Judgement

Consolidated Appeals by special leave from two judgments of the High Court, both dated October 18, 1916.

By one judgment appealed from, Abdur Rahim (officiating C.J.), and Ayling and Seshagiri Aiyar JJ., sitting as a Special Bench, under s. 17 of the Indian Press Aet(L, of 1910), dismissed a petition by which the appellant, Annie Besant, prayed for the revision and setting aside (a) of an order made by the Chief Presidency Magistrate of Madras on May 22, 1916, to deposit Rs. 2000 as security in terms of s. 3, sub-s. 1, of the Indian Press Act; and (b) of the forfeiture of the said deposit by a declaration made by the Governor-in-Council by notice dated August 25, 1916, under s. 4, sub-s. 1, of the said Act.

By the other judgment the same Court, in exercise of its ordinary re visional jurisdiction, dismissed a petition by the appellant under s. 107 of the Government of India Act (5 & 6 Geo. 5, c. 61, Imp.), and

s. 435 of the Code of Criminal Procedure (Act V. of 1898), praying for revision of the order of May 22, 1916, above mentioned.

The facts and the relevant statutory enactments appear from the judgment of their Lordships.

The proceedings upon the petition under s. 17 of the Indian Press Act, 1910, are reported at I. L. R. 39 M. 1085, the more material of the extracts from New India which gave rise to the forfeiture being set out at pp. 1090 to 1100. The Court unanimously held that three of the extracts were within the description contained ins. 4, sub-s. 1, clause (c), of the Act, and a majority held that four further extracts were within that clause. It was not contended at the hearing that there was power under s. 17 to review the order of May 22, 1916.

The proceedings upon the separate petition for revision of that order are reported at I. L. R. 39 M. 1164. The judgments of the officiating Chief Justice and Seshagiri Aiyar J. were to the effect that " the magistrate had no power to demand security after having dispensed with it at the time of the declaration," but they were of opinion that in requiring the appellant to give security under the Indian Press Act, s. 3, he was not acting in a judicial but in an administrative or executive capacity. " If an executive or administrative officer acts in excess of his powers, such acts are not liable to be reviewed by the High Court, whether by means of a writ of certiorari or under its ordinary revisional powers. The only remedy open to an aggrieved person in such cases would be by action." Ayling J. held that s. 3, sub-s. 1, " was designed to give the magistrate the fullest discretion both as regards requiring security and determining the amount, and this discretion is to be exercised not once for all, but may be revised from time to time." On the assumption, however, that the opposite view was correct, the learned judge held that the petition was barred by s. 22 of the Act. He added that even if the Court had a discretionary jurisdiction to interfere, it was a question whether the circumstances of the case were such that it should be exercised.

The appellant applied to the High Court for certificates to enable her to appeal from the said judgments to His Majesty in Council, but the High Court refused the application, holding that there was no appeal as of right. The present appeals were preferred by special leave.

1919. Feb. 4, 17, 18, 20 ; March 3, 14. Upjohn K.C., C. R. Christie K.C., and W. Ingram for the appellant. The High Court rightly held that under the Government of India Act, 1915, s. 106, clause 17of its Letters Patent, and the Letters Patent of 1800 constituting the Supreme Court of Madras, it had jurisdiction to issue a writ of certiorari ; although no writ of certiorari has ever been issued by the Madras High Court, other High Courts with similar powers have issued the writ e.g., in Nundo Lal Bose v. Calcutta Corporation. (( 1885) I. L. R. 11 C. 275.) Sect. 22 of the Indian Press Act, 1910, is not sufficiently express in its terms to exclude the re vis