to make laws for it. The Governor-General of India cannot, therefore, exercise in relation to the state the functions vested in him by S.42, Government of India Act, 1935. He cannot make and promulgate an Ordinance having force in the state of Madhya Bharat. It was urged by the learned Public Prosecutor that under S.42, Government of India Act, an Ordinance made and promulgated by the Governor-General shall have the like force of law as an Act passed by the Dominion Legislature, and therefore, the Ordinance No.17 of 1948 should be deemed to be an Act of the Dominion Legislature. This simply means that an Ordinance, though not made by the Dominion Legislature shall have- force of law; In relation to the United State, the question is which authority has made the law for it. The Dominion Legislature alone has the power under Art.3 of the Instrument of Accession to make laws for the United State. The Ordinance was published for 'general information' and in the official gazette of the United State dated 14th August 1948. This fact can have no bearing on its having the force of law in the state. Under S.1 the Ordinance extends to the, whole of India and India as defined in S.5, Government of India Act, 1935, includes an Indian state acceding to the Dominion of India in the manner provided in the Act. The manner of accession is laid down in S.6 of the Act as explained above. Under S.1 the Ordinance extends to the, whole of India and India as defined in S.5, Government of India Act, 1935, includes an Indian state acceding to the Dominion of India in the manner provided in the Act. The manner of accession is laid down in S.6 of the Act as explained above. So far as Ordinances made under S.42 of the Act by the Governor-General are concerned, India would include only those acceding states whose rulers have accepted by the Instruments of Accession the authority of the Governor-General of exercise his functions under the Act in relation to their states. I, for these, reasons, hold that ordinance No.17 of 1948 made by the Governor-General of India has not the force of law in the United State of Gwalior, Indore and Malwa States and the arrest of the applicant under it was illegal. 3. The learned Public Prosecutor submitted that the applicant has been released on bail. He was not detained in custody at the time the petition was made and he could not, therefore, invoke S.491, Criminal Procedure Code, in his aid. The very same argument was put forward by another learned Public Prosecutor before a Full Bench of the Indore High Court in the year 1945 but the contention was overruled by the learned Judges on the authority of the case reported in Sandal Single v. Dist. Magistrate and Supdt., Dehradun, AIR (21) 1934 ALL. 143: (35 Cr.L.J. 1296). An application was made to the Indore High Court under S.451, Indore Criminal Procedure Code, corresponding to S.491, Criminal Procedure Code, by a person arrested under the Indore Extradition Rules and had been released on bail. The case is reported in 1945 Indore Law Rep. 143. I reproduce below the relevant portions from the judgment of the learned Chief Justice appearing at pp.153 and 151 of the report: "Lastly I may refer to one more point which was urged before us by the learned Public Procecutor. It was contended by him that the accused had been let off on bail and as he was no longer in any custody either public or private, S.451, Indore Criminal Procedure Code, under which the present application has been made does not apply. It was contended by him that the accused had been let off on bail and as he was no longer in any custody either public or private, S.451, Indore Criminal Procedure Code, under which the present application has been made does not apply. A similar argument was advanced in a case under the corresponding S.491, Criminal Procedure Code, in force in British India before a Divisional Bench of the Allahabad High Court in Sandal Singh v. Dist. Magistrate and Supdt., Dehradun, AIR (21) 1934 All.148: (35 Cr.L.J.1296), but was repelled by the learned Judges (Suleman, C.J. and King, J.) with the following remarks. 'The mere fact that after his (accused's) arrest, he was temporarily released on bail pending further inquiry does not oust the jurisdiction of the High Courts'. The learned Public Prosecutor urged that the learned Judges have not given any reasons in support of this view. He further urged that in England the writ of Habeas Corpus necessarily implies that the accused is confined somewhere and his 'body' to is to be brought up before the Court. But the scope of Chap. XXXVI, Indore Criminal Procedure Code, is wider as it does not purport to reproduce the English Law relating to the writ of Habeas Corpus, but merely deals with certain directions in the nature of 'Habeas Corpus'. Clause (B) of S.451, of the Code gives power to the High Court to direct that a person illegally or improperly detained in public or private custody within the limits of its jurisdiction be set at liberty. All that this clause, requires is 'illegal' or 'improper' detention in public or private custody. Even if a person is temporarily released on bail prior to his being extradited, he must, I think, be considered to be detained in the constructive custody of the Court through the surety, as his liberty is subject to restraint and he has to be produced before the Court by the surety whenever required. I would, therefore, follow the interpretation placed on the corresponding S.91, Criminal Procedure Code, in force in British India, by the Allahabad High Court and hold that the case falls within the scope of S.451, Indore Criminal Procedure Code" In civil Reference No.58 of 1948 it was held by a Full Bench of this High Court that judgments of the Indore High Court are binding on it. The question is, therefore, not open to discussion and I must hold that, though released on bail, the petitioner is entitled to move the Court under S.491, Criminal Procedure Code. The learned Public Prosecutor sought to distinguish that case from the one in hand. He submitted that in the Indore Extradition Case the release on bail temporary and the applicant's liberty was threatened which in the present case was not so. Why it was not so in the present case I could not understand. The applicant's bait may be cancelled and he may, under S.6 of the Ordinance be removed from India. In the words of the learned Chief Justice quoted above, in all such cases, the petitioner's 'liberty is subject to restraint and he had to be produced before the Court by the surety whenever required'. 4. In the event it was held that the Ordinance had the force of law in the state, the learned counsel for the petitioner relied on several other grounds to succeed in his petition. He urged that the Ordinance was made and promulgated before the state acceded to the Dominion of India on 13th September 1948. It was urged that the Ordinance was ultra vires of the zestraint on the immigration of a subject of an Indian State could not be imposed, He further urged that S.3 of the Ordinance had not been contravened by the petitioner because he entered India and Indore with a permit in his possession. Neither S.3 nor any rule made thereunder prohibited a person entering India staying in the country beyond the time of stay specified in the permit. Neither S.3 nor any rule under it authorised or required the authority issuing the permit to specify the duration of stay of the immigrant into India. These are matters which, in view of decision that the ordinance has not locally the force of law, do not call for consideration. If the Ordinance has the force of law, these are matters to be urged at the trial. 5. I must, before I make the order disposing of the application, record that the subject-matter of this judgment cannot, in my opinion, be rendered aptly in Hindi, at any rate, I am unable to do it and hence the English garb of the judgment. 5. I must, before I make the order disposing of the application, record that the subject-matter of this judgment cannot, in my opinion, be rendered aptly in Hindi, at any rate, I am unable to do it and hence the English garb of the judgment. Since the applicant is on bail I would borrow the words of the learned Chief Justice in the Full Bench case referred to above, and direct that the petitioner be released from his bail bond and be set at liberty. The petition is accepted. Mehta, J. I agree.