Rule 1 of Chapter XXVIII of the Bombay High Court Appellate Side Rules, 1960, which provides for the filing of applications for writs of habeas corpus under Article 226 of the Constitution of India, must be read with the amendment "Article 226 or" before the words "under Section 491 of the Code of Criminal Procedure" in order to understand the real meaning and purpose of placing this Rule in Chapter XXVIII.

DESHMUKH, J.:- These two petitions are filed on behalf of the detenus who have been detained under Section 3 (a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 as amended and both have been detained by the Order of the Central Government. The petition itself contains several prayers like granting a writ of certiorari for caging the records and quashing the order, ore writ of mandamus, but the petitions read as whole are primarily and mainly for the release of the petitioners from custody which is described as a prison. In essence, therefore, these are petitions for a writ of habeas corpus.

2. Such petitions till now were registered by the Office of this Court as criminal applications. The parties also clearly presented them as criminal applications and till the two petitions were so presented as Spl. C. As. they were always numbered as criminal applications. It appears that the understanding, or as is now being styled as misunderstanding, was that such petitions fell under Chapter XXVIII of the Bombay High Court Appellate Side Rules, 1960 and should be marked and registered as criminal applications. It is also supposed that in terms of Rules under that Chapter such applications were to be made to the Division Court taking criminal business of the Appellate Side and accordingly they were being dealt with. When these two petitions were specifically filed as Spl. C. As. and were sought to be moved before a Bench of this Court taking constitutional matters, the question arose whether these petitions should be entertained by that Bench at all or they should be marked as Criminal Applications and directed to be presented before the Bench doing criminal business on the Appellate Side.

3. The parties pointed out that according to them, the prevalent practice was wrong and illegal. They were right in filing the applications as Spl. C. As. They were, therefore, referred to the learned Chief Justice for seeking appropriate orders. After hearing them, the learned Chief Justice passed the following order:

"Per Kantawala, C. J.:-

Spl. C. A. No. 2212 of 1975 and Spl. C. A. No. 2213 of 1975 should be placed before Mr. Justice Deshmukh and Mr. Justice Joshi with liberty to the petitioners or any other party to contend that such matter should be heard by the Division Bench taking Constitutional matters. If the learned Judges accept the contention that they should be heard by a Division Bench taking Constitutional matters, then they will give directions for placing them before such a Bench."

4. Since liberty was reserved in these directions to other parties also to contribute their say in the matter, we put up a notice in the two Bar Rooms, the Original and Appellate Side Bar Rooms, as also on the Board of this Court and accordingly we have heard these petitions. In addition to the learned Counsel representing the parties, Mr. Diwan on behalf of the petitioner in Spl. C. A. No. 1899/75 also appeared and argued.

5. Prima facie the question may look purely technical but we must state that considerable erudition and much more industries were expended by the learned Counsel on both sides to give us sufficient information to find out whether the existing Rules in Chapter XXVIII of the Bombay High Court Appellate Side Rules of 1960 are no more in operation from 1st April, 1974, so as to treat such applications, even though they may appear to be habeas corpus petitions, under Article 226 of the Constitution for being classified as Constitutional matters falling under Chapter XVII of the said Rules. We are really grateful to the learned Counsel who have taken us through not only various decisions of the Indian Courts but also some of the judgments of English and American Courts as also some writers from America.

6. To state very briefly the question raised is this: After the establishment of the High Courts in three different places in this country, it was supposed that the High Courts have inherited the common