GOPAL NAIDU Vs. KING-EMPEROR

JUDGEMENT

(1.) The question referred to the Full Bench is whether hi re Ramaswami Ayyar (1) was correctly decided.

(2.) This is not a desirable form of reference to a Full Bench, because the facts of one case are seldom precisely the same as those of another and it is much better that the point on which the opinion of the Full Bench is desired should be formulated. In In re Ramaswami Ayyar (1921) I.L.R., 41 Mad, 913, a Village Magistrate arrested a drunken man whose conduct was at the time a grave danger to the public. In this case two police constables arrested a man who was drunk and creating disturbance, but to what extent he was a danger to others does not appear in the order of reference. The decision in In re, Ramaswami Ayyar (1921) I.L.R., 41 Mad, 913 went on the ground that the English Common Law which is "that for the sake of the preservation of the peace any individual who sees it broken may restrain the liberty of him whom he sees breaking it so long as his conduct showed that the public peace is likely to be endangered by his acts," as per Parke, B. in Timothy V/s. Simpson (1885) 4 L.J. Ex., 81, applies to India and affords a good answer to any person charged for wrongful confinement under Section 342 of the Indian Penal Code, if the facts of the case comply with that definition.

(3.) The first introduction of English Common Law in this country was in a Charter of Charles II in 1661 whereby it was ordained that the law of the Kingdom, which would include the Common Law, should be administered in this country. In later charters and enactments it has been provided that the Hindu Law is to be applied between Hindus and the Muhammadan Law between Muhammadans, and in cases not otherwise provided for the principles of equity, justice and good conscience; and these latter words have been held to include material parts of the English Common Law. But for the purpose of this case it is not necessary to consider precisely to what extent and with what restrictions the Common Law of England is part of the Law of India.