Sukhdeo Choudhury and Others vs Emperor

Shearer, J.—On 11th August 1942, a riotous and disorderly crowd appeared out. side certain premises belonging to the Imperial Tobacco Factory fat Dalsingsarai. This crowd was dispersed by the police, who took certain persons, among them all the petitioners except Sitaram Jha, into custody. Sitaram Jha was arrested immediately after-wards and was sent with the other petitioners to the Court o� the Sub-divisional Magistrate. When they were produced in that Court, a report of the Sub-Inspector of Dalsingsarai was shown to the Sub-divisional Magistrate. This report was in substance, if not in form, a charge-sheet, and the Sub-divisional Magistrate treated it as such and made an order that the petitioners should be brought up for trial next day.

On the following day, however, the Sub-Inspector was unable to attend owing, presumably, to the disturbances, and the petitioners were again remanded. Eventually, they were brought up for trial on 5th October 1942. In the meantime, ordinance 2 of 1942 had come into force and Special Courts had been constituted. The learned Sub-divisional Magistrate made an order transferring the case to a Special Magistrate, Maulavi Mohammad Usman. With the exception of Sitaram, who entered into defence, the petitioners pleaded guilty to charges under Sections 38 and 56, Defence of India Rules. They were convicted and sentenced and subsequently preferred an appeal to the Special Judge of Darbhanga. The latter confirmed the convictions, but, in certain cases, reduced the sentences.

On 4th January 1943, an application was made to this Court, which purports to be an application in revision but is, in effect, an application to this Court to exercise its powers under s, 491, Criminal P. C. The decision of a Full Bench of this Court in Banwari Gope and Others Vs. Emperor, is binding on me and I, therefore, do not discuss it. In view of that decision I am bound to hold, in the first place, that the learned Special Magistrate had no jurisdiction over the petitioners; and in the second place, that, in spite of what is contained in Section 26 of the Ordinance, this Court has power and is bound ex debito justifies to make a direction in the nature of a habeas corpus, although the warrant under which the petitioners are detained is a warrant which has been issued by a Special Magistrate.

The only question, therefore, that arises on the application is as to the proper direction to be made, An application for a writ of habeas corpus or an application u/s 491, Criminal P.C., is a proceeding to determine the right of the subject, on whose behalf the application is made, to his personal liberty.

It is said that the petitioners are at present detained in the camp jail at Patna and no doubt, their detention there as convicts is improper and indeed illegal. But it by no means necessarily or at all follows that they are entitled to be set at liberty. There is a charge against them to which, they have to answer and as all of them except one pleaded guilty to the charge in a Court which at the time, they believed, had jurisdiction to try them, it is clear that there is substance in the charge. What has happened is that the petitioners have been wrongly tried in one Court when they ought to have been tried in another Court. For the delay which has taken place in their being brought to trial the Crown can scarcely be held to be responsible. I have been unable to discover any decision of the Courts in England or India which at all bears on the point at issue, and, very possibly, no such decision exists.

In Bailey on Habeas Corpus, Vol. I, page 125, reference is, however, made to an American case in which, on an application for a writ of habeas corpus by a person who had been convicted and sentenced, it was held that there had been no trial, as the jury by which he was tried did not consist of 12 men. The Court, to which the application was made, did not discharge the prisoner, but remanded him to be held for trial upon the indictment. Clause (e) of Section 491(1), Criminal P.C., enables substantially the same course to be taken in this country.

I would, therefore, direct under that clause that the petitioners be removed from the camp jail at Patna or wherever they may now be detained to the sub-jail at Samastipur and produced forthwith in the Court of the Sub-divisional Magistrate to take their trial. If an application for bail is made to the Sub-divisional Magistrate, the Sub-divisional Magistrate will consider it, having due regard to the provisions contained in Rule 130A, Defence of India Rules.

Meredith, J.

I agree.