HARAMOHAN PATNAIK Vs. EMPEROR

JUDGEMENT

(1.) This is a petition for the grant of a certificate under Section 205(1), Government of India Act, 1935. The petitioner was arrested at the railway station at Garh Dhenkanal by the Government railway police under a warrant issued by the District Magistrate of Dhenkanal State, which is a Native State outside British India. After his arrest the petitioner was produced before a Magistrate at Cuttack, and after the Magistrate had satisfied himself that the petitioner was a subject of the Native State he directed that the petitioner should be handed over to the State authorities. The petitioner presented a petition in revision to this Court, but a Bench consisting of Agarwala J. and myself dismissed that petition.

(2.) We held that the petitioner had been lawfully arrested on railway lands and detained at Cuttack, and in our view the learned Magistrate at Cuttack had no alternative after ascertaining that the petitioner was a subject of Dhenkanal State but to hand him over to the Dhenkanal State authorities. At the conclusion of the hearing, counsel for the petitioner was asked whether he desired the Court to consider whether a certificate should be granted under Section 205(1), Government of India Act. Counsel then made it clear that he did not wish us to consider the question as he contended that he had an appeal as of right to the Federal Court.

(3.) Subsequently, an application was made to this Bench to direct the authorities at Cuttack not to hand the petitioner over to the Dhenkanal authorities until the appeal which had been filed in the Federal Court had been disposed of. A recent authority of the Federal Court has compelled the petitioner to ask this Court to grant him a certificate to appeal to the Federal Court, and the matter has now been argued fully before us. The question that this Court had to decide in the revision petition was a question of the construction of a notification or order of the Foreign and Political Department No. 34 I.B. dated 14 January 1937. This notification purports to have been made in the exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and of all other powers enabling the Governor-General in that behalf to make the order. The notification deals with the duties of Magistrates and police officers having jurisdiction over railway lands situate in Native States in cases where warrants have been issued by Magistrates of Native States. The material portion of the notification which this Court had to consider is in these terms: All criminal processes issued in a manner similar to that prescribed by the Criminal P. C., 1898, by a Magistrate having jurisdiction in any State in India shall be acted upon and executed in railway lands lying within such State by all Magistrates and police officers having jurisdiction in such railway lands under the same conditions and in the same manner as if such processes had been issued by a Magistrate having jurisdiction in such railway lands.... Provided further that nothing hereinbefore contained shall require a Magistrate or police officer having jurisdiction in such railway lands to execute any process so issued against any person who is not a subject of the State by the Court of which the process has been issued or be construed as authorizing him to execute any such process against any subject or servant of His Majesty.