RAONAKALI ROSHANALI Vs. EMPEROR

JUDGEMENT

(1.) These are eight applications under Section 491, Criminal, P. C. by per] eons who are detained by the Provincial Govern, ment and are in the nature of petitions for the issue of writs of habeas corpus. The main point which has been argued before us by Dr. Kedar is whether Section 2, Ordinance no. II of 1918 (The Central Provinces and Berar Criminal Procedure (Amendment) Ordinance 1948), is ultra vires the Governor of the Central Provinces and Berar. The Crown was not called upon to reply.

(2.) The learned Counsel for the applicants urges that the matter covered by the impugned section of the Ordinance relates to items Nos. 29 and 42 of the Federal Legislative List in the Seventh Schedule to the Government of India Act, 1985, and that the Provincial Legislature and the Governor are equally incompetent to legislate in this field, He invokes the non obstinate clause in Section 100 (l), Constitution Act.

(3.) The impugned section provides as follows: "Notwithstanding anything contained in the Criminal P. C., 1898 (hereinafter referred to as the Code), no person accused or convicted of a contravention of any provisions of the Indian-Arms Act. 1878, Or any rules or orders made thereunder shall, if in custody, be released on bail or on his own bond unless: (a) the prosecution has been given an opportunity to Oppose the application for such release, and (b) where the prosecution opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. This section reproduces R, 130-A, Defence of India Rules, with which Courts had to deal in the past.