In Re: Erada Padinharedil Govindan Nair and Another

Walter Salis Schwabe, K.C., C.J.—In this case we are of opinion that the Writ of Habeas Corpus must go. The matter is urgent, and

therefore, we propose to direct the writ to go. The matter is also an important one, and it is desirable that our reasons should be put in writing and

delivered in the form of a formal judgment hereafter. But, meanwhile the order of the Court will be that a writ do issue, addressed to the Jailor,

Bellary Camp Jail, to this effect:

We command you that you have in the High Court of judicature at Madras, immediately after the receipt of this our Writ, the bodies of Erada

Padinharedil Govindan Nayar and Erada Padinharedil Raman Nayar being taken and detained under your custody, as is said, together with the day

and cause of their being taken and detained by whatsoever names they may be called therein, to undergo and receive all and singular such matters

and things as our said Court shall then and there consider of concerning them in this behalf; and have you there then this our Writ.

After the production of the said prisoners in obedience to the writ issued by this Court on Monday the 1st day of May 1922,

ORDER

This is a petition for a Writ of Habeas Corpus by two persons undergoing a sentence of 18 months for alleged participation in the Moplah

rebellion. They were charged with rioting u/s 147 I P.C. an offence cognisable by the ordinary Courts. It was alleged that they had assisted the

rebels in destroying a bridge. This they admitted, but stated that they were compelled to do so under threat of death. They alleged, owing to the

trial being summary and taking place away from the scene of action and far from their homes, they were not in a position to substantiate this

defence by evidence which they could have called if the trial had taken place under the ordinary law and in its proper place.

It is admitted that they were tried by a summary Magistrate appointed under Ordinance II of 1921 who held his Court at a place outside the

area in which Martial Law was proclaimed, the alleged offence having been committed inside such area. Acting under the powers conferred by

Section 72 of the Government of India Act, this Ordinance was made and promulgated by the Governor General. By it Martial Law was put in

force in certain areas called - Administration areas, and by Section 6, summary Courts of criminal jurisdiction might be constituted in any

administration area with summary powers of trial of certain minor offences connected with the rebellion. The Military Commander had power to

direct cases to be tried by Summary Courts and to distribute the work among such Courts. By Section 7, no Summary Court can try any offence

unless committed in the administration area in which such Court is established except as so provided, the ordinary criminal courts continued their

functions.

From the decision of such Summary Courts there is no appeal and further ''by Section 16 of the Ordinance all powers of interference with such

decision by writ of Habeas Corpus or otherwise is prohibited. It follows that if the court that tried the petitioners was a properly constituted court

under the Ordinance we have no power to interfere. But in our judgment this was not a court properly constituted under the Ordinance for we can

find no right at all to hold a summary court except in the martial law area, and by the words of the Ordinance the jurisdiction of these courts is

local. Outside the area the ordinary rules of law prevail and there is nothing in the Ordinance to prevent this Court interfering with the decision of

any court outside the area purporting to exercise a criminal jurisdiction which it does not possess. That this is the proper construction of the

Ordinance seems to have been recognised by the Government of India after these convictions by Section 10 of the Ordinance 1921 promulgated

on 11th November 1921. By that Section it was enacted: ""Notwithstanding anything contained in any law for the time being in force, the Local

Government may, by general or special order, appoint places outside the area in which Martial Law is in force at which any summary Court

constituted under the Martial Law Ordinance 1921, or special Magistrate may sit for the trial of offences.

It follows that the conviction of the petitioners was illegal and that there is no justification for their detention in prison. This view was also

expressed by Kumaraswami Sastri, J in In re Kochunni Elaya Nair 41 M.L.J. 441 a case in which it was not necessary for the decision, but we

think the Law was correctly laid down by that learned Judge.

The question remains, and has been fully argued before us, whether this Court has any power to interfere by the issue of a writ of habeas corpus

to the jailor of the jail in this Presidency in which the petitioners are confined.

The law can be stated to be that in every part of the British Empire every person has a right to be protected from illegal imprisonment by the

issue of the prerogative writ of habeas corpus. The King''s Bench in England exercised the power of issuing such writs throughout the British

Empire until the Statute known as the Habeas Corpus Act, 25 and 26 vie. C. 20 was passed. By that Act the powers of the King''s Bench are

limited to England and such places outside England which have no local Court competent to exercise the power. It follows that these petitioners

must have a right to such a writ and it is a matter of absolute right, either from a Court in this country, if there be one competent to grant it, or from

the Court of the King''s Bench sitting in London. In our judgment it is fully established that this Court has all necessary powers and is competent to

grant the writ. That it has such or other similar powers in the Presidency town of Madras is clear from S, 491 Criminal Procedure Code. But that

Code makes no provision for the exercise of that power in the mofussil. This Court has however succeeded under the High Courts of Judicature in

India Act, 24, 25 Vic. c. 104 and the Letters Patent issued thereunder to all the powers of the Supreme Court of Madras and that Supreme Court

had by its charter of 1800 Article 8 given to it the powers over ""all the Territories which now are, or hereafter may. be, subject to, or dependent

upon, the Government of Madras aforesaid; and to have such jurisdiction and authority as Our Justices of Our Court of King''s Bench have, and

may lawfully exercise, within that Part of Great Britain called England, as far as Circumstances will admit."" These words give to the Supreme Court

the right usually exercised by the King''s Bench in England of issuing the writ of habeas corpus.

This was definitely decided in the analogous case of Calcutta, Ameer Khan''s case in the able and illuminating judgment of Norman, J. approved

and followed in this Court in In re Nataraj Ayyar ILR 36 M. 72.

It has been contended on behalf of the Crown by Mr. Adam in his very able argument that as the Criminal Procedure Code in Sections 491 and

-156 makes provision for the exercise of similar powers in Madras and for the granting of such writs in the case of British subjects in all parts of

India, it must be taken to have been the intention of the legislature to confine the powers of this Court to such cases and that the power to issue the

writ in the mofussil which has been established in Ameer Khan Case 1 must be taken to have been impliedly taken away. In Our judgment this is

not sound for three reasons. In the first place, Section 491 merely substitutes or adds for the Presidency towns a different form of procedure less

cumbersome than the granting of the writ of habeas corpus, while Section 456 was necessary because in certain parts of India there was no High

Court established by Charter and as there was no Court in this country which could grant a writ of habeas corpus even to a European British

Subject in these parts it was thought necessary to give that power, and such power was given by that section.

Secondly, the right which had been established was as a substantive right and it could hardly have been the intention of the legislature to take

that right away by making rules of procedure or giving adjective rights for the exercise of similar powers. It is the sort of case where it can be fairly

argued that if the legislature intended to take away such an important right from the subject, it must use plain and unambiguous language, Thirdly, to

adopt such a construction of the Criminal Procedure Code would lead to this absurdity, namely, that a European unlawfully imprisoned would have

the right to obtain the writ in this Court while an Indian subject would have to go to the King''s Bench in London for his remedy; and there is a

sound rule that where one possible construction leads to an absurdity and another does not, the latter is to be preferred.

In our judgment, this Court has the power to issue this writ and in this case it is its duty to do so.

In obedience to the writ issued by this Court the prisoners having been brought before this Court, they are discharged.