MT HAIDRI BEGAM Vs. JAWAD ALI SHAH

JUDGEMENT

(1.) This is an appeal which purports to have been brought under Clause 10 of the Letters Patent of this Court under the following circumstances. A minor, Mazhar Ali Shah, is the child of Syed Jawad Ali Shah as the father and Mt. Haidri Begam as the mother. A dispute arose between the father and mother as to the custody of the minor. An application was made before this Court under Section 491 of the Criminal P.C., by Mt. Haidari Begam against Syed Jawad Ali Shah and it prayed that Mazhar Ali Shah should be brought before the Court and delivered to the applicant. The application was beard by one of the learned Judges of this Court and was dismissed on 20 September 1933. The present appeal is against that order.

(2.) A preliminary point is taken by Mr. Ismail, the learned Counsel for the respondent Syed Jawad Ali Shah. It is to the effect that no appeal is maintainable under Clause 10 of the Letters Patent. Briefly, his argument is as follows. Clause 10 of the Letters Patent of the Allahabad High Court allows an appeal from a judgment of a single Judge of the Court provided such judgment is not, inter alia, "in the exercise of Criminal jurisdiction". It is urged on behalf of the respondent that the order was passed by the learned Single Judge in the exercise of Criminal jurisdiction.

(3.) We have to consider whether this contention is right. Mr. Ismail argues that Section 491 of the Criminal P.C. allows an application to be made before the High Court in respect of a person residing within the limits of the appellate criminal jurisdiction of the Court. Then, Mr. Ismail points out that the provision under which the application was made is to be found in the Criminal P.C. and further he points out that the High Court which is to exercise jurisdiction invoked under Section 491 is defined in Section 4(j) of the Criminal P.C. as "the highest Court of Criminal appeal or revision for any local area". If the learned Single Judge of this Court acted as the High Court, it is urged, he must have acted as a court of criminal appeal or revision. If this argument be sound, the order complained of was passed "in the exercise of criminal jurisdiction" within the meaning of Clause 10 of the Letters Patent of this Court.