EMPEROR Vs. VIMLABAI DESHPANDE

JUDGEMENT

(1.) This is an appeal by special leave from an order of the High Court of Judicature at Nagpur made on 29th September 1944..The order was made, by the High Court in purported exercise of the powers conferred on it by S. 491, Criminal P. C., which enables High Courts to take action in the nature of habeas corpus. The order directed that respondent 2, Purshottam Yeshwant Desphande, (hereinafter called "the detenu"), should be set at liberty forthwith on the ground that his detention was illegal. In granting special leave to appeal, the Board imposed the two following conditions : (l) That the detenu should not in any event be re-arrested in respect of the matters to which the appeal relates, and (2) that the petitioner should pay the costs as between solicitor and client incurred by the respondents both in opposing the petition and in the appeal. . See ('45) 32 AIR 1945 Nag. 8.

(2.) At the outset counsel for the respondents contended that no appeal was competent. That such a contention is open at the hearing of an appeal, notwithstanding that special leave has been given without reserving express power to challenge the competency of the appeal, was established by two decisions of this Board, 57 IA 1861and 57 IA 279.2In support of his argument that the appeal is incompetent counsel relied mainly on the well-known case in (1890) 15 AC 506,3and a recent decision of this Board in 72 IA 241.4In (1890) 15 AC 5063the House of Lords decided that in England no appeal lay from an order of discharge made on the return to a writ of habeas corpus. The question returned primarily on the construction of S. 19, Judicature Act, 1873. In their speeches, both Lord Halsbury and Lord Herschell noticed two decisions of the Privy Council, (1878) LR 5 PC 1795and (1875) LR 6 PC 288,6and pointed out that special considerations applied to appeals from Colonial Courts in which the Privy Council was tendering advice to His Majesty as to the exercise of the prerogative. The case in 72 IA 2414was one in which an appeal lay from an order of discharge made by a High Court in India under S. 491, Criminal P. C., to the Federal Court under S. 205, Government of India Act, 1935, and from the Federal Court to the Privy Council under S. 208, and it was held that the rule in (1890) 15 AC 5063had no application to such a case. In the present case, however, no appeal lay to the Federal Court under the Government of India Act, 1935, since no question was involved as to the interpretation of the Act or any Order in Council made thereunder, and the question for decision is whether an appeal lies direct to the Privy Council from an order of a High Court discharging a person from custody under R. 491, Criminal PC. The broad principle which must determine this question is that appeals from decisions of Courts in the British Dominions and Dependencies to the King in Council are heard under the Royal Prerogative, and that the prerogative can only be curtailed by force of an Act of Parliament, that is, by the King in Parliament. There is no Act of Parliament which prohibits, or authorises the prohibition of an appeal to His Majesty in Council by a party aggrieved against an order discharging from custody under S. 491, Criminal PC. In their Lordships' opinion, therefore, the preliminary objection fails.

(3.) Dealing with the merits of the matter, their Lordships think that the questions for decision lie within a narrow compass and depend on the construction of R. 129, Defence of India Rules, 1939, with which must be read R. 26. It will be convenient at the outset to set out the relevant provisions of those Rules.