EMPEROR Vs. JAGARDEO RAMSUMER TEWARI

JUDGEMENT

(1.) This is a rule which has been issued against the Jailor, Yeravda Jail, calling upon him, to show cause why the petitioner Jagardeo Ramaumer Tewari should not be brought before this Court to be dealt with according to law and why he should not be set at liberty, etc., in the exercise of this Court's power under Section 491, Criminal Procedure Code,

(2.) The main facts of the case are not in dispute. The father of the petitioner was born at the village of Ramdupati, which at that time was in the Mirzapur district of the United Provinces. But some thirty or forty years back he came from there to Bombay, where he kept buffaloes and Carried on a milkman's business. He had several sons, the third of whom is the present petitioner, who is stated to be about thirty years old According to the affidavit which has been filed on petitioner's behalf and which is supported by other affidavits, the eldest son came to Bombay in about 1903. But after staying there for about twelve months he fell ill and went to his village, where ha died. After the it in 1909 Sahadev, the second son of the father Ramsumer, came to Bombay but only stayed there for about five months. Ho also fell ill and went to his visage, and the father then brought his third eon, the present petitioner] to Bombay in 1909 There is a dispute as to whether the petitioner really came to Bombay in 190). In the affidavit made by Mr. Cauty, the Deputy Commissioner of Police, Bombay, he states that his information is that the petitioner came in or about 1914. But it is, I think, really immaterial whether he came in 1909 or 1914, so far as the main point in dispute in this case is concerned. The father Ramsumer subsequently became ill and returned to his native village where he died. After his death the business appears to have been carried on by the present petitioner with the assistance of Home of his brothers, In 1911 there was a cession of territory by the Government of India to the Maharaja of Benares, and the ceded territory contains this particular village of Ramdupati, A copy of the instrument of transfer has been annexed to Mr. Cauty's affidavit, and the preamble of this shows that the cession was made with the approval of His Majesty's Secretary of State for India, with the object that there should be constituted a State under the suzerainty of His Majesty to be granted to the Rajas of Benares, subject to certain restrictions and conditions considered necessary for safeguarding to the residents of the ceded territories the rights and privileges they had enjoyed under the British administration. There are no doubt restrictions on the sovereignty that is conferred upon the Maharaja of Benares and his successors, but it has not been disputed before us that there has been in fact a change in the sovereignty which primarily affects the inhabitants of the ceded territory, i.e., affects their allegiance in a way that is recognised and I shall deal with later on.

(3.) It is contended for the petitioner that he was a British subject at the time of this cession and that he has not ceased to be a British subject. The importance of this is apparent, when reference is made to the definition of "foreigner" which is contained in the Foreigner's Act III of 1864, as amended by Act III of 1915. There is no doubt that the petitioner would fall under Clause (a) of this definition as being a natural born British subject at any rate prior to the cession of 1911, and that has not been disputed by the learned Advocate General for the Crown But the contention that is put forward on behalf of the Crown it that the petitioner has ceased to be a British subject, and therefore comes within the proviso to this definition which is as follows:- Provided that any British subject who, under any law for the time being in force in British India, ceases to be a British subject shall thereupon be deemed to be a foreigner.