DISTRICT MAGISTRATE Vs. KCMAMMEN MAPILLAI

JUDGEMENT

(1.) This Full Bench has been constituted to decide a matter referred under Rule 2 of the Rules applying to this Court in its appellate jurisdiction by Burn and Stodart, JJ., sitting as a Bench dealing with criminal cases. The matter involves the important question whether this Court has the power to issue a writ of habeas corpus as known to the English Common Law or whether its powers are confined in this respect to those conferred by Section 491 of the Code of Criminal Procedure, which gives authority to issue directions "of the nature of a habeas corpus . There are other questions involved in the reference and for their proper appreciation it is necessary to set out the course of events.

(2.) The respondents are the directors of the Travancore National and Quilon Bank, Limited, a company registered under the laws of the State of Travancore. A petition for the compulsory winding up of the company was recently granted by this Court and official liquidators have been appointed. On the night of the 20th October, 1938, the respondents were arrested in Madras in pursuance of extradition warrants issued under Section 7 of the Indian Extradition Act, 1903, for their arrest and surrender to the police of the Travancore State for production before the District Magistrate, Trivandrum, which is the capital of the State. It was alleged that the respondents had committed within the State of Travancore offences under the sections of the Travancore Indian Penal Code corresponding to Secs.409, 418, 420, 477-A. 109 and 114 of the Indian Penal Code and the District Magistrate at Trivandrum ordered their arrest. The extradition warrants were directed to the Chief Presidency Magistrate, Madras, and under his orders the Assistant Commissioner of Police, Crime Branch, Madras, arrested the respondents. The respondents were produced before the Chief Presidency Magistrate at 8-30 A.M. on the 21 October and the intention was to send them under arrest to the frontier of the Travancore State by the train leaving Madras at 11 A.M. Before the respondents were brought before the Chief Presidency Magistrate an application had been made to Pandrang Row, J., for theMssue of a writ of habeas corpus and for an interim order prohibiting their removal from Madras. The application was made under Section 491 of the Code of Criminal Procedure as the heading of the petition shows. The matter being urgent the learned Judge granted the interim order asked for and directed the Chief Presidency Magistrate to detain the respondents in his custody pending the further orders of the High Court, which meant pending the hearing of the main application. The interim order was served on the Chief Presidency Magistrate and the respondents were detained in accordance with the order. Later in the day the Crown Prosecutor presented a petition asking that the interim order be vacated on the ground that it had been passed without jurisdiction and was therefore null and void. The petition having been filed the Crown Prosecutor applied to me in Chambers to hear it. As I considered that sitting alone I had no power to deal with the matter I declined to do so. The Crown Prosecutor then applied to Pandrang Row, J., to vacate his own order. The learned Judge heard the arguments the next morning, the 22nd October, but refused to withdraw the interim order, intimating that he would give his reasons on Monday, the 24 October. The main application was in the list for that day of Burn and Stodart, JJ., who composed the Bench dealing with criminal matters. Rule 2-A of the Rules of this Court in its appellate jurisdiction requires an application for a writ of habeas corpus to be placed before the Bench dealing with criminal matters. The Court usually sits at 10-45 A.M., but Pandrang Row, J., delivered his judgment at 10-30 A.M. on the 24 October. Not only did he refuse to vacate the interim order but he held that Rule 2-A of the Appellate Side Rules was ultra vires and that he alone had power to deal with the main application, which he treated as an application for the issue of the prerogative writ of habeas corpus and not as an application under Section 491 of the Criminal P. C.. He considered that he had power to issue a writ of habeas corpus as known to the Common Law and based this decision on Eshugbayi Eleko V/s. Officer Administering the Government of Nigeria (1928) A.C. 459. and on Govindan Nair, In re . In the first case the Privy Council held that each Judge of the High Court of Justice established by the Judicature Act, 1873, has jurisdiction to issue a writ of habeas corpus and is bound to hear and determine the application on its merits, even when another Judge has refused a similar application. The same principle applied in the case of Judges of the Supreme Court of Nigeria. In the second case a Full Bench of this Court (Schwabe, C.J., Oldfield and Coutts-Trotter, J J.) held that this Court had power to issue a writ of habeas corpus outside Madras.

(3.) When the main application was called for hearing before Burn and Stodart, JJ., counsel for the respondents took the objection that the Court had no power to deal with the matter as Pandrang Row, J., was seized of it and a copy of the judgment of Pandrang Row, J., was produced. Counsel who appeared for the District Magistrate of Trivandrum on the other hand contended that Pandrang Row, J., had never directed that the substantive petition should be placed before him and he had never intended to dispose of it sitting alone. In view of the conflicting contentions, Burn and Stodart, JJ., communicated with Pandrang Row, J., with a view to ascertaining how the matter really stood. Pandrang Row, J., replied that the main application was pending before him and that in his view he had power to dispose of it. In these circumstances the learned Judges who formed the Bench decided that they could not go on with the hearing of the application as it was already before another Judge. On the 26 October, Pandrang Row, J., ordered that a writ of habeas corpus should issue to the Chief Presidency Magistrate directing him to produce the respondents before him at 10-45 A.M. on the 28th October. In view of this order the District Magistrate of Trivandrum filed an application asking the Court to declare that the orders passed by Pandrang Row, J., on the 21st, 24 and 26 October had been passed without jurisdiction and were void and of no legal effect and to quash them. The application was placed in the list for the 27 October of Burn and Stodart, JJ., who still composed the Bench dealing with criminal matters. The hearing commenced that day but as there was no time to hear the arguments advanced on behalf of the respondents and as Pandrang Row, J., had made the writ returnable the next day the Court directed that the operation of the writ should be stayed till the further orders of the Court. At the request of Counsel for the respondents the Bench adjourned the further hearing of the case until the 31 October. The hearing was concluded on the 1 November.