MOHAMMAD MOHY-UD-DIN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against an order of a Full Bench of the Lahore High Court dismissing an application under Section 491 of the Criminal. Procedure Code for the release of one Burhan- ud-Din. Bnnhnn-ud-Din is a member of the ruling family of Chitral, an Indian State adjoining the North-West Frontier Province. The Ruler of Chitral has in recent times been recognised by His Majesty the King Emperor as a Ruler of an Indian State. Bnrhan-ud-Din is thus admittedly not a British subject 5 he, however, became an Indian Commissioned Officer in 1936 and was attached to the 2/10 Balueh Regiment of the Indian Army in which he attained the rank of Captain. In September-October, 1945, he was suspected of having committed offences under Secs.121 and 302 of the Indian Penal Code; and, pending investigation and disposal of these charges, he was kept in military custody according to the usage of the service. A general court-martial for the trial of Burhan-ud-Din was constituted in November, 1945, and he was arraigned before the court-martial in December, 1945, on the charges above referred to. The proceedings before the court-martial were going on when the application under Section 491 of the Criminal Procedure Code was filed before the High Court at Lahore, on December 20, 1945.

(2.) The offences charged against Burhan-ud-Din were alleged to have been committed in Rangoon and Singapore. It was submitted in support of the habeas corpus application that Burhan-ud-Din who was not a British subject was not amenable to the criminal laws of British India for offences alleged to have been committed outside British India and it was contended that so much of Section 41 of the Indian Army Act, 1911, as purported to confer jurisdiction en a court-martial to try non-British subjects for offences committed by them beyond British India, was ultra vires the Indian Legislature. It was accordingly urged that his detention in military custody for the purposes of the said trial was illegal. On behalf of the Crown, it was maintained that Section 41 of the Indian Army Act was in its entirety intra vires the Indian Legislature and that the detention of Burhan-ud-Din was legal. The High Court accepted this contention of the Crown and dismissed the application. The learned Judges granted a certificate to the effect that the case involved a substantial question of law as to the interpretation of the Government of India Act, 1935, and the Government of India (Adaptation of Indian Laws) Order, 1937, and on the basis of this certificate this appeal has been preferred.

(3.) When opening the case, counsel for the appellant conceded that no question as to the interpretation of the Government of India Act, 1935, arose in the case. The plea that Section 41 of the Indian Army Act, 1911, was to a certain extent invalid was based on Section 22 of the Indian Councils Act, 1861, with, some amendments made in the years 1865 and 1869, which was the law in force at the time the Indian Army Act of 1911 was enacted by the Indian Legislature. The Contention of the Crown in support of the validity of Section 41 of the Indian Army Act was based on Section 73 of the Government of India Act of 1833. It was thus clear that nothing turned on the Government of India Act, 1935. As regards Orders in Council under that statute, there was no doubt an alternative contention urged by the Advocate General before the High Court on the terms of the Adaptation Order of 1937. In the view that the learned Judges took on the main question, it became unnecessary to deal with this alternative argument and two of the Judges accordingly said nothing in their judgments about it. Abdul Rashid J. overruled this contention of the Advocate General; but, as he too agreed with the view of the other two Judges on the main question, his observations, on the effect of the Adaptation Order must be taken to be obiter, Before us, it was not found necessary to urge this contention based on the Adaptation Order. In the absence of any question involving the interpretation of the Government of India Act, 1935, counsel for the appellant could only rely on his petition asking for leave to urge other contentions and, in the circumstances of the case, he was granted leave to argue the point as to the validity of Section 41 of the Indian Army Act, 1911.