SARADHAKAR NAIK Vs. KING

JUDGEMENT

(1.) The four cases, mentioned above, arising out of as many petitions, were some of the pending cases in respect of which the jurisdiction of the Patna High Court ceased from the 26th July, under Orissa High Court Constitution Order. They have since been transferred to this Court, and heard analogously, as the points for decision are common to all and will be governed by this order.

(2.) Criminal Misc. 2/48 has been filed by one Saradhakar Naik of Bamra State, seeking interference of this Court, in the matter of illegal arrest and detention of one Jaydev Thakur of Bamra State and to order him to be set at liberty.

(3.) Similarly, Cr Misc. nOS. 3, 4 and 5 of 1948 arise out of petitions filed, respectively, by Jayadev Naik of Bamra, Rual Naik and Pravakar Das of Kalahandi, in relation to the arrests and detentions of Batnakar Patra of Bamra, Nilakanth Patnaik and Lingaraj Daa of Kalahandi. In all the petitions, the legality of arrests and detentions of the prisoners has been challenged on identical grounds, viz., that the States concerned were sovereign Statea under the suzerainty of British Government, as their territories were never ceded to nor included within the dominion of His Majesty, the King of England, that the British suzerainty lapsed on 16th August 1947, that by an Instrument of Accession, dated 16th August 1947, the Statea acceded to the Dominion of India on terms, inter alia, that the Dominion Legislature might make laws, for the acceding States, in respect only of (i) defence, (ii) external affairs, (iii) communication, and (iv) other ancillary matters, as set out in the Schedule of 'the Instrument' executed in that behalf that except for the accession and subject to the terms thereof, the States retained their (internal) sovereignty and territorial integrity; that the subsequent agreement of 15th December 1947, was 'not binding being inchoate and incomplete on account of omission of a vital term relating to consideration not having been settled nor incorporated in it (this contention was not pressed at the hearing); that inapite of that agreement, neither the sovereignty, nor the territorial integrity of the States were at all affected; ibat in any view, the Rulers of the Statea had no powers to cede (not pressed at hearing) nor in fact did they cede the legislative power to the Indian Dominion, and that, under the circumstances, the notification of the Orisaa Govern. meat extending the Orissa Maintenance of Public Order Act, 1948, to the said States was ultra virea and, the arrest and detention of the prisoners were illegal, and without jurisdiction.