A K GOPALAN Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) These applications have been placed before me by an order of the Chief Justice as there was a difference of opinion between Subba Rao, J. and Mack, J., when they were heard by them in the first instance. At the outset it is to be observed that the learned Judges who differed in their opinion should have stated the point upon which they differed as the proceedings under Section 491, Criminal Procedure Code, are governed when there is a difference of opinion by Clause 36 of the Letters Patent and not by Section 429, Criminal Procedure Code. The jurisdiction exercised by the High Court under Section 491, Criminal Procedure Code, is not an appellate jurisdiction and therefore Section 429 of the Code does not apply. The proceedings are analogous to the proceedings under Section 195 of the Code before it was amended in 1923. A Full Bench of our Court decided that the power conferred upon the High Court by Section 195 (6) of the Criminal Procedure Code before the amendment in 1923 is not a part of appellate or revisional jurisdiction of this Court conferred by Chapters 31 and 32 of the Criminal P. C.. It is a special power conferred by Section 195(6). It follows therefore that when the Judges are equally divided, the case is governed by Section 36 of the Letters Patent and not by Section 429 or Section 439 of the Criminal P. C.. The learned Judges therefore ought to have formulated the point on which they differed. The learned Counsel appearing for the petitioner and the learned Advocate-General appearing for the respondent have, however, agreed that the question dealt with in the judgment of Subba Rao, J., may be taken as the point on which the learned Judges differed. In order to obviate the necessity of a further reference back I have accepted this suggestion.

(2.) The facts of the case have been fully set out in the judgment of Subba Rao, J. It is therefore unnecessary for me to repeat the facts in extenso in this judgment. In both the applications, the petitioner is the same and the relief sought is also" the same. The District Magistrate of Malabar passed an order, dated the 22nd April, 1948, directing the detention of the applicant under Section 2(1)(a) of the Madras Maintenance of Public Order Act, 1947 (Madras Act I of 1947) The order was served on the petitioner on the 23 of April, 1948. At the time of the passing of the order, the petitioner was in jail as an under-trial prisoner He was in jail from 17 of December, 1947, as an under-trial prisoner till now except for a break between the nth of February, 1948 and the 6 of March, 1048 when he was released on bail. On 6 May, 1948, this Court in Crl. M. P. No. 1014 of 1948 directed the release of the petitioner on bail and when that order was passed this Court was not aware of the fact that there was a detention order already passed by the District Magistrate under the Madras Maintenance of Public Order Act, Section 2(1)(a).

(3.) These petitions were filed by the detenu questioning the legality of the order of the District Magistrate on various grounds. Subba Rao, J., was of the opinion that the order of detention was ex facie bad and that the petitioner should be released forthwith. Mack, J., was of the opinion that the petition should be dismissed as in the learned Judge's opinion the order of detention was legal.