MT HAYDARI BEGAM Vs. JAWAD ALI SHAH

JUDGEMENT

(1.) This is an application under Section 491, Criminal P.C. The applicant, Mt. Haidari Begum, prays that, on the grounds in her affidavit, this Court may be pleased to pass an order directing the opposite party (namely, S. Jawad Ali Shah, the applicant's husband) to produce before the Court the minor, S. Mazhar Ali Shah, at an early data, and that thereupon the child may be delivered to the applicant. For the purpose of disposing of this application we need only state the salient facts very briefly. S. Jawad Ali Shah was married in 1928 to the applicant. They had a son, S. Mazhar Ali Shah, whose age is now about ii years. In July 1933 the applicant was living with her husband and the child at Gorakhpur. On 30 July she left Gorakhpur for Lucknow in order to attend a ceremony at her parent's house. She left Gorakhpur by the night train.

(2.) On her husband's advice she left the child with her husband, to avoid the risks of a night journey, on the understanding that her husband would follow her with the child next day. Her husband did not follow her, but sent her a registered letter dated 2 August, 1933 stating that he had divorced her. The applicant served a notice upon her husband demanding the custody of the child, but her husband refused to surrender the child, claiming that he himself is entitled to his custody; hence the applicant made an application to the High Court under Section 491, Criminal P.C. on the 20 of this month. That application was heard by a learned Single Judge, Bennet, J., who rejected it on certain grounds which we need not set forth. The applicant then made a second application on the very same day, namely, the present application, to the same effect and with the same object, to one of us, praying for the very same relief which had been refused by Bennet, J. As the questions of law and procedure raised by the second application seemed to be of some difficulty and importance, it was ordered that the application should be heard by a Bench of two Judges. As this second application has been presented ex parte we have not had the benefit of hearing any arguments on behalf of the opposite party or of the Crown. This first question to be decided is whether this second application is maintainable, in view of the fact that a previous application to the same effect and with the same object has been rejected by a learned Single Judge of this Court. Sir Tej Bahadur Sapru for the applicant has relied strongly upon the Common Law practice, relating to applications for a writ of habeas corpus, which is in force in the Courts of England and has been held in Eshugbayi Eleko V/s. Officer, administering the Government of Nigeria (1928) A.C. 459, to apply also to the Supreme Court of Nigeria. The law laid down in this ruling and in certain other rulings on the same subject is stated as follows: The applicant (for a writ of habeas corpus) has a right to apply successively to every Court competent to issue a writ or habeas corpus, and each tribunal must determine such an application upon its merits unfettered by the decision of any other tribunal of co-ordinate jurisdiction even though the grounds urged are exactly the same. Thus, each Judge of the High Court of Justice has jurisdiction to entertain an application for a writ in term time or vacation, and he is bound to hear and determine the application on its merits, notwithstanding that some other Judge has already refused a similar application : "Halsbury s" Laws of England (Edn. 2, Vol. 9, para. 1239).

(3.) The question then arises whether this practice should be followed in the High Court of Allahabad, in the case of applications under Section 491, Criminal P.C. We think it is clear that the rulings upon which the practice is founded have no direct application to proceedings under Section 491 in this Court. The rulings lay down the law relating to applications for writs of habeas corpus in countries where the Common Law of England is in force. In this Province the Common Law of England is not in force, and this High Court has not the Common law right of issuing a writ of habeas corpus. It only has the power conferred upon it by statute of making "directions of the nature "of a habeas corpus." Sir Tej Bahadur iSapru has not argued that the Common law of England is in force in this Province, but be argues that if there is no prohibition imposed by statute, or by any rule having the force of law, then the Common law practice relating to writs of habeas corpus should be followed in the analogous proceedings under Section 491 of the Code, as being a salutary and reasonable practice. The general argument seems to be that as the powers to be exercised are similar, so the procedure to be followed should also be similar.