TMI Blog1912 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ode should not be passed directing his prosecution for making false statements. On the 1st November 1910, the Divisional Officer passed final orders under Section 476 directing the prosecution of the petitioner. The petitioner made two previous infructuous attempts to avoid prosecution to which it is unnecessary to refer in detail. Criminal Revision Case 509 of 1911 is an application to this Court under Section 435 of the Criminal Procedure Code to set aside the order of the Divisional Officer. 2. The petition is obviously untenable. Under Section 435, this Court has power to call for and examine only the record of a proceeding before an inferior Criminal Court. The Divisional Officer certainly did not act as a Criminal Court in passing the order under Section 476. He apparently acted as a Revenue Court. Whether he was in reality a Revenue Court and had power to pass the proceedings, are questions that will have to be subsequently dealt with. But it is clear that the order was not passed by him as a Criminal Court. The petition must, therefore, be dismissed. 3. Criminal Miscellaneous Petition No. 320 of 1911, is an application asking this Court to quash the proceedings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 9 of 24 and 25 Vic. Chapter 104, known as the High Courts Charter Act; provides that the High Court shall have and exercise all such Civil, Criminal, Admiralty, and Vice-Admiralty Testamentary, Intestate and Matrimonial jurisdiction, original and appellate, and all such powers and authority for, and in relation to, the administration of Justice in the Presidency, as Her Majesty may by Letters. Patent grant and direct, and it further provides that the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts. The old Supreme Court and the Court of Sudder Dewany Adawlut and Foujdarry Adawlat were abolished by the establishment of the High Court (Section 8). Neither the Charter Act nor the Letters Patent of the High Court expressly conferred on it the power to issue a writ of certiorari outside the limits of its original jurisdiction. The question is, whether it has such power under Section 9 of the Charter Act in consequence of its having been possessed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of His Majesty's subjects (that is British subjects) for any crimes, misde-menours and oppressions and also all suits and actions whatsoever against them arising in territories subject to or dependent on the Government of Madras or within any of the dominions of the Native Princes of India in alliance with that Government, or against any person who at the time when the cause of action arose was employed by or was directly or indirectly in the service of the United Company or any British subject. Section 11 enacted that the Recorder's Court should have power to try all suits and actions, either civil or criminal, which by the authority of any Act of Parliament, might at the date of the Act be tried by the Mayor's Court at Madras or by the Courts of Oyer and Terminer and Gaol Delivery there, and all powers vested in the Mayor's Court or the Court of Oyer and Terminer were conferred on the Recorder's Court. Here, again, it will be noted that the jurisdiction of the Court was confined to British subjects, to persons in the employ of the Company or of a British subject within the territories subject to or dependent on the Government of Madras. 8. The jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orthy that under this clause, the Judges are severally appointed as Justices and Conservators of the Peace and Coroners. Clauses 21, 22 and 33 define the jurisdiction of the Supreme Court of Judicature at Madras. It is the Court that possesses the powers conferred under Clauses 21, 22 and 33. Each one of the Judges is a Justice of the Peace and possesses the powers laid down in Clause 8, and the powers consist in the jurisdiction and authority which the Justice of the Court of King's Bench had at the time, apparently as Justices respectively and not the jurisdiction and authority of the Court of King's Bench as such. The Judges of the Court of King's Bench, apart from other powers, had the right to issue a writ of habeas corpus under 21, Car. II, c. 2. Clause 8 may be invoked to prove a similar right existing in the Judges of this Court to issue a writ of habeas corpus to be served on any one anywhere in the territories subject to the Madras Government. It is not contended that the Judges of the Court of King's Bench severally had the power to issue a writ of certiorari. either under the Common Law of England or under any Statute. I cannot hold that Clause 8 widens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92, understood this provision as laying down that the Court was to be a Court of Judicature for the Presidency of Bengal as well