In Re: Kochunni Elaya Nair

Spencer, J.—This is an application for the issue of a writ of Habeas Corpus to cause the person of Kochunni Elaya Nair to be brought up

before the High Court for the purpose of determining the legality of his detention. The accompanying affidavit states that Kochunni Elaya Nair the

second stanee of the Mannarghat Nair family was arrested on September 3rd and imprisoned in the Palghat Sub-Jail. It is alleged that he had at the

moment of arrest just arrived at his own residence situated within the limits of the Palghat Municipality and that after some question being put to him

as to the Moplah outbreak at Mannarghat the Assistant Superintendent of Police directed the Inspector to take him into the Sub-jail, that no

warrant of arrest was shown to him and that he was not told anything about ''the offence with which he was charged. He was accordingly taken to

the Sub-Jail, and on the 6th September an application for bail was put in before the Sub-Divisional Magistrate of Palghat and was summarily

rejected. It is added that the Taluk of Palghat, and the town of Palghat within which the petitioner''s residence and the Sub-Jail are situated, are

outside the Martial Law area.

The Public Prosecutor informs us that he is instructed by the District Magistrate of Malabar to say that the accused is charged with having

committed offences under Sections 121, 395, 431, 436, and 380 I.P.C . and abetment of the same committed within the Martial Law area and

that he will be sent up for trial by the Special Tribunal constituted under Ordinance No. Ill of 1921 of the Government of India published in the

Gazette of India, September 5,1921.

Mr. Section Srinivasa Iyengar on behalf of the petitioner contends (1) that the accused could not be legally arrested for ad offence committed

inside the Martial Law area when he was at the time of arrest at a place outside it and (2) that the Magis trate Mr. Batty, before whom he was

brought and who refused to release him on bail was at Palghat, a place outside the Martial law area, and had no jurisdiction to exercise his powers

at that spot seeing that Clause 6 of Ordinance No. II of 1921 dated 26th August 1921 provides for the constitution of summary courts of criminal

jurisdiction for the purposes of tnis Ordinance in any administration area that may be proclaimed as a Martial Law area under Clause 2. He argues

that ""in any administration area"" means within the area and not for that area.

The first point for which the learned Vakil is contending is a very strange one. It amounts to this that an offender has only to slip out of the

Martial Law area to be immun from arrest and trial for acts done by him inside that area. The ordinary rule as to jurisdiction is that it is the

a''reawithin which the offence is committed and not the place where the offender may be found that determines the court which has jurisdiction to

try the offence: See''S. 177 of the Code of Criminal Procedure. Section 54 of the Criminal Procedure Code authorizes any police officer to arrest

without a warrant and without ah order from a Magistrate a person who has been concerned in any cognisable offence, and the offences referred

to by the Public Prosecutor or some of them are cognizable offences. Section 58 authorizes a police officer, for the purpose of arresting without

warrant any person whom he is authorized to arrest under this Chapter (V) to pursue such person into any place in British India. Section 60 directs

a police officer making an arrest without warrant to take the person arrested without unnecessary delay before a Magistrate having jurisdiction in

the case. There is no alteration of the law in this respect in consequence of the constitution of Martial Law courts. The provisions of the Code of

Criminal Procedure are not abrogated or suspended by the introduction of Martial Law. On the contrary, Clause 12 and the other clauses of

Ordinance No. II indicate that the courts constituted under the ordinance will follow, as far as possible the procedure Laid down in the Code.

Presumably the police will as early as possible take the petitioner into the Martial Law area and obtain the orders of a court constituted under that

Ordinance. This they can do without any order of the nature of an extradition order seeing that the whole of the Malabar District, a portion of

British India, is under the administration of the British Government. It is for the petitioner''s vakil to show that the police acted Without jurisdiction

in this instance and as he has not succeeded in doing this the first point raised by him fails.

I now proceed to deal with the second contention raised. The powers vested in this Court to issue writs of Habeas Corpus in the Presidency

town are contained in Section 491 of the Criminal Procedure Code. Analogous powers are given us by Section 456 in respect of European British

subjects in any part of our jurisdiction whether in the City of Madras or in the mofussil. In In re Natataja Iiyer ILR (1912) Mad. 72 , Sundara

Aiyar and Sadasiva Aiyar JJ. expressed an opinion following In re Ameer Khan (1870) 6 B. L.R. 392 that the High Court has by virtue of Clause

8 of the Charter Act power to issue writs of habeas corpus even outside the City of Madras and in respect of all British subjects whatsoever.

Assuming that these learned Judges were right in this view, if we attempt to issue a writ of Habeas Corpus in the present case we are confronted

with Clause 1,6 of Ordinance No. II of 1921 which declares that no court shall have authority to make any order u/s 491 of the Code of Criminal

Procedure or to revise any order or sentence or to transfer any case from a summary court or have any jurisdiction of any kind in respect of any

proceedings of the summary court. But Mr. Srinivasa Iyengar contends that if a Magistrate vested with powers of a summary court in a Martkil

Law area steps outside that area and attempts to exercise his functions outside the territorial jurisdiction assigned to him by the Ordinance,'' His

acts will be illegal and subject to our control and revision. We understand that Mr. Batty is the Sub-Divisional Magistrate of Palghat Division and

that he ordinarily exercises the powers of a First Class Magistrate in Palghat which is outside the Martial Law area. If then the petitioner was

brought before him by the police as being the nearest Magistrate referred to in Section 167 of the Code of Criminal Procedure he would, as Sub-

Divisional Magistrate have authority to authorize the detention of the accused in such custody as he might think fit for a term not exceeding 15 days:

or, if he had no jurisdiction to try the case he might order the accused to be forwarded to a Magistrate having such jurisdiction. If, on the other

hand when the prisoner was brought before Mr. Batty, he was purporting to act as a court of summary jurisdiction constituted by the Martial Law

Ordinance what would be the proper order he should make upon an application being made to him? The proper course to be taken by a

Magistrate who has no jurisdiction would be to decline jurisdiction and to reject the application on that ground. We must now see what is the illegal

act which Mr. Batty is alleged to have committed according to the affidavit attached to the petition. This affidavit states that when an application for

bail was put in before the Sub-Divisional Magistrate on the 6th September he summarily rejected the application''without even hearing the vakil.

Now to summarily reject an application would be the only course open to a Magistrate who finds he has no jurisdiction to deal with it; and in this

view there was nothing illegal in theprocedure of Mr. Batty and no act committed by him with which we could interfere assuming that we have the

power to do so. It is not stated in the adffidavit that Mr. Batty ordered the petitioner to be remanded to prison but it is, alleged that it was the

Assistant Superintendant of Police who said "" Better shove him in the Fort to-day"" and directed the Inspector to take him there.

The result is that this point also fails and the applieation is dismissed.

There is a connected Cr.M.P. No. 410 of 1921 applying for the issue of a writ of certiorari which fails and must be dismissed for the same

reason.

As regards Cr.M.P. No. 411 of 1921 which is an application to release the petitioner on bail, the information that we have is that the petitioner

is arrested in connection with non-bailable offences. No further details are before us and in the absence of such details we should not in any case

exercise a discretion in the petitioner''s favour. That petition is also dismissed.

Kumaraswami Sastri, J.

This is an application for the issue of a writ of Habeas Corpus by the petitioner who is charged with having committed offences under Sections

121, 395, 431, 436, and 380 of the Indian Penal'' Code alleged to have been committed by him within the area proclaimed to be under Martial

Law. He was arrested by the police while he was in Palghat a place outside the area and was remanded to Jail by Mr. Batty (who is the Sub

Divisional Magistrate of the Palghat Division and also a Magistrate invested with summary powers of trial under the Martial Law Ordinance) under

orders of the Military Commander for the purpose of the petitioner being sent for trial before the Special Tribunal constituted under Ordinance III

of 1921. The grounds urged on petitioner''s behalf are (1) that the police had no power to arrest a person who commits an offence within the

Martial Law area but is found outside: (2) that the jurisdiction of summary courts and of Magistrates empowered to try offences conferred by

Ordinance II of 1921 is purely territorial and that consequently Mr. Batty who purported to act as a Martial Law Magistrate outside the Martial

Law area is without jurisdiction thus making the detention in jail illegal. It was also contended that the speciai tribunal constituted under Ordinance

III would have no power to try offenders who are found outside the Martial Law area even though-the offences were committed within the area. I

do not think it necessary to go into this question which is one to be decided by the tribunal when the petitioner is placed before it for trial.

The power of the High Court as an abstract question of law, to issue a writ of Habea Corpus in the present case is not contested by the Public

Prosecutor though he contends that the facts of the case will not justify the High Court in issuing the writ. It has been held in re Nataraja Iyer ILR

(1912) Mad. 72 and in re Amir Khan (1870) 6 B.L.R. 392 that the court has jurisdiction having inherited the power from the Supreme Court. This

jurisdiction is apart from the power conferred by Section 491 of the Code of Criminal Procedure and is in no way curtailed by the provisions of

the section. The Martial Law Ordinance excludes powers conferred by Section 491 and does not refer to the general jurisdiction to issue the writ.

Moreover Section 16 cannot apply to cases where the acts of the Martial Law Magistrates are wholly without jurisdiction, for example when he

proceeds to places outside the Martial Law area and tries persons or passes sentences. It only applies to acts done within the jurisdiction and

powers conferred by the Ordinance however illegal or irregular such acts may be, and not to proceedings passed wholly without jurisdiction.

As regards the first contention, I do not see anything in the Martial Law Ordinance which prohibits the arrest of persons who commit offences

inside the Martial Law area but escape outside. The Penal Code has not been abrogated within such areas and so far as the arrest of such

offenders is concerned the provisions of the Code of Criminal ''Procedure will apply so far as the arrest outside is concerned. Section 54 of the

Code of Criminal Procedure gives the police power to arrest without a warrant a person who is charged with the offences with which the petitioner

is charged and it seems to me that it makes no difference where the offence was committed so long as it is within British India. Section 60 directs

that the person arrested should be produced without unnecessary delay before a Magistrate having jurisdiction in the case or before the officer in

charge of a police station. u/s 167 a Magistrate whether he had jurisdiction or not to try the case can order detention of the accused in custody for

a period not exceeding 15 days and if he has no jurisdiction to try the case he can order the accused to be taken to the Magistrate having

jurisdiction. Mr. Batty as Sub-Divisional Magistrate had power to remand the petitioner.

As regards the second objection it must be borne in mind that u/s 6 of the Ordinance it is only persons who are already Magistrates that are

appointed under the provisions of the Code of Criminal Procedure to exercise the power of a summary court. It is a specific power conferred on

one whohas the other ordinary powers of a Magistrate. There can be little doubt that their powers to sit as Magistrates trying offenders brought

before t||e summary courts for, trial are purely territorial and that they cannot exercise their powers of trial outside the Martial Law area. Section 2

provides that Martial Law shall be in force and the provisions of the Ordinance shall apply in the area specified in the schedule and such other area

as the Governor-General in Council may by notification direct. Section 3 refers to the administration of Martial Law in any area in which Martial

Law is in force. Section 6 provides for the establishment of summary courts in any administrative area. Section 7 directs that no summary court

shall try any offence unless such offence wes committed in the administration area in which the court is constituted. These provisions make it clear

that a Magistrate appointed u/s 6 cannot try offences committed outside the area or hold court outside. There is however nothing in the Ordinance

to show that as Magistrates appointed under the Code of Criminal Procedure they cannot exercise the functions assigned to such Magistrates

outside the area when the proceedings have not reached th stage of trial but are only in the course of investigation preliminary to the offender being

charged before a Magistrate. When a Divisional Magistrate is also appointed to try offences under S, 6 there is nothing to prevent nis exercising

the ordinary powers of a Magistrate outside the area and arresting or remanding persons who are charged with offences inside the Martial Law

area with a view to their being brought to trial inside the area or before the Special Tribunal.

Even if Mr. Batty was technically wrong in acting in his capacity of special Magistrate I think the defect would only be an irregularity as his act

would have been perfectly legal if he had acted as Sub-Divisional Magistrate. When a Magistrate is vested with more than one pwer under one of

which only he has power to order a remand piurports to act in the exercise of another power which gives him no authority to do so the case is one

of irregularity which can be cured by the amendment of the order where there is no prejudice to the accused. It is not shown that the accused

would be in a better position if Mr. Batty had issued the order in h.is capacity of Sub-Divisional Magistrate.

In cases like the present when the arrest itself is not illegal and the offences are non-bailable I do not think the High Court will be exercising a

proper discretion in directing the issue of a writ and directing the accused to be brought before it. Even assuming that the remand is irregular there

is nothing to prevent the police from arresting the accused the moment after his release is ordered and taking him before the nearest Magistrate and

getting a remand. If it is brought to the notice of the Court that the Magistrate ordering the remand ought to have acted in one capacity rather than

in another the proper course will be for the High Court to direct the Magistrate to remand the accused according to law.

There is also another reason why I do not think I ought to interfere at this stage; while the case was being argued the government constituted

the Special Tribunal before which the petitioner would be sent for trial. Section 6, Clause 1 of Ordinance III of 1921 dispenses with the committal

of the accused for trial and all that has to be done is for the petitioner to be taken before it for trial. He can apply for bail to the Tribunal as it has all

the powers of a Court of Session having original jurisdiction and as appeals from the Tribunal lie to the High Court he can move this Court if bail is

wrongly refused. He has therefore an adequate remedy. I dismiss the petition for a Habeas Corpus.

The petition for the issue of a writ of certiorari is not pressed and is dismissed.

I do not think that I ought, at this stage and on the scanty materials before me, to direct the release of the petitioner on bail and I accordingly

dismiss the petition without prejudice to his applying later on, if he is so advised.