PEERUKANNU MYTHEENKHAN Vs. SIRKAR

JUDGEMENT

(1.) The petitioner is the brother of Peerukannu Pakirkhan who is the accused in C.C. No. 134 of 1122 and C.C. No. 78 of 1124 on the file of the First Class Magistrate's Court at Neyyattinkara. By the order dated 3rd Chingam 1125 passed by this Court on Crl. M.Ps. Nos. 17 and 18 of 1125 he was ordered to be released on bail. The bail bonds were duly executed and the Magistrate accepted those bonds and directed the release of the accused. The petitioner alleged that the said direction has not been complied with by the police and that the accused is being illegally and improperly detained in custody in the Neyyattinkara Police Station. Accordingly the present petition has been filed under S.402 of the Travancore Criminal Procedure Code (corresponding to S.491 of the Indian Code) praying that directions in the nature of a habeas corpus may be issued for releasing Pakirkhan from such illegal and improper custody. The petition is opposed by the Sirkar. The Police Inspector in charge of the Nemom Police Station has field an affidavit denying the allegation that Pakirkhan is being detained in illegal and improper custody and also explaining the circumstances under which he is being detained in custody at present. It is stated that in pursuance of the bail order passed by the High Court Pakirkhan was released on 11th Chingom 1125 and that at about 10 p.m. on the same day he was again arrested under Cl. (1) of S.29 of the Travancore Emergency Powers Act (I of 1122). The fact of such arrest was reported to Government on 12th Chingam 1125, as required by Cl.(2)of S.29, and by the order No. H5 723/49/ C.S., dated 9th September 1949/24th Chingam 1125, Government have authorised the detention of Pakirkhan in custody in the Bhoothapandy Police Station lock-up for a period of two months commencing from 11th Chingam 1125, the date of his arrest. A copy of this order and a copy of the report of arrest submitted by the Inspector of Police have also been filed by the Sirkar. In answer to these records the petitioner has filed Crl. M.P. No. 49 of 1125 urging certain additional grounds in support of his prayer in Crl. M.P. No. 24 of 1125. These grounds are that the petitioner is not aware that there is any Government order sanctioning the detention of his brother Pakirkhan and that, even if there is any such order passed under any statute, it is only an illegal and improper order and it could only be a fraud on the statute and an abuse of the power given by the statute. By the order passed on Crl. M.P. No. 49 of 1125 these additional grounds have been allowed to be urged in support of Crl. M.P. 24 of 1125.

(2.) By S.402 of the Code of Criminal Procedure (Act VIII of 1117 of Travancore, as amended by Acts XI of 1117 V of 1119 and XX of 1119) the High Court of Judicature in Travancore was given the power to issue directions in the nature of habeas corpus in respect of persons illegally or improperly detained in public or private custody in any part of Travancore. That power is retained by this Court by virtue of S.18 of Ordinance No. II of 1124 by which this High Court was constituted and also by virtue of S.3 of Ordinance No. I of 1124 which is to the effect that the existing laws of Travancore shall continue to be in force until altered, amended or repealed by competent authority. Thus it cannot be doubted that this Court has the power to issue a writ of habeas corpus as contemplated by S.402 of the Travancore Code of Criminal Procedure (corresponding to S.491 of the Indian Code.) In order that such a writ may be issued in the present instance, the petitioner has to make out that his brother Pakirkhan is being illegally or improperly detained in public or private custody. The allegation that the police is detaining Pakirkhan in custody without lawful authority cannot stand in the face of the Government order authorising his detention, a copy of which has been produced in this enquiry. The Government order No. H5-723/49/C.S., dated 9th September 1949/24th Chingam 1125 directs Pakirkhan to be detained in the Bhoothapandy Police Station lock-up for a period of two months commencing from 11th Chingam, 1125/27th August, 1949, the date on which he was arrested. The arrest appears to have been made by the Inspector of Police, Nemom, under Cl. (1) of S.29 of the Emergency Powers Act (I of 1123 of Travancore). About such arrest the Inspector submitted a report to Government and it was on the strength of that report that the detention order was passed by Government. The validity of Act I of 1122 is not challenged by the petitioner. Before the expiry of the period of duration of the Act such period was extended by a further period of one year from 1st October 1948 by the Notification D. Dis. No. 378/48/C.S., dated 25th September 1948, published at page 124, Part I, of the Travancore Government Gazette dated 28th September 1948. By S.3 of Ordinance No. I of 1124 this Act also is kept alive. Hence the action taken against Pakirkhan under S.29 of Act I of 1122 cannot be said to be illegal unless it is shown that the provisions of the section have not been strictly complied with.

(3.) Pakirkhan's arrest and subsequent detention under S.29 of the Emergency Powers Act are impeached by the petitioner as being illegal and improper and as an abuse of the power conferred by the statute on the authorities concerned. On behalf of Government it is contended that this court has no jurisdiction to go into the question of the validity or propriety of the orders passed in exercise of the powers conferred by the Emergency Powers Act. Cl. (1) of S.34 is relied on in support of this position. That clause runs as follows. "No order made or deemed to be made in exercise of the powers conferred by or under this Act shall be called in question in any court." It is clear from this clause that the court is debarred from examining the validity of an order made or deemed to be made in exercise of the powers conferred by the Emergency Powers Act. But there is nothing in the clause to suggest that the court has no jurisdiction even to consider the question whether an order purporting to have been passed under the Act has really been passed in strict conformity with the provisions of the Act. This aspect of the order in question has necessarily to be examined by the court in order to come to a conclusion whether or not the order is protected by Cl.(1) of S.34. A reading of Cl.(2) of the same section also indicates that no complete ouster of the court's jurisdiction is contemplated by Cl. (1). Cl.(2) lays down that "no court shall have power to make any order under S.402 of the Code of Criminal Procedure, 1117, in respect of any order made under S.21 of this Act or in respect of any person the subject of such an order". S.21 of the Act deals with the externment of persons found to be engaged in prejudicial acts as defined in the Act. Cl.(2)of S.34 completely ousts the jurisdiction of this Court to pass an order under S.402 of the Code of Criminal Procedure in respect of a person externed under S.21 of the Emergency Powers Act. No such express ouster of the jurisdiction conferred by S.402 of the Code of Criminal Procedure is made in respect of persons detained under S.29 of the Act. It follows, therefore, that Cl. (1) of S.34 does not operate as a complete ouster of this Court's jurisdiction to entertain an application under S.402 of the Code of Criminal Procedure in respect of a person purporting to have been detained under S.29 of the Act. At the same time it is clear that the court's jurisdiction to examine the propriety of an order passed under S.29 of the Emergency Powers Act has been very much restricted and limited in its scope by Cl. (1) of S.34 of the Act.