K.S. Prahladsinhji vs Chunilal B. Desai

This is an application by K.S. Prahladsinhji of Rajkot against the opponent. The application is filed against the order of the Sessions Judge of Central Saurashtra, who held in a revision application before him that the order of the trying Magistrate, directing process to issue against the present applicant, was correct and that he had the jurisdiction to pass such an order.

The contention on behalf of the present applicant before the Magistrate was that as the present applicant, who was the opponent No. 2 in the original proceedings, is a minor son of His Highness the Thakore Saheb of Rajkot, he cannot be proceeded against inasmuch as there was a bar under Article 12 of the Covenant entered into by the Thakore Saheb of Rajkot. That Article states that the Ruler of each Covenanting State as also the member of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State immediately before 15th August 1947. This Article is quite general in terms and it says that whatever privileges, dignities etc., have been enjoyed by the members of the Ruling family, they shall be entitled to enjoy in future. In these proceedings, the present opponent has filed an application before the Magistrate u/s 145, Code of Criminal Procedure, on account of a dispute about certain immovable property, which is a Theatre at Rajkot. The original lease with regard to this property seems to have been passed by its owner in the name of the constituted attorney of K.S. Prahladsinhji. It is conceded that on the date of the lease as well as to day K.S. Prahladsinhji is a minor and that he was represented as his guardian by his father His Highness the Thakore Saheb of Rajkot. The present applicant took his stand on his alleged right of not being proceeded against in civil or criminal proceedings because of Article 12 of the Covenant. Both the lower Courts have held that this Article was no bar to the present proceedings being launched against the present applicant inasmuch as he is not proved to have enjoyed any privilege of not being proceeded against in a Court of law. Even before us it is conceded that there is no law under which he enjoyed any such immunity.

The only order to which our attention is being drawn by the learned Advocate of the applicant is an order of 1887 passed by the then Thakore Saheb of Rajkot, which states that no servant of the State can be proceeded against in any Court of law of Rajkot without the sanction of His Highness. That order clearly applies only to the servants of the State. It is, however, contended that if the servants of the State enjoyed such right, a member of the Ruling family must necessarily be deemed to enjoy similar rights also. But that argument is absolutely erroneous. The servant of the State does any act under the colour of his authority, and it is therefore, that His Highness sanction was necessary. But no such thing can be said with regard to the member of the Thakore Saheb''s family. If it was the intention of His Highness to include the members of his family in this order, there was nothing to prevent him to do so. It is quite clear therefore, that this order does not apply to the present proceedings.

It is then contended that there are certain Notifications, which are of a political nature, in which it is held that a jurisdictional or nonjurisdictional Talukdar cannot be proceeded against or be debarred from coming on the Gadi without the sanction of the higher authority. These Notifications also do not apply to the present case. What we really want is a positive law or privilege, under which the members of the Ruling family have enjoyed immunity from being proceeded against in any Court of law. The present proceedings are quasi-criminal in the nature and there is no bar in our opinion to any person from being proceeded against u/s 145, Code of Criminal Procedure, unless it is quite clear that he is immune from being proceeded against under that section.

We do not express any opinion on the merits of the case. It may be that the Thakore Saheb might have taken the lease in the name of his minor son, although the real lessee was himself. All that we have got before us is the name of his son as the lessee of the property and all that we decide at present is that the process can be issued against him in these proceedings. The learned Advocate of the applicant has referred to Section 363, Constitution Act; but that would apply only, if the applicant''s case was covered under the Covenant. As we hold that Article 12 of the Covenant does not apply, Section 363, Constitution Act, also does not apply.

For these reasons, we are of the opinion that the order of the lower Court is correct. It is, therefore, confirmed and the application is dismissed. Each party to bear its own costs.