SUKHDEO CHOUDHURY Vs. EMPEROR

JUDGEMENT

(1.) On 11 August 1942, a riotous and disorderly crowd appeared out. side certain premises belonging to the Imperial Tobacco Factory fat Dalsingsarai. This crowd was dispersed by the police, who took certain persons, among them all the petitioners except Sitaram Jha, into custody. Sitaram Jha was arrested immediately after-wards and was sent with the other petitioners to the Court o? the Sub-divisional Magistrate. When they were produced in that Court, a report of the Sub-Inspector of Dalsingsarai was shown to the Sub-divisional Magistrate. This report was in substance, if not in form, a charge-sheet, and the Sub-divisional Magistrate treated it as such and made an order that the petitioners should be brought up for trial next day.

(2.) On the following day, however, the Sub-Inspector was unable to attend owing, presumably, to the disturbances, and the petitioners were again remanded. Eventually, they were brought up for trial on 5 October 1942. In the meantime, ordinance 2 of 1942 had come into force and Special Courts had been constituted. The learned Sub-divisional Magistrate made an order transferring the case to a Special Magistrate, Maulavi Mohammad Usman. With the exception of Sitaram, who entered into defence, the petitioners pleaded guilty to charges under Secs. 38 and 56, Defence of India Rules. They were convicted and sentenced and subsequently preferred an appeal to the Special Judge of Darbhanga. The latter confirmed the convictions, but, in certain cases, reduced the sentences.

(3.) On 4 January 1943, an application was made to this Court, which purports to be an application in revision but is, in effect, an application to this Court to exercise its powers under s, 491, Criminal P. C. The decision of a Full Bench of this Court in Banwari Gope V/s. Emperor A.I.R. 1943 Pat. 18 is binding on me and I, therefore, do not discuss it. In view of that decision I am bound to hold, in the first place, that the learned Special Magistrate had no jurisdiction over the petitioners; and in the second place, that, in spite of what is contained in Section 26 of the Ordinance, this Court has power and is bound ex debito justifies to make a direction in the nature of a habeas corpus, although the warrant under which the petitioners are detained is a warrant which has been issued by a Special Magistrate.