TAHERALLY MAHOMEDALLY KAJIJI Vs. CHANABASAPPA MALLAPPA WARAD

JUDGEMENT

(1.) ONE Ishwarbhai Somabhai Patel is detained in His Majesty's Central Prison at Yerawada by the Government of Bombay under Rule 26 of the Defence of India Rules framed under the Defence of India Act, 1939. The plaintiffs have filed this suit and they wish Ishwarbhai Somabhai Patel to be examined as a witness in this case; and they have made an application to me under Section 35 of the Prisoners Act, 1900, for the production of this person in Court so that he could give evidence in this case.

(2.) THE Advocate General on behalf of the Government of Bombay contends that the Prisoners Act has no application and the Court has no jurisdiction to make this order. MR. Taraporewalla on behalf of the applicants, the plaintiffs in this case, argues that Section 35 is wide enough to cover the case not only of a person confined to a prison by an order of the Court but also of a person confined to a prison by an executive order. Mr. Taraporewalla contends that Section 35 does not lay down that only a prisoner could be produced under this section but it applies to any person confined in any prison and the language of the section is wide enough tot cover the case of Ishwarbhai Somabhai Patel who has been confined to the Yerawada Jail under the Defence of India Rules. Mr. Taraporewalla further argues that the word "prisoner" is not defined under the Act and that I must construe that word in the widest sense. It is possible that if the matter rested there, I might have acceded to Mr. Taraporewalla's argument and held that a prisoner would mean any person who is confined and whose liberty has been fettered or restricted.

(3.) MR. Taraporewalla has argued that in many sections of the Act the Legislature has used the word "prisoner" whereas in Section 35 the Legislature has advisedly used the words "any person" and, therefore, I must give a wider meaning to the words "any person" than if I would have given if the Legislature had used the word "prisoner." The reason for the Legislature using the words "any person" in Section 35 is made clear if one looks at Section 34 of the Act. Section 34 provides that in this Part all references to prisons or to imprisonment or confinement shall be construed as referring also to Reformatory Schools or to detention therein. Therefore, this Part in which Section 35 occurs applies not only to persons confined to prison under an' order of the Court but it also applies to persons who may be detained in a Reformatory School. Section 35, therefore, would apply to persons detained in a Reformatory School. If that were so, the Legislature could not have used the word "prisoner" as applying to a person detained in a Reformatory School. Therefore, the wider word "person" had to be used in order that the provisions of the section might apply not only to persons confined in a prison but also to persons confined in a Reformatory School.