BIRPAL SINGH Vs. KING EMPEROR

JUDGEMENT

(1.) Prior to September 8, 1940, the appellant in this case, Birpal Singh, had been for some time the Rana of the State of Bhajji, one of the Simla Hill States, and duly recognised as the ruler thereof. On September 8, 1940, he was brought to Simla and was lodged in the Ripon Hospital there. On September 9, 1940, a warrant addressed to the Deputy Commissioner, Simla, was issued under the provisions of the Bengal State Prisoners Regulation, 1818, in the following terms:- Whereas the Governor General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has seen fit to determine that Birpal Singh, ex-Rana of Bhajji, shall be placed under personal restraint at Simla, you are hereby required and commanded in pursuance of that determination to receive the person above named into your custody and to deal with him in accordance with the orders of the Government and provisions of the Bengal States Prisoners Regulation, 1818. By order of the Governor-General in Council. (Sd.) R. Tottenham. Additional Secretary to the Government of India. In pursuance of this warrant, the appellant continued to be lodged in the said Ripon Hospital. There, on September 21, 1940, he was personally examined by Lieut. Col. A. Sargood Fry, I.M.S., Civil Surgeon, Simla East, who forthwith issued a certificate that the appellant was "a lunatic and proper person to be taken charge of and detained under care and treatment." It is not without importance to notice that Col. Fry's certificate on the face of it refers to Secs.18 and 19 of the Indian Lunacy Act (IV of 1912), and is obviously in the form prescribed by that Act, Some time seems to have elapsed before any action was taken on this certificate. On April 11, 1941, a second warrant was issued under the provisions of the Bengal State Prisoners Regulation, 1818, addressed to the Superintendent of the Indian Mental Hospital at Lahore in the following terms:- Whereas the Governor General in Council for good and sufficient reasons, being reasons connected with the discharge of the functions of the Crown in its relations with Indian States, has seen fit to determine that Birpal Singh, ex-Rana of Bhajji, shall be placed under personal restraint at the Indian Mental Hospital at Lahore, you are hereby required and commanded, in pursuance of that determination, to receive the person above named into your custody and to deal with him in accordance with the orders of the Government and the provisions of the Bengal State Prisoners Regulation of 1818. The warrant was expressed to be "By order of the Governor General in Council" and was signed by an additional Secretary to the Government of India in the Home Department. In pursuance of this warrant, the appellant was removed from Simla and lodged in the said Mental Hospital at Lahore, and there he has been detained ever since.

(2.) It would appear, that shortly after the issue of the warrant of April 11, 1941, some doubts (were felt by the issuing authority as to the validity of such a warrant, particularly as to whether it constituted a proper authority to the Medical Superintendent or other responsible official in charge of a Mental Hospital, for the reception and detention of the appellant and others, if any others there were in simili case, having regard to the provisions of Section 4 and other provisions of the Indian Lunacy Act, 1912. Accordingly, on June 26, 1941, an Ordinance (No. V of 1941) was made and promulgated by His Excellency the Governor General in the following terms:- The State Prisoners (Detention of Lunatics) Ordinance, 1941. {Ordinance No. V of 1941.) 26 June, 1941. An Ordinance to authorise the reception and detention in an asylum of individuals committed by warrants issued under the Bengal State Prisoners Regulations, 1818, to detention in that asylum. Whereas an emergency has arisen which makes it necessary to authorise the reception and detention in an asylum of individuals committed by warrants issued under the Bengal State Prisoners Regulation, 1818 (Ben. Reg. Ill of 1818), to detention in that asylum; . Now, therefore, in exercise of the powers conferred by Section 721 of the Government of India Act as set out in the Ninth Schedule to the Government of India Act, 1935, the Governor General is pleased to make and promulgate the following Ordinance:__

(3.) For some considerable time thereafter no legal action was taken by or on behalf of the appellant. On December 10, 1943, however, one Dr. P. N. Seth of Lahore, as next friend of the appellant, made an application for directions in the nature of habeas corpus under Sections 491 and 561A of the Criminal P. C. in the matter of the detention of the appellant. These proceedings are reported in A. I. R. (32). Lahore, at p. 274, at qeq. Eventually on June 7, 1944, after various questions had been referred to and decided by a full bench, the application was dismissed. A certificate under Section 205 of the Government of India Act, 1935, having been granted by the full bench, Dr, Seth filed a belated petition of appeal in this Court which on December 12, 1944, was dismissed on account of the undue delay in filing the petition.