V VENKATARAMAN Vs. STATE

JUDGEMENT

(1.) IN In re Venkataraman, cri. M. P. Nos. 883 and 916 of 1948 which were dismissed by me on 19th May 1948 : A. I. B. (36) 1. 949 Mad. 629: 60 cr. L. J, 748) an application was made orally by the learned Counsel for the petitioners for; leave to appeal to the Federal Court, and as it wag then brought to my notice by the Public Prosecutor that it had recently been held by a Bench of this Court that; an appeal did not lie against an Order made under Section 491, Criminal P. C. , I posted the matter to be heard on the point to this date with regard to both these applications, In the meantime a written application has been made in cri. M. p, No. 883 of 1948 for leave to appeal to the Federal Court against the Order and judgment in that case.

(2.) UNDER Section 3 (a), Federal Court (Enlarge-ment of Jurisdiction) Act, 1947, which came into force on 5th January 1948 it is provided that an appeal shall lie to the Federal Court from any judgment to which this Act applies. " In Section 2 (b) the expression "judgment to which this Act applies" is defined to mean any judgment, decree Cr final Order of a High Court in a civil ease from which a direct appeal could have been brought to His Majesty in Council either with Cr without special leave, if this Act had not been passed It has been held by Horwill and Govinda Menon JJ. in In re Sivasankara Thevar, c. M. P. No. 2849 of 1948 : A. I. R. (36) 1949 Mad. 192, which arose out of an Order made in Cri. M. p. No. 489 of 1948 under Section 491, Criminal P. C. , that an Order made under Section 491 was in the exercise of criminal jurisdiction of this Court, and that, in any cafe, it was not in the exercise of civil jurisdiction within the meaning of the Federal Court (Enlargement of Jurisdiction) Act, 1947 (Act I of 1948 ). It was in that view held by the learned Judges that no appeal lay to the Federal Court against an Order made' under Section 491, Criminal P. C. In the course of that judgment/reference was made to a number of decisions, and adverting to the Privy Council decision in Emperor v. Sibnath Banerjee 1945 M. w. n. cr. 94 : A. I. R. (32) 1945 p. C -. 156, it was pointed out that the Privy Council assumed that the jurisdiction exercised by the High Court under Section 491 was criminal. In the case before the Privy Council the question arose, treating the matter as one falling within the criminal jurisdiction of the High Court, whether an appeal lay against the judgment of the High Court to the Federal Court and in turn against the judgment of the Federal Court to the Privy Council. The conclusion arrived at by their Lordships was that although there is no specific right of appeal provided under the Criminal Procedure Code against Orders passed under S. 491, Section 205 of the Government of India Act, provides one of the exceptions refer, red to in Section 404, Criminal P. C. and that Section 305, Constitution Act, relates both to criminal and civil jurisdictions of the High Courts. The result of this ruling is that, where questions affecting the interpretation of the Constitution Act Cr of Orders in Council passed thereunder are involved in the disposal of a case under Section 491, Criminal P. C. , a right of appeal would arise under Section 205, Government of India Act.

(3.) A contention now put forward by Mr. A. K. Pillai in In re Venkataraman, Cri. m, p. No, 883 of 1948: 50 Cr. L. J. 748 is that the case falls within the exception pointed out by the Judicial Committed. The argument is that under 6, 59, Government of India Act, 1936, "all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor" and that Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor. . . . It is argued that the Orders in this case did not conform to the requirements of Section 69, In the present case, however, the Order of detention was passed by the Commissioner of Police under powers duly vested in him on that behalf. No Orders were passed or other instruments made by the Provincial Government. What was done, as required under Madras Act no, I of 1947, was that after the Commissioner of Police communicated to the Provincial Government the Order of detention and the grounds, the Provincial Government sent to the detenu in turn certain grounds and particulars as prescribed under 8. 8 of that Act, It was only a memorandum despatching to the detenu the grounds of the detention which had been Ordered by another authority duly constituted. Clearly, therefore, B. 59 has no application to an instance of this kind.