TMI Blog1950 (10) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 : A. I. R. 1948 Bom 826: 49 Cri. L. J. 460 , such a review application would not lie. A further application is made by the petitioner that although a review may not lie it is the right of the petitioner to make an application for a writ of habeas corpus under Article 226 of the Constitution to successive Judges of this Court, and in pursuance of that right he is entitled to be heard by Judges other than Judges who made the order. 2. A very able argument has been advanced before us by Mr. Sule which deserves very careful consideration at our hands. It is argued that although under Section 491 successive applications may not be permissible to a petitioner, Article 226 of the Constitution enhances the rights of the citizen and under that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to issuing writs in the nature of habeas corpus. It has been given the power to issue any direction, any order, or any writ for the purpose of enforcing fundamental rights, and it seems to us that Mr. Sule is right to the extent that the High Court may think it necessary to issue the common law writ of habeas corpus for the enforcement of fundamental rights it has been given that power notwithstanding the fact that that power may be outside Section 491 and may be wider than the power conferred under that section. 8. It is next contended that the right to approach by successive applications different Judges of the High Court, is a right which is a substantial light and a part of the right which a citizen in England enjoys under the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il in Eshugbayi Eleko v. Government of Nigeria (1928) A. C. 459 : A.I.R. 1928 P. c. 300 : 30 Cri. L. J. 113. That was an appeal from the Supreme Court of Nigeria and the Acting Chief Justice of the Supreme Court had refused to issue a writ of habeas corpus on the ground that the detention of the applicant was lawful. The applicant then gave a fresh notice of motion in the Supreme Court to the same effect before another Judge of that Court, and that Judge dismissed the application holding that such an application did not lie. There was an appeal to the Full Court and that Court also dismissed the application. It was under these circumstances that the Privy Council came to consider what the rights of the applicant were. The Privy Council cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Lordships and deducing the ratio of that judgment, that their Lordships came to the conclusion that a citizen of Nigeria had the right to move every Judge of the Supreme Court on the ground that every Judge of that Court constituted a Court or tribunal for the purpose of issuing a writ of habeas corpus and that each Judge of that Court had the jurisdiction so to issue a writ. 5. Now turning to the position in India, orders under Section 491 are passed by the High Court of Bombay. It is true that the High Court acts through a Judge or Judges nominated by the Chief Justice for that purpose, and although an application under Section 491 may be heard by a Division Bench of this Court the judgment that it ultimately pronounces is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the High Court to the contrary. When one analyses the situation, the effect of the argument of the applicant comes to this that the decision of the High Court on an application for a writ for the enforcement of the fundamental rights under Article 226 is subject to review by the High Court. It is clear that no Court has an inherent power of review. A power of review like a power of appeal must be conferred by statute. As far as the Criminal Procedure Code is concerned, no power of review is given to the High Court in criminal matters, and there is nothing in Article 226 which would induce an to hold that the constitution has conferred a power upon the High Court of review in matters falling under that article. The reason why no pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court, it is not as if the Constitution does not provide other remedies to the citizen. He has a right, an independent right, to approach the Supreme Court under Article 32. The powers of the High Court and the Supreme Court in this respect are concurrent, and notwithstanding the refusal of the High Court to enforce the fundamental rights of the citizen, he can approach the Supreme Court in its primary jurisdiction. Apart from that there is a right of appeal given to the citizen from an order of refusal of the High Court to enforce his fundamental rights. He has the right to ask the Supreme Court to grant him special leave to appeal under Article 186. Therefore it is not as if the citizen is without a remedy in the event of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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