In Re: P. Venkatachala Thevar; In Re: M.V. Sivasankara Thevar

Horwill, J.—By an order, dated the 25th March, 1948, this Court dismissed an application on behalf of the petitioner u/s 491, Criminal

Procedure Code. The petitioner has now filed this civil miscellaneous petition on the civil side praying for grant of a certificate for filing an appeal to

the Federal Court of India.

Section 3 of the Federal Court (Enlargement of Jurisdiction) Act, 1947 (Act I of 1948) gives a right of appeal to the Federal Court from any

judgment to which this Act applies; and Section 2 (b) defines the expression ""judgment to which this Act applies "" as meaning "" any judgment,

decree or final order of the High Court in a civil case....

The preliminary question arises whether the order passed by us was in a civil case.

Section 491 empowers any High Court whenever it thinks fit, to direct,

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; and (b) that

a person illegally or improperly detained in public or private custody within such limits be set at liberty;...

The words ""within such limits"" clearly apply to the limits of its appellate criminal jurisdiction, as set out in Section 491(1)(a). Despite the wording of

Section 491, which indicates that the powers of this Court are limited to its appellate criminal jurisdiction, it is argued on the authority of certain

decisions to which we have been referred that the order passed by this Court was an order in a civil case. In Mahomedalli Allabux v. Ismailji

Abdulla ILR (1926) Bom. 616, the question that arose was whether an appeal lay from an order directing the issue of a writ of Habeas Corpus;

and the learned judges held that an appeal did lie u/s 15 of the Charter. The learned Chief Justice who delivered the leading judgment, did not think

that an order directing the issue of a writ of Habeas Corpus was in the exercise of its criminal jurisdiction; but he expressed no opinion with regard

to an order u/s 491 of the Criminal Procedure Code. The learned Chief Justice, after setting out the facts, said:

By the Charter of 1823 there was given to the Chief Justice and the Puisne Justices of the Supreme Court such jurisdiction and authority as

Justices of the Court of King''s Bench had, and might lawfully exercise, within that part of Great Britain called England as far as circumstances

would permit. The High Court still retains such powers as were granted by the Supreme Court Charter of 1833, as were not inconsistent with the

Charter of 1865 or have not been taken away by subsequent legislation.

The learned Chief Justice then went on to say that Section 491 of the Criminal Procedure Code did not take away the powers that the High Court

had as the successor of the old Supreme Court. The learned Judges based their decision on the assumption that they had this inherent power

beyond any jurisdiction conferred u/s 491, Criminal Procedure Code. It is conceded that in view of the Privy Council decision in 48 CWN 18

(Privy Council) the High Court had no such inherent jurisdiction. We are unable, therefore, to find in this decision any authority for the position that

the order passed by this Court in Crl. M.P. No. 439 of 1948 is a civil order. For the position that an order passed u/s 491, Criminal Procedure

Code, is a civil order, the learned advocate for the petitioner relies on a dictum of Mitter, J., in a case decided by a Full Bench of the Calcutta High

Court in Niharendu Dutt Majumdar v. A.E. Porter ILR (1944) 1 Cal. 489., Mitter, J., said:

A Habeas Corpus proceeding (and a proceeding u/s 491, Criminal Procedure Code, is of the same nature) is in essence a civil proceeding, for it is

concerned with the private right of a citizen, namely, the right of personal liberty. The true nature of a proceeding by Habeas Corpus should be

determined by its object, which is not to punish, but to give relief from a civil wrong.

We would, however, like with due respect to point out that the unlawful detention of a citizen is not merely a civil wrong, but a criminal wrong,

punishable under the Penal Code; and the fact that the prayer in an application u/s 491 is not for some punishment is not an indication that the

application is of a civil nature. Although under the Penal Code punishments are awarded, it is not in every criminal proceeding that a punishment is

sought; for many of the provisions in the Criminal Procedure Code for example are for the purpose of maintaining order and for ensuring the public

safety. It is pertinent in this connection to point out that Madras Act I of 1947, under which the petitioner has been detained, is for the maintenance

of public safety and the putting down of disorders involving a menace to the peace and tranquility of the Province; and the Provincial Government,

or the authority to whom the Government has delegated its power is authorised u/s 2(1):

If satisfied with respect to any particular person that he is acting or about to act in any manner prejudicial to the public safety or the maintenance of

public order.

to make an order directing that he be detained. We are therefore of opinion that the order passed by us was in the exercise of our criminal

jurisdiction. Their Lordships of the Privy Council assumed this to be so in the King-Emperor v. Sibnath Banerji (1945) 2 M.L.J. 325 : 1945 F.L.J.

It is not however even necessary to go so far as to say that it was passed in the exercise of our criminal jurisdiction; for no appeal lies to the

Federal Court unless it was in the exercise of our civil jurisdiction; and we are firmly of opinion that it was not in our civil jurisdiction that we

passed the order we did.

The petition is dismissed.