TAHERALLY MAHOMEDALLY KAJIJI Vs. CHANABASAPPA MALLAPPA WARAD

JUDGEMENT

(1.) One Ishwarbhai Somabhai Patel is detained in His Majesty's Central Prison at Yerawada by the Government of Bombay under Rule 26 of the Defence of India Rules framed under the Defence of India Act, 1939. The plaintiffs have filed this suit and they wish Ishwarbhai Somabhai Patel to be examined as a witness in this case; and they have made an application to me under Section 35 of the Prisoners Act, 1900, for the production of this person in Court so that he could give evidence in this case.

(2.) The Advocate General on behalf of the Government of Bombay contends that the Prisoners Act has no application and the Court has no jurisdiction to make this order. MR. Taraporewalla on behalf of the applicants, the plaintiffs in this case, argues that Section 35 is wide enough to cover the case not only of a person confined to a prison by an order of the Court but also of a person confined to a prison by an executive order. Mr. Taraporewalla contends that Section 35 does not lay down that only a prisoner could be produced under this section but it applies to any person confined in any prison and the language of the section is wide enough tot cover the case of Ishwarbhai Somabhai Patel who has been confined to the Yerawada Jail under the Defence of India Rules. Mr. Taraporewalla further argues that the word "prisoner" is not defined under the Act and that I must construe that word in the widest sense. It is possible that if the matter rested there, I might have acceded to Mr. Taraporewalla's argument and held that a prisoner would mean any person who is confined and whose liberty has been fettered or restricted.

(3.) The word "prison" is defined in the Act not in a comprehensive way but merely to point out that it includes any place which has been declared by the Provincial Government, by general or special order, to be a subsidiary jail; and therefore if a person is confined in any particular place, that place of confinement might be argued to mean the prison to which the Act would apply. But when one turns to the preamble of the Act, the matter is made clear beyond any doubt. The preamble of the Act runs as follows :- Whereas it is expedient to consolidate the law relating to prisoners confined by order of a Court. Therefore, as far as the preamble is concerned, the Legislature intended the scope of the statute to be confined to those prisoners who were confined to a prison by an order of the Court and not by an executive order. It is undoubtedly true that if the language of a section is clear, the preamble cannot control its effect or extend or restrict its meaning. But as pointed out by Maxwell on the Interpretation of Statutes, Eighth Edition, p. 40 :- The preamble of a statute has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and, as it usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt.