RAMJI LAL S/O MAHADEO PARSAD Vs. REX

JUDGEMENT

(1.) This Full Bench has been constituted to answer the following questions of law: (1) When an amended petition under Section 491, Criminal P.C., is presented on behalf of a person in detention, does the presentation of the amended or fresh petition make the original petition infruotuoua, in a case where of the amended petition cognizance has been lateen by a Judge and notice on it issued 1 Whether in Aese circumstances has an Hon ble Judge before whom ihe original petition is laid power to deal with it? (2) When a petition under Section 491, Criminal P.C., is already pending in the High Court, whether a petition resented substantially on the same facts subsequently can be dealt with by the Court before the first petition is disposed of? (3) Whether any petition under Section 491, Criminal P.C., or under any other section can be presented direst to an Hon ble Judge and entertained by him. In other words, can a petition under Section 491, Criminal P.C., be made to a Judge of this Court direct? (4) If a petition under Section 491, Criminal P.C., is disposed of on merits, can a fresh petition lie on the same facts and with the same object (i) when all the questions raised in the said petition were disposed of in the first, and (ii) when some of the points raised in the second petition were disposed, of in the first petition but the rest were left undecided?

(2.) These questions arise in two separate references made to us. The first three questions were referred to the Full Bench by the Hon ble the Chief Justice in Criminal Miscellaneous No. 289 of 1948. The fourth question along with the third was referred to the Full Bench by my brother Teja Singh in criminal Miscellaneous No. 290 of 1948. The third question is common to both the references. All these questions involve within their scope the determination of the point whether the rule of Pjnglish common law in respect of writs of habeas corpus prevails in India and has been substantially enacted in the statutory provisions of Section 491, Criminal P. 0., and whether that rule is the one that should be followed under the provisions of that section? It was not denied that the common law writ of habeas corpus cannot be issued by this Court, but the contention raised is that in the absence of any statutory prohibition the common law practice relating to writs of habeas corpus should be followed in the analogous proceedings under Section 491 of the Code on the ground that this is a salutary and reasonable practice. It was said that as the powers to be exercised are similar, so the procedure to be followed should also be similar. Baron Parke in the case of Ex parte Partington 1845-14 L.J. Ex. 122: (18 M. & W. 679) made the following observations about the procedure to be followed under the common law in such matters: This case has already been before the Court of Queen's Bench on the return of a habeas corpus and before my Lord Chief Baron at Chambers on a subsequent application for a similar writ. In both instances the discharge was refused. The defendant, however, has a right to the opinion of every Court as to the propriety of his imprisonment and, therefore, we hate thought it proper to examine attentively the provisions of the statute without considering ourselves as concluded by these decisions.

(3.) If every Judge has jurisdiction to order the writ to issue then each Judge is a tribunal to which application can be made within the meaning of the rule and every Judge must hear the application on the merits.