BRAJAKISHOR PATTANIK Vs. INDIAN UNION

JUDGEMENT

(1.) CRI Misc. No. 107 of 1949: The petitioner in this case has applied to this Court under Section 491, Criminal P. C., questioning the validity of an order of detention dated 20th April 1949, passed against him, by the Government of Orissa, under Section 2, Orisaa Maintenance of Public Order Act, The petition is dated 4th June 1949, and has been forwarded to this Court through the Superintendent of Cuttack Jail where he was under detention. It bas been stated to us by the Advocate -General on behalf of the Government that this petitioner has since absconded and has gone underground. When this petition came up for hearing before us on 17th and 18th of August, we intimated to the counsel appearing for the petitioner that we would not be prepared to consider the application unless the petitioner presented himself in Court and made himself available receiving the orders of the Court. The petition was adjourned for consideration to 22nd; but the petitioner has not turned up.

(2.) THE relief under Section 491, Criminal P. C., is one available to a person under alleged illegal custody. The Court on an application by such a person is called upon to examine the legality of his custody or detention and if satisfied Chat it is illegal, will direct him to be set at liberty. The Court cannot be called upon merely to examine the legality of an order of detention and set aside the order of detention on the ground of its illegality. This Court is not a Court of appeal or a Court of revision against the detaining authority and can only examine the legality of the order of detention as incidental to the jurisdiction vested in it under Section 491 to examine the legality of the custody. If the petitioner is not in custody and is not available, the Court cannot stultify itself by passing an order directing the petitioner to be set at liberty. This petition therefore cannot be considered on its merits and must be rejected.

(3.) CRI . Misc. Nos. 126 and 137 of 1949: These two are petitions by Manmohan Misra and Nisamony Tripathy respectively complaining against the legality of the orders of detention passed against them by the Government of Orissa under Section 2, Orissa Maintenance of Public Order Act. 1943, in respect of the detention under the very same orders. The petitioner had previously filed two other petitions Cr. Misc. 52 and 63 of 1949, They were considered on their merits and disposed of by this Court by its order dated 38th April 1949 dismissing their applications. The present petitions are for reconsideration of the legality of the same detentions. We have gone through the petitions and we ace satisfied that there are no fresh grounds on which the legality of the detention is challenged. All that the petitioners say is that subsequent to the disposal of the prior petitions, this Court has in other cases taken a different view in similar circumstances. This is certainly not a ground for reconsideration. The petitions are accordingly dismissed. We are cannot to be understood as deciding by implicationthat such a petition for review or reconsideration lies at all, in cases of this kind. The petitions are under Section 491, Criminal P. C. As pointed out by their Lordship of the Privy Council in C. P. Matthen Dist. Magistrate Trivendrum, A. I. R. (26) 1939. P. C. 213 : (I. L. . (1939) Mad. 744) the power to issue a prerogative writ of habeas corpus, in matters covered by Section 491, Criminal P. C., has been taken away. It is therefore doubtful whether the common law rule that successive applications for a writ of habeas corpus can be maintained before different Judges of the High Court on the same grounds, applies to proceedings under 8. 491, Criminal P. C.