as a Court of Record and Oyer and Terminer for the town of Calcutta Sections 14 and 17 of the same Statute defined the Civil and Criminal jurisdiction of the Court which were to extend only to British subjects and persons employed in the service of the Company or of British subjects and to others who had agreed that any matter should be determined by the Supreme Court. The question before the learned Judge was the right of the Supreme Court to issue a writ of habeas corpus for the production of a person confined beyond the limits of Calcutta. The learned Judge proceeded chiefly an Section 4 of the Letters Patent of the Bengal Supreme Court, corresponding to Clause 8 of the Letters Patent of the Madras Court, for holding that the Supreme Court had power to issue the writ. If the learned Judge intended to hold that Section 13 of the Statute conferred powers to try suits and appeals throughout Bengal, Behar and Orissa, I am, with all deference, inclined to disagree with him. No clause in the Letters Patent gave the Supreme Court any appellate powers over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a Superior Court can be limited or taken away only by some express provision to that effect. I am, however, satisfied, on an examination of the Statutes relating to the subject, that the Supreme Court did not possess the power to issue the writ on any one beyond the limits of Madras, unless he was a British subject. The jurisdiction, over British subjects outside Madras and persons in the employ of the East India Company or of British subjects to hear and determine civil and criminal cases against them, would not affect the power to issue the writ. The Supreme Court had no general power or control over the Courts of the East India Company in the Moffusil or over their officers acting judicially. I believe this proposition would be correct even in cases where the officers exercising jurisdiction might be British subjects. The Divisional officer in this case is not a British subject in the sense in which that expression is used in the Letters Patent of the Supreme Court nor can he come within the designation of one in the employ of the East India Company. It cannot be held that, because the Supreme Court had jurisdiction over all servants of the East India Company, the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of torts and that, therefore, whether a Jailor were a Native or a European, if he had the character of a servant of the East India Company, the Court would have jurisdiction over his wrongful act of unlawful imprisonment. He went on to observe: This Court, though it has an appellate jurisdiction from the Courts of the Company to a limited extent in certain classes of offences committed by British subjects, has no jurisdiction generally over those Courts. It has, therefore, no power to rectify a decision, if erroneous, or avert its consequences. Nor is a writ of habeas corpus the proper writ to rectify errors: it brings up the person only: a certiorari must issue in addition thereto in order to bring up documents, but this Court has no power to bring up by certiorari the proceedings of a Court of the East India Company generally: it follows, therefore, that we can interfere only in the case where the proceeding is wholly without a judicial foundation to support it, as it would be if the Court had no jurisdiction to try the subject-matter. But the Judge had jurisdiction of the cause: he had jurisdiction to summon the alleged offender: he could not know beforehand that the offende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ of habeas corpus to the gaoler or officer of a Native Court (referring to a Court established by the East India Company) as such officer, the Supreme Court having no power to discharge persons imprisoned under the authority of a Native Court, 13. The precedents referred to above are, in my opinion, against the contention of the petitioner's Counsel that the Supreme Court had jurisdiction to issue the writ on an officer of the East India Company acting judicially beyond the limits of Madras. It is not contended that the application could be supported under Section 15 of 24 and 25, Vic, c. 104 (the Charter Act), which lays down that the High Court shall have superintendence over all Courts which may be subject to its appellate jurisdiction. Assuming that the Divisional Officer was a Court, he can hardly be said to have been a Court subject to the appellate jurisdiction of this Court. Dr. Swaminadhan, the learned Counsel for the petitioner, argued that a Superior Court like this Court has inherent jurisdiction to issue a writ to quash all proceedings of a judicial nature where so ever, and by whomsoever held within the ambit of its jurisdiction. He cited no authority i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act II of 1886.) In In re Kalidas Rewadas 8 Bom. L.R. 477 : 