ETAKANDAN KUNHOKKER Vs. CROWN

JUDGEMENT

(1.) This matter relates to the 3 accused in Special Case No. 379 of 1922 on the file of the Ordinance Special Magistrate, Malabar. He was charged with others for an offence under Section 395, I.P.C. The case was ultimately withdrawn against him and he was acquitted. But, a warrant of commitment under Regulation II of 1819 was issued and he was detained in custody under it. Thinking he was convicted, he appealed to this Court. Our brothers Ayling and Odgers, JJ., who beard the appeal dismissed it as incompetent: but, entertaining doubts as to the applicability of Regulation II of 1819 to a case of this nature, they ordered notice to the Public Prosecutor to show cause why a writ of Habeas Corpus should not be issued.

(2.) We are indebted to the arguments of Mr. K.V. Krishnaswami Iyer who appeared for the accused amicus curiae and of the Public Prosecutor who appeared to show cause.

(3.) In Queen V/s. Amir Khan (1871) 9 Bom L.R. 36 it was held that commitment under the analogous Bengal Regulation 111 of 1818 was not a judicial proceeding. Regarding a similar commitment under Regulation II of J 819, as an executive Act of Government, the question is whether it is legal in this case and we can issue a writ of Habeas Corpus for the release of the commit led person.