Haramohan Patnaik vs Emperor

Harries, J.—This is a petition for the grant of a certificate u/s 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.

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 u/s 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.

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 14th 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 Code of Criminal Procedure, 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.

As I have stated, the petitioner was arrested on railway lands upon a warrant issued by the District Magistrate of the State of Dhenkanal. Having been arrested by the railway police he was taken to Cuttack in British India and placed before a Magistrate. He was asked whether he was a subject of Dhenkanal State, and he admitted that he was. The learned Magistrate then directed that he should be handed over to the Dhenkanal State authorities. The points in the revision petition were whether the conduct of the railway police and the Magistrate was in accordance with the terms of this notification and whether the order or notification was intra-vires the power of the Governor-General in Council. This Court having held that the Police and the Magistrate had acted properly, the petitioner appealed to the Federal Court. Presumably, he intends to argue the same points in the Federal Court as were argued in this Court.

I need not go into the details of the argument adduced before this Court as such are fully set out in the judgment delivered by this Court in the revision petition.

The question which now arises is whether the decision of this Court involves a substantial question of law as to the interpretation of the Government of India Act or any order in Council made thereunder. If the decision does involve such a question, the Court must grant a certificate. If the decision does not involve such a question, then, in my view, this Court cannot grant a certificate. It has been urged before us that the Government Notification which this Court was called upon to construe was an order made under the Government of India Act. The notification or order purports to have been made by the Governor-General in Council in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and of all powers enabling him in that behalf. There is no reference whatsoever to the Government of India Act, 1935, in the order under consideration. On the contrary, it is in terms said to be an order made under powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902. In my view the order which this Court had to consider cannot possibly be regarded as an order made under the, Government of India Act, 1935. Sub-section (1), Section 2, Government of India Act, deals with the exercise of rights, authority and jurisdiction heretofore belonging to His Majesty the King. The proviso to that Section is in these terms:

Provided that any powers connected with the exercise of the functions of the Grown in its relations with Indian States shall in India, if not exercised by His Majesty, be exercised only by, or by persons acting under the authority of, His Majesty''s Representative for the exercise of those functions of the Crown.

Sub-section (2) of Section 3, Government of India Act, defines His Majesty''s Representative for the exercise of the functions of the Crown in its relations with Indian States, and that person is now the Governor General. On 18th March 1937, the Indian (Foreign Jurisdiction) Order, 1937, was made by His Majesty in Council, and Section 2(i) provides:

As from the commencement of Part III, Government of India Act, 1935, the powers conferred by the Principal Order on the Governor-General in Council shall, so far as they are connected with the exercise of the functions of the Crown in its relations with Indian States, be powers of His Majesty''s Representative for the exercise of those functions of the Crown, and he may delegate those powers to such extent and in such manner as he thinks fit.

It is clear that under the Government of India Act, the relations between the Crown and Native States were to be matters to be dealt with by the Governor-General and not by the Governor-General in Council as was the case previously. It is clear from the Indian (Foreign Jurisdiction) Order, 1937, that after the Act came into force all orders under the Foreign Jurisdiction Act and the Indian (Foreign Jurisdiction) Order in Council, 1902, would have to be made by the Governor-General and not by the Governor-General in Council as previously. However, the order which this Court had to consider was an order made not by the Governor-General as the Crown Representative but an order made by the Governor-General in Council under the Foreign Jurisdiction Act and Indian (Foreign Jurisdiction) Order in Council, 1902. It was an order dated 14th January 1937, and was actually made before the Indian (Foreign Jurisdiction) Order 1937 was passed and before the Government of India Act came into force.

Section 320, Government of India Act, expressly provides that the Parts of the Act other than Part II should come into force on the date fixed for the commencement of Part III of the Act and Part III of the Act came into force on 1st April 1937. In short, there was no power under the Government of India Act to make any orders in Council relating to Foreign Jurisdiction until 1st April 1937. As the order in question was made by the Governor-General on 14th January 1937, it cannot possibly be said to have been an order made under the Government of India Act, 1935.

The case was a difficult one and involved a substantial point of law. That however does not entitle this Court to grant a certificate u/s 205(1), Government of India Act. It must be a substantial point of law as to the interpretation of the Act or of any Order in Council made under the Act. As the Order in Council which this Court was called upon to construe was not made under the Act, the Court cannot grant the certificate prayed for in this petition. For the reasons given I would reject this petition.

Agarwala, J. 9. I agree.