4 Cri. L.J. 34, the Bombay High Court held that an Income Tax Collector determining appeals against the assessment was not a Court and that the High Court had no power to interfere in revision with an order passed by him under Section 476 of the Criminal Procedure Code. The Punjab Chief Court has held the contrary view; see Emperor v. Rup Singh 3 Cri. L.J. 128 : 187 P.L.R. 1905 : 44 P.R. 1905 : and the majority of the Chief Court of Sindh also has done so. See Emperor v. Deumal 10 Cri. L.J. 395 : 3 Ind. Cas. 886 : 3 S.L.R. 66. What then is the test for deciding whether the Divisional Officer acted as, a Court or not? In Naloo Patra v. Emperor 38 C.p 368 : 11 Ind. Cas. 595 the proceedings of a Deputy Collector under the Land Registration Act, in an application for the registry of the applicant's name as proprietor, were held to be proceedings of a Court. The learned Judges, Holmwood and Shraffuddin JJ., would appear to have held that the circumstance that the Collector had power to summon and enforce the attendance of witnesses and compel them to give evidence and also compel the production of documents went to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Public Prosecutor's contention cannot be sustained. Abdul Raoof v. Emperor 4 A.L.J. 701 : (1907) A.W.N. 277 : 6 Cri. L.J. 350 no doubt, appears to support it, but I am unable to agree with the view taken in that case. It is not pointed out under what provision of law, the Revenue Board would have power to set aside the Divisional Officer's order. I do not think that the mere fact that the Divisional Officer was subordinate to the Revenue Board, in the discharge of his functions as a Revenue Officer, generally could be taken to give any revisional jurisdiction to the Revenue Board. It might be that, if instead of acting under Section 476, he had accorded sanction under Section 195 of the Criminal Procedure Code, such an order could have been set aside by the Revenue Board as the authority to whom he was subject in the discharge of his functions as an Income Tax Officer. But it does not follow that they had any jurisdiction to set aside an order passed under Section 476. I cannot, therefore, hold that the objection to the petition on the ground that there was other remedy open to the petitioner can b8 sustained, if this Court would otherwise have the power to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot one in which we should quash the order of the Divisional Officer. 17. I would, therefore, dismiss the petition. T. Sadasiva Iyer, J. 18. In this case, I have had the great advantage of having perused the exhaustive judgment of my learned brother. So far as the Revision Case No. 509 of 1911 is concerned, I need say nothing more than that I agree with my learned brother for the reasons stated by him that that case ought to be dismissed. The other Criminal Petition No. 320 of 1911, which relates to the application under which a writ of certiorari has been issued, involves several difficult questions of law on which I shall proceed to express my opinions at once. 19. As formulated in my learned brother's judgment, the questions for decision are: (1) Has this Court jurisdiction to issue a writ of certiorari on an officer beyond the limits of its original jurisdiction? (2) Was the Divisional Officer a Court in hearing appeals under the Income Tax Act? (3) If he was a Court, should the petitioner have applied to the Revenue Board to get the Divisional Officer's order set aside? (4) Was the order of the Divisional Officer had for want of jurisdiction on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Governor-General to inquire into the truth of a charge against the Maharaja of Panna that, he had instigated the death of his uncle and who had convicted the Maharaja of such offence, were held by their Lordships of the Privy Council not to come within the meaning of the term 'Court' because the Commission was appointed merely to advise the Governor-General in Council. But it appears from the short judgment of Lord Davey in that case that their Lordships added that even if the Commission in question was a Court, it was not a Court from which an appeal lay to His Majesty in Council. The expression 'Civil Criminal or Revenue 'Court,' in Section 476 of the Criminal Procedure Code, cannot, of course, include a private Court of Arbitration or Commissioners who are merely empowered to take evidence, but it must include a tribunal like the Court of a District Munsif which has ordinarily power to give decisions as to rights of parties coming before it, though in particular cases as for example, where another Court has sent a Commission to the District Munsif merely to take evidence, or where' an Appellate Court directs it to take evidence and send the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .J. 41. On the 5th question whether this is a fit case for the exercise of our discretion to grant a writ of certiorari, assuming that we have jurisdiction to do so, the petitioner can take all objections as to the alleged illegality of the Divisional Officer's action under Section 476 before the Criminal Court, which is trying him for the offence of perjury and I am not inclined to encourage technical objections which are merely intended to prevent the Courts from going into the merits of the question, whether the petitioner did or did not commit perjury in the statements he gave before the Revenue Court. The only question remaining for disposal, which I have reserved till the end as one of great difficulty, is whether the High Court has got power to issue a writ of certiorari on an officer performing judicial duties in the Mofussil. The statutes on this point have been referred to in the judgment of my learned brother and I do not intend to refer to all of them. That the High Court has inherited all the powers of the Supreme Court seems to be clear law. The Letters Patent of Supreme Court, Clause 8, clearly says that the Chief Justice and the Puisne Judges have such jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be, to hear particular matters within the jurisdiction of the Supreme Court. The writ of habeas corpus, when it is issued by a single Judge or a Bench of Judges, is issued because the Judge or Judges form the Court for that particular matter and I am, therefore, clear that the writ of certiorari cannot be put on a different footing from the writ of habeas corpus; and if the writ of habeas corpus can issue into the Mofussil by the powers vested in the Supreme Court (and inherited by the High Court) under Clause 8 of the Supreme Court Letters Patent, the writ of certiorari can also run in the Mofussil under the same powers. The power of the King's Bench to issue writs of habeas corpus and certiorari were not given by any Statute, for the first time but belonged to them as representing the high prerogative powers of the King. The Habeas Corpus Act 31 Charles II, Chapter 2, did not create the power in the Court of the King's Bench for the first time and, as Norman, J., remarked during the course of the argument in Ameer Khan's case 6 B.L.R. 392, the Statute assumes the power of the Judges to issue writs of habeas corpus at Common Law. The Court of King's Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , provided that they are not issued so as to affect Courts. The fixing of the Civil, Criminal and other jurisdiction of the Supreme Court and habitants, who do not owe undivided allegiance to the British Crown by Clauses 21, 22, 33, 34, of the Letters Patent, cannot, in my opinion, limit the powers given by Clause 8. I think that the power to issue these high prerogative writs in the Indian Dominions of His Majesty must inhere in some Courts of record and Clause 8 of the Letters Patent for Madras and Clause 4 of the Letters Patent for Bengal and similar clauses in the Letters Patent of the other High Courts must have been intended to give such powers to the High Courts in India, the King's Bench in England being deprived, of the power to issue writ of habeas corpus in the dominions of India by 25 and 26 Victoria, Chapter 20, when the Supreme Courts were established in the Indian Dominions. As said in Peacock v. Bell (1679) 1 Willi Saun 74 nothing shall be intended to be out of the jurisdiction of the Superior Court except that which especially appears to be so. If the right to issue writs of certiorari into the Mofussil in appropriate cases, did not reside in the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1836) Fulton's Rep. 313 : 1 Ind. Dec. 828, and In re Somuel Valentin Foy. (1850) 1 Tay. Bell. 219 : 2 Ind. Dec.(o.s.) 396, all depend upon the question whether the Supreme Court had any kind of jurisdiction over the Courts established by the East India Company in the Mofussil and the officers of the Company's Courts, the powers of the East India Company being regulated by their own special statutes and charters which gave them power to establish Courts in the Mofussil as regards the Company's subjects, who were not even considered as British subjects owing direct allegiance to the Crown. British Laws did not run in the Company's Mofussil Territory. The Company obtained varying rights over scattered factories from various Native Princes and the Company's Courts countenanced slavery and the Company's native subjects in the Mofussil were not even British Subjects. Till direct allegiance to the Crown was established and the Mofussil Courts became the Courts of the Crown just like the High Court, instead of having been the Courts of the East India Company, the Supreme Court had clearly no right to issue writs of certiorari in respect, of Mofussil, Courts, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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