Govinda Menon, J.-Sri Pillalamarri Venkateswarlu, M.L.A., was a member of the Madras Legislative Assembly constituted under the Government of India Act, 1935, having been elected to that body, by the general labour constituency of the districts of Krishna, Guntur and West Godavari in the General Elections held in or about March, 1946. He continued to represent this constituency in the Madras Legislature until he was arrested in pursuance of an order issued under the provisions of the Madras Maintenance of Public Order Act. He was arrested on 7th November, 1948, subsequent to the declaration as illegal, of the communist party, of which he was avowedly an active member. Since that date, it is stated by him in his affidavit, that he has been in illegal detention in the Central Jail at Cuddalore.

By Article 382 of the Indian Constitution until the Houses of the Legislature of each State specified in Part A of the first schedule have been duly constituted and summoned to meet for the first session under the provisions of the Constitution the Houses of the Legislature of the corresponding Province functioning immediately before the commencement of the Constitution shall exercise the powers and perform the duties conferred by the provisions of the Constitution of the Houses of the Legislature of such State. Therefore it is clear that subsequent to the inauguration of the Republic of India, on 26th January this year, that body which functioned prior to that date as the Legislative Assembly of the Province of Madras ipso facto on the strength of Article 382 continues to be one of the Houses of the Legislature for the State of Madras. It is, therefore, evident that every member of that Legislative Assembly straightaway became a member of the new Houses of the Legislature, and as such Sri Venkateswarlu who was a member of the previous Legislative Assembly became on the 26th, and continues to be thereafter, a member of the Madras Legislative Assembly. This fact cannot, and is not disputed for the reason that in his affidavit Sri Venkateswarlu states that he has received a notice dated 31st January, 1950, setting out the agenda for the Madras State Legislative Assembly from nth February, 1950, till 13th February, 1950, and issued by the Secretary of the Madras Legislature. This notice summons Sri Venkateswarlu to attend the meeting of the Legislature on nth February, 1950. But it is alleged that on account of his detention he is not in a position to attend the Legislature and therefore applies to this Court under Article 226 of the Constitution of India for an order directing him to be released from the unlawful custody or at least for a direction that he may be allowed to attend the Legislature after taking whatever precautions that may be necessary in the circumstances of the case.

This application was made on the 21st July, 1949, and the reasons alleged at that time were that his detention under the Madras Maintenance of Public Order Act, in force then, was illegal and that he was entitled to be released forthwith. As the same could not be disposed of until the 26th January, a fresh petition Crl. M.P. No. 305 of 1950, was filed setting forth additional grounds as well, and stating that the earlier application should be expedited. We, therefore, directed that Crl. M.P.No. 2059 of 1949 be expedited and heard. Though the original application was under section 491 of the Criminal Procedure Code, we are invited to dispose of it under the powers conferred on this Court under Article 226 of the Constitution of India as the latter provision has superseded all provisions of the Criminal Procedure Code which gave power and authority to the High Court to issue writs in the nature of habeas corpus.

The chief ground on which we are asked to release the petitioner is that as a member of the Madras Legislative Assembly he enjoys the privileges, rights and immunities which a member of the House of Commons of the United Kingdom enjoys in accordance with th

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