KING EMPEROR Vs. VIMLABAI DESHPANDE

JUDGEMENT

(1.) THIS is an appeal by special leave from an order of the High Court of Judicature at Nagpur made on September 29, 1944. The order was made by the High Court in purported exercise of the powers conferred on it by Section 491 of the Code of Criminal Procedure, which enables High Courts to take action in the nature of habeas corpus. The order directed that the second respondent, Purushottam Yeshwant Deshpande, (hereinafter called "the detenu"), should be set at liberty forthwith on the ground that his detention was illegal. In granting special leave to appeal, the Board imposed the two following conditions: (1) That the detenu should not in any event be re-arrested in respect of the matters to which the appeal relates, and (2) That the petitioner should pay the costs as between solicitor and client incurred by the respondents both in opposing the petition and in the appeal.

(2.) AT the outset counsel for the respondents contended that no appeal was competent. That such a contention is open at the hearing of an appeal, notwithstanding that special leave has been given without reserving express power to challenge the competency of the appeal, was established by two decisions of this Board, Zahid Husain v. Mohammad. Ismael (No.2) (1930) L. R. 57 I. A. 186: S. C. 32 Bom. L. R. 1150 and Mukhlal Singh v. Kishuni Singh (1930) I. L. R. 57 I. A. 279: S. C. 32 Bom. L. R. 1576. In support of his argument that the appeal is incompetent counsel relied mainly on the well-known case of Cox v. Hakes (1890) 15 App. Cas. 506, and a recent decision of this' Board, King-Emperor v. Sibnath Bonerji (1945) L. R. 72 I. A. 241: S. C. 48 Bom. L. R. 1. In Cox v. Hakes, the House of Lords decided that in England no appeal lay from an order of discharge made on the return to a writ of habeas corpus. The question turned primarily on the construction of Section 19: of the Judicature Act, 1873. In their speeches, both Lord Halsbury and Lord Herschell noticed two decisions of the Privy Council, ATtorney-General for the Colony of Hong-Kong v. Kwok-A-Sing (1873) L. R. 5. P. C. 179 and The Quedn v. Mount (1875) L. R. 6 P. C. 283, and pointed out that special considerations applied to appeals from Colonial Courts in which the Privy Council was tendering advice to His Majesty as to the exercise of the prerogative. The case of Kkig-Emperor v. Sibnath Banerji was one in which an appeal lay from an order; of discharge made) by a High Court in India under Section 491 of the Code of Criminal Procedure to the Federal Court under Section 205 of the Government of India Act, 11935, and from the Federal Court to the Privy Council under Section 208, and it was held that the rule in Cox v. Hakes had no application to such a case. In the present case, however, no appeal lay to the Federal Court under the Government of India Act, 1935, since no question was involved as to the interpretation of the Act or any Order-in-Council made thereunder, and the question for decision is whether an appeal lies direct to the Privy Council from an order of a High Court discharging a person from custody under Section 491 of the Code of Criminal Procedure. The broad principle which must determine this question is that appeals from decisions of Courts in the British Dominions and Dependencies to the King in Council are heard under the Royal Prerogative, and that the prerogative can only be curtailed by force of an Act of Parliament, that is, by the King in Parliament, There is no Act of Parliament which prohibits, or authorises the prohibition of, an appeal to His Majesty in Council by a party aggrieved against an order discharging from custody under Section 491 of, the Code of Criminal Procedure. In their Lordships' opinion, therefore, the preliminary objection fails.

(3.) THE two questions which in their Lordships' view arise on this appeal are: (i) Where a police-officer makes an arrest under Rule 129 (1) of the Defence of. India Rules, is he bound to prove to the satisfaction of a Court before whom the arrest is challenged that he had reasonable grounds of suspicion ? (ii) If he is so bound and fails to discharge the burden laid upon him, is an order made by the Provincial Government under Rule 129 (4) for the temporary custody of a person arrested valid notwithstanding that the arrest was invalid ?