Judgement

Appeal (No.44 of 1944) by the Crown, by leave of the Federal Court, from a judgment of that Court (Spens C.J., Varadachariar and Zafrulla Khan JJ) (August 31, 1943) dismissing eight appeals by the Crown against, orders and judgments of the High Court at Calcutta (June 3, 1943).

The orders and judgments of the High Court were made and delivered in respect of applications in the nature of habeas corpus proceedings made under s. 491 of the Criminal Procedure Code on behalf of nine persons, eight of whom were originally the respondents to this appeal, detained in various jails in pursuance of orders made under r. 26 of the Defence of India Rules on various dates between October 24, 1940, and March 8, 1943. The applications to the High Court were made on April 24, 1943, two days after the Federal Court in its judgment in Keshav Talpade v. King-Emperor (1) had declared that r. 26 was ultra vires of s.2, sub-s, 2 (x), of the Defence of India Act, 1939.

The main points for determination in this appeal were (a) whether the appeals from the High Court to the Federal Court and from the latter to His Majesty in Council were competent; (b) whether Talpades case ([ 1943] F. C. R. 49.) was rightly decided; (c) whether the orders for the detention of the respondents had been validly made in conformity with the provisions of r. 26; and (d) whether the courts were precluded from investigating the validity of the orders of detention.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

1945. Apr. 16, 18, 23, 24, 25, 26, 30; May 1. Pritt K.C. and Krishna Menon, for the respondents, at the request of the Board, argued first the question of the competency of the appeals from the High Court to the Federal Court. It is well settled that an order directing discharge under a writ of habeas corpus is not appealable in England, and though the position in India has been crystallized into the statute law relating to habeas corpus in India, it is in essence the same as that in England, and, applying that law, on the authorities the decision of the High Court was not appealable to the Federal Court. So even if the Board were to give special leave to appeal now in this case, the difficulty would still be whether the Federal Court itself had jurisdiction. In Cox v. Hakes (( 1890) 15 App. Cas. 506, 535.) it was held that no appeal lay to the Court of Appeal under s. 19 of the Judicature Act, 1873, from an order discharging a prisoner under a habeas corpus, and in Secretary of State for Home Affairs v. OBrien ([ 1923] A. C. 603, 621.), Lord Dunedin said that " when " once a person has been held entitled to liberty by a competent " court there shall be no further question." [Reference was also made to Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government ([ 1943] A. C. 147, 155.) and Benson v. Northern Ireland Road Transport Board ([ 1942] A. C. 520, 526.), where Viscount Simon L.C. referred to Reg. v. Tyrone County Justices (( 1906) 40 Ir. L. T. 181.) where Palles C.B. said that " before you can appeal against an acquittal, the " words must be clear, express, and free from any ambiguity."] We did take with us to India, broadly speaking, fundamental principles as to personal liberty and habeas corpus, and while it is open to the Indian Legislature to grant appeals against acquittals and to confine habeas corpus to a particular section of the Criminal Procedure Code, that does not alter the fact that the fundamental principles are there. The Indian position is the same in the end as that in England. To all intents and purposes the whole of the law of habeas corpus in British India, civil or criminal, is now contained within s. 491 of the Code of Criminal Procedure, and on the authorities what is called habeas corpus is exactly habeas corpus that we took out with us—s. 491 is the same habeas corpus in spirit and in essence; it did not lose its nature by getting a new coat Girindra